Volume I

Document Sample
Volume I Powered By Docstoc
					                                                 EG (2009) 3


                                                   Volume I




LEGISLATION IN THE MEMBER STATES
OF THE COUNCIL OF EUROPE
IN THE FIELD OF VIOLENCE AGAINST WOMEN

VOLUME I: ARMENIA to LITHUANIA



                     STRASBOURG, DECEMBER 2009




               http://www.coe.int/equality
                                                                  EG (2009) 3
                                                                    Volume I




LEGISLATION IN THE MEMBER STATES OF THE COUNCIL OF EUROPE
IN THE FIELD OF VIOLENCE AGAINST WOMEN



VOLUME I: ARMENIA TO LITHUANIA




          Directorate General of Human Rights and Legal Affairs
                       Strasbourg, December 2009
Gender Equality Division
Directorate General of Human Rights and Legal Affairs
Council of Europe
F-67075 Strasbourg Cedex
                                                                                                                                                              5




                                                 TABLE OF CONTENTS


Foreword.................................................................................................................................................. 7
Armenia ................................................................................................................................................... 9
Bosnia and Herzegovina ....................................................................................................................... 17
Croatia ................................................................................................................................................... 51
Cyprus ................................................................................................................................................... 77
Czech Republic ..................................................................................................................................... 87
Denmark .............................................................................................................................................. 101
Estonia................................................................................................................................................. 109
Georgia ................................................................................................................................................ 117
Germany .............................................................................................................................................. 127
Greece ................................................................................................................................................. 139
Iceland ................................................................................................................................................. 147
Italy ...................................................................................................................................................... 155
Liechtenstein ....................................................................................................................................... 169
Lithuania .............................................................................................................................................. 177
                                                                                                     7




                                           FOREWORD

In 1995, the Group of Specialists on combating violence against women (EG-S-VL), working under the
auspices of the Steering Committee for equality between women and men (CDEG) of the Council of
Europe, decided to entrust a consultant (Ms Jill RADFORD, United Kingdom) with the preparation of a
comparative study of the legislation in the member states of the Council of Europe in the field of
violence against women.
A questionnaire was sent to all member states to obtain the relevant information. A draft analytical
study was based on the answers to this questionnaire by Ms Jill Radford and submitted to the CDEG
in 1997 together with the report of the Group of Specialists. This study was, however, never published
for wide distribution as many member states had not answered the questionnaire and the information
was considered incomplete. The CDEG also felt that it was very difficult to produce any meaningful
comparisons between countries. Therefore, it was decided, instead of producing an analytical report,
to gather as much information as possible from as many countries as possible on their legislation in
the field of violence against women.
The present document contains a country-by-country compendium which was updated for the last time
in early 2007. As of October 2009, updated information on national legislation on violence against
women has been received from 30 of the 47 member states. In order to make the document easier to
read, a similar presentation is used for all countries. This presentation is based on the questionnaire
as it appears in the appendix and which, since its revision in 2006, no longer contains questions on
trafficking in human beings.
This publication is intended for all those who work towards combating violence against women.
ARMENIA                                                                                                 9




                                             ARMENIA


Information provided by the Ministry of Labour and Social Issues in September 2006 and updated in
October 2009.
There have been made no changes in the legislation and sanctions relating to violence against women
since 2006 when the last update was provided, according to which cases of domestic violence are
addressed under the below mentioned Articles of the RA Criminal Code.
By now an interagency working group has drafted the RA Law “On Domestic Violence”, which intends
to comprehensively regulate relations connected with domestic violence, specifies the conception and
bodies with authorisation in the issues of domestic violence, it especially envisages preventive
measures unlike the Criminal Code which can only be applied after violence has already been
committed.


1.0        LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
1.1        LETTER OF LAW – DEFINITIONS
See below.

1.2        DOMESTIC VIOLENCE
The legislation of the Republic of Armenia does not include provisions directly referring to domestic
violence. The majority of cases of domestic violence are addressed under the Articles of the Criminal
Code of the Republic of Armenia on assault and hooliganism of criminal nature. Articles referring to
assault, instead of the nature of the assault, are almost exclusively based on the severity of the injury.

          CRIMINAL CODE OF THE REPUBLIC OF ARMENIA
Domestic assault is mainly punished in accordance with the following Articles:

Article 105 – Murder in the state of strong temporary insanity
1. The murder committed in the state of suddenly arising depression caused by regular illegal and
immoral behavior of the aggrieved as well as the murder committed in the state of sudden insanity
caused by the violence, mockery, heavy insults or other illegal, immoral actions (inaction) of the
aggrieved, is punished with imprisonment for the term of up to 4 years.
2. Murder of two or more persons in the state of strong insanity, is punished with imprisonment for the
term of up to 6 years.

Article 109 – Causing death by negligence
1. Causing death by negligence is punished with imprisonment for the term of up to 3 years.
2. Causing death by negligence to two or more people is punished with imprisonment for the term of
up to 5 years.

Article 110 – Causing somebody to commit suicide
1. Causing somebody to commit suicide or make an attempt at a suicide by indirect wilfulness or by
negligence, by means of threat, cruel treatment or regular humiliation of one’s dignity is punished with
imprisonment for the term of up to 3 years.
10                                                                                               ARMENIA




2. Perpetration of the same action against a person in financial or other dependence of the criminal is
punishable with the imprisonment for the period up to 5 years.

Article 112 – Intentional serious or heavy damage to health
Which has caused serious health disorders and is dangerous for life, or has caused loss of eye-sight,
speech, hearing or loss of functions of other organs, or was manifested in irreversible ugliness on
face, as well as caused other damage dangerous for life or caused disorder, accompanied with the
stable loss of no less than one third of the capacity for work, or with complete loss of the professional
capacity for work obvious for the perpetrator, or caused disruption of pregnancy, mental illness, drug
or toxic addition, is punished with imprisonment for the term of 3 to 7 years.
The same act, committed:
1. against two or more persons;
2. against a person and his/her close relatives, concerned with this duty or carrying out one’s public
    duty;
3. in relation to the person or his relatives, concerned with his duty or carrying out one’s public duty;
4. with particular cruelty;
5. by a means dangerous to many people’s lives;
6. by a group of persons, by an organised group;
7. with profit motives;
8. accompanied with terrorism;
9. with hooligan motives;
10. to conceal another crime or facilitate its committal;
11. accompanied with rape or violent sexual acts;
12. with motives of national, racial or religious hatred or religious fanaticism;
13.     with the purpose of using the parts of the body or tissues of the aggrieved;
14. if caused the death of the aggrieved by negligence;
is punished with imprisonment for the term of 5 to 10 years.

Article 113 – Infliction of intentional medium-gravity damage to health
Which is not dangerous for life and did not cause consequences envisaged in Article 112 of this Code,
but caused protracted health disorder or significant stable loss of no less than one third of the capacity
to work, is punished with detention for the term of 1 to 3 months or imprisonment for the term of up to
3 years (milder compared to the previous Criminal Code of RA).
Perpetration of the same actions:
1. in relation to two or more persons;
2. against a person and her/his close relatives, concerned with this duty or carrying out one’s public
    duty;
3. by a group of people, by an organised group;
4. with mercenary motives;
5. in especially heinous way;
6. with hooligan inducement;
7. with national, racist or religious abhorrence or religious fanatic motivation
are punishable by 5 years of imprisonment.

Article 114 – Medium or serious injury to health in the state of temporary insanity
1. Medium injury to health committed in the state of protracted depression caused by regular illegal
and immoral behaviour of the aggrieved as well as committed in the state of sudden affect caused by
the violence, mockery, heavy insults or other illegal, immoral actions (inaction) of the aggrieved, is
punished with correctional works up to 1 year, or with detention for the term of up to 2 months, or with
imprisonment up to 2 years.
2. Infliction of grave damage to someone else’s health which was committed in the circumstances
mentioned in section one of this Article, is punished with detention for 2-3 months, or imprisonment for
the term up to 3 years.
ARMENIA                                                                                               11



Article 116 – Serious or medium injury where the limits of necessary defence are exceeded
The medium injury where the limits of necessary defence are exceeded is punishable by correctional
works up to 1 year or by detention for a period of up to 2 months or by imprisonment up to 1 year.
The serious injury where the limits of necessary defence are exceeded is punished with correctional
works up to 2 years or by detention for the term of 1 to 3 months or by imprisonment up to 2 years.

Article 117 – Infliction of intentional light damage to health
Infliction of an intentional bodily injury or other damage to health which caused short-term health
disorder or insignificant long lasting loss of the capacity to work is punished with a fine in the amount
of 50 to 100 times of the minimum wage, or with detention for up to 2 months.

Article 118 – Beating
Beating or other brutal actions, that haven’t caused consequences predicted by the Article 117
(Intentional serious injury) of the same Criminal Code, is punished either by the fine in the amount of
up to 100 established minimum salary or by correctional works up to 1 year, or by detention up to 2
months (comparing to the previous Criminal Code facilitated).

Article 119 – Torture
Torture, deliberate striking or beating, as well as other violent acts that result in physical pain,
intentionally hitting or beating, in case when these actions haven’t caused consequences predicted by
the Articles 112 (Intentional serious injury) and 113 (Intentional medium injury) of the same Criminal
Code, is punishable by imprisonment for the period of up to 3 years.
Perpetration of the same crime:
The same actions, committed:
1. in relation to 2 or more persons;
2. in relation to the person or his relatives, concerned with this person in the line of duty or carrying
   out one’s public duty;
3. in relation to a minor or a person dependent financially or otherwise on the perpetrator, as well as,
   in relation to a kidnapped person or hostage;
4. in relation to a pregnant woman;
5. by a group of people or by an organised group;
6. in most heinous way;
7. with national, racist or religious abhorrence or religious fanatic motivation is punishable by
   imprisonment for the period of 3 to 7 years.

Article 120 – Accidental serious injury
Is punished either by the fine in the size of 200 times the minimal wage or by correctional works up to
1 year or by detention for the term of 1 to 2 months.
Inflicting grave damage through negligence to 2 or more persons is punished with a fine in the
amount of 100 to 200 times of the minimum wage, or with imprisonment for the term of up to 2 years.

Article 121 – Accidental medium injury
Is punished either by the fine in the size of 50-100 times the established minimal salary or by
correctional works up to 1 year or by the detention for a period of up to 2 months.
Inflicting medium-gravity damage through negligence to 2 or more persons is punished with a fine in
the amount of 100 to 200 times of the minimum wage, or with imprisonment for the term of up to 1
year.

Article 258 – Hooliganism
1. Hooliganism is brutal violation of public order which is manifested in express disrespect for the
public, is punished with a fine in the amount of up to 50 times of the minimum wage, or with detention
for the term of up to 1 month.
12                                                                                              ARMENIA




2. The same action accompanied with violence in relation to individuals or such threat, as well as,
destruction or damage of someone else’s property, is punished with a fine in the amount of 100 to 300
times of the minimum wage, or with detention for the term of 1to 3 months, or with imprisonment for
the term of up to 2 years.
3.      The action predicted by the first or second parts of the same Article
1)       committed by a group of people or by the organised criminal group;
2)       by offering resistance to a representative of authorities, or a person carrying out a duty of
public order protection or a person preventing breach of public order;
3)       or by a person who has previously committed hooliganism or other crimes predicted by
Articles 104 (Murder) and 112 (Intentional serious injury) of the same Criminal Code;
4)       accompanied with middle health injury;
is punishable by correctional works for the period of 1 to 2 years or by imprisonment up to 5 years.
5)       accompanied by an exceptional cynicism, is punished with a fine in the amount of 200 to 500
times of the minimum wage, or with imprisonment for the term of up to 5 years.
4.       The action predicted by the first or second parts of the same Article, which is committed with a
weapon or another item used as a weapon, is punished by imprisonment for the period of 4 to 7 years.

1.3      RAPE/SEXUAL ASSAULT

        CRIMINAL CODE

Article 138 – Rape
1. Rape, sexual intercourse of a man with a woman against her will, using violence against the latter
or some other person, with threat or taking advantage of the helpless condition of the victime is
punishable by 3 to 6 years of imprisonment.
2. Rape which is committed:
1)      by a group of people;
2)      in especially heinous way against the victim;
3)      against the minor;
4)      has caused accidental death of the victim or other serious consequences;
5)      by a person who has previously convicted under the Articles 138 (Violent sexual actions) and
139 Articles of this Criminal Code;
is punished with the penalty of imprisonment for a period of 4 to 10 years.
3. The action predicted by the first or second parts of the same Article, which has been committed
against a person under age of 14 is punished with the imprisonment for the term of 8 to 15 years.

Article 139 – Violent sexual actions
Homosexual, lesbian actions or other violent sexual actions executed against the will of the victim or
taking advantage of the helpless condition of the latter is punished by 3 to 6 years of imprisonment.
The same actions that:
1.      have been committed by a group of people
2.      have been perpetrated in especially heinous way against the victim
3.      against minors
4.      have caused an accidental death of the victim or other serious consequences
5.              have been committed by the person who previously was convicted under Articles 138
(Rape) and 139 (Violent sexual actions) of the same Criminal code are punishable by the
imprisonment for the period of 4 to 10 years.
The action predicted by the first or second parts of the same Article, which is committed against the
person under age of fourteen years is punished by 8 to 15 years of imprisonment.
ARMENIA                                                                                                 13



Article 140 – Compelling a person to sexual action
Forcing a person into sexual intercourse, homosexuality, or other sexual actions, by means of
blackmail, threats to destroy, damage or seize property, or using the financial or other dependence of
the aggrieved, is punished with a fine in the amount of 200 to 300 times of the minimum wage, or with
imprisonment for the term of 1 to 3 years. (Milder compared to the previous Criminal Code of RA).

1.4       CHILD SEXUAL ABUSE/INCEST

Article 138 – Rape
Rape, which:
1. was committed by a group of persons,
2. was committed against the aggrieved or other person with particular cruelty,
3. was committed against a minor,
4. has caused the death of the aggrieved or heavy consequences, by negligence,
5. was committed by a person who had previously committed crimes under Articles 138 and 139 of
   this Code
is punished with imprisonment for the term of 4 to 10 years.

Article 139 – Violent sexual acts
The same actions:
1. committed by a group of persons,
2. committed against the aggrieved or other person with particular cruelty,
3. committed against a minor,
4. have caused the death of the aggrieved or heavy consequences, by negligence,
5. committed by a person who had previously committed crimes under Articles 138 and 139 of this
   Code
are punished with imprisonment for the term of 4 to 10 years.

Article 141 – Sexual acts with a person under 16
Committing of sexual actions with a person under 16 in case of absence of the criminal actions
predicted by 138 (Rape), 139 (Violent sexual actions) or 140 (Compelling a person to sexual actions)
Articles of the same Criminal Code is punished by the correctional works up to 2 years, or by
imprisonment for a period of up to 2 years (comparing to the previous Criminal Code facilitated).

Article 142 – Lecherous acts
1. Lecherous acts with a person obviously under 16 years of age, in the absence of elements of crime
envisaged in Article 140 or 141, is punished with a fine in the amount of 200 to 400 time of the
minimum wage, or with imprisonment for up to 2 years.
2. The acts envisaged in section 1 of this Article committed with violence or the threat thereof, are
punished with imprisonment for up to 3 years.

1.5       SEXUAL HARRASSMENT
No information available.

1.6       PORNOGRAPHY

Article 263
1. Illegal dissemination, advertising, sale, as well as manufacturing of pornographic materials or items,
including printed publications, films and videos, images or other pornographic objects, is punished with
a fine in the amount of 200 to 400 times of the minimum wage, or with detention for the term of up to 2
months, or with imprisonment for the term of up to 2 years.
2. Forcing minors to get involved in creation of software, video or film materials, pictures or other items
of pornographic nature, as well as presenting children's pornography through computer network, is
14                                                                                                  ARMENIA




punished with a fine in the amount of 400 to 800 of the minimum wage, or with detention for the term
of up to 3 months, or with imprisonment for the term of up to 3 years.
3. The same act committed by an organized group, is punished with imprisonment for 2 to 4 years.

1.7      PROSTITUTION

        CRIMINAL CODE OF THE REPUBLIC OF ARMENIA

Article 261 – “Involvement in Prostitution”
Forcing someone into prostitution, i.e. by violence or use of violence, abuse of dependent condition of
victim, by blackmail, by threat to destroy or damage property, or dissemination of defamatory
information about a person or her/his close relatives, or by deception. The crime is punished with a
fine in the amount of 200-400 times the minimal salary or with correctional works up to 1 year or by
detention for a term from 1 to 3 months or by imprisonment for a term of up to 2 years.
The same actions committed :
1.      with respect to a minor
2.      by an organised group
are punished with a fine in the amount of 300-500 times the minimal salary, or with correctional works
up to 2 years or with imprisonment for a term of 3 to 6 years.
3.      The same action committed against:
         1) A person under eighteen years of age,
         2) A person who as a result of mental disorder is deprived of the possibility to totally or
partially acknowledge the nature and meaning of his action or control it,
         3) Committed by an organised group, is punished with imprisonment for 3 to 8 years.

Article 262 – Contributing to prostitution
1.        Establishing, managing or maintaining a facility for prostitution purposes, or using any public
facility for prostitution purposes, or regularly providing an apartment or other dwelling to another
person for prostitution purposes, or contributing to prostitution in another form for receiving benefits
from property, is punished with a fine in the amount of 300 to 500 times of the minimum wage, or with
imprisonment for the term of 1 to 4 years.
2.      The same action committed:
         1) By a group of persons with prior agreement,
         2) With abuse of authority, is punished with imprisonment for the term of 2 to 6 years.
3.       The same action committed by:
         1) The use of a person under eighteen years of age,
         2) The use of a person who as a result of mental disorder is deprived of the possibility    to
totally or partially acknowledge the nature and meaning of his action or control it,
         3) By an organized group, is punished with imprisonment for 3 to 10 years.

1.8      OBSCENE PHONE CALLS/TELEPHONE SEX
No information available.

1.9      FEMALE GENITAL MUTILATION
No information available.

1.10     INTERNATIONAL CONVENTIONS
No information available.
ARMENIA                                                                                                 15




1.11      PROTECTION OF PREGNANCY/PREGNANT WOMEN

          LABOUR CODE OF THE REPUBLIC OF ARMENIA

Article 177 – Guarantees for pregnant women and workers caring for children
Employment contract with a pregnant woman can not be terminated for the entire duration of
pregnancy (the corresponding medical certificate is made available, if necessary), child-birth leave and
the month following the child-birth, as well as with employees caring for children under one year of
age.

Article 122 – Performing illegal abortion
1. Illegal abortion performed by a person with relevant higher medical education, is punished with a
fine in the amount of up to hundred times the minimum wage, or with detention for a term of up to one
month, accompanied by removing the right to occupy certain positions or conduct certain activities for
a term of up to three years.
2. Illegal abortion performed by a person without relevant higher medical education, is punished with a
fine in the amount of up to two-hundred times the minimum wage, or with detention for a term of one
to three months, or imprisonment for a term of up to two years.
3. Actions described in section one or three of this Article, which by negligence have caused the death
of or serious damage to the health of the aggrieved, or performed by the person who has prior
conviction for performing illegal abortion,
Are punished by imprisonment for a term of up to five years, accompanied by removing the right to
occupy certain positions or conduct certain activities for a term of up to three years.

Article 141 – Incomplete working hours
Incomplete work days and incomplete work weeks are prescribed:
By the request of pregnant woman and the employee taking care of a child up to one year of age;
Based on medical conclusion, but for no more than six months, and for each day no more than half of
the working hours defined for one day.

Article 172 – Pregnancy and childbirth leave
1. Female employees are awarded with pregnancy and childbirth leaves:
          1) 140 days (70 days for pregnancy, 70 days for child-birth);
          2) in case of complicated child-birth: 155 days (70 days for pregnancy, 85 days for child-birth);
         3) in case of simultaneously giving birth to more than one child: 180 days ( 70 days for
pregnancy, 110 days for child-birth).The leave is calculated together and provided to the woman in its
entirety. In case of premature child-birth, the unused pregnancy leave days are added to the child-birth
leave days.
2. Employee who has adopted and an infant or has been appointed as the caretaker of an infant is
awarded with a leave from the date of adoption or appointment as caretaker until the infant becomes
70 days old (in case of adopting two or more infants or becoming caretaker of two or more infants until
the infants become 110 days old).
3. In cases described in section one and section two of this Article, for the period of the leave the
employee receives allowance for temporary loss of the capacity to work, in accordance with
regulations defined in the legislation of the Republic of Armenia.

Article 258 – Protection of motherhood
1. It is forbidden to involve pregnant women and women taking care of a child up to one year of age in
performing duties which are accompanied by hazardous conditions and dangerous factors having a
negative impact on mother and child health. The list of hazardous conditions and dangerous factors at
16                                                                                              ARMENIA




work for pregnant women and women taking care of a child up to one year of age is defined by the
Government of the Republic of Armenia.
2. Based on the list of hazardous conditions and dangerous factors at work, as well as the results of
the assessment of the workplace, the employer has the obligation to determine the duration and
nature of the impact of dangerous factors on the safety and health of pregnant women and women
taking care of a child up to one year of age. After determining a possibility of the impact, the employer
has the obligation to take temporary measures for eliminating the risk of impact by the hazardous
factors.
3. In case of lack of possibilities to eliminate dangerous factors, the employer take measures to
improve workplace conditions, so that pregnant women and women taking care of a child up to one
year of age will not be subjected to the impact of such factors. If it is not possible to eliminate such
impact through changing work conditions, the employer has the obligation to transfer the woman (with
her consent) to another job in the same organization.
4. If the pregnant woman or the woman taking care of a child up to one year of age needs to undergo
medical examinations during working hours, the employer has the obligation to relieve her from work
and to maintain the average salary, which is calculated based on the average wage for an hour of
work.
5. Breastfeeding women, other than the general breaks provided for resting and eating, are awarded
with additional breaks no shorter than 30 minutes and no less frequent than every three hours for
feeding their infant. By the request of the woman, the breaks for feeding the infant can be summed up
and joined with the general break, or transferred to the end of the working day with the corresponding
reduction in the duration of the working day. In the period of breaks planned for feeding the infant, the
employee is paid the average salary, which is calculated based on the average wage for one hour of
work.


2.0      SENTENCING
2.1      SENTENCING DOMESTIC VIOLENCE
For some information, see Section 1.2 above.


3.0      EFFECTIVENESS OF LEGISLATION
No information provided.


4.0      DOMESTIC VIOLENCE
See Section 1.2 above.


5.0      RAPE AND SEXUAL ASSAULT IN MARRIAGE
No information provided.


6.0      RAPE AND SEXUAL ASSAULT
See Section 1.3 above.


7.0      SEXUAL HARRASSMENT
No information provided.


8.0      INCEST/SEXUAL ABUSE OF GIRLS
See Section 1.4 above.
BOSNIA AND HERZEGOVINA                                                                                  17




                                BOSNIA AND HERZEGOVINA

This information was provided by the Directorate for European Integration in April 2003 and updated
by the Gender Equality Agency of Bosnia and Herzegovina and the Gender Centres of Federation of
Bosnia and Herzegovina and of Republika Srpska in September 2006 and in September 2009.


1.0         LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
1.1         LETTER OF LAW – DEFINITIONS

        THE GENDER EQUALITY LAW IN BOSNIA AND HERZEGOVINA
The law provides additional definitions as follows:

Article 4
a)     gender based violence: any act causing physical, mental, sexual or economic damage or
suffering, as well as threats of such actions, which interferes with the enjoyment of rights and
freedoms based on gender equality, in public and private life, including trafficking in human beings for
the purpose of forced labor, and any restriction or arbitrary deprivation of liberty, for persons exposed
to such acts;
b)    harassment: any situation where an unwanted conduct related to gender occurs, with the
purpose or effect of violating the dignity of a person or of creating an intimidating, hostile, degrading,
humiliating, offensive or similar situation;
c)     sexual harassment: any situation where by any form of verbal, non-verbal, physical or
psychological unwanted conduct based on sex occurs, with the purpose or effect of violating the
dignity of a person, or creating an intimidating, hostile, degrading, humiliating, offensive or any similar
situation, motivated by the fact that the individual is of the opposite sex or of different sexual
orientation;

1.2         DOMESTIC VIOLENCE

        THE GENDER EQUALITY LAW IN BOSNIA AND HERZEGOVINA

Article 17

All forms of gender based violence in private and public life is prohibited.
Competent authorities shall undertake all appropriate measures in order to eliminate and prevent
gender based violence in public and private life, and shall provide instruments of protection,
assistance and compensation to the victims.
Competent authorities shall also develop measures of protection of gender based violence, especially
in education, in order to eliminate bias, customs and all other practices based on the idea of inferiority
or superiority of either sex, as well as stereotype roles of men and women. This includes but is not
limited to education and raising awareness among civil servants, the public, etc.
18                                                                                  BOSNIA AND HERZEGOVINA



        CRIMINAL CODE OF THE FEDERATION OF BOSNIA AND HERZEGOVINA

Article 172

Aggravated Bodily Injury
(1) Whoever inflicts a serious bodily injury upon another person or severely impairs his health, shall be
punished by imprisonment for a term between six months and five years.
(2) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article against his
spouse, common-law partner, or to the parent of his child with whom he does not share a household,
shall be punished by imprisonment for a term between one and five years.
(3) Whoever inflicts bodily injury upon another person or impairs his health so severely that the life of
the injured person is endangered, or an important part or organ of his body destroyed or permanently
weakened to a substantial degree, or if the injured person’s earning ability has been impaired
permanently, or if permanent and grave damage to his health or disfigurement was caused, shall be
punished by imprisonment for a term between one and ten years.
(4) By the punishment referred to in paragraph 3 of this Article shall be punished whoever perpetrates
the criminal offence referred to in paragraph 1 of this Article out of racial, national or religious reasons.
(5) Should the injured person die as the result of injuries referred to in paragraphs 1 through 4 of this
Article, the perpetrator shall be punished by imprisonment for a term between one and twelve years.
(6) Whoever perpetrates the criminal offence referred to in paragraphs 1 through 3 of this Article out of
negligence, shall be punished by imprisonment for a term not exceeding three years.
(7) Whoever perpetrates the criminal offence referred to in paragraphs 1 through 3 of this Article in the
heat of passion, having been provoked without his own fault into the state of intense exasperation or
fright caused by attack or serious insult by the injured person, shall be punished by imprisonment for a
term between three months and three years.
(8) Whoever perpetrates the criminal offence referred to in paragraph 4 of this Article in the heat of
passion, having been provoked without his own fault into the state of intense exasperation or fright
caused by attack or serious insult by the injured person, shall be punished by imprisonment for a term
between six months and five years.

Article 173

Slight Bodily Injury
(1) Whoever inflicts a slight bodily injury upon another person or impairs his health in a minor way,
shall be shall be punished by a fine or imprisonment for a term not exceeding one year.
(2) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article against his
spouse, common-law partner, or parent of his child with whom he does not share a household, shall
be punished by imprisonment for a term not exceeding one year.
(3) The court may pronounce a judicial admonition to the perpetrator of the criminal offence referred to
in paragraph 1 of this Article, if the perpetrator has been provoked by incident or rude behaviour of the
injured person.

        CRIMINAL CODE OF REPUBLIKA SRPSKA

Article 208 Domestic Violence
(1) Whoever by violence, insolent or arrogant behaviour violates peace, life and health or mental
health of a member of his family or family household, shall be punished by a fine or imprisonment for
a term not exceeding two years.
(2) If during the commission of the criminal offence referred to in Paragraph 1 of this Article, weapons,
dangerous implements or other instruments suitable to inflict grave bodily injuries or harm person’s
health have been used, the perpetrator shall be punished by imprisonment for a term between three
months and three years.
BOSNIA AND HERZEGOVINA                                                                                 19



(3) If the commission of the criminal offence referred to in Paragraphs 1 and 2 of this Article has
resulted in grievous bodily injury of the family member or impaired his health or if the criminal offence
referred to in Paragraphs 1 and 2 of this Article has been committed against a minor, the perpetrator
shall be punished by imprisonment for a term between one and five years.
(4) If the commission of the criminal offence referred to in preceding Paragraphs of this Article has
resulted in the death of the family member, the perpetrator shall be punished by imprisonment for a
term between two and twelve years.
(5) Whoever kills a member of family or member of household, whom he has abused previously, shall
be punished by imprisonment for a term not less than ten years.
(6) For the purpose of this Chapter, family members or members of household shall be also
understood to mean ex-spouses, their children and ex-spouses’ parents.

Article 207 Neglecting and Abusing a Minor
(1) A parent, adoptive parent, guardian or any other person who by gross negligence of his care and
upbringing duties neglects a minor whom he is obligated to take care of, shall be punished by a fine or
imprisonment for a term not exceeding two years.
(2) The punishment of imprisonment for a term not exceeding three years shall be pronounced against
a parent, adoptive parent, guardian or any other person who abuses the minor, forces a minor to do
excessive work or work that is not suitable for a minor of his age or to beg or forces him, out of greed,
to engage in other activities damaging to his development.
(3) If serious bodily harm or serious impairment to heath of the minor has occurred as a result of the
offense referred to in Paragraphs 1 and 2 of this Article or if the minor has turned to prostitution,
alcohol or other forms of asocial behaviour, the perpetrator shall be punished by imprisonment for a
term between six months and five years.

Article 205 Abduction of a Child or a Minor
(1) Whoever unlawfully takes a minor away from his parents, adoptive parents, guardian, institution or
persons to whom he has been entrusted, who holds or prevents him from being with the person who is
entitled to him, or who prevents the execution of a court decision on the custody over a minor , shall
be punished by a fine or imprisonment for a term not exceeding two years.
(2) If the offense referred to in Paragraph 2 of this Article has been committed out of greed or other
low motives or where an offence has caused serious impairment on health, upbringing or schooling of
the child, the perpetrator shall be punished by imprisonment for a term between three months and
three years.
(3) The perpetrator referred to in Paragraph 1 and 2 of this Article who voluntarily hands over a minor
to a person or institution to which the minor has been entrusted or complies with the execution of the
decision on custody over the minor, may be released from punishment.
(4) When pronouncing the suspended sentence for the offense referred to in Paragraphs 1 and 2 of
this Article, the court may order that the perpetrator, within the set deadline, hands over a minor to a
person or institution to which the minor has been entrusted or that the perpetrator complies with the
execution of the decision on custody over the minor.

Article 209 Breach of Family Obligations
(1) Whoever by gross violation of his family obligations defined by the law leaves in a difficult situation
a member of his family who is not capable of taking care of himself, shall be punished by a fine or
imprisonment for a term not exceeding two years.
(2) Should the health of a member of the family be severely impaired as a result of the criminal offence
referred to in Paragraph 1 of this Article, the perpetrator shall be punished by imprisonment for a term
between six months and five years.
(3) Should the member of the family lose his life as a result of the criminal offence referred to in
Paragraph 1 of this Article, the perpetrator shall be punished by imprisonment for a term between one
and eight years.
20                                                                               BOSNIA AND HERZEGOVINA



(4) When pronouncing a suspended sentence, the court may also impose a condition that the
perpetrator regularly fulfils his obligations of taking care, upbringing and supporting.

Article 210 Evading the Alimony
(1) Whoever evades paying alimony for a person whom he is obligated to support on the basis of a
court decision , or an effective settlement entered into before the court or other competent body, shall
be punished by a fine or imprisonment for a term not exceeding one year.
(2) Should serious consequences occur for the supported person as a result of the criminal offence
referred to in Paragraph 1 of this Article, the perpetrator shall be punished by a fine or imprisonment
for a term not exceeding two years.
(3) When pronouncing a suspended sentence, the court may impose a condition that the perpetrator
pays all his due obligations and regularly pays the alimony.

       LAWS ON PROTECTION AGAINST DOMESTIC VIOLENCE IN BOTH ENTITIES
Laws on Protection against Domestic Violence adopted in both Federation of Bosnia and Herzegovina
and Republika Srpska further enhance protection of women and girls from family violence through
adoption of special protective measures (as described below).
The Law on Protection against Family Violence was adopted in May 2005 in the Federation of Bosnia
and Herzegovina and in December 2005 in the Republika Srpska. The Law regulates protection
against family violence, the concept of family violence, persons considered as family members in
terms of this Law, ways of protection of family members, as well as kind and purpose of the offence
sanctions for perpetrators of violent actions. The basic concept of this Law is that a perpetrator is
removed from a flat, house or some other kind of living place of victim.
The minor offence sanctions for protection against family violence are protective measures. The
protective measures are aimed at preventing and eliminating family violence, removing the effects of
perpetrated violence, taking effective retraining measures for the perpetrators, and removing the
circumstances that encourage and stimulate repeated violence in the family The perpetrators of family
violence can be proscribed the following protective measures that are the same for both Laws for
Protection from Family Violence in Republika Srpska and Federation of B&H:
       1. Removing from a flat, a house or some other kind of living place of victim, and prohibition
           on returning to the flat, the house or some other kind of living place of victim;
       2. Restriction on approaching the victim of violence,
       3. Provision of protection to victims of violence;
       4. Restriction on abusing behaviours or following the victim;
       5. Mandatory psycho-social treatment;
       6. Mandatory addiction treatment.
The perpetrator of family violence is responsible to act in compliance with the issued protective
measure.
The fines in amounts from KM 2000.00 to KM 10,000.00 shall be imposed for the offence to the
person who fails to comply with an issued protective measure.
In Law for Protection from Family Violence in Republika Srpska fines for a person acting in official duty
that does not report violence to the police authorities range from KM 800 to KM 1800.
Beside this, substantial difference exists between Laws for Protection from Family Violence in
Republika Srpska and Federation of B&H. RS Law introduced monetary fines for acts of family
violence range from KM 100 to KM 1500, while Federation of B&H Laws recognizes only above
mentioned protective measures that can be sentenced to a perpetrator in a form of minor offense.
Such differences in legal treatment of family violence between entities in B&H are contributing to the
legal insecurity and preventing real protection of women and girls that are identified as the most
common victims.
Numerous problems encountered when implementation of these Laws started in a practice in
2005/2006. For example, public prosecutors have difficulties to identify qualification of acts of family
violence - when it ends to be a minor offence and when it starts to be a criminal act.
BOSNIA AND HERZEGOVINA                                                                                 21



Law on Amendments to the Law on protection against domestic violence was passed in February
2008 in order to improve legal solutions and practical application this law by relevant subjects of
protection. The most important legal changes are the include:
• subjects of protection and their role in the prevention of and protection from domestic violence are
explicitly defined: police, prosecutor office, centres for social work or social welfare services and the
courts,
• a new, expanded definition of domestic violence and expanded list of actions that constitute acts of
domestic violence under this Act is provided
• the obligation of ensuring funding for all costs of accommodation and care of victims of domestic
violence safe houses in the budget (the ratio of budget funds: 70% of the entity - 30% municipal or
city) is                                                                                    defined
• procedures ensuring the protection of victims of domestic violence through the safe house
accommodation is in the details worked out,
• the local jurisdiction to conduct proceedings for a misdemeanour domestic violence offenses are
defined,
• the procedures and treatment by protective measures on the occasion of the execution have been
elaborated.
Law on Amendments to the Criminal Procedure Act (Official Gazette of Republika Srpska, No. 68/07)
stipulates in Article 183 protective measures imposed by the court during the proceedings
(investigation phase, after the indictment, after referring the case to the judge) among which there are
measures that can be imposed in cases of domestic violence: a ban on visiting certain places or areas
and the prohibition of meeting with certain persons. Article 183.b provides that these measures can be
imposed on the proposal of the parties or counsel.

1.3      RAPE/SEXUAL ASSAULT

        CRIMINAL CODE OF BOSNIA AND HERZEGOVINA

Article 172, para g) Crimes against Humanity
“Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a
person close to him, to sexual intercourse or an equivalent sexual act (rape), sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of
comparable gravity;”

Article 173, para e) War Crimes against Civilians
Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a
person close to him, to sexual intercourse or an equivalent sexual act (rape) or forcible prostitution,
application of measures of intimidation and terror, taking of hostages, imposing collective punishment,
unlawful bringing in concentration camps and other illegal arrests and detention, deprivation of rights
to fair and impartial trial, forcible service in the armed forces of enemy’s army or in its intelligence
service or administration;

        CRIMINAL CODE OF BRČKO DISTRICT

Article 206
A person who compels another person to sexual intercourse by use of force or by threat of direct
attack on life and body of that person, or life and body of somebody close to that person, shall be
sentenced to prison from one to ten years.
If the offense referred to in Paragraph 1 of this Article resulted in pregnancy of the female, grievous
bodily injury, serious impairment of health or death of the injured party, or if the offense was committed
by several persons, or in an extremely brutal or humiliating way, the perpetrator shall be sentenced to
prison from three to fifteen years.
22                                                                                  BOSNIA AND HERZEGOVINA



A person who commits the criminal offense referred to in Paragraph 1 of this Article because of
differences in ethnic or national origin, race, religion or language, shall be sentenced in accordance
with Paragraph 2 of this Article.

Article 207
A person who forces another person to sexual intercourse by use of serious threat of revealing
something which would harm the honour or reputation of that person or somebody close to that
person, or by use of threat of doing some other serious harm, shall be sentenced to prison from six
months to five years.

        CRIMINAL CODE OF THE FEDERATION OF BOSNIA AND HERZEGOVINA

Article 203
(1) Whoever coerces another by force or by threat of immediate attack upon his life or limb, or the life
or limb of someone close to that person, to sexual intercourse or an equivalent sexual act, shall be
punished by imprisonment for a term between one and ten years.
(2) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article in a particularly
cruel or humiliating manner or if on the same occasion a number of perpetrators perform a number of
acts of sexual intercourse or equivalent sexual acts against the same victim, shall be punished by
imprisonment for a term between three and fifteen years.
(3) If, by the criminal offence referred to in paragraph 1 of this Article, the death of the raped person is
caused, or serious bodily injury is inflicted on the raped person or his health is severely impaired, or
the raped female is left pregnant, the perpetrator shall be punished by imprisonment for not less than
three years.
(4) The punishment referred to in paragraph 2 of this Article shall be imposed on whoever perpetrates
the criminal offence referred to in paragraph 1 of this Article out of hatred on the grounds of national or
ethnic origin, race, religion, sex or language.
(5) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article against a
juvenile,
shall be punished by imprisonment for not less than three years.
(6) Whoever perpetrates the criminal offence referred to in paragraphs 2, 3 and 4 of this Article against
a juvenile, shall be punished by imprisonment for not less than five years.
(7) If, by the criminal offence referred to in paragraph 2 of this Article, the consequences referred to in
paragraph 3 of this Article are caused, the perpetrator shall be punished by imprisonment for not less
than five years.

Article 206
    Whoever forces another person to sexual intercourse or equivalent sexual act by a serious threat
of serious harm, shall be punished by imprisonment for a term between six months and five years.

        CRIMINAL CODE OF REPUBLIKA SRPSKA

Article 193

Rape
(4) Whoever compels another person to sexual intercourse or any other sex act by serious threat of
disclosing some information that would harm his reputation or reputation of someone close to that
person or by threat of any other serious harm, shall be punished by imprisonment for a term of
between six months and five years.
BOSNIA AND HERZEGOVINA                                                                                23



Article 194

Sexual Intercourse with a Helpless Person
(1) Whoever has had sexual intercourse or any other sex act with a person taking advantage of that
person’s mental disease, mental retardation, any other mental disorder, helplessness or any other
state of that person which makes him/her incapable of resisting, shall be punished by imprisonment for
a term between six months and five years.
(2) If the criminal offence referred to in Paragraph 1 of this Article was committed against a minor or in
a particularly cruel or degrading manner or if at the same occasion more instances of sexual
intercourse were performed by more perpetrators or if the criminal offence has resulted in grievous
bodily injury or a serious impairment of health or pregnancy of the helpless female victim, the
perpetrator shall be punished by imprisonment for a term between three and fifteen years.
(3) If the criminal offences referred to in Paragraphs 1 and 2 of this Article have resulted in the death
of the victim, the perpetrator shall be punished by imprisonment for a term not less than five years.

Article 196

Sexual Intercourse by Abuse of Position
(1) Whoever induces into sexual intercourse or any other sex act a person who is in a subordinate or
dependent position, shall be punished by imprisonment for a term not exceeding three years.
(2) A teacher, teacher in an institution or home, guardian, adoptive parent or some other person who,
by abuse of his position, has had sexual intercourse or any other sex act with a minor entrusted to him
for teaching, up-bringing or care, shall be punished by imprisonment for a term between six months
and five years.

1.4      CHILD SEXUAL ABUSE/INCEST

        LEGISLATION ON THE STATE LEVEL
There is no legislation on the State level.

        CRIMINAL CODE OF BRČKO DISTRICT

Article 209
(1) A person who performs a sexual intercourse on a juvenile under fourteen, shall be sentenced to
prison from six months to five years.
(2) A person who commits the offense referred to in Paragraph 1 of this Article to a helpless juvenile
under fourteen, or by use of force or by threat of direct attack on life and body, shall be sentenced to
prison from three to fifteen years.
(3) If the offense referred to in Paragraphs 1 and 2 of this Article resulted in the pregnancy of a
juvenile female person, grievous bodily injury, severe impairment of health, or if the offense was
committed by several persons or in a particularly brutal or humiliating way, the perpetrator shall be
sentenced to prison from five to fifteen years.
(4) If the criminal offense referred to in Paragraphs 1 and 2 of this Article resulted in the death of a
juvenile, the perpetrator shall be sentenced to prison for at least ten years or long-term imprisonment.

Article 211
(1) A person who panders a juvenile, shall be sentenced to prison from three months up to three
years.
(2) A person who enables a sexual abuse of a juvenile, shall be sentenced to prison up to three years.
(3) A person who panders another person for a reward, or a person who enables a sexual abuse for a
reward, shall be sentenced to prison up to three years and fined.
24                                                                                   BOSNIA AND HERZEGOVINA



        CRIMINAL CODE OF THE FEDERATION OF BOSNIA AND HERZEGOVINA

Article 207 Sexual Intercourse with a Child
(1) Whoever performs sexual intercourse or equivalent sexual act on a child, shall be punished by
imprisonment for a term between one and eight years.
(2) Whoever performs forcible sexual intercourse or equivalent sexual act on a child (Article 203,
Rape, paragraph 1) or on a helpless child (Article 204, Sexual Intercourse with a Helpless Person,
paragraph 1), shall be punished by imprisonment for not less than three years.
(3) Whoever performs sexual intercourse or equivalent sexual act on a child by abusing his position
(Article 205, Sexual Intercourse by Abuse of Position, paragraph 2), shall be punished by
imprisonment for a term between one and ten years.
(4) Whoever perpetrates the criminal offence referred to in paragraphs 1 through 3 of this Article in a
particularly cruel or humiliating manner or if on the same occasion a number of perpetrators perform a
number of acts of sexual intercourse or equivalent sexual acts against the same victim, shall be
punished by imprisonment for not less than five years.
(5) If, by the criminal offence referred to in paragraphs 1 through 3 of this Article, the death of a child is
caused, or serious bodily injury is inflicted on a child or his health is seriously impaired, or the female
child is left pregnant, the perpetrator shall be punished by imprisonment for a term not less than five
years or by long-term imprisonment.

Article 205 Sexual Intercourse by Abuse of Position
(1) Whoever, by abusing his position, induces into sexual intercourse or equivalent sexual act a
person who is in a dependent position in relation to him due to the person’s financial, family, social,
health or other condition or straitened circumstances, shall be punished by imprisonment for a term
between three months and three years.
(2) A teacher, educator, parent, adoptive parent, guardian, step-father, step-mother or any other
person who, by abusing his status or relationship toward a juvenile who is entrusted to him for
education, upbringing, custody or care, performs sexual intercourse or equivalent sexual act upon a
juvenile, shall be punished by imprisonment for a term between six months and five years.

Article 219 Neglect or Maltreatment of a Child or Juvenile
(1) A parent, adoptive parent, guardian or any other person who severely neglects his duties in
maintaining or upbringing a child or juvenile, shall be punished by imprisonment for a term between
three months and three years.
(2) The punishment referred to in paragraph 1 of this Article shall be imposed on a parent, adoptive
parent, guardian or any other person who maltreats a child or juvenile, compels a child or juvenile to
work that is unsuitable for his age, or to excessive work, or to beg, or induces him for gain to behave
in a manner harmful to his development.
(3) If, by the criminal offence referred to in paragraphs 1 and 2 of this Article, serious bodily injury to a
child or juvenile is inflicted, or his health is severely impaired, or because of the criminal offence
referred to in paragraphs 1 and 2 of this Article a child or juvenile has taken to begging, prostitution or
other asocial behaviour or delinquency, the perpetrator shall be punished by imprisonment for a term
between three months and five years.

Article 213 Incest
(1) Whoever performs sexual intercourse or equivalent sexual act with a relative by blood in a direct
line or a sibling, shall be punished by a fine or imprisonment for a term between six months and two
years.
(2) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article with a juvenile,
shall be punished by imprisonment for a term between one and five years.
(3) Whoever perpetrates the criminal offence referred to in paragraph 1 of this Article with a child, shall
be punished by imprisonment for a term between two and ten years.
BOSNIA AND HERZEGOVINA                                                                               25



       CRIMINAL CODE OF REPUBLIKA SRPSKA

Article 201 Incest
(1) Whoever has sexual intercourse with a lineal relative or a sibling, shall be punished by a fine or
imprisonment for a term not exceeding three years.
(2) Whoever commits the criminal offence referred to in Paragraph 1 of this Article with a child or a
minor , shall be punished by imprisonment for a term between one and eight years.
(3) The victim of the criminal offence referred to in Paragraph 2, who was a minor at the time of
commission of the criminal offence, shall not be criminally sanctioned. This shall be applied also in the
case when the perpetration of the offense has continued after the victim has become an adult.
Law on the Ombudsman for children („Official Gazette of Republika Srpska, No 103/08

Article 12
If in the course of performing duties of the Ombudsman for Children obtains information that a child
has been exposed to violence, sexual abuse, abuse, exploitation or neglect, s/he shall immediately will
submit a report to the competent prosecutor's office and inform the competent guardianship authority
and propose measures to protect the rights and interests of the child.

1.5        SEXUAL HARASSMENT

       THE GENDER EQUALITY LAW IN BOSNIA AND HERZEGOVINA

Article 19
Everyone whose right set by this Law has been violated shall have the right to initiate criminal or civil
proceedings before courts of general jurisdiction, in accordance with relevant laws. Charges may be
brought before a court prior to or without initiating proceedings for protection with the employer.

Article 20
Unless the respondent party proves otherwise, a ruling of discrimination shall be made if a plaintiff
claiming to have suffered damages due to a violation of the right to gender equality, as guaranteed by
this Law, provides arguments in support of facts that lead to a conclusion that he or she has been a
victim of direct or indirect discrimination.

Article 28
Any person who commits gender based violence, harassment or sexual harassment as described in
Article 4 of this Law shall be punished for a criminal offence and sentenced to 6 months to 5 years of
imprisonment.
Prosecution shall be ex officio, pursuant to the Law on Criminal Proceedings of B&H.

Article 29
A legal person shall be sentenced with a fine of 1,000 KM to 30,000 KM in cases of:
       -      failure to undertake appropriate and effective measures against gender discrimination,
              […] harassment and sexual harassment;
       -      failure to undertake appropriate measures to eliminate and prevent unlawful gender
              discrimination in labour and employment, as defined by Article 8 of this Law;
       -      failure to provide curricula, syllabi and methodology in educational institutions which
              guarantee the elimination of stereotyped curricula which produce discrimination and
              gender inequality as a consequence;
       -      failure to maintain gender-disaggregated statistical data and information collected,
              recorded and processed;
26                                                                                    BOSNIA AND HERZEGOVINA



        -   failure to provide public access to statistical data held, pursuant to this Law; public
            presentation of any person in an offensive, humiliating or degrading way, irrespective of
            sex.
An offence set forth in paragraph 1 of this Article shall entail a fine of 100 KM to 1,000 KM against a
responsible person within the legal person as well as against any individual in charge of an
independent private business.
No provision of this law can be interpreted as a limitation or restriction of the right to initiate criminal or
civil proceedings, under the conditions set by this Law.
Fines shall be collected in favour of the budget of joint institutions of Bosnia and Herzegovina.

Article 30
Proceedings and rulings on criminal and other offences defined by this Law shall be of urgent nature
and dealt with in an expedited manner, and shall take priority in the work of competent bodies.

        CRIMINAL CODE OF RS

Article 196 Sexual Intercourse by Abuse of Position
(1) Whoever induces into sexual intercourse or any other sex act a person who is in a subordinate or
dependent position, shall be punished by imprisonment for a term not exceeding three years.
(2) A teacher, teacher in an institution or home, guardian, adoptive parent or some other person who,
by abuse of his position, has had sexual intercourse or any other sex act with a minor entrusted to him
for teaching, up-bringing or care, shall be punished by imprisonment for a term between six months
and five years.

Article 197 Satisfying Lust in Front of Others
(1) Whoever has had sex acts in front of others in the public, shall be punished by a fine or
imprisonment for a term not exceeding one year.
(2) Whoever, in front of a child or a minor, engages into actions intended to satisfy his or someone
else’s lust, or who incites a child to engage in such actions in front of him or another, shall be
punished by a fine or imprisonment for a term not exceeding three years.
Labour Law of Republika Srpska – consolidated version („Official Gazette of Republika Srpska No
55/07)

Article 111.
(1) Harassment, sexual harassment, gender based violence, as well as the systematic abuse of
workers by the employer and other employees (mobbing)is not permitted.
(3) Sexual harassment shell mean any verbal or physical behaviour which has for its aim or results in
violation of dignity of a person seeking employment, and the employees in their sphere of sexual life,
which results in fear or creates humiliating or degrading environment.

1.6         PORNOGRAPHY

        LEGISLATION ON THE STATE LEVEL
There is no legislation on the State level.

        CRIMINAL CODE OF BRČKO DISTRICT

Article 213
(1) A person who sells, shows or makes available by public presentation or in some other way texts,
photographs, audio-visual and other material with pornographic content to a juvenile under fourteen,
or shows him a pornographic performance, shall be fined or sentenced to prison up to one year.
BOSNIA AND HERZEGOVINA                                                                              27



(2) A person who abuses a juvenile under fourteen for taking photographs, audio-visual material or
other material with pornographic contents, or abuses him for pornographic performance, shall be
sentenced to prison from three months to three years.
(3) The material referred to in Paragraphs 1 and 2 of this Article shall be confiscated.

        CRIMINAL CODE OF THE FEDERATION OF BOSNIA AND HERZEGOVINA

Article 211
Abuse of a Child or Juvenile for Pornography
(1) Whoever photographs or films a child or juvenile with an aim of developing photographs, audio-
visual tapes or other pornographic materials, or possesses or imports or sells or deals in or projects
such material, or induces such persons to play in pornographic shows,
shall be punished by imprisonment for a term between one and five years.
(2) Items meant or used for the perpetration of criminal offence referred to in paragraph 1 of this
Article shall be forfeited and the items produced by the perpetration of criminal offence referred to in
paragraph 1 shall be forfeited and destroyed.

Article 212
Introducing Pornography to a Child
(1) Whoever sells, shows or renders available through a public display or in any other way writings,
pictures, audio-visual and other objects containing pornography to a child, or whoever shows him a
pornographic show,
shall be punished by a fine or imprisonment for a term not exceeding one year.
(2) The items referred to paragraph 1 of this Article shall be forfeited.

        CRIMINAL CODE OF THE REPUBLIKA SRPSKA

Article 199 – Abuse of minors for pornography
In document EG (2004) 2- BiH cited as Article 189.

Article 200 - Production and Screening Child Pornography
(1) Whoever sells, shows or renders available through a public display or in any other way writings,
pictures, audio-visual and other items containing child pornography or whoever produces, purchase,
keeps or screens a child pornographic show for the same reasons , shall be fined or punished by
imprisonment for a term not exceeding one year.
(2) If the offence referred to in Paragraph 1 is committed against a minor who is under 16, the
perpetrator shall be punished by imprisonment for a term of three years.
(3) If the offence referred to in preceding Paragraphs is committed through the mass media or internet,
the perpetrator shall be punished by imprisonment for a term between six months and five years.
(4) Child pornography in terms of this provision shall be understood to mean any pornographic
material that visually shows:
(a) a child or a minor involved in an obvious sexual act, and
(b) realistic photographs that show a child or a minor involved in an obvious sexual act.
The items referred to in Paragraphs 1 and 2 of this Article shall be forfeited.
28                                                                                  BOSNIA AND HERZEGOVINA



1.7      PROSTITUTION

        CRIMINAL CODE OF BOSNIA AND HERZEGOVINA

Article 187
(1) Whoever procures, entices or leads away another person to offer sexual services for profit within a
state excluding the one in which such a person has residence or of which he is a citizen, shall be
punished by imprisonment for a term between six months and five years.
(2) Whoever, by force or threat to use force or deceit, coerces or induces another person to go to the
state in which he has no residence or of which he is not a citizen, for the purpose of offering sexual
services upon payment, shall be punished by imprisonment for a term between six months and five
years.
(3) If the criminal offence referred to in paragraphs 1 and 2 of this Article is perpetrated against a child
or a juvenile, the perpetrator     shall be punished by imprisonment for a term between one and ten
years.
(4) The fact whether the person procured, enticed, led away, forced or deceived into prostitution has
already been engaged in prostitution is of no relevance for the existence of a criminal offence.

        CRIMINAL CODE OF BRČKO DISTRICT

Article 212
(1) A person who recruits, induces, encourages or lures female persons to prostitution, or whoever in
any sense participates in handing a female person over to another for the purpose of prostitution, shall
be sentenced to prison from three months to three years.
(2) If the offense referred to in Paragraph 1 of this Article was committed against a juvenile person, or
by use of force, threat or deception, the perpetrator shall be sentenced to prison from one to ten years.
(3) If the offense referred to in Paragraphs 1 and 2 of this Article was committed against a child, the
perpetrator shall be sentenced to prison from two to twelve years.

        CRIMINAL CODE OF THE FEDERATION OF BOSNIA AND HERZEGOVINA

Article 210 Pandering
(1) Whoever, for gain, induces, incites or lures another in offering sexual services or in another way
enables turning another over to a third person for offering sexual services, or in any way takes part in
organizing or managing of sexual services offering, shall be punished by imprisonment for a term
between one and five years.
(2) Whoever, for gain, by use of force or by threat to use force or to inflict greater harm, coerces
another or by deceit induces another into offering sexual services, shall be punished by imprisonment
for a term between one and ten years.
(3) The punishment referred to in paragraph 2 of this Article shall be imposed on whoever, for gain, in
the manner referred to in paragraph 2 of this Article, by abusing a difficult situation of a person
residing in a foreign country, coerces or induces that person into offering sexual services.
(4) Whoever perpetrates the criminal offence referred to in paragraphs 1 and 3 of this Article against a
child or juvenile, shall be punished by imprisonment for a term between three and fifteen years.
(5) The fact whether the person who is induced, incited, lured or coerced has already been engaged in
prostitution is of no relevance to the perpetration of criminal offence under this Article.

        CRIMINAL CODE OF THE REPUBLIKA SRPSKA
Prostitution as a deviate action is incriminated as a criminal offence of the trafficking with human
beings for the purpose of prostitution (article 188 of CCRS). It appears in different ways, especially
through inducement, incitement or luring other persons to offer sexual services for profit. For the most
BOSNIA AND HERZEGOVINA                                                                                    29



serious offenses, when offence has been committed against a person under twenty- one years of age,
the perpetrator shall be punished by imprisonment term up to twelve years.

Article 198 – Human trafficking for the purpose of prostitution
In document EG (2004) 2- BiH is cited as Article 188.

        LAW ON PUBLIC PEACE AND ORDER OF REPUBLIKA SRPSKA

Article 7
(1) Whoever rents, that is transfers facilities for the practise of prostitution, or whoever in a public place
allures other on prostitution or interposes in practising prostitution – shall be fined ranging from 1.500
up to 3.000 KM or punished by imprisonment term up to 60 days.
(2) For misdemeanour from paragraph 1 of this article, a corporation and other legal person shall be
fined ranging from 500 up to 10.000 KM.
(3) Responsible person in a corporation or in another legal person, for misdemeanours from
paragraph 1 of this article, shall be fined ranging from 50 up to 1.000 KM.

1.8         OBSCENE PHONE CALLS/TELEPHONE SEX
Obscene phone calls are not incriminated.

1.9         FEMALE GENITAL MUTILATION

        CRIMINAL CODE OF BOSNIA AND HERZEGOVINA

Article 172
Whoever coerce another by force or by threat of immediate attack upon his life or limb, or the life or
limb of a person close to him/her, to sexual intercourse or an equivalent sexual act (rape), sexual
slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual
violence of comparable gravity, shall be punished by imprisonment for a term not less than ten years
or long-term imprisonment.

        CRIMINAL CODE OF BRČKO DISTRICT
Female Genital Mutilation is regulated within the framework of the group criminal offences against life
and limb.

        CRIMINAL CODE OF FEDERATION OF BOSNIA AND HERZEGOVINA
Female Genital Mutilation is regulated within the framework of the group criminal offences against life
and limb.

        CRIMINAL CODE OF THE REPUBLIKA SRPSKA
Female Genital Mutilation is regulated within the framework of the group criminal offences against life
and limb.

1.10        INTERNATIONAL CONVENTIONS
        -      Convention for Protection of Human Rights and Fundamental Freedoms;
        -      1948 Convention on the Prevention and Punishment of the Crime of Genocide
        -      1949 Geneva Conventions I - IV on the Protection of the Victims of War, and the 1977
               Geneva Protocols I - II thereto
        -      1951 Convention relating to the Status of Refugees and the 1966 Protocol thereto
        -      1957 Convention on the Nationality of Married Women
        -      1961 Convention on the Reduction of Statelessness
30                                                                                 BOSNIA AND HERZEGOVINA



        -     1965 International Convention on the Elimination of All Forms of Racial Discrimination
        -     1966 International Covenant on Civil and Political Rights and the 1966 and 1989 Optional
              Protocols thereto
        -     1966 Covenant on Economic, Social and Cultural Rights
        -     1979 Convention on the Elimination of All Forms of Discrimination against Women
        -     1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
              Punishment
        -     1987 European Convention on the Prevention of Torture and Inhuman or Degrading
              Treatment or Punishment
        -     1989 Convention on the Rights of the Child
        -     1990 International Convention on the Protection of the Rights of All Migrant Workers and
              Members of Their Families
        -     1992 European Charter for Regional or Minority Languages
        -     1994 Framework Convention for the Protection of National Minorities

1.11        PROTECTION OF PREGNANCY/PREGNANT WOMEN

        LEGISLATION ON THE STATE LEVEL
The labour laws in Bosnia and Herzegovina (Labour Law for employees in the Joint Institutions of
Bosnia and Herzegovina, Labour Law of Republika Srpska and the Labour Law of Federation of BiH)
provide provisions for a Special protection of women and maternity. The employer therefore cannot
refuse to employ a woman because she is pregnant, or terminate the contract on employment
because of her pregnancy or maternity leave. Special accommodation in workplace for a women
during and after her pregnancy is provided in labour laws if based on the evidence and
recommendation of the authorized physician and with an consent. After the maternity leave is ended,
the mother has right to work half of the full working hours for the period until the child is two years old
if authorized physician assessed that child needs intensive care. During maternity leave a woman has
right to allowance that is the average wage she has had during last three months before she went on
maternity leave. The amount of money is monthly adjusted to increase of average wages.
Amendments to the Law on protection of children (Official Gazette of Republika Srpska, No. 17/08)
provided for a Public Fund for Protection of Children.
Public Fund for Protection of Children will, acting upon the written request of the employer, through the
organs of the First Instance, acknowledge the right to the funds for the payment of compensation of
the net pay to the mother, which will be paid at the expense of the Fund for protection of children.
Compensation of the net salary for the first 30 days of use maternity leave will be provided by the
employer and paid from their own funds, and for the next 11 months for the first and second child and
17 months for twins, third and every next child benefit will be paid the employer and the funds will
provided by the Fund for protection of children.

        CRIMINAL CODE OF FEDERATION OF BRČKO DISTRICT

Article 171
(1) A person who in contravention with abortion regulations performs an abortion on a pregnant
    woman with her consent, commences performing an abortion, or assists her in procuring her own
    miscarriage, shall be sentenced to prison from three months to three years.

(2) A person who performs or commences performing an abortion on a pregnant woman without her
    consent, if she has not reached age of 16, without written consent of her parent, adoptive parent
    or guardian, shall be sentenced to prison from one to eight years.

(3) If a grievous bodily harm or a serious illness or death of the pregnant woman occurs as a
    consequence of the act referred to in Paragraphs 1 and 2 of this Article, the perpetrator shall be
    sentenced for the act referred to in Paragraph 1 of this Article to prison from six months to five
    years, and for the act referred to in Paragraph 2 of this Article he shall be sentenced to prison from
    two to twelve years.
BOSNIA AND HERZEGOVINA                                                                               31



         CRIMINAL CODE OF FEDERATION OF BOSNIA AND HERZEGOVINA

Article 176
Illicit Abortion
(1) Whoever in contravention of abortion regulations performs abortion on a pregnant women with her
consent, commences performing abortion, or assists her in procuring her own miscarriage, shall be
punished by imprisonment for a term between three months and three years.
(2) Whoever performs or commences performing abortion on a pregnant woman without her consent,
shall be punished by imprisonment for a term between one year and eight years.
(3) If by the criminal offence referred to in paragraph 1 of this Article a serious bodily harm, or a
serious illness or death of the pregnant woman was caused, the perpetrator shall be punished by
imprisonment for a term between six months and five years.
(4) If by the criminal offence referred to in paragraph 2 of this Article a serious bodily harm, or a
serious illness or death of the pregnant woman was caused, the perpetrator shall be punished by
imprisonment for not less than one year.

         CRIMINAL LAW OF REPUBLIKA SRPSKA

Article 154 Illegal Abortion
(1) Whoever in contravention of abortion regulations performs abortion on a pregnant women with her
consent, commences performing abortion, or assist her in procuring her own miscarriage, shall be
punished by imprisonment for a term between three months and three years.
(2) Whoever performs or commences performing abortion on a pregnant woman without her consent
and a pregnant woman is less than 16 years old, and there is no written consent of her parent,
adoptive parent or guardian, shall be punished by imprisonment for a term between one and eight
years.
(3) If grievous bodily harm, or a serious illness or death of the pregnant woman occurs as a result of
the acts referred to in Paragraphs 1 and 2 of this Article, the perpetrator shall be punished for the act
referred to in Paragraph 1 by imprisonment for a term between six months and five years, and for the
act referred to in Paragraph 2 by imprisonment for a term between two and twelve years.

Article 226 Violation of Fundamental Rights of Employees
Whoever knowingly disobeys laws , regulations or collective agreements on entering into or
termination of employment contract, on salary and other remuneration, on working hours, absence or
leave, special labor related protection of women, youth and disabled, or on a ban on overtime or night
work, and thus denies or restricts a right the employee is entitled to, shall be punished by a fine or
imprisonment not exceeding one year.


2.0 SENTENCING
2.1       SENTENCING DOMESTIC VIOLENCE

         GENDER EQUALITY LAW

Article 20
      (1) Gender based violence, harassment and sexual harassment based on gender present
          discrimination in the sense of this Law and they are foundation for compensation for damage.
          In these cases, regulations of the Law on obligation relations and regulations of appropriate
          Laws on legal procedure and the Law on executive procedure.
32                                                                                   BOSNIA AND HERZEGOVINA



Article 27
      (1) Whoever performs violence, harassment and sexual harassment based on gender prescribed
          in regulations of Article 4 of this Law will be sentenced for criminal act to period of 6 months to
          5 years in prison.
   (2) Prosecution is done by official duty.
Other sanctions for sentencing acts of domestic violence are enlisted in section 1.2.
Progress in prosecuting these acts is made by adoption of the Law on protection from domestic
violence in Federation of Bosnia and Herzegovina regulates urgent decision on the case that goes
under this category.
Although these acts are sentenced as misdemeanour’s, that is protection measures (7 types of
protection measures), and authorized Court has the duty to sentence it immediately, three days latest;
carrying out these sanctions is disabled by the new Law on misdemeanours that prescribes that these
acts should no more be processed in procedure for misdemeanours but in criminal procedures. In the
following period we will have urgent adjustment of the Law on protection from domestic violence and
the Criminal proceedings law.
4In Republika Srpska, the Law on Protection from Domestic Violence stipulates the imposition of
appropriate protective measures for acts of domestic violence as misdemeanour sanctions, imposed
in misdemeanour proceedings (the main goal of conducting the proceedings for a misdemeanour acts
of domestic violence is accelerating, and the urgent nature of court procedures in order to provide
immediate, emergency help to victims of violence, where the domestic violence is qualified "as an
offence), while the criminal act of "domestic violence or violence in the family unit" is regulated by the
Criminal Code of the Republika Srpska which is prosecuted in criminal proceedings, making a
distinction between action as a domestic violence as offenses and domestic violence as criminal acts.
Domestic violence is still qualified as a criminal act, and a qualified form of the act is when committed
against a minor.
During the reporting period, in the last three years, obvious is the increase in the number of
applications in domestic violence (as well as criminal acts and misdemeanour), and also the increase
in the number of police and criminal court proceedings that are conducted on the case of domestic
violence.


3.0 EFFECTIVENESS OF LEGISLATION
3.1        ROLE OF NON-GOVERNMENTAL ORGANISATIONS (NGOS) IN JUDICIAL PROCEEDINGS
The Gender Equality Law of Bosnia and Herzegovina defined that domestic violence is a form of
discrimination. The new Law prohibiting discrimination (Official Gazette of Bosnia and Herzegovina No
59/09) has also regulated that harassment, sexual harassment and mobbing are forms of
discrimination. Article 17 of the Law prohibiting discrimination has given a significant role to
associations (according to law NGOs are organized as associations) and which have a justified
interest for protection of interest of a certain group, or they deal with protection from discrimination of a
certain group of persons in scope of their activities, can file a lawsuit against a person who violates the
right to equal treatment, if it is probable that acting of respondent violates the right to equal treatment
of a larger number of persons largely belonging to a group whose rights are protected by a plaintiff.

3.2        WHAT SPECIAL PROVISIONS ARE THERE FOR SUPPORT OF WOMEN AND GIRLS IN GIVING
           EVIDENCE?
The courts are very careful during the presentation of evidence of these kinds of criminal offences and
they have respect for the victim and his/her position during the court proceedings.
The new Law prohibiting discrimination has stipulated a shift of burden of proof in cases of
discrimination. In these cases when a person or group of persons provide facts in proceedings from
Article 12 of this Law, corroborating allegations that prohibition of discrimination is violated; alleged
offender shall have a duty to prove that the principle of equal treatment or prohibition of discrimination
has not been breached.
In the approval process before the National Assembly of the Republika Srpska is the Law on
protection and treatment of children and juveniles in criminal proceedings, whose main characteristics
BOSNIA AND HERZEGOVINA                                                                               33



are the significant reduction of formal court proceedings on the occasion of the crimes whose
perpetrators are children and minors, giving priority to informal proceedings in which judges specially
trained to work with children and juveniles and procedures of mediation in solving crime cases in
which the perpetrators or the victims of children and minors are participating. In view of the testimony
concerned this law regulates how the content and exceptions to the testimony in the case of children
and minors as witnesses.

3.3        MAIN PROBLEMS AND NEW SOLUTIONS

          PROBLEMS
One of the key problems is the lack of funding. For example, the Law on Protection Against Family
Violence of the Federation of Bosnia and Herzegovina provides protective measures, among others,
removing from a flat, a house or some other kind of living place of victim, and prohibition on returning
to the flat, the house or some other kind of living place of victim, but there is no solution for the
accommodation for the perpetrators of family violence sentenced to such protective measure as the
main problem is the lack of funding.
Another problem still remains: not reporting cases of violence so that the real number of domestic
violence victims is far over the reported number.
Prejudice and stereotypes on domestic violence as private issue are still present.
Legal solution that enables certain people such as spouse and partner, relatives, adoptee and adopter
of the suspect, or accused, to refuse to testify is also problematic from the aspect of proving domestic
violence.

          NEW SOLUTIONS
Through activities of government and non-government sector we have worked on informing public and
started with institutional solving of problem of violence against women.
Special focus was given to adoption of the BiH Strategy for preventing and combating domestic
violence.
The basic goal of the Strategy is the coordination of the implementation of the entity strategic and
action plans for combat against domestic violence, as for their more effective implementation,
especially if you take into account the fragmentation and the discrepancy legislation in BiH, and
ununiformed statistical data related to the issue of domestic violence.
The purpose of the Strategy is that victims of violence are at the centre of interest and protection, to
raise awareness on domestic violence as social problem and that domestic violence is a violation of
basic human rights, which should confront all institutions and individuals. The Strategy commits the
community to set this question as a priority, express political will and provide the resources and multi-
sector approach.
Strategy foresees the analysis and harmonization of legislation in BiH, which regulates the area of
domestic violence, achieving greater protection of victims of domestic violence, raising the public
awareness to the issues of violence and promotion of prevention, and systematically collecting,
integrating, processing and publication of data on violence in the family.
Strategy for combating domestic violence in Republika Srpska 2009-2013. was compiled and sent to
the procedure adoption by the authorized bodies - the Government of Republika Srpska and National
Assembly of Republika Srpska. It is expected adoption is the month of September 2009.
The main objective, and the planned impact of the Strategy is “effective and optimal level of protection
and prevention of domestic violence.”
Specific objectives are as follows
      •   applicable functional and normative-legal framework for prevention of domestic violence;
      •   Improved knowledge about the scale of the problem and aspects of domestic violence
          (statistical, theoretical, practical, academic, research);
      •   established an efficient system of protection and prevention of domestic violence;
34                                                                                 BOSNIA AND HERZEGOVINA



      •   increased public awareness about violence as a social problem.
Specific objectives further develop programs and measures, which the designated institutions with
established partner organizations need to realize in a defined period, and to achieve the goal. All the
designated institutions (the competent ministries of the Government of Republika Srpska) are required
to make medium-term and annual operational/action plans and work programs, in order to further
develop detailed and operational activities in achieving the objectives of the Strategy.
The Government of the Federation of Bosnia and Herzegovina at its session held on 13 November
2008 adopted a Strategic Plan for the Prevention of Domestic Violence for the Federation of Bosnia
and Herzegovina - 2009-2010.
The Strategic Plan is a program and operation document which should serve as a framework for
action for all institutions that are responsible for preventive action in combating domestic violence,
particularly in the areas of education, health, welfare, security and justice in the Federation of Bosnia
and Herzegovina. Long-term strategic objective in the field of prevention of domestic violence is “to
ensure coordinated and appropriate preventive action authorities at all levels of government, and
nongovernmental organizations in the prevention of domestic violence in the Federation of Bosnia and
Herzegovina”. The Strategic Plan sets out the activities, carriers and deadlines for the implementation
of these activities which include:
      •   legislation
      •   professional networking service;
      •   Education and sensitization of professionals and the public;
      •   multidisciplinary model of treatment in the prevention of and protection from violence;
      •   a unified database;
      •   a unique SOS line for reporting domestic violence.

SOS line 1264
SOS line No. 1264 for the area of Republika Srpska was established by signing the Memorandum of
understanding in 2005 between four non-governmental organizations and the Gender Center of the
Republika Srpska. According to NGO data there were 1019 emergency calls in the period of five
months in 2005 (since the establishment of SOS line until the end of 2005) and 2657 calls in 2006, out
of which 70 victims were men and 2587 women in the age of 19-60. According to data for 2007 it is
evident that the number of calls was increasing and that in 2008 there was 3513 victims’ calls (3456
women - 98% and 149 men- 2%).

SOS line 1265
With a Memorandum on Cooperation signed between the Center for Social Services - Jajce, the
Foundation of Local Democracy - Sarajevo, NGO Medica - Zenica, Tuzla-Vive Women, Women of BiH
- Mostar and Women from Una - Bihac and the Gender Center of the Federation of Bosnia and
Herzegovina a functioning SOS phone line was created. By calling the toll-free SOS phone 1265
anyone can register a case of violence, get advice and information to get protection from domestic
violence. From 1 January to 1 June 2009 a total number of calls to the SOS line 1265 was 801. In
order to promote the SOS line 1265 there were promotional radio and TV spots, which are regularly
being broadcasted on most radio and TV stations. Feedback on the clips so far we have received from
27 radio and television stations.

3.4        SPECIAL LEGISLATION ADDRESSING VIOLENCE AGAINST WOMEN (ARE WOMEN DEALT WITH AS
           A "SPECIAL CASE" - "SPECIAL TREATMENT OR IN TERMS OF ANTIDISCRIMINATION LEGISLATION"?)
There is no lex specialis legislation of Bosnia and Herzegovina regulating violence against women as
a special case, but there are other laws (The Law on Protection Against Family Violence, Criminal
Code of the Federation of Bosnia and Herzegovina, Gender Equality Law of BiH) regulating violence
as criminal offence regardless of victim’s or perpetrator’s sex.
Also, the entity laws on protection against domestic violence provide that domestic violence, especially
violence against women and children within the family is a serious breach of human rights of women
and children's rights.
BOSNIA AND HERZEGOVINA                                                                               35



3.5      CRIMINAL LAW/CIVIL LAW
The Criminal Codes are not designed to protect only women, it also regulates protection of victims and
punishment of perpetrators regardless of sex.
The formulation of the law recognises deprivation of the life of an infant as a criminal offence that may
be committed only by a mother, and it actually is the only criminal offence exclusively assigned to a
specific sex.
The Article 169 of the Criminal Code of the Federation of Bosnia and Herzegovina states: “A mother
who deprives her infant of life at birth or immediately after birth shall be punished by imprisonment for
a term between one and five years.”
In this reporting period, the above mentioned laws have been improved and existing obstacles were
removed enhancing a more adequate application of laws to combat violence against women and girls:
the Law on Amendments to the Law on Protection from Domestic Violence Act, the amendments and
amendments to the Law on Criminal Procedure, Law on Amendments to the Labour Law. The
procedures present modifications of the Criminal Code of the Republika Srpska and the Law on
Gender Equality in Bosnia and Herzegovina, within which is planned to develop the criminal acts of
violence on grounds of sex. Unfortunately, the legitimate conclusion is that changes and innovations in
improved legislative solutions are not accompanied by changes in a practical and systematic
application of the same.

3.6      SPECIALIST POLICE UNITS - COUNTRY WIDE OR PATCHY
In Federation of Bosnia and Herzegovina, police units are organised and act systematically. Currently,
there is a reform of police forces in Bosnia and Herzegovina, so that all police forces of B&H should be
organised and become a system.
In Republika Srpska, at local level, Police Stations have inspectors for domestic violence. Special
police units do not exist.

3.7      VIOLENCE AGAINST WOMEN – AN OBSTACLE TO EQUALITY?
Violence against women has been recognised as the obstacle to gender equality, therefore it is
regulated by Gender Equality Law of BiH, and in Article 4, item b, «gender based violence» is defined
as criminal offense.
In addition, at the entity level (FBiH and RS), the Laws on Protection Against Family Violence have
been adopted.
Law on Protection from Domestic Violence, in Article 6 paragraph 2 provides "Domestic violence,
especially violence against women and children within the family is a serious breach of human rights
of women and children's rights." Violence against women in legislation and the Republika Srpska of
Bosnia and Herzegovina recognized as the most serious aspect of women's human rights violations,
and therefore is an obstacle for achieving equality.

3.8      GENDER PERSECUTION AS GROUNDS FOR GRANTING REFUGEE STATUS?
According to the ” Law on presence and stay of foreigners of BiH” as one of the grounds for refugee
status is membership to some social group, under which belonging to a female sex can be qualified.
There is a legal solution, but it is not enforced in practice.

3.9      WHAT GOOD IDEAS HAVE BEEN SUGGESTED BUT NOT YET IMPLEMENTED?
1. Strategy to prevent and combat domestic violence of Bosnia and Herzegovina 2009 – 2011
2. Special police units to combat domestic violence.
3. The project, which will display, and calculate the economic cost of domestic violence at the entity
   level government organizations (Republika Srpska).
4. Special treatment programs work with offenders, who would be required for these persons and
   fully financed from the budget.
1. All projects are being implemented in cooperation with NGOs.
36                                                                                 BOSNIA AND HERZEGOVINA



4.0 DOMESTIC VIOLENCE
4.1      ARE THERE SPECIFIC LAWS TO COMBAT DOMESTIC VIOLENCE?
Yes, there are entity Laws on Protection against Family Violence in both Federation of Bosnia and
Herzegovina and Republika Srpska.

4.2      ARE CURRENT DEFENCES ADEQUATE WHEN WOMEN KILL ABUSIVE HUSBANDS/PARTNERS?

        FEDERATION OF BOSNIA AND HERZEGOVINA
In case that woman kills an abusive husband/partner, her defence could be grounded on appropriate
provisions of the Criminal Code of FBiH, i. e. Article 26 (Defence of Necessity), Article 27 (Extreme
Necessity), Article 38. (Negligence), Article 50 (Reduction of Punishment), Article 52 (Release from
Punishment), Article 53 (Special Condition for Releasing from Punishment for the criminal offence
committed by negligence), etc which is decided by the court on the grounds of specific circumstances
of each individual case. According to the law, each person accused for the criminal offence is entitled
to adequate defence. Further in the text, the reference is made to the criminal offense of «Homicide
caused by Irresistible Impulse”. The Criminal Code of FBiH defines a special form of the criminal
offence under privileged circumstances, for its legal nature is essentially determined by the conflict
deriving from personal relations between the perpetrator and the victim as the active participants in its
creation and execution as the «Homicide caused by Irresistible Impulse”, mainly for the reason that it
occurs as a result of a specific psychological capacity of a perpetrator, defined as the state rage
caused by another person. In this case, behaviour of the victim provokes the criminal offence, actually
the victim provokes the own victimization.
Conflict situations usually start by insulting or assaults, and are result of long term violence
(sometimes it lasts over the years by the well known principle «step by step»); the violent behaviour
gradually assumes the rudest forms of insulting or the assaults and the person exposed to such
violent behaviour ends up as the perpetrator of violence. The legislator added harassment to assault
and insulting as an additional form which provokes an irresistible impulse. Ratio legis of such legal
solution derives from the fact that there are some forms of behaviour by which the passive subject
provokes specific psychological capacity of the perpetrator which could be hardly included under
meaning of assault or insulting. So, provocation of the victim creates a situation delicti which puts
perpetrator into the state of irresistible impulse of high intensity which ends by killing the provocateur
at the moment. Such behaviour of the victim reflects in a way that behaviour of the perpetrator
becomes to some extent justifiable, and is considered to be privileged form of criminal offence. The
proscribed punishment is imprisonment for a term between one and ten years.
The Criminal Code of the Federation of BiH in Article 167 states:.
“Whoever deprives another person of his/her life while subject to an subject to an irresistible impulse,
having been brought with no fault of his/her own into a fit of rage by an attack or serious insult on the
part of the person murdered, shall be punished by imprisonment for a term between one and ten
years.”
The court decides by the specific case whether this kind of protection represents adequate defence of
woman who kills abusive husband/partner or some additional measures will be applied.

        REPUBLIKA SRPSKA
Women are by Constitution and by law equal in their rights and obligations with mankind. In case of a
woman who committed murder, there are no obstacles for her to be represented in front of a court of
law in adequate and statutory way.

4.3      IS PRIVATE VIOLENCE PUNISHED IN THE SAME WAY AS PUBLIC VIOLENCE?

        FEDERATION OF BOSNIA AND HERZEGOVINA
Yes, depending of the weight of criminal offense (which is divided into several levels), family violence
(private violence) is almost equalled with public violence, but the criminal offence in the field of family
violence includes more measures for prevention of violence and sanctions for the perpetrators of
BOSNIA AND HERZEGOVINA                                                                              37



violence; the penalty regulations include sanctions ranging from fines to long term imprisonment (in
accordance with Article 222 of the Criminal Code of FBiH), depending of the weight of criminal offence
and the effects caused by criminal offence, and also, the sanctions may be prescribed in accordance
with the Law on Protection Against Family Violence of FBiH, which includes following:
         1. Removing from a flat, a house or some other kind of living place of victim, and prohibition
             on returning to the flat, the house or some other kind of living place of victim;
         2. Restriction on approaching the victim of violence,
         3. Provision of protection to victims of violence;
         4. Restriction on abusing behaviours or following the victim;
         5. Mandatory psycho-social treatment,
         6. Mandatory addiction treatment.
In addition, according to the “Law on Protection against Family Violence of FBiH”, apart from
protective measures, the fines in amounts from KM 2000.00 to KM 10000. may be applied for the
person who violates any of the above listed measures (Article 21. of the Law on Protection Against
family Violence).
Pursuant to the provisions of articles 380-382. of the Family Law of FBiH, in case that the person has
violent behaviour or if there is a danger of such behaviour, the said person may be removed or put into
adequate institution.
For the public violence defined as the felony or criminal offence, depending of the weight of committed
act, the adequate sanctions are prescribed in accordance with appropriate laws, such as criminal
sanction of imprisonment for criminal offense against life and limb, special provisions of articles 172-
174 of the Criminal Code of BiH (Grievous Bodily Injury; Light Bodily Injury; Participation in Brawl;
etc.).

       REPUBLIKA SRPSKA
There are equal law penalties, but practice differs. Family tyrants are, as a rule, mildly sentenced
(suspended punishments).


5.0 RAPE AND SEXUAL ASSAULT IN MARRIAGE
5.1      IS RAPE IN MARRIAGE OUTLAWED AND PROSECUTED IN THE SAME WAY AS OTHER FORMS OF
         RAPE?


       FEDERATION OF BOSNIA AND HERZEGOVINA
By the adoption of the new Criminal Code of FBiH (2003.), the gender based discrimination and
gender based discrimination in marriage has been excluded in characterisation of criminal offense of
rape. Therefore, the criminal offense of rape has become gender neutral, which means that the
perpetrator or the passive subject may be any person irrespective of sex and regardless of the fact
whether they are in marital or non-marital relationship. This way, the legislator has finally taken into
account that the sexual freedom and the sexual free will of a man and a woman is ensured equally to
anyone regardless of his/her sexual or marital status. Sex or marriage, in fact legally arranged unit
cannot be ground for discrimination of people.
According to the Criminal Code of FBiH rape represents any sexual activity which by its effects may be
treated as sexual intercourse against the will of the passive subject.

       REPUBLIKA SRPSKA
Rape in marriage is not outlawed. Article 193.of the Criminal Code of REPUBLIKA SRPSKA includes
rape in marriage.
It is prosecuted in the same way as other forms of rape, but in practise there is a very small number of
these cases that are proven in front of a court of law.
38                                                                                 BOSNIA AND HERZEGOVINA



5.2      ARE THE SANCTIONS FOR RAPE AND RAPE IN MARRIAGE THE SAME?

        FEDERATION OF BOSNIA AND HERZEGOVINA
Yes, they are. By the adoption of the new Criminal Code of FBiH, the gender based discrimination
and gender based discrimination in marriage has been excluded, so for each criminal offence of rape,
regardless of whether it is about gender based discrimination or gender based discrimination in
marriage, the same sanction is applied, which is pronounced depending of the weight of criminal
offence and the effects caused by the committed criminal offence (See the answer under 5.1).

        REPUBLIKA SRPSKA
They are.

5.3      HAVE ANY SPECIFIC SOLUTIONS BEEN SUGGESTED FOR RAPE IN MARRIAGE (RESTRICTIONS AND
         BANNING ORDERS)?
The Criminal Codes do not provide for the solutions exclusively related to the criminal offence of rape
in marriage as the rape in marriage is included in criminal offence of rape (see the answer under 5.1.).
However, the Laws on protection Against Family Violence provide for protective measures that the
court may pronunce for perpetrator of violence, and for the perpetrator of rape in marriage. Those
measures are listed in Article 9. of the Laws on Protection Against family Violence, which states:
The following protective measures may be applied for the perpetrators of family violence:
        1. Removing from a flat, a house or some other kind of living place of victim, and prohibition
           on returning to the flat, the house or some other kind of living place of victim;
        2. Restriction on approaching the victim of violence;
        3. Provision of protection to victims of violence;
        4. Restriction on abusing behaviours or following the victim;
        5. Mandatory psycho-social treatment;
        6. Mandatory addiction treatment.

5.4      ARE THERE CIVIL LAW REMEDIES – INCLUDING MEASURES RELATING TO THE FINANCIAL
         SITUATIONS OF WIVES/COHABITERS AFTER SEPARATION AND DIVORCE?


        FEDERATION OF BOSNIA AND HERZEGOVINA
The right to alimony to spouse is prescribed by Criminal Code Of FBiH in Article 221 (Breach Of
Family Obligations) and Article 223 (Evading Provision of Maintenance Support), which state:

Article 221
Breach Of Family Obligations
(1) Whoever in gross violation of his/her legal family obligations leaves in a difficult situation a member
of his/her family who is not capable of taking care of himself, shall be punished by imprisonment for a
term between three months and three years.
(2) Should the member of the family lose his/her life or should his/her health be severely damaged as
a result of such an act from paragraph 1, the perpetrator shall be punished by imprisonment for a term
between one year and eight years.
(3) When pronouncing a suspended sentence, the court may also pronounce as a condition that the
perpetrator should regularly fulfil his/her obligations of taking care, tutoring and supporting.

Article 223

Evading Provision of Maintenance Support
(1) Whoever evades providing support for another person whom he/she is obliged to support on the
basis of a decision of the court, or an effective agreement entered into before another competent
body, shall be punished by imprisonment for a term up to three years.
BOSNIA AND HERZEGOVINA                                                                                39



(2) When pronouncing a suspended sentence the court may pronounce as a condition that the
perpetrator should regularly pay for the maintenance support and all his/her other due obligations.
(3) If the person committing the act under paragraph 1 of this Article has fulfilled his/her obligation
prior to ruling the first-instance judgment, he/she may be released from punishment.
The Family Law of FBiH (Official Gazette of FBiH, No 35/05) – articles 213-249 regulate this issue.

        FAMILY LAW OF REPUBLIKA SRPSKA
Family Law of Republika Srpska in it's Part 6. entitled ''Alimentation'' regulates sustentation of a
marital spouse in cases when marriage ends by divorce or by annulment, as well as sustentation
(alimony) between cohabiters after the breakup of illegitimate community which lasted for three years
and longer. For stated persons regulatory rules are ascribed from article 241.- 252. of the Family Law
of Republika Srpska. Stated articles represent general legal provisions, which equally refer to women
and men; special remedies for women after separation and divorce do not exist.

5.5      IS THERE SPECIAL LEGISLATION TO DEAL WITH RAPE IN MARRIAGE?
No, there is not special law regulating the rape in marriage. The rape in marriage falls under criminal
offence of rape as described and regulated by the Criminal Codes (See the answer under item 5.1)


6.0 RAPE AND SEXUAL ASSAULT
6.1      HOW IS SEXUAL CRIME DEFINED?

        CRIMINAL CODE OF THE FEDERATION OF BOSNIA AND HERZEGOVINA

Article 203 – paragraph 1. of the Criminal Code of the Federation of BiH states
„Whoever compels another person to sexual intercourse or other act that may be treated as sexual
intercourse by force or threat of immediate attack upon life and limb, or life or limb of someone close to
that person, shall be punished by imprisonment for a term between one and ten years.”
The solution provided for in Article 203. of the Criminal Code of FBiH has accepted the modern
understanding of the term rape, according to which the rape exists in any case when the sexual
intercourse or other sexual activity which by its effects may be equalled with sexual intercourse is
committed against the will of the passive subject. The practical effect of this new concept is abolishing
of incriminations that are absorbed by the criminal offence of rape.
From the legal formulation it derives that it is about double act criminal offense, consisted of forcing
and sexual intercourse, or other sexual act. Since the forcing by its nature is criminal offense, which
on the contrary does not refer to sexual intercourse, or other sexual acts that are not treated as the
activities forbidden by the law, the rape belongs into complex criminal offenses. Apart from the basic
form of the criminal act, the legislator also provides several other seriously qualified forms.

        CRIMINAL CODE OF RS
It is defined as: The crime against sexual integrity

6.2      DOES THE DEFINITION OF RAPE INCLUDE ALL ASPECTS OF SEXUAL VIOLENCE (INCLUDING
         SODOMY FOR EXAMPLE)?
It does. The legal definition of rape includes all aspects of sexual violence:
„Whoever compels another person to sexual intercourse or any other sex act by force or threat of
immediate attack upon life or body, or life or body of someone close to that person, shall be punished
by imprisonment for a term between one and ten years.
(2) If the criminal offence referred to in Paragraph 1 of this Article was committed against a minor or in
a particularly cruel or degrading manner or if at the same occasion the victim was raped by several
perpetrators or if the criminal offence has resulted in grievous bodily injury or a serious impairment of
40                                                                                    BOSNIA AND HERZEGOVINA



health or pregnancy of the female victim, the perpetrator shall be punished by imprisonment for a term
between three and fifteen years.
(3) If the criminal offences referred to in Paragraphs 1 and 2 of this Article have resulted in the death
of the victim, the perpetrator shall be punished by imprisonment for a term not less than five years.
(4) Whoever compels another person to sexual intercourse or any other sex act by serious threat of
disclosing some information that would harm his reputation or reputation of someone close to that
person or by threat of any other serious harm, shall be punished by imprisonment for a term of
between six months and five years. “
The gravest form of criminal offense exists if it is committed in a particularly brutal or degrading way.
The act is considered to be committed in particularly brutal way if during the act brutality overcomes
the extent that is common to any criminal offence. The objective component of cruelty overcomes the
common way such acts are usually committed, and subjective one reflects that such act is done with
premeditation and that the perpetrator was aware of his/her deed but still wanted to do it or if he/she
consented to it. Such way of violence includes for example causing of great sufferings or serious injury
by putting out the cigarettes on the body of the victim, or if there is a huge disproportion in strength or
age between the perpetrator and the victim.
Extremely degrading way of execution of criminal act is considered to be the one when during the
rape a victim is exposed to extreme humiliation which means that it overcomes what is provoked by
perpetrator or by other circumstances under which it was committed. This means that extremely
degrading way in objective sense derives from specific circumstances under which the act was
committed, in addition, the subjective component must be fulfilled, i.e. premeditation and the intention
of the perpetrator to expose the victim to a higher level of humiliation than it is common by applying
extremely degrading method. Such method of criminal offence exists for example in case of rape in
presence of others, especially in presence of relatives of the passive subject (a mother or a child), or if
it is about a passive subject which belongs to category of elderly people, or if the acts of perpetrator
represent extreme torturing over the victim, etc.

6.3         ARE THERE DIFFERING DEGREES OF RAPE/SEXUAL HARASSMENT?

           FEDERATION OF BOSNIA AND HERZEGOVINA
Yes, there are. In Criminal Code of FBiH, Article 203, the levels of rape have been determined. (See
answer under item 6.2.).
In addition, Chapter XIX, Criminal Offenses against Personal Dignity and Morality, include following
criminal offenses:
      -   Rape (Article 203.)
      -   Sexual Intercourse with a Helpless Person (Article 204.)
      -   Sexual Intercourse by Abuse of Position (Article 205.)
      -   Forced Sexual Intercourse (Article 206.)
      -   Sexual Intercourse with a Juvenile (Article 207.)
      -   Fornication (Article 208.)
      -   Concupiscence before a Child or Juvenile (Article 209.)
      -   Promoting Prostitution (Article 210.)
      -   Exploitation of a child or a juvenile for a purpose of pornography (Article 211.)
      -   Showing Obscene (Pornographic) Material to a Child (Article 212.)
      -   Incest (Article 213.)

           REPUBLIKA SRPSKA
For the felony of rape there is a basic form of rape, qualified forms, the most difficult one, as well as a
special form of rape- sexual blackmail.
BOSNIA AND HERZEGOVINA                                                                                      41



6.4      HOW IS CONSENT DEFINED?

        CRIMINAL CODE OF FEDERATION OF BOSNIA AND HERZEGOVINA
The consent of the victim (aged over 18) mustn't be on volunteer basis, it must be forced or exerted
under the treat. The Criminal Code of FBiH defines „The consent to rape“, or sexual harassment as it
follows:
     - In Article 203. (Rape) – There is no consent, the rape is committed by «compelling another
         person to sexual intercourse or the act which is levelled as sexual intercourse by force or
         threat of immediate attack upon life and limb, or life or limb of someone close to that person,
     - In Article 204. (Sexual Intercourse with Helpless Person), also there is no conscious consent of
         the victim, since the perpetrator takes advantage of that person's mental disease, temporary
         mental disorder, infirmity or any other state of that person which makes him/her incapable of
         resisting,
     - In Article 205. (Sexual Intercourse by Abuse of Position) –the perpetrator induces into sexual
         intercourse another person because he/she is in a subordinate or dependent position in
         relation to him/her by abusing that person's position, on the ground of her/his property status,
         family status, social status, state of health, or other conditions or difficulties, or it is a teacher,
         educator, guardian, adoptive parent, step-father, step-mother or any other person, who by
         abuse of his/her status has sexual intercourse or the act which is levelled as sexual
         intercourse with a juvenile and who has been entrusted to him/her for the purpose of
         instructing, educating, custody or care
     - In Article 206. (Forced Sexual Intercourse) – the perpetrator has forced another person into
         sexual intercourse, without consent, by “seriously threatening that person with some harm”.
A child, or juvenile under the age of 14, is not allowed to provide any consent to sexual intercourse,
therefore each form of sexual intercourse with such a person is considered to be criminal offence
described in Article 207. (Sexual Intercourse with Juvenile) By the basic form of criminal offence of
Sexual Intercourse with Juvenile, any kind of sexual intercourse or sexual act with juvenile is
incriminated. Therefore, the essence of this incrimination represents the absolute prohibition of any
sexual act with juvenile regardless of free will, or even initiative by juvenile. Ratio legis of such legal
solution is grounded on incapability of underage persons to possess free will in terms of consent to
sexual intercourse or other sexual acts, e.i even if there is such will it is legally irrelevant. Such
position of the legislator derives from generally accepted attitude that a child, juvenile under age of 14,
is in the special phase of developing her/his personality and is not capable to understand the essence
and importance of sexual intercourse, therefore is not entitled to decide on issues in the sphere of
sexual life.

        CRIMINAL CODE OF REPUBLIKA SRPSKA
For the felony of rape the key element is absence of victim's consent.
Self voluntary consent for an intercourse, which exist when a passive subject by his/ her liking decide
on an act of intercourse or any other sexual act or to stop giving resistance, can affect as a
circumstance that excludes existence of rape. Regarding that, it is considered that a voluntary consent
in the context of a previous statement exist only when it is given before the act of rape is completed.
Additional compliance or consent to intercourse or some other sexual act, followed after the felony
was completed, can not have the strength of that kind of circumstance. Intercourse is completed, in
the sense of rape felony, at the moment of joining of sexual organs (coniunctio membrorum).

        CRIMINAL PROCEEDINGS LAW OF REPUBLIKA SRPSKA

Article 271 – Special regulation on evidence in cases of sexual crimes
(3) In cases of committing a criminal act against mankind and international humanitarian law, victim’s
consent could not be used in addition to the accuser’s defence.
42                                                                                    BOSNIA AND HERZEGOVINA



6.5      WHAT KIND OF TECHNICAL EVIDENCE IS NECESSARY IN A RAPE TRIAL?

        FEDERATION OF BOSNIA AND HERZEGOVINA
The act of rape as criminal offense comprises coercion and intercourse or some other sexual action.
The coercion includes the use of force or threat that the life or body of victim or a person close to
victim shall be attacked. This is a functional coercion because the coercion is targeted – on one hand,
the main goal of coercion is to perform the intercourse or other sexual action, and on the other hand,
the purpose of coercion is to break down the resistance, what again makes the forced intercourse or
other sexual action possible. Force, as understood in criminal law, means use of physical, mechanical
or other power that is pointed at persons or objects. In addition, the notion of force includes the use of
hypnosis or intoxicating substances with the aim of bringing a person, against their own will, into a
state of unconsciousness or inability to put up resistance. By its intensity, it may be absolute
(irresistible) or compulsive (psychical).
Absolute force exists when the person it is used against is not able to make decisions or is unable to
realize the decision that had been made, or more precisely, when a person has been incapacitated to
provide resistance. It is believed that the force must be so powerful or effective that the person it is
used against can not resist it, i.e. that the physical capacities or abilities of the victim at the time of use
do not allow them to resist or deter or overpower it.
Compulsive force does not exclude decision making, but a decision is made under its effect. This
typically means such action against other person that does not exclude the possibility of using physical
resistance, but the mental state the victim had been brought into prevents the resistance. Such power
may cause in the victim a blockade of motivation to offer physical resistance. What mechanisms are
used to block the resistance of the victims, what may be the victim’s emotional or rational reasons to
renounce the resistance is irrelevant. What is important though that there is an intention on the part of
the perpetrator to affect a physical force and that this force has caused the desired effect in the person
against whom it was used. Therefore, the force that in a concrete case was enough to overpower the
shown resistance or eliminate the possibility of offering resistance is considered to be the force of
sufficient intensity in any individual case. The force is a means to achieve a goal – perform
intercourse or another sexual action. It may be aimed against persons or objects (for instance,
breaking through a door to enter the apartment of the passive subject).
As we have already said, the act of rape as criminal offense comprises two actions – coercion and
intercourse or other sexual action, where one has to keep in mind close link between the two actions
so that they give each other a new quality. This is not, therefore, a simple sum of intercourse or
another sexual action and the coercion, but an intercourse or another sexual action that was
performed by use of coercion, and the coercion that is used to perform the intercourse or some other
sexual action.
The sexual intercourse, in the sense of criminal law, means natural unification of sexual organs of
persons of opposite sexes, or immissio penis in vaginam. Intercourse is considered complete, for the
purposes of this criminal offense, at the moment of joining the sexual organs (coniuction membrorum),
i.e. at the beginning of penetration of the male sexual organ into the female sexual organ. (For a
sexual intercourse to be considered complete what suffices is that the sexual organ of the defendant
has penetrated the sexual organ of the victim even in a limited degree. The details of the act,
including how long the sexual intercourse lasted, and whether there was ejaculation in vagina or
outside of it, whether an orgasm was reach or not, are irrelevant. Therefore, a simple contact is not
enough to consider that the criminal offense of rape was completed. One novelty in legal definition of
the criminal offense of rape is the addition of term or some other sexual action. The intention of the
legislator was to expand the description of rape as criminal offense to include all those actions that
serve the purpose of satisfying sexual lust and are performed by use of force or threat of use of force,
thus bringing it in line with international standards in the area of criminal protection of sexual integrity
of a person.
From all stated above follows that in order to consider that the crime of rape was actually committed,
the action of the crime must include both coercion and intercourse. To prove the criminal offense of
rape one needs to prove existence of both of those mutually closely connected actions.
Also, in order to prove both actions that make the criminal offense of rape, one may use laboratory,
forensic and other evidence in order to prove, in case of doubt, that the above described actions were
committed and the identity of the rapist by use of DNA analysis or in another technically available way.
BOSNIA AND HERZEGOVINA                                                                                43



       REPUBLIKA SRPSKA
Forensic medical evidence, DNK analyses are used as technical evidence.

       CRIMINAL PROCEEDINGS LAW OF REPUBLIKA SRPSKA

Article 271 – Special regulation on evidence in cases of sexual crimes
(1) Facts, that refers on previous sexual behaviour and sexual predispositions of the damaged party
could not be used as evidence in criminal procedures.
(2) Exceptionally from paragraph 1 of this article, it is possible in procedure to use evidence that
sperm, medical documentation on injuries or other material evidence derives from another person, and
not from the accused.
(3) In cases of committing a criminal act against mankind and international humanitarian law, victim’s
consent could not be used in addition to the accuser’s defence.
(4) Before accepting evidence in accordance with this article, an appropriate hearing would be carried
out, from whom the public would be excused.
(5) Solicitation, following documentation and interrogatory descriptor, are kept sealed in a special
envelope, unless the court of law determines differently.

6.6      IS CROSS-EXAMINATION ON THE VICTIM'S SEXUAL HISTORY AUTHORISED IN RAPE TRIALS AND IN
         WHAT CONTEXT?


       FEDERATION OF BOSNIA AND HERZEGOVINA

Article 279

Special Evidentiary Rules When Dealing With Cases of Sex Crimes

(1) The evidence offered to prove that injured party was engaged in other events related to sexual
     behaviour and to prove a sexual predisposition of the injured party is not admissible.
(2) Notwithstanding Paragraph 1 of this Article, evidence offered to prove that semen, medical
     documents on injuries or any other physical evidence may stem from a person other than the
     accused, is admissible.
(3) In the case of the criminal offense against humanity and values protected by the international law,
     the consent of the victim may not be used in a favour of the defence.
(4) Before admitting evidence pursuant to this Article, the court must conduct an appropriate hearing
     in camera.
(5) The motion, supporting documents and the record of the hearing must be sealed in a separate
     envelope, unless the court orders otherwise.
Provision under paragraph 1 of article 279 of the Law on Criminal Proceedings of the Federation of
BiH (“Official Gazette of FBiH no. 35/03, 37/03, 56/03 and 78/04), protects the victim from harassment
and humiliation, prevents possible discrediting of the victim or its sexual pre-disposition. Previous
sexual behaviour, in terms of this provision of law, may have to do with the number of marriages, use
of contraception, number of pregnancies, number of abortions, etc. Sexual predispositions of the
victim may be related to homosexuality, trans-sexuality etc. Evidence related to earlier sexual conduct
of the victim and the victim’s predisposition may not be used in the proceedings and the Court may not
found its decision on the evidence obtained through violation of human rights and liberties (right to
protection of private and family life…) or through violations of this law because any interrogation of the
victim of a crime about their sexual conduct prior to the crime is prohibited. Sexual predisposition may
include the prior or later inclinations of the victim, meaning their inclinations before or after
perpetration of the crime. Because of this, the Court is obliged to prohibit any questions and answers
the purpose of which is to prove the earlier sexual conduct or sexual predispositions of the victim.
Also, the Court must dismiss the evidence if the proposed evidence is related to the described
circumstances.
44                                                                                  BOSNIA AND HERZEGOVINA



Provision under paragraph 2 of the same article states an exception from the provision of the previous
paragraph that is related to use of material evidence and their value as evidence in case that they
indicate that the material evidence stated in this paragraph come from another person (organic traces
such as sperm, blood, hair, etc.), not from the defendant. This exception constitutes a part of the right
to defence of the defendant, right of the defence to adduce evidence to the benefit of the defendant,
but in a way that is not detrimental to the interests of the victim.

        CRIMINAL PROCEEDINGS LAW OF REPUBLIKA SRPSKA

Article 271 – Special regulation on evidence in cases of sexual crimes
(1) Facts, that refers on previous sexual behaviour and sexual predispositions of the damaged party
could not be used as evidence in criminal procedures.
(2) Exceptionally from paragraph 1 of this article, it is possible in procedure to use evidence that
sperm, medical documentation on injuries or other material evidence derives from another person, and
not from the accused.

6.7      WHICH COURT RULES ON CASES OF RAPE?

        FEDERATION OF BOSNIA AND HERZEGOVINA
Municipal courts or cantonal courts are considered to be courts of jurisdiction in first instance
proceedings in cases of rape, depending on the punishment stipulated by law, all in accordance with
the Law on Courts in the Federation of BiH («Official Gazette of FBiH» number: 38/05). Based on the
above, a municipal court is in charge of first-instance trials for criminal offenses punishable by a fine or
up to ten years in prison, unless a jurisdiction of another court has been stipulated under a special law,
while the cantonal courts are responsible for first instance trials in case of offenses punishable under
the law by over ten years of imprisonment or a long term imprisonment, unless the jurisdiction of
another court has been stipulated by law.

        REPUBLIKA SRPSKA
Court's of general authority on the basis of the Law on criminal procedure, in REPUBLIKA SRPSKA
those are primary courts.

6.8      DOES MEMBERSHIP OF THIS COURT REFLECT THE PRINCIPLE OF EQUAL OPPORTUNITIES?
Yes. Most courts that are responsible for cases of rape reflect the principle of equal opportunities.

6.9      WHAT SENTENCES ARE USUALLY APPLIED TO RAPISTS?

        FEDERATION OF BOSNIA AND HERZEGOVINA
The prescribed punishment for rape ranges between 1 and 10 years in prison, depending on the
severity of the crime of rape.

        REPUBLIKA SRPSKA
Prison sentence in range from one to ten years, and for the most difficult form of rape from five to
twenty years.

6.10     ARE FEMALE POLICE OFFICERS PRESENT IN ALL BODIES CHARGED WITH EXAMINING AND
         PROSECUTING RAPE?


        FEDERATION OF BOSNIA AND HERZEGOVINA
Yes, it is obligatory. A policewoman must be member of the team collecting proofs for sexual crimes
and she is the one contacting the victim.
BOSNIA AND HERZEGOVINA                                                                                        45



        REPUBLIKA SRPSKA
There is an intention of being so.

6.11        HAVE PROVISIONS BEEN MADE FOR FEMALE FORENSIC EXAMINERS?
There is no legal provision. In the Federation of Bosnia and Herzegovina, the presence of female
forensic examiners is ensured in practice.


7.0 SEXUAL HARASSMENT
7.1         DOES YOUR COUNTRY HAVE LEGISLATION TO PROTECT THE DIGNITY OF WOMEN AT WORK
            (VIOLENCE AGAINST WOMEN)?

        LAW ON GENDER EQUALITY IN BOSNIA AND HERZEGOVINA
(«Official Gazette of BiH» number: 16/03) - The Gender Equality Law of Bosnia and Herzegovina sets
forth that all forms of violence in private and public life on the grounds of gender are prohibited.

Article 4
 (1) d) sexual harassment is any behaviour that in word, action or psychological effect of a sexual
nature in intent or effect inflicts injury on the dignity of a person or gives rise to intimidation, hostility, or
demeaning, threatening or similar situations and which is motivated by belonging to another sex or
different sexual orientation and which to the victim represents inappropriate physical, verbal,
suggestive or other behaviour.

Article 8
(2) An employer is required to undertake effective measures to prevent harassment, sexual
harassment and gender discrimination at work and in employment as set out in paragraph 1 of this
Law, and may undertake no measures against an employee by reason that that employee has brought
proceedings for harassment, sexual harassment or discrimination on the grounds of gender.

Article 20
(1) discrimination, in terms of this Law, gender- based violence, harassment and sexual harassment
on the grounds of gender constitute grounds for compensation. In such case, the provisions of the
Obligations Law and the provisions of the relevant Civil Proceedings Law and the Law on Enforcement
Proceedings shall be applied.
   - Law on Protection from Domestic Violence («Official Gazette of FBiH» number: 22/05) – article
       6, paragraph 2, point 6 (sexual harassment and harassment of a family member),
   - Criminal Code of Federation BiH («Official Gazette of Federation BiH» No. 36/03, 37/03, 21/04,
       69/04 and 18/05) – special provisions under art. 205, paragraph 1, (sexual intercourse by
       abuse of position), art. 206. (Forced sexual intercourse) and art. 208. (Lechery
       (Concupiscence)) etc.
   - Criminal Code of REPUBLIKA SRPSKA (Article 196. Intercourse by misuse of office - Stated
       article regulates this criminal act on a general level, without emphasising the protection of
       women as a special question.
Labour Law - clarified text ( "Official Gazette" No. 55/07)
VIII - Prohibition of discrimination

Article 109
(1) Discrimination from Article 5 of this law is not permitted in relation to:
- Conditions of employment and selection of candidates to perform a certain job,
- Conditions of work and all rights arising from employment,
- Education, training and professional training
- advancement in employment,
46                                                                                BOSNIA AND HERZEGOVINA



- Cancellation of the employment contract.
(2) The provisions of the contract on the work which present a form of discrimination on any ground
enumerated in Article 5 this Law are null.

Article 110.
(1) All persons are equal in the process of employment on the basis of sex.
(2)Discrimination based on sex is not permitted in the process of employment, duration of employment
and in the termination of a employment contract cancel the contract for the work, except for cases of:
- If according to standards, rules or practices this can be justified by the achievement of legitimate
aims, which is proportional to the undertaken necessary and justified measures;
- The establishment of special measures to achieve equity and gender equality and the elimination of
existing inequality and the protection of gender on the basis of the biological definition.

Article 111.
(1) Harassment and sexual harassment, gender based violence, as well as the systematic abuse of
workers by the employer and other employees (mobbing) is not permitted.
(2) Harassment in terms of paragraph 1 this Article will be considered any unwanted behavior on any
of the grounds from Article 5 of this law, which aims to, or constitutes a breach of the dignity of
persons who are seeking employment and employees, which causes fear or creates a degrading or
offensive                                                                              environment.
(3) Sexual harassment shell mean any verbal or physical behaviour which has for its aim or results in
violation of dignity of a person seeking employment, and the employees in their sphere of sexual life,
which results in fear or creates humiliating or degrading environment
(4) Gender based violence shell mean any act that inflicted physical, mental, sexual or economic harm
or suffering, as well as the threat of such acts that seriously limits persons to enjoy their rights and
freedoms on the principle of gender equality in work and/or in connection with the work.
(5) mobbing is a specific form of behaviour in the workplace, by which one or more persons
systematically, during a long period of time, mentally abuse, or demeans another person with the
purpose of compromising his reputation, honour, human dignity and integrity.

Article 112
(1) In the cases of discrimination within the meaning of the provisions of art. 5, 109, 110 and 111 this
Law a person who is seeking employment as well as the worker, can initiate before the competent
court proceedings for the compensation of damages in accordance with the law.
(2) In the event of a dispute, the burden of proof that there was no discrimination, or that the
provisions of this law were not violated, if a person who search for work, or a person who is employed
out the facts justifying the suspicion that the employer acted contrary to the provisions of Article 111th
Paragraph 1 this Act, the employer is.
(3) In cases of violence on the basis of sex, harassment and sexual harassment and mobbing, no
provision of this Act may be interpreted as restricting or reducing the right to conduct criminal or civil
proceedings.
(4) If the court determines that the claim in paragraph 1 established in this Article, the prosecutor
impose to the employer to establish and provide enjoyment of rights that are denied to him or to pay
the appropriate fee.

7.2      ARE OTHER FORMS OF SEXUAL VIOLENCE LEGISLATED AGAINST?
According to the Gender Equality Law of Bosnia and Herzegovina, anyone who perpetrates violence,
harassment or sexual harassment on the grounds of gender as described by the provisions of Article 4
of this Law shall be convicted of a criminal offence and sentenced to serve a term of from six months
to five years in custody. In addition to forms of sexual violence already described, the Law on Gender
Equality of BiH under provisions of article 4, points b) and c) defines a broader notion of “sexually
based violence” and “harassment”.
BOSNIA AND HERZEGOVINA                                                                                47



         CRIMINAL ACTS AGAINST SEXUAL INTEGRITY
Rape, Intercourse over a helpless person, Sexual violence over a child, Intercourse by misuse of
office, Satisfaction of sexual mania in front of another, Human trafficking for the transaction of
prostitution, Exploitation of juveniles for pornography, Production and representation of child
pornography, Incest.


8.0 INCEST/SEXUAL ABUSE OF GIRLS
8.1       WHAT IS THE AGE LIMIT BETWEEN CHILD AND ADULT?
Children are considered to be persons under full 14 years of age, persons of the age from 14 to 18
years are the juveniles, while the adults (persons having full working capacity) are considered the
persons who are over 18.

8.2       DOES THIS CORRESPOND TO THE AGE OF CONSENT?

         FEDERATION OF BOSNIA AND HERZEGOVINA
In order for a marriage to be considered valid it is necessary, among other things, that the future
spouses express their consent.
A person under 18 years cannot get married.
On exceptional basis, the court may allow marriage following the non-litigation procedure to a person
who is 16 years of age should it consider that there are justified indication (based on opinion of social
and health workers) that the person is physically and mentally ready to undertake marital rights and
duties, and that the marriage is in the interest of that person.
Marriage is considered contracted when the future spouses state their consent.
A juvenile over 16 may acquire full business capacity after having become a parent, in accordance
with the provisions of the Family Law of the Federation BiH, art. 8, 28, and 157.

         REPUBLIKA SRPSKA
Incrimination of the crime of Sexual violence over a child (Article 195. Criminal Code RS), established
an absolute prohibition of any kind of sexual activities with a child, that is a person up to 14 years of
age, irrespective of the fact that they are voluntary or even initiated by a child.

8.3       IS THERE SPECIFIC LEGISLATION AGAINST CHILD PROSTITUTION?
No, there is not.
However, this matter is partially defined by:
      - Law on Gender Equality of BiH – provisions under article 4. point d) (Sexual harassment), as
         well as art. 7. 8. and 12. of the same Law,
      - Criminal Code of BiH („official Gazette of BiH“ No. 03/03, 32/03, 37/03, 54/04, 61/04 and 30/05)
         – provisions under art. 185. paragraph 2. (Establishment of Slavery and Transport of Slaves)
         186. paragraph 2. (Trafficking in Persons) 187. paragraph 3. (International Procuring in
         Prostitution) and 189. (Smuggling of Persons).
      - Criminal Code of Federation BiH – provisions under art. 207. (Sexual Intercourse with a Child),
         art. 210. paragraph 4. (Pandering) if this offense has been committed against a child or a
         juvenile, art. 211. (Abuse of a Child or Juvenile for Pornography) and art. 212. (Introducing
         Pornography to a Child) etc.
      - Criminal Code of Republika Srpska (Article 198. Human trafficking for the transaction of
         prostitution: If the actions that represent the essence of this crime were perpetrated against
         child or a juvenile, perpetrator would be punished with jail sentence ranging from 1- 12 years;
         Article 199. Exploitation of juveniles for pornography: Who misuses a child or a juvenile for the
         production of pictures, audio-visual material or other objects of pornographic content, or
         misuses a child or a juvenile for pornographic show, would be punished with jail sentence
         ranging from six months to five years.
48                                                                                   BOSNIA AND HERZEGOVINA



      - Laws on Protection from Domestic Violence – art. 6. paragraph 2. point 6. (Sexual harassment
         and harassment of a family member ),
      - Rulebook on protection of foreigners – victims of trafficking in humans – provisions under art. 7.
         and 19. (Special Protection of Children) art. 20. (Placing Children in Shelters) and art. 21.
         (Return of a Child).

8.4       WHAT OTHER FORMS OF SEXUAL ABUSE ARE LEGISLATED AGAINST (SEXUAL HARASSMENT,
          FEMALE GENITAL MUTILATION)?

         FEDERATION OF BOSNIA AND HERZEGOVINA
Other forms of sexual abuse legislated against include, inter alia, the following:
      - „Gender based violence “ and „Harassment “ – art. 4 point b) and c) of the Law on Gender
          Equality in BiH.
      - Rape of a Juvenile (article 203, paragraph 5 of the Criminal Code of Federation BiH); Sexual
          Intercourse by Abuse of Position (art. 205, paragraph 2 of the Criminal Code of Federation
          BiH); Sexual Intercourse with a Child (art. 207 of the Criminal Code of Federation BiH);
          Pandering (art. 210, paragraph 4 of the Criminal Code of Federation BiH); Abuse of a Child or
          Juvenile for Pornography (art. 211 of the Criminal Code of Federation BiH); Introducing
          Pornography to a Child (art. 212 of the Criminal Code of Federation BiH) etc.

         REPUBLIKA SRPSKA
Criminal acts against sexual integrity:
Rape, Intercourse over a helpless person, Sexual violence over a child, Intercourse by misuse of
office, Satisfaction of sexual mania in front of another, Human trafficking for the transaction of
prostitution, Exploitation of juveniles for pornography, Production and representation of child
pornography, Incest.

8.5       ARE THERE PROVISIONS FOR THE REMOVAL OF ABUSERS FROM HOUSEHOLDS?

         FEDERATION OF BOSNIA AND HERZEGOVINA
The Law on Protection of Domestic Violence of Federation of BiH provides for measures that may be
pronounced to the abuser as well as to perpetrator of criminal offense of rape in marriage.
Those measures are stipulated in article 9 of the Law on Protection of Domestic Violence, which reads
as follows:
          “The following protective measures shall be taken against an abusive person:
          1) Removal from the apartment, house or other dwelling and being barred from returning to
          that apartment, house or other dwelling;
          2) A restraining order;
          3) The protection of the victim of domestic violence;
          4) Prohibition from harassment and stocking;
          5) Mandatory psycho-social treatment;
          6) Mandatory rehabilitation.“

The Family Law of the Federation of BiH – provisions under art. 145 (Prohibiting the Parent which
Does not Live with the Child to Get to the Child without Permission and Disturb it); art. 153. (Depriving
a Parent of the Right to Live with the Child), art. 154 (Taking Away Parental Rights).

         LAW ON PROTECTION FROM DOMESTIC VIOLENCE IN REPUBLIIKA SRPSKA
Court of law can for a domestic abuser deliver the following measures of protection:
         1.   estrangement from apartment, house or some other housing area,
         2.   restraining order;
         3.   assurance for protection of the victim of violence,
         4.   restraining order of harassing or stocking the victim of violence,
BOSNIA AND HERZEGOVINA                                                                                 49



        5.   obligatory psychosocial treatment,
        6.   obligatory treatment from addiction,
        7.   work in behalf of a humanitarian organisation or local community.

Article 18
Measures of protection are pronounced in length, not shorter than 30 days, nor longer than 2 years.

8.6      ARE THERE DIFFICULTIES REGARDING THE CREDIBILITY OF CHILDREN AS WITNESSES?

        FEDERATION OF BOSNIA AND HERZEGOVINA
The Law on Criminal Procedure of the Federation of BiH prescribes that the juveniles under 16 years
of age would be invited to testify through their parents or legal guardian, except when the necessary
urgency of the matter or other circumstances render this impossible. (art. 95, paragraph 2 of the Law
on Criminal Procedure of FBiH).
However, a juvenile who, because of his/her age and mental immaturity, is unable to understand the
right not to testify, may not be heard as witness (art. 96, point d) of the Law on Criminal Procedure of
FBiH).

        CRIMINAL PROCEEDINGS LAW OF REPUBLIKA SRPSKA

Article 143 – Persons who can not be interrogated as witnesses
g) a juvenile person, who considering stature and psychical development is not capable to understand
the significance of the right not having to testify.

8.7      ARE THERE ANY SPECIAL PROVISIONS FOR EVIDENCE GIVING BY CHILDREN?

        FEDERATION OF BOSNIA AND HERZEGOVINA
When a juvenile is testifying, particularly in cases when he/she is the victim of the criminal offense,
he/shall be treated carefully in order to avoid harmful effects on the juvenile’s mental state, in
accordance with article 100, paragraph 4 of the Law on Criminal Procedure of FBiH.

        CRIMINAL PROCEEDINGS LAW OF REPUBLIKA SRPSKA

Article 150 – Cours of a witness questioning
(4) During the questioning of a juvenile, particularly if he is damaged by crime, he would be dealt with
concern, so the questioning would not harmfully effect on his mental condition.
(5) If it is necessary, the questioning of a juvenile would be carried out with the help of pedagogue,
psychologist or other expert.
(6) Considering the life age, physical and mental condition or other justifiable interest's, witness can be
questioned via technical devices for transmition of picture and sound in a way that parties and defence
lawyer can ask the questions without presence in a room where there is a witness. For the
requirements of that kind of questioning an expert person can be appoint.

        LAW ON WITNESS PROTECTION IN CRIMINAL PROCEEDINGS OF REPUBLIKA SRPSKA

Aricle 3 – Witnesses under threat and endangered witnesses
(3) Endangered witness is a witness who is seriously physically or psychologically traumatized by
circumstances under which a crime has executed or who suffers from serious mental disruption that
makes him extremely sensitive, as well as a child or a juvenile.
50                                                                             BOSNIA AND HERZEGOVINA



Article 6 – Assurance of psychological, social and expert help
Prosecutor, during the investigation, and after the raising of court's indictment, notifies the organ
authorized for questions of social care on including the endangered witness in the procedure and
enables rendering of that organ, as well as psychological support for the witness, including presence
of experts during examination or questioning.

8.8     ARE CHILDREN ALLOWED TO RECEIVE THERAPEUTIC SUPPORT BETWEEN THE TIME OF REPORTING
        AND THE COURT CASE?
Yes, in both entities of Bosnia and Herzegovina.
If necessary, the juvenile shall give his/her testimony with assistance of psychologists, pedagogue or
other expert, in accordance with art. 100, paragraph 4 of the Law on Criminal Procedure of FBiH.

8.9     ARE SPECIFIC MEASURES TAKEN TO COMBAT ORGANISED/NETWORKED RITUAL ABUSE RINGS?

       FEDERATION OF BOSNIA AND HERZEGOVINA
Provision of Criminal Code of BiH – Article 185, paragraph 2 (Establishment of a Slavery Relationship
and Transport of Persons in Slavery Relationship), Article 186, paragraph 2 (Trafficking in Humans),
Article 187, paragraph 3 (International Procuring in Prostitution, and 189 (Smuggling of Persons).

       REPUBLIKA SRPSKA
There are, they are a joint operation between governmental and nongovernmental sector
on the plans of making new laws, by-laws acts, policies, declarations, action plans, trainings and
educations, on establishing and financing safe houses, on raising conscience through media's and
actions of other kind.
CROATIA                                                                                                    51




                                               CROATIA


Information provided by the Office for Gender Equality, Government of the Republic of Croatia, in
October 2009


1.0       LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
1.1       LETTER OF LAW – DEFINITIONS
The Government of the Republic of Croatia adopted the Proposal of the new Act on Protection against
Domestic Violence and submitted it to the Croatian Parliament on 19 June 2009. Since the Proposal of
the Act is now going through the regular adoption procedure, its adoption is expected by the end of
2009. The definition of domestic violence according to the Act on Protection against Family Violence
(OG 116/03) currently in force reads:
"Family violence is any use of physical force or psychological pressure against the integrity of a
person; any other behaviour of a family member which can cause or potentially cause physical or
psychological pain; causing feelings of fear or of being personally endangered or feeling of offended
dignity; physical attack regardless of whether or not it results in physical injury, verbal assaults, insults,
cursing, name-calling and other forms of severe disturbance; sexual harassment; stalking and all other
forms of disturbance; illegal isolation or restriction of the freedom of movement or communication with
third persons; damage or destruction of property or attempts to do so."
Furthermore, with regard to item 2.1 – Sanctions against domestic violence, we would like to stress
that, pursuant to the current Act on Protection against Family Violence, the provisions of the
Misdemeanour Act are applied, unless otherwise prescribed by this Act. Misdemeanour-law sanctions
for protection against domestic violence that the court may impose on the perpetrator of domestic
violence are a fine and a prison sentence, as well as security measures.
Concerning domestic violence, it must be highlighted that on 29 November the Government of the
Republic of Croatia adopted a new National Strategy for Protection against Domestic Violence for the
period from 2008 to 2010 (OG 126/07).
The National Strategy contains a total of 49 measures distributed within six areas:
     1. Training of experts working in the field of protection against domestic violence;
     2. Psychosocial treatment of domestic violence perpetrators;
     3. Analysis and implementation of acts in the field of protection against domestic violence;
     4. Shelters and support for victims of domestic violence;
     5. Improvement of the status of victims in procedures in which they participate;
     6. Raising public awareness about domestic violence.
One of the most important areas of the National Strategy is the area of “Analysis and implementation
of laws in the field of protection against domestic violence”. This area contains a total of 17 measures,
out of which we would like to highlight the following measures: No 2 - “To analyse the harmonisation of
all laws in force in the Republic of Croatia with basic international documents for the elimination of
domestic violence, and conduct a comparative analysis of good practice in other states, and collect
statistical data”; No 5 - “Propose a new Act on Protection against Family Violence and draft
implementing regulations for the Act in question”; No 6 - “Propose amendments to the Criminal Code
with a view to protecting the victims of domestic violence”; No 7 - “Draft amendments to the Criminal
Procedure Act for the purpose of protecting the victims of domestic violence”; and No 8 - “Draft
amendments to the Misdemeanour Act for the purpose of protecting the victims of domestic violence”.
With a view to fulfilling the above measures, the Ministry of Family, Veterans’ Affairs and
Intergenerational Solidarity, in cooperation with Prof Ksenija Turković, DSc, full professor at the
Faculty of Law of Zagreb University, and Dubravka Šimonović, DSc, head of the Department for
International Organisations and Human Rights of the Ministry of Foreign Affairs and European
Integration, is conducting analyses on the alignment of laws currently in force in the Republic of
52                                                                                               CROATIA



Croatia with the basic international documents dealing with the elimination of domestic violence. Since
this involves a very comprehensive analysis, a working version has been drafted, while the final
version of the analysis is underway. Furthermore, the proposal of the new Act on Protection against
Family Violence is pending adoption in the Croatian Parliament. Concerning the measure of proposing
amendments to the Criminal Code, the Ministry of Justice has established a Working Group for
drafting the Criminal Code, which has begun work on its draft. In drafting the Criminal Code, special
attention will be given to the criminal offence of violent conduct within a family (Article 215a).
The new Criminal Procedure Act was adopted on 15 December 2008 (OG 152/08), and its
amendments on 30 June 2009 (OG 76/09). The new Criminal Procedure Act contains provisions
aimed at protection against domestic violence, especially those concerning the examination of
witnesses and the protection of the rights of the victim and the injured person. This Act introduces for
the first time into the Croatian legal system the victim as participant in the procedure with special
rights. The rights of the victim are regulated by Chapter V of the Act, where Article 202 paragraph 10
defines the victim in conformity with the definition of the victim in international legislation and
international legal sources. It lays down particular duties of the criminal procedure body in treating the
victim. Pursuant to the provisions of the Act, the victim of a criminal offence also enjoys indirect
protection, for example, as a vulnerable and threatened witness. The Act also determines special
rights of a child victim of a criminal offence and the respective duties of the procedural bodies.
On 3 October 2007, the new Misdemeanour Act (OG 107/07) was adopted, which took into account
the issue of domestic violence, especially in the provisions concerning holding the perpetrator in
custody and the degree of punishment. Furthermore, in drafting amendments to the Misdemeanour
Act, the Ministry of Justice will devote special attention to discussing the provisions that proved to be
inefficient during the implementation of the Act.
In addition, we would like to particularly stress the role of the Rules of Procedure in Cases of Family
Violence that the Government of the Republic of Croatia adopted on 15 September 2005, and its
amendments on 7 September 2006, and which are based on regulations dealing with protection
against domestic violence and the National Strategy of Protection against Family Violence for the
period of 2005 to 2007. The new National Strategy of Protection against Family Violence for the period
from 2008 to 2010 defines the obligation of drafting forms for the standard methodology of reporting
on the implementation of the Rules of Procedure. By completing these forms, bodies and institutions in
charge of proceeding in cases of domestic violence (the police, social welfare centres, healthcare
institutions, judicial bodies, and educational institutions) report on the implementation of the Rules of
Procedure. The report on the implementation of the Rules of Procedure for the period of 2007 and
2008 was based on the completed forms.
The Croatian Government adopted a series of other national documents that are in part concerned
with the prevention of violence against children and young people. They include the following:
The National Plan of Activities for the Rights and Interests of Children 2006-2012;
The National Programme for Young People 2009-2013;
The Programme of Activities for the Prevention of Violence among Children and Young People (2004);
The Programme of Activities for the Prevention of Violence among Young People for 2009;
The National Plan for the Suppression of Trafficking in Children (October 2005 - December 2007).
In the field of protection of human rights and gender equality, particular stress must be placed on the
adoption of the following documents:
The Anti-discrimination Act (2008);
The new Gender Equality Act (2008);
The National Policy for the Promotion of Gender Equality from 2006 to 2010;
The National Programme of Protection and Promotion of Human Rights from 2008 to 2011;
The National Plan to Combat Discrimination 2008 - 2013.
Furthermore, Article 215a of the Criminal Code defines “Violent conduct within a family” as a
criminal offence.
CROATIA                                                                                               53



Article 215a
A family member who, by his or her violent, abusive or particularly insolent conduct, puts another
member of the family into a humiliating position, shall be punished by imprisonment for six months to
five years.
Domestic violence, as a form of punishable behaviour, has been defined as a misdemeanour offence
by the provisions of the Act on Protection against Family Violence, and as a criminal offence by the
provisions of the Criminal Code. The Act on Protection against Family Violence defines the term of
family violence, the circle of persons deemed to be members of a family, the manner of protecting the
members in the family, and the types and purpose of misdemeanour law sanctions.
The misdemeanour law sanctions for protection against family violence are a fine and imprisonment,
as well as precautionary measures. Article 18 of the Act on Protection against Family Violence
prescribes that a member of a family who commits the misdemeanour offence of violent conduct within
a family shall be punished by a fine to the amount of HRK 1,000 to 10,000, or by imprisonment for up
to 60 days. The Act on Protection against Family Violence envisages stricter punishments for family
members who have repeated the misdemeanour offence of violent conduct within a family, and if the
misdemeanour offence was committed in the presence or to the detriment of a child or a minor.
The Act on Protection against Family Violence also prescribes that the family member who repeats the
act of domestic violence shall be punished for this misdemeanour offence by a fine to the minimum
amount of HRK 5,000, or imprisonment for a minimum of 15 days. An adult family member who
commits domestic violence in the presence of a child or a minor shall be punished for a
misdemeanour offence by a fine to the minimum amount of HRK 6,000, or by imprisonment for a
minimum of 30 days. An adult family member who repeats a domestic violence act in the presence of
a child or a juvenile shall be punished for the misdemeanour offence by a fine to a minimum amount of
HRK 7,000, or by imprisonment for a minimum of 40 days. If the misdemeanour offence of violent
conduct within a family was committed to the detriment of a child or a minor, the perpetrator shall be
punished by a fine to a minimum amount of HRK 7,000, or by imprisonment for a minimum of 40 days.
The precautionary measures that the court may impose on a perpetrator of a misdemeanour offence
of violent conduct within the family are the measures of mandatory psychosocial treatment; issuing a
restraining order concerning the victim of violence; prohibition of harassment or stalking of the person
exposed to violence; removal from the apartment, house or other housing premises; ensuring the
protection of the person exposed to violence; mandatory treatment from addiction, and seizure of
objects for the purpose of, or which have been used in, committing the misdemeanour offence. The
Act also prescribes the punishment of a perpetrator who does not comply with the imposed
precautionary measure, for whose violation the prescribed punishment is a fine to a minimum amount
of HRK 3,000 or imprisonment for a minimum of 40 days.
The Ministry of Health and Social Welfare reported that the Rules of Procedure in Cases of Family
Violence define the obligations of the bodies within the competence of social welfare centres and
healthcare institutions whose aim is to protect the victims of domestic violence (including violence
against women), and to prevent new acts of domestic violence, as well as to develop measures for the
protection of the rights and wellbeing of persons exposed to domestic violence. In line with this, social
welfare centres conduct procedures aimed at protecting the rights of the victims of violence and
children, prescribed by the Social Welfare Act, and apply measures of legal protection of the family in
conformity with the Family Act. When an employee of the social welfare centre is informed, by
whoever in any way whatsoever (in writing, by phone, verbal report, from the media or in the course of
work on another case) of a case of family violence, or if the employee receives any information leading
to reasonable suspicion of family violence, he/she is obliged to do the following:
    1. Immediately upon receipt of such information, report the case to the police, disregarding
       whether or not it has already been reported by another body, and include in this report all the
       available evidence. In addition, the employee of the centre will write an official note about the
       reported incident, containing data on the victim, the perpetrator and the committed violence,
       and open a file on the case immediately;
    2. Start other activities directed at helping the victim within the competence of the social welfare
       centre, paying particular attention to the following:

          2.1. Contact with the victim must be established as soon as possible
54                                                                                                   CROATIA



         2.2. The victim of violence, or his/her legal representative or guardian must be informed about
              relevant legal rights, particularly the rights of the child to protection against any form of
              violence or neglect, about the competence and procedures of the social welfare centre
              regarding protection of citizens, and the measures that the social welfare centre intends
              to undertake in that particular case, which are of vital importance for the protection of
              safety of the victim or child, particularly information relating to placing the victim and child
              in a shelter or home for victims of family violence, in cooperation with appropriate NGOs.
              If the victim of violence is a female, the plan of her safety protection will be worked out
              together with the victim, and she will be assisted in accessing the free legal aid and free
              services of a lawyer from the Croatian Bar Association, as well as free medical aid. She
              will also be referred to an appropriate counselling centre. In contacting a victim of family
              violence, the social welfare centre is obliged to act particularly sensitively regarding the
              problem of family violence, its causes and various forms, showing particular
              understanding towards the victim in all the actions undertaken by the centre;

         2.3. In cases where criminal or misdemeanour procedures due to family violence have been
              started, in every particular case the centre will carefully consider whether the rights and
              interests of the child are fully observed. If not, a special guardian will be nominated to
              represent the interests of the child in legal procedures;

         2.4. The victim shall be provided with the opportunity to give, in a safe and supporting
              environment, all information relevant to identify the violence committed against her/him
              and the children, particularly all facts related to the children witnessing the acts of violence
              or their exposure to violence in any way (in the case of need for urgent and
              comprehensive protection of the children, immediate measures will be undertaken on the
              basis of a verbal order). In completing the report, particular attention will be given to the
              circumstances related to the duration, continuity and forms of the committed violence,
              possible instances of earlier violence and the earlier exposure of the victim and children to
              violence, as well as possible former interventions of the competent bodies regarding
              violence in that family, and their scope. In the proceedings, the social welfare centre shall
              pay particular attention to the protection of victims of violence in front of official bodies,
              bearing in mind the safety of the victim and ensuring separate court hearings for her/him
              and the perpetrator;

         2.5. The employees of the social welfare centre will urgently, without delay, establish all
              evidence pertaining to the case, by means of investigation and other appropriate means.
              This includes interviews with the staff of educational institutions, the family physician and
              all other persons who could provide valid evidence on the circumstances of the committed
              violence;

         2.6. The employees of the social welfare centre are obliged to write a note or a report or create
              another kind of written record about every action undertaken relating to a case of family
              violence;

     3. Having gathered all relevant evidence, the social welfare centre undertakes action for the
        realisation of the rights of victims of violence and the rights of children, as prescribed by the
        Social Welfare Act, and for the implementation of measures of legal protection of the family in
        accordance with the Family Act, particularly those relating to the protection of the rights and
        welfare of the child, taking into consideration the best interest of the child;

         3.1. For the sake of protecting a child’s wellbeing, in cases of family violence committed by a
              parent who does not live with the child, the social welfare centre is obliged to forward
              without delay a proposal to the court to issue a verdict, ruling that the parent who does not
              live with the child is forbidden to meet the child and spend time with the child, in order to
              protect the health and other vital interests of the child, i.e. the social welfare centre shall
              propose, without delay, that the court issue a verdict, ruling that the relevant family
              member is forbidden to be close to the child at certain locations without authorisation or
              within a certain distance, and to harass the child. The social welfare centre will inform the
              non-abusive parent about these steps, and also, in an appropriate and considerate way,
              the child;
CROATIA                                                                                                55




    4. In urgent cases, for the sake of the immediate protection of a victim of family violence, the
       social welfare centre shall pass a verbal decision on care outside the victim’s family, and rule
       the effectuation of the decision without delay. The written decision must be issued by the
       centre within eight days of the day of application for care outside the victim’s family, or of
       information about emergency care provided to the user, which will be delivered to the centre
       by a corporate person indicated in Articles 93 and 105 of the Social Welfare Act. The decision
       will also be forwarded as an additional note to the police. Simultaneously, the social welfare
       centre will propose to the court the enacting of a measure resolving the status of a minor child
       and his/her immediate protection from further abuse;

    5. If a child was the victim of family violence either by being exposed to violence, or having
       witnessed scenes of violence, the social welfare centre will propose, without delay, that the
       court enact the appropriate measure of family-legal protection. The social welfare centre can
       also simultaneously enact the appropriate measure within its competence, taking account of
       all the circumstances of the case, and regularly (at least twice a month) and carefully monitor
       the implementation of these measures as well as the achieved results, in which process the
       centre must provide an appropriate report or an official note. In the evaluation of the results of
       the enacted measure, the opinion of the child about the conditions in which he/she lives will be
       taken into account with particular, and the centre will ask for the help of appropriate
       professional services and institutions. If necessary, if the enacted measure fails to achieve the
       expected results, the centre will propose that the court enact another measure, taking
       particular care about the specific circumstances and needs in the process of selecting a new
       measure;

    6. If requested by the State Attorney’s Office or the police, the social welfare centre must submit
       all documentation relevant to the clarification and presentation of evidence for the relevant
       criminal offence (for example, report by the social worker, monitoring report, opinion of the
       psychologist and other documents on the implementation of relevant measures);

    7. An employee of the social welfare centre is obliged to respond immediately to the call from the
       police for the purpose of providing immediate care to a child or minor, and for an interview in
       deciding on the measures connected to family violence;

    8. While making decisions which concern the rights and interests of the child, the social welfare
       centre is particularly obliged to verify the existence of family violence.

1.3.      RAPE

Article 188 of the Criminal Code defines “Rape” as a criminal offence.
Article 188
   (1) Whoever coerces another by force or by threat of immediate attack upon his life or limb or the
       life or limb of a person close to him, to sexual intercourse or an equivalent sexual act shall be
       punished by imprisonment for three to ten years.
   (2) Whoever commits the criminal offence referred to in paragraph 1 of this Article in a particularly
       cruel or humiliating way, or if on the same occasion a number of perpetrators perform a number
       of acts of sexual intercourse or equivalent sexual acts against the same victim shall be
       punished by imprisonment for not less than three years.
   (3) If, by the criminal offence referred to in paragraph 1 of this Article, the death of the raped
       person is caused, or serious bodily injury is inflicted on the raped person or his/her health is
       severely impaired, or the (raped) female becomes impregnated, the perpetrator shall be
       punished by imprisonment for not less than three years.
   (4) If the criminal offence referred to in paragraph 1 of this Article is committed against a juvenile,
       the perpetrator shall be punished by imprisonment for not less than three years.
   (5) If the criminal offence referred to in paragraphs 2 and 3 of this Article is committed against a
       juvenile, the perpetrator shall be punished for not less than five years.
   (6) (6) If the criminal offence referred to in paragraph 2 of this Article causes the consequences
       referred to in paragraph 3 of this Article, the perpetrator shall be punished by imprisonment for
       not less than five years.
56                                                                                                  CROATIA




Besides the criminal offence of rape, the Criminal Code also includes a series of criminal offences
containing elements of sexual assault, especially in chapter XIV concerning criminal offences against
sexual freedom and sexual morality. These include the following criminal offences: “Rape” (Article
188); “Sexual intercourse with a helpless person” (Article 189; “Sexual intercourse by duress” (Article
190); “Sexual intercourse by abuse of position” (Article 191); “Sexual intercourse with a child” (Article
192); “Lewd acts” (Article 193); “Satisfying lust in the presence of a child or a juvenile” (Article 194);
“Pandering” (Article 195); “Abuse of children or juveniles in pornography” (Article 196); “Introducing
pornography to children” (Article 197); “Child pornography on a computer system or network” (Article
197a), and “Incest” (Article 198).
The Croatian Criminal Code in Chapter XIII, which defines criminal offences against values protected
by international law, also defines the criminal offences of “Trafficking in human beings and slavery”
(Article 175) and “International prostitution” (Article 178).

1.4        CHILD SEXUAL ABUSE /INCEST

Article 188 does not apply in the case of rape of a child, but this is regulated by Article 192 of the
Criminal Code: “Sexual intercourse with a child”, as a qualified form of the offence. The Criminal Code
defines a series of criminal offences to the detriment of a child or minor which may be understood as
child sexual abuse. These are the criminal offences laid down in Chapter XIV: “Sexual intercourse with
a child” in Article 192, “Lewd acts” in Article 193, “Satisfying lust in the presence of a child or juvenile”
in Article 194, “Pandering” in Article 195, “Incest” in Article 198, and “Sexual intercourse by abuse of
position” in Article 191 paragraph 2.

Article 192 Sexual intercourse with a child
      (1) Whoever performs sexual intercourse or an equivalent sexual act on a child shall be punished
          by imprisonment for three to twelve years.
      (2) Whoever performs forcible sexual intercourse or an equivalent sexual act on a child (Article
          188, paragraph 1) or with a helpless child (Article 189 paragraph 1) shall be punished by
          imprisonment for not less than five years or by long-term imprisonment.
      (3) Whoever, by abusing his position (Article 191 paragraph 2), performs sexual intercourse or an
          equivalent sexual act on a child shall be punished by imprisonment for not less than three
          years.
      (4) Whoever commits the criminal offence referred in paragraphs 1, 2 and 3 of this Article in a
          particularly cruel or humiliating way or if on the same occasion a number of perpetrators
          perform a number of acts of sexual intercourse or equivalent sexual acts against the same
          victim shall be punished by imprisonment for not less of five years or by long-term
          imprisonment..
      (5) If, by the criminal offence referred to in paragraphs 1, 2 and 3 of this Article, the death of the
          child is caused or a serious bodily injury is inflicted on the child or his/her health is severely
          impaired or the female child is left pregnant, the perpetrator shall be punished by
          imprisonment for not less than eight years or by long-term imprisonment.

Article 193 Lewd Acts
      (1) Whoever, in the cases referred to in Articles 188 to 191 of this Code, does not attempt to
          commit a criminal offence and commits only a lewd act, shall be punished by imprisonment for
          three months to three years.
      (2) Whoever, in the cases referred to in Article 192 of this Code, does not attempt to commit a
          criminal offence and commits only a lewd act or commits the criminal offence referred to in
          paragraph 1 of this Article against a child or a juvenile shall be punished by imprisonment for
          six months to five years.

Article 194 Satisfying lust in the presence of a child or juvenile
Whoever, in the presence of a child or juvenile, performs acts aimed at satisfying his/her own lust or
the lust of a third person or whoever induces a child to submit to such acts in his/her presence or in
the presence of a third person shall be punished by imprisonment for six months to three years.
CROATIA                                                                                                  57



Article 191 Sexual intercourse by abuse of position
    (1) Whoever, by abusing his/her position, induces another person to submit to sexual intercourse
         or an equivalent sexual act and where the person is in a position dependent towards him/her
         due to harsh material, family, social, health or any other conditions or circumstances, shall be
         punished by imprisonment for six months to three years.
    (2) A teacher, educator, parent, adopter, guardian, step-father, step-mother or any other person
         who, by using his/her status or relationship towards a juvenile who is entrusted to him/her for
         education, upbringing, custody or care, performs sexual intercourse or an equivalent sexual
         act upon such a person shall be punished by imprisonment for one to five years.
The Juvenile Courts Act, as a special law, and the Criminal Code of the Republic of Croatia define
particular criminal offences whose regulation, among other things, protects children against illicit
behaviour which would impinge upon their physical integrity, health, undisturbed sexual development,
the sphere of education and harmonious character development.
The Juvenile Courts Act and the Criminal Code define 12 criminal offences against the sexual freedom
and sexual morality of children, and 2 criminal offences against values protected by international law,
which protect the sexual integrity and undisturbed sexual development of young persons. The list of
these criminal offences is given under item 1.3.
Some criminal offences against sexual freedom and sexual morality may be committed to the
detriment only of a child, while some other criminal offences may be committed to the detriment of any
person. If a child has been injured by a criminal offence, the criminal offence will be qualified as an
aggravated form. The qualifying element here is the characteristic of the child as the injured person,
so that children are additionally protected by the prescription of a more severe punishment. Criminal
sanctions against the perpetrators of sexual crimes to the detriment of children were made additionally
stricter by the introduction of amendments to the Criminal Code in 2006.
The criminal legislation of the Republic of Croatia also defines incest as a criminal offence committed
by a person who performs sexual intercourse or an equivalent sexual act with a blood relative in direct
line or with a sibling. The qualified form of the offence is present if incest was committed against a
minor or against a child. For the basic form of the criminal offence, the prescribed punishment is a fine
or imprisonment for up to one year.
For qualified forms of the criminal offence, the punishment of imprisonment for six months to five years
is prescribed if the criminal offence is committed against a minor aged between 14 and 18, and
imprisonment for one to eight years if the criminal offence is committed against a child younger than
14.

1.5.      SEXUAL HARASSMENT
In Article 8, the Gender Equality Act (OG 82/08) prescribes that harassment and sexual harassment
are deemed as discrimination and that harassment means: “… any form of unwanted behaviour
conditioned by the person’s gender, which aims at, or actually constitutes, violation of personal dignity
and creates an unpleasant, unfriendly, humiliating or insulting atmosphere”. Harassment and sexual
harassment are also regulated by Article 3 of the Anti-discrimination Act (OG 85/08).
Sexual harassment in the criminal legislation of the Republic of Croatia is not regulated as a special
criminal offence. However, Article 191 of the Criminal Code “Sexual intercourse by abuse of position”,
and Article 193 “Lewd acts” read as follows: “Sexual intercourse or an equivalent sexual act by abuse
of position, or a lewd act shall be prohibited.”
In addition, Chapter XI of the Criminal Code regulates criminal offences against the freedoms and
rights of man and citizen, including the criminal offence of violation of the equality of citizens, as
referred to in Article 106; violation of the right to work and other labour-related rights, as referred to in
Article 114; infringing the inviolability of a person’s home, as referred to in Article 122; unlawful
deprivation of freedom, as referred to in Article 124; kidnapping as referred to in Article 125; coercion,
as referred to in Article 128; threat, as referred to in Article 129; unauthorised recording and
eavesdropping, as referred to in Article 131; and unauthorised use of personal data, as referred to in
Article 133. Chapter XV of the Criminal Code regulates criminal offences against honour and
reputation, including the criminal offence of insult, as referred to in Article 199; defamation, as referred
to in Article 200; and exposure of personal and family conditions, as referred to in Article 201 which
may also be committed against persons of the female gender. The introduction of sexual harassment
as a special criminal offence will be considered when drafting the new Criminal Code.
58                                                                                                   CROATIA



Article 4 of the Labour Act (OG 38/95, 54/95, 65/95, 17/01, 82/01, 114/03, 142/03, 30/04, 137/04-
Revised text) defines harassment as any unwanted conduct intending to undermine, or actually
undermining, the dignity of a person seeking employment or a worker, and creating an intimidating,
hostile, degrading or offensive environment. In the sense of the above Act, sexual harassment is any
verbal, non-verbal, or physical conduct of a sexual nature intended to undermine, or actually
undermining, the dignity of a person seeking employment or a worker, and creating an intimidating,
hostile, degrading or offensive environment.

1.6        PORNOGRAPHY
The Criminal Code contains the following criminal offences related to child pornography: Article 196
“Abuse of children or juveniles in pornography”; Article 197 “Introducing pornography to children”; and
Article 197a “Child pornography on a computer system or network”.

Article 196 Abuse of children or juveniles in pornography
      (1) Whoever uses a child or a juvenile for the purpose of making pictures, audio-visual material or
          other objects of a pornographic nature, or possesses or imports or sells or distributes or
          presents such material, or induces such persons to take part in pornographic shows, shall be
          punished by imprisonment for one to eight years.
      (2) The objects used or meant for the perpetration of the criminal offence referred to in paragraph
          1 of this Article shall be forfeited, and the objects that are the result of the perpetration of the
          criminal offence referred to in paragraph 1 of this Article shall be forfeited and destroyed.

Article 197 Introducing pornography to children
      (1) Whoever sells, donates, shows, publicly exhibits or otherwise makes accessible to a child the
          writings, pictures, audio-visual or other objects of pornographic content, or shows the child a
          pornographic performance shall be punished by imprisonment for six months to three years.
      (2) The objects meant and used for the perpetration of the criminal offence referred to in
          paragraph 1 of this Article shall be forfeited and destroyed.

Article 197a Child pornography on a computer system or network
      (1) Whoever, by using a computer system or network, produces, offers, distributes, obtains for
          himself or someone else, or whoever in a computer system or in media for the storage of
          computer data possesses pornographic contents that show children or juveniles in sexually
          explicit behaviour or that are focused on their sexual organs shall be punished by
          imprisonment for one to ten years.
      (2) Whoever, through a computer system, network or media for the storage of computer data
          makes available to a child, pictures, audio-visual contents or other objects of pornographic
          content shall be punished by imprisonment for six months to three years.
      (3) Special devices, means, computer programs or data used for or adjusted for the perpetration
          of the criminal offence referred to in paragraph 1 and 2 of this Article shall be forfeited.

1.7        PROSTITUTION
Article 178 of the Criminal Code regulates the criminal offence of “International prostitution” and reads
as follows:
      (1) Whoever procures, entices, or leads away another person to offer sexual services for profit
          within a state excluding the one in which such a person has residence or of which he/she is a
          citizen, shall be punished by imprisonment for six months to five years.
      (2) Whoever by force or threat to use force or deceit, coerces or induces another person to go to
          the state in which he/she has no residence or of which he/she is not a citizen, for the purpose
          of offering sexual services upon payment, shall be punished by imprisonment for one to eight
          years.
      (3) If the criminal offence referred to in paragraphs 1 and 2 of this Article is committed against a
          child or a minor, the perpetrator shall be punished by imprisonment for not less than three
          years.
      (4) Whether or not the person procured, enticed, led away, forced or deceived into prostitution
          has already been engaged in prostitution is of no relevance for the existence of a criminal
          offence.
CROATIA                                                                                                  59



Prostitution is also a characteristic of the criminal offences under “War crimes against the civilian
population” referred to in Article 158 of the Criminal Code (when individual civilians are forced into
prostitution), and the criminal offences under “Crimes against humanity” referred to in Article 157a of
the same Code.
Prostitution (in the sense of providing sexual services for money) is regulated in the Misdemeanour
Act and the Act on Public Order and Peace Violations, which prescribe the punishment of a person
who engages in prostitution, who allows lewd conduct to be performed in his/her premises, or allows
or in any other way aids and abets prostitution. In addition, Article 175 of the Criminal Code regulates
the criminal offence of “Trafficking in human beings and slavery”.

Article 175 Trafficking in human beings and slavery
     (1) Whoever, in violation of the rules of international law, uses force or threatens to use force, by
         fraud, kidnapping, or abuse of position of authority, solicits, purchases, sells, hands over,
         transports, transfers, encourages or mediates in the buying, selling or handing over of another
         person, or who conceals or receives another person in order to establish slavery or a similar
         relationship, forced labour or servitude, sexual abuse, prostitution, or unauthorised
         transplantation of parts of a human body, or who keeps a person in slavery or in a similar
         relationship, shall be punished by imprisonment for one to ten years.
     (2) Whoever, in violation of the rules of international law, solicits, purchases, sells, hands over,
         transports, transfers, encourages or mediates in buying, selling or handing over, or conceals
         or receives a child or a juvenile in order to establish slavery or a similar relationship, forced
         labour or servitude, illegal adoption of a child, sexual abuse, prostitution or unauthorised
         transplantation of parts of a human body, or who keeps a child or a juvenile in slavery or in a
         similar relationship, shall be punished by imprisonment for not less than five years.
     (3) If the criminal offence referred in paragraphs 1 or 2 of this Article is committed while the
         perpetrator is a member of a group or a criminal organisation, or if it is committed against a
         larger number of persons or has caused the death of one or more persons, the perpetrator
         shall be punished by imprisonment for not less than five years or by long-term imprisonment.
     (4) Whoever, knowing that a person as a victim of trafficking in human beings is engaged in
         forced labour or servitude, sexual abuse, slavery or a similar relationship, prostitution or
         unauthorised transplantation of parts of a human body, abuses his/her position or allows
         another person to abuse his/her position, shall be punished by imprisonment for three months
         to three years.
     (5) Whether or not a person has acceded to forced labour or servitude, sexual abuse, slavery, to
         a relationship similar to slavery or to the unlawful transplantation of parts of his or her body, is
         of no relevance for the existence of the criminal offence referred to in paragraphs 1 and 2 of
         this Article.
In addition to the above, prostitution has been built, as a model of liability for more serious
consequences, in the criminal offence of neglect or maltreatment of a child or juvenile referred to in
Article 213 paragraph 3 of the Criminal Code. These are situations in which the basic form of the
criminal offence (severe neglect of duty of maintaining or educating a child or a juvenile by a parent,
adopter, guardian or another person) has caused severe bodily injury to the child or juvenile, or
severely impaired his or her health, or where a child or a juvenile engages in begging, prostitution or
other forms of asocial behaviour or delinquency.
The Ministry of the Interior also mentions Article 195 of the Criminal Code “Pandering”.

Article 195 Pandering
(1) Whoever commits pandering of a child or a juvenile shall be punished by imprisonment for one to
five years.
(2) Whoever, for profit, organises or assists another person in offering sexual services, shall be
punished by imprisonment for six months to three years.
(3) Whoever, for profit, by force or threat to use force, or by deceit forces or induces another to offer
sexual services shall be punished by imprisonment for one to five years.
(4) If the criminal offence referred to in paragraphs 2 or 3 of this Article is committed against a juvenile,
the perpetrator shall be punished by imprisonment for not less than three years.
60                                                                                                     CROATIA



(5)Whoever organises or assists a child in offering sexual services shall be punished by imprisonment
for one to five years.
(6) If the criminal offence referred to in paragraphs 2 or 3 or this Article is committed against a child,
the perpetrator shall be punished by imprisonment for not less than five years.
(7) Whether the person who is pandered has already been engaged in prostitution is of no relevance
for the existence of the criminal offence referred to in this Article.

1.8       OBSCENE PHONE CALLS/TELEPHONE SEX
The criminal legislation of the Republic of Croatia does not include this incrimination. In the criminal
legislation of the Republic of Croatia, there is no specific criminal offence that prescribes the act of
execution, the potential circle of perpetrators and the envisaged sanctions concerning obscene phone
calls. As stated in item 1.5, criminal-law and misdemeanour-law protection in the case of obscene
phone calls, under certain circumstances, may be offered within the incriminations that characterise
some other punishable acts.

1.9.     GENITAL MUTILATION
The criminal legislation of the Republic of Croatia does not include this incrimination.
The Criminal Code does not mention special regulations which concern the mutilation of women, etc,
so that such conduct towards women is sanctioned as part of the criminal offences against life and
limb that are covered in Chapter X of the Criminal Code, such as the criminal offence of “Bodily injury”
referred to in Article 98, the criminal offence of “Aggravated bodily injury” referred to in Article 99, or
some other criminal offences.
As a part of this issue, it is also important to mention criminal offences against marriage, family and
youth which are covered in Chapter XVI of the Criminal Code which, among other things, sanction
behaviour that violate the rights of women and children, such as the criminal offence of “Allowing the
contract of an illicit marriage” referred to in Article 207, “Abduction of a child or a juvenile” referred to in
Article 210, “Change in family status” referred to in Article 211, “Child desertion” referred to in Article
212, and “Neglect and maltreatment of a child or juvenile” referred to in Article 213 of the Criminal
Code.

1.10.    INTERNATIONAL CONVENTIONS
The Republic of Croatia has signed and ratified the following international conventions:
a) The UN Convention on the Rights of the Child with the Optional Protocol to the Convention on the
Rights of the Child on the Sale of Children, Child Prostitution and Pornography and the Optional
Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict;
b) The UN Convention on the Elimination of All Forms of Discrimination against Women with the
Optional Protocol of 1999;
c) The UN Convention against Transnational Organised Crime and the Protocol to Prevent, Suppress,
and Punish Trafficking in Persons, Especially Women and Children, supplementing the United
Nation’s Convention against Transnational Organised Crime;
d) The International Convention on the Elimination of All Forms of Racial Discrimination;
e) The International Covenant on Civil and Political Rights with the Optional Protocol of 1966, and the
Second Optional Protocol of 1989 aiming at the abolition of the death penalty;
f) The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment
with the Optional Protocol of 2002;
g) The Council of Europe Convention on Action against Trafficking in Human Beings.

1.11      PROTECTION OF PREGNANCY/PREGNANT WOMEN

Article 6 paragraph 2 of the Gender Equality Act prescribes the following:
“There shall be no discrimination on the grounds of marital and family status. Less favourable
treatment of women for reasons of pregnancy and maternity shall be deemed to be discrimination.”
CROATIA                                                                                                    61



The Criminal Code regulates the criminal offence of “Unlawful termination of pregnancy” in Article 97,
which reads:
      (1) Whoever, contrary to the regulations on the termination of pregnancy, commences the
          termination, terminates or assists a pregnant woman in terminating her pregnancy with her
          consent, shall be punished by imprisonment for six months to three years.
      (2) Whoever commences the termination or terminates pregnancy without the consent of the
          pregnant woman shall be punished by imprisonment for one to eight years.
      (3) Whoever commits the criminal offence referred to in paragraph 1 of this Article after the tenth
          week from conception shall be punished by imprisonment for six months to five years.
      (4) Whoever commits the criminal offence referred to in paragraph 2 of this Article after the tenth
          week from conception shall be punished by imprisonment for three to ten years.
      (5) If, by the criminal offence referred to in paragraphs 1 and 3 of this Article, the woman’s death
          is caused, or her health is severely impaired, the perpetrator shall be punished by
          imprisonment for one to eight years.
      (6) If, by the criminal offence referred to in paragraphs 2 and 4 of this Article, the woman’s death
          is caused, or her health is severely impaired, the perpetrator shall be punished by
          imprisonment for not less than five years.

Article 93 of the Criminal Code also regulates the criminal offence of “Infanticide”:
Article 93
A mother who kills her child during or immediately after birth shall be punished by imprisonment for
one to eight years.
A series of criminal offences prescribes increased protection for pregnant women, which means that a
particular criminal offence committed against a pregnant woman is incriminated as a qualified form of
the offence, thus:
      -   For the criminal offence of “Aggravated murder” referred to in Article 91, point 2 of the Criminal
          Code, it is prescribed that whoever murders a pregnant woman shall be punished by
          imprisonment for not less than ten years or by long-term imprisonment;
      -   For the criminal offence of “Sexual intercourse with a helpless person” referred to in Article
          189 paragraph 3 of the Criminal Code, it is prescribed that if the female victim is left pregnant,
          the perpetrator shall be punished by imprisonment for three to ten years;
      -   For the criminal offence of “Sexual intercourse with a child” referred to in Article 192 paragraph
          5 of Criminal Code, it is prescribed that if the female child is left pregnant, the perpetrator shall
          be punished by imprisonment for not less than eight years or by long-term imprisonment.


2.0        SENTENCING
Reported in previous sections. See item 1.

2.1        DATA ON PERSONS SENTENCED FOR DOMESTIC VIOLENCE
The Ministry of the Interior keeps statistics concerning the number of recorded perpetrators in the
period of 2002-2008, and data on the number of juvenile and female victims.
Table on the application of Article 4 of the Act on Protection against Family Violence – misdemeanour
offence “Violent conduct within a family” – in the Republic of Croatia for the period from 1 January
2002 to 31 December 2008.
62                                                                                              CROATIA




             YEAR            2002     2003       2004     2005       2006      2007     2008


            No. of
           reported         6,600     9,151     11,669    14,246    15,277    17,391   16,169
           persons

           No. of
          persons
          brought
                            1,064     1,655     2,525     4,052      6,263    7,032     6,610
         before the
         misdemea-
         nour judge

            No. of
                            9,182     12,260    14,649    17,991    20,983    22,158   20,566
           victims

            No. of
           juvenile
                            2,263     2,678     2,733     3,155      4,010    4,187     3,937
           victims

            No. of
           female           6,217     8,209     9,585     11,606    13,438    14,409   13,321
           victims


Table on the status and trends in the number of reported criminal offences “Violent conduct within a
family” referred to in Article 215 of the Criminal Code, the number of perpetrators and characteristics
of the structure of the number of victims in the Republic of Croatia for the period from 1 January 2002
to 31 December 2008.



      YEAR            2002          2003       2004      2005      2006      2007       2008


   No of
 committed            612           1,118      1,463     1,857     1,985     1,798      1,647
   COs
   No. of
  reported            229           427        517       657       1,780     612        1,634
perpetrators


Total no. of
                      722           1,308      1,606     1,994     2,112     1,914      1,713
  victims


      No. of
     female           573           997        1,229     1,503     1,593     1,482      1,329
     victims



       No. of
     juvenile          92           157        137       132        63        51         86
      victims
CROATIA                                                                                                 63



The data of the State Attorney’s Office show trends concerning criminal reports, indictments and
convictions for the criminal offence referred to in Article 215a of the Criminal Code against adult
perpetrators, and representation by the victims’ gender and age. With regard to these criminal
offences, data on the number, age and gender of both reported and indicted persons and those of the
victims of the criminal offence are kept. These data show that for each reported person there were 1.5
victims, because 1,125 persons were reported and 1,669 victims were recorded in 2007. This shows a
slight decrease in victims per perpetrator compared with 2006, when there were 1.6 victims for one
reported person. In a significant number of cases, the victims of domestic violence are women, but
also children. Therefore, it is not surprising that 23% of the victims are male. The trends concerning
reports, indictments and convictions for the criminal offence referred to in Article 215a of the Criminal
Code against adult perpetrators in 2008, disaggregated by gender, show that 1,208 men and 82
women were reported, 893 men and 45 women were indicted, and 738 men and 24 women were
convicted. The data show that there were 1.95 victims per reported person, because, 1,285 persons
were reported and 2,494 victims were recorded in 2008, which shows that more victims were recorded
per perpetrator than in 2007, when there were 1.5 victims per reported person. In a significant number
of cases, the victims of domestic violence are women, but also children. In 2008, there were 1,348
adult female victims, and 473 child and juvenile female victims. In addition, in 2008 there were 234
adult male victims, and 436 child and juvenile male victims.


3.0        EFFECTIVENESS OF LEGISLATION
3.1        ROLE OF NGOS IN JUDICIAL PROCEEDINGS
NGOs that work with women victims of violence in the Republic of Croatia offer psychological
counselling, working through the traumatic experience, psychotherapy, support during court
proceedings, legal counselling, and, in certain cases, legal representation, medical counselling, etc.
Civil society organisations that work in the field of protection of women’s human rights deal with all
forms of violence against women, regardless of where the violence took place or who the perpetrator
is. Thus, all organisations that have hot lines and counselling centres provide basic information and
support to the victims of these forms of violence.

3.2.       ARE SPECIAL PROVISIONS MADE TO SUPPORT WOMEN AND GIRLS GIVING EVIDENCE?
Compare with item 1.2 - report of the Ministry of Health and Social Welfare, and item 8.
The Criminal Procedure Act (OG 58/08 and 76/09) lays down as a procedural regulation particular
duties of the criminal procedure body in treating the victim. It thus prescribes some universal rights
that are granted to all victims (Article 43 paragraph 1) and the special rights of a victim of a criminal
offence for which the punishment is imprisonment for five or more years. Article 44 prescribes special
rights for children victims of a criminal offence and the relevant duties of the procedural bodies,
whereas Article 45 regulates the rights of the victim of a criminal offence against sexual freedom and
sexual morality.

Article 43
      (1) A victim of a criminal offence shall be entitled to:
          1) efficient psychological and other expert help and support of the authority, organisation or
              institution for aiding victims of criminal offences in accordance with the law;
          2) participate in criminal proceedings as the injured person;
          3) other rights prescribed by law.
      (2) In accordance with special regulations, a victim of a criminal offence for which punishment of
          imprisonment for a term of five years or longer is prescribed shall have the right to:
          1) counsel at the expense of budget funds before testifying in criminal proceedings and in
              submitting claims for indemnification if he/she suffers from more severe psychophysical
              damage or more severe consequences from the criminal offence;
          2) compensation for material and immaterial damages from the state fund under the
              conditions and in a manner determined by a special law. If the victim acquired a claim for
              indemnification prior to this, the amount of the claim shall be taken into consideration, and
              the court shall act in the same manner as when the victim had previously realised a
              damage claim from the state fund.
64                                                                                                   CROATIA



          3) When undertaking the first action in which the victim is involved, the court, the State
             Attorney, the investigator or the police authority shall notify the victim of:
             1) The rights referred to in paragraphs 1 and 2 of this Article and Article 44 of this Act;
             2) The rights to which the victim is entitled as an injured person.

Article 44
      (1) Other than the rights to which the victim is entitled as referred to in Article 43 and other
          provisions of this Act, a child or a minor who is a victim of a criminal offence shall be entitled
          to:
        1)    a proxy at the expense of budget funds;
        2)    secrecy of personal data;
        3)    exclusion of the public.
      (2) The court, the State Attorney, the investigator and the police authority shall treat the child or
          minor under the age of 16 who is a victim of a criminal offence with consideration for his/her
          age, personality and other circumstances, in order to avoid possible harmful consequences to
          the education and development of the child or minor under the age of 16.

Article 45
      (1) Other than the rights referred to in Articles 43 and 44 of this Act, a victim of a criminal offence
          against sexual freedom and sexual morality is also entitled to:
          1) talk to a counsel before being examined at the expense of budget funds;
          2) be interviewed by a person of the same gender from the police authority and State
              Attorney’s Office;
          3) refuse to answer questions related to his/her strictly private life;
          4) request to be examined via an audio-video device pursuant to Article 292 paragraph 4 of
              this Act;
          5) secrecy of personal data;
          6) request the exclusion of the public from the hearing.
     (2) Prior to the first examination, the court, State Attorney, investigator and the police authority
         shall inform the victim of the criminal offence referred to in paragraph 1 of this Article of his/her
         rights as referred to in this Article.
The Act on Police Affairs and Competences of 2009 prescribes the duty of a police officer to treat with
special consideration children, minors, elderly and helpless persons, persons with disabilities and
victims of a criminal offence and misdemeanour offence. Police authority towards a minor is applied in
the presence of a parent or guardian, and if the parent or guardian is a suspect of the criminal offence
or misdemeanour offence against the minor, police authority is applied in the presence of a
professional from a social welfare centre.
The provisions of the Juvenile Courts Act protect the rights of minors, including female minors. The
extent to which the legislator protects the rights and interests of children is evident from the provisions
of the Juvenile Courts Act which prescribes departure from the regular criminal procedure with a view
to avoiding or at least mitigating the adverse consequences that could arise for the minor if the
procedure was conducted before a regular criminal court and following the rules of regular procedure.
The Juvenile Courts Act prescribes the territorial jurisdiction of the juvenile court, which is determined
according to the permanent residence of the injured minor, and according to the place where the
offence was committed only if this would facilitate the carrying out of proceedings. For the purpose of
protecting the identity of the injured minor in proceedings conducted against an adult perpetrator, a
prohibition and restriction apply in revealing the course of proceedings and information about the
minor, as is the case in proceedings against a juvenile delinquent.

3.3        MAIN PROBLEMS AND NEW SOLUTIONS
As a result of the project “Assistance in the development of a witness and victim support system in
Croatia” implemented by the Ministry of Justice and the UN Development Programme (UNDP),
witness and victim support offices have been established and are active at county courts in Vukovar,
Osijek, Zadar and Zagreb. These offices offer emotional support and practical information to victims
and witnesses of serious crimes, including criminal offences of domestic violence. These offices also
conduct their activities at municipal courts, and at the misdemeanour courts in Vukovar and Zadar,
CROATIA                                                                                                 65



exclusively for the victims and witnesses of misdemeanour offences defined according to the Act on
Protection against Family Violence.
The witness and victim support offices are not involved in providing support to children and minors,
since the Juvenile Courts Act prescribes that the examination of a child and minor is conducted with
the assistance of an educator, psychologist or other professional (who is employed at the court or a
social welfare centre). However, this provision does not apply to misdemeanour courts, so that
children and minors who testify at the misdemeanour court for misdemeanour offences defined
pursuant to the Act on Protection against Family Violence testify without the presence of a
professional.
The witness and victim support offices enjoy good cooperation with NGOs that deal with the protection
of women and children victims of domestic violence. Support to victims and witnesses is provided by
employees of the Office and by specially trained volunteers.
The provisions of the Criminal Procedure Act of 2009, which will come into force on 1 September
2011, prescribe additional rights of victims of criminal offences, and offer some new solutions which
will significantly improve the status of the victim in criminal proceedings. Article 43 of this Act, among
other things, prescribes that the victim of a criminal offence is entitled to efficient psychological
assistance and support by the authority, organisation, or institution providing assistance to victims of
crime, and is entitled to participate in criminal proceedings as the injured party.
The above Act prescribes that the victim of a criminal offence punishable by imprisonment for five or
more years is entitled to a counsellor at the expense of budget funds before giving testimony in
criminal proceedings and when filing a claim for indemnification if he/she suffers from serious
psychophysical damage or serious consequences from the criminal offence, and the right to
compensation of material and immaterial damages from the state fund, under the conditions and in a
manner regulated by a special law. A child or minor who is a victim of crime, in addition to the listed
rights to which he/she is entitled as a victim of crime and other rights pursuant to the above Act, is also
entitled to a proxy at the expense of budget funds, to secrecy of personal data, and to the exclusion of
the public.
It is also prescribed that the victim of a criminal offence against sexual freedom and sexual morality, in
addition to the listed rights, is also entitled to talk to a counsellor before being examined at the
expense of budget funds; to be examined by a person of the same gender in the police or state
attorney office; to refuse to answer questions strictly related to his/her personal life; to request to be
examined through an audio-video device; to secrecy of personal data, and to request the exclusion of
the public from the hearing.

3.4       SPECIAL LEGISLATION ADDRESSING VIOLENCE AGAINST WOMEN (TREATMENT OF WOMEN AS A
          “SPECIAL CASE” OR AS PART OF ANTI-DISCRIMINATION LEGISLATION).
The legislation of the Republic of Croatia sanctions any form of discrimination on the grounds of
gender, and on other grounds, such as race, religion, language, political or other belief, property, birth,
education, social status, or other characteristics.
The Croatian Parliament, on 15 July 2008, adopted the new Gender Equality Act which has been
aligned with the provisions of international standards in force, and with EU gender equality directives.
The Act prescribes a general prohibition of discrimination on grounds of gender, marital or family
status and sexual orientation. More unfavourable treatment of women on the grounds of pregnancy,
parenthood and all types of guardianship is also deemed as discrimination. The Act extends the area
of prohibition of discrimination to the field of recruitment and work, education, and promotes the raising
of public awareness of the equal status of men and women and the keeping of gender disaggregated
statistics. Improvements have been introduced in the area of judicial protection against discrimination
through the institute of a joint claim (representative action), establishing the issue of the burden of
proof, and the principle of expeditious proceedings. Besides protection in civil proceedings, victims of
discrimination may also seek judicial protection in misdemeanour proceedings, which represents a
significant novelty, since the lack of sanctions in the previous Act (of 2003) was precisely one of the
basic objections to it and pointed to its declarative character.
In Article 6, the Gender Equality Act prohibits discrimination on the grounds of sex, which it defines
as: “…any normative or real, direct of indirect differential treatment, exclusion or limitation based on
one's gender which renders more difficult or denies equal recognition, enjoyment or exercise of human
66                                                                                                   CROATIA



rights of men and women in political, educational, economic, social, cultural, civil and any other sphere
of life”.
On 1 January 2009, the Anti-discrimination Act also came into force, creating the preconditions for
exercising equal opportunities and regulating protection against discrimination, including discrimination
on the grounds of gender (in addition to race, ethnic origin, colour, language, religion, political or other
belief, national or social origin, material status, trade union membership, education, social status,
marital or family status, age, health condition, disability, genetic heritage, gender identity, expression
or sexual orientation).
Article 2 of the Labour Act prohibits the discrimination: “…of a person seeking employment and
employed person on the grounds of race, colour, gender, sexual orientation, marital status, family
responsibilities, age, language, religion, political or other belief, national or social background, financial
status, birth, social status, membership or non-membership of a political party or trade union, and
physical or psychological difficulties”.
The Criminal Code regulates the criminal offences of violation of the equality of citizens and racial and
other discrimination whose legal descriptions we give in full as follows:

Article 106 Violation of the equality of citizens
(1) Whoever denies and limits the freedoms of man and citizen laid down in the Constitution, statutes or
other legal provisions on the basis of a difference of race, colour, gender, language, religion, political or
other option, national or social origin, property, birth, education, social status or other characteristics,
affiliation to an ethnic or national community or minority in the Republic of Croatia, or whoever, on the
basis of such a difference or affiliation, grants citizens any privileges or advantages shall be punished
by imprisonment for six months to five years.
(2) The same punishment as referred to in paragraph 1 of this Article shall be imposed on a person
who denies or limits a member of an ethnic or national group or a minority the right to freely express
his/her nationality or to enjoy his/her cultural autonomy.
(3) Whoever, contrary to the regulations regarding the use of a language and script, denies or
deprives a citizen of the right to freely use his/her own language and script shall be punished by a fine
or by imprisonment not exceeding one year.

Article 174 Racial and other discrimination
(1) Whoever, on the basis of a difference in race, religion, political or other belief, property, birth,
education, social position or other characteristics, or on the basis of gender, colour, national or ethnic
origin, violates fundamental human rights and freedoms recognised by the international community
shall be punished by imprisonment for six months to five years.
(2)The same punishment as referred to in paragraph 1 of this Article shall be imposed on whoever
persecutes organisations or individuals for promoting equality between people.
(3) Whoever publicly states or disseminates ideas on the superiority or subordination on the basis of
colour, sexual orientation or other characteristics for the purpose of spreading racial, religious, sexual,
national and ethnic hatred or hatred based on colour or sexual orientation or other characteristics or for
the purpose of disparagement shall be punished by imprisonment for three months to three years.
(4) Whoever, for the purpose referred to in paragraph 3 of this Article, disseminates, or in any other way
makes publicly accessible through a computer system materials that deny, significantly demean,
approve or justify the criminal offence of genocide or crime against humanity shall be punished by a fine
or by imprisonment for three months to three years.

3.5       CRIMINAL LAW/CIVIL LAW
Reported in previous sections.

3.6      SPECIALIST POLICE UNITS – COUNTRY WIDE OR PATCHY
Each police station and police directorate in the Republic of Croatia has specialised police officers for
young people who proceed in cases concerning the criminal law protection of children and minors, in
cases of juvenile delinquency and domestic violence. The training of specialised police officers is
CROATIA                                                                                                   67



conducted according to a special teaching curriculum adopted by the Minister of the Interior through a
specialist course which lasts eight weeks.
The participants who successfully complete this course obtain a specialised police officer certificate,
which is a basic condition for them to be assigned within the police system to jobs dealing, not only
with juvenile delinquency, but also jobs related to the criminal-law protection of children and minors
and domestic violence. The condition for the assignment of police officers to these jobs within the
police system is a university qualification predominantly in the social sciences (criminologist, social
pedagogue, pedagogue, psychologist, social worker, lawyer, etc.).
The work of specialised police officers in the above cases also implies team work with officers from
other lines of the police. Team work also involves cooperation with the social welfare service, the
healthcare service, educational institutions, NGOs and other institutions offering help and protection to
children victims of crime and victims of domestic violence.

3.7       VIOLENCE AGAINST WOMEN – AN OBSTACLE TO EQUALITY?
Violence against women as an expression of the historically unequal division of power between men
and women, and historical gender inequality, has been present in all the stages of development of a
society. Women and girls throughout the world, regardless of their national, racial and religious
belonging, culture, age and status, have been exposed to various forms of physical, sexual,
psychological and economic abuse. The roots of violence against women lie deeply within the
structure of society, and violence represents the most frequent form of violation of human rights in
Europe.
From birth to death, in times of peace and war, women face discrimination and violence by the state,
community and family. At least every third woman in the world during her life will become a victim of
violence. Violence against women is present in every society, regardless of its political and economic
system, wealth, race or culture.
The main cause of violence against women lies in discrimination that prevents the equality of women
and men in all spheres of life. Violence against women is not “natural” and “inevitable”. It is a serious
infringement of human rights.
The Republic of Croatia, as party to the UN Convention on the Elimination of all Forms of
Discrimination against Women, has condemned discrimination and committed itself to apply the
principles and standards laid out in the Convention by undertaking appropriate special measures in
the social, political-legislative, economic and cultural sphere, in order to achieve genuine gender
equality.

3.8       GENDER PERSECUTION AS GROUNDS FOR GRANTING REFUGEE STATUS?
The Asylum Act, which came into force on 1 January 2008, allows for the subsidiary protection of
aliens who do not fulfil the requirements to be granted asylum, provided that there is a specific danger
that the alien, by returning to his/her country of origin, would be exposed to serious injustice. The Act
prescribes that asylum be granted to aliens who are outside the country of their habitual residence and
who, owing to a well-founded fear of being persecuted for reasons of their race, religion, nationality,
affiliation to a particular social group or political opinion are unable or, owing to such fear, are unwilling
to avail themselves of the protection of that country. Acts of persecution, in the sense of the Act, may
also be physical and mental violence, including sexual violence, as well as acts which are by their
nature specifically connected with gender and children. The Act prescribes that, on the request of a
woman asylum seeker, it shall be ensured, where possible, that the procedure be conducted by a
female person and that a female interpreter be provided.

3.9       WHAT GOOD IDEAS HAVE BEEN SUGGESTED BUT NOT YET IMPLEMENTED?
Many eminent substantive criminal-law experts are involved in the drafting the new Criminal Code,
currently underway at the Ministry of Justice. These experts are recruited from the ranks of scholars,
but also practitioners (judges, state attorneys, police officers…). The attention of many of these
experts has been devoted in particular to criminal offences with elements of sexual violence, since
they are specialised in this area of criminal law. Great novelties will certainly be introduced in this field
in the Criminal Code, in line with European and world trends, and with the needs of Croatian society.
Some solutions (mentioned under item 1.5) have been proposed so far, but more good ideas and
suggestions from theoreticians and practitioners are expected to be built into the new Code.
68                                                                                               CROATIA



The Ministry of the Interior proposed amendments to the Criminal Code in the part referring to the
regulation of the criminal offence of “Criminal stalking and sexual harassment” in the group of criminal
offences against life and limb, and the criminal offence of “Soliciting and inducing a child or a minor
with the aim of sexual abuse” in the group of criminal offences against sexual freedom and sexual
morality. The proposed descriptions of the criminal offences and the sanctions for the perpetrators are
reported in full below:

“Criminal stalking”
(1) Whoever stalks another persons, scrutinises his/her movements and the means of
telecommunication he/she uses, frequently contacts him/her through a telecommunication device, e-
mail or in any other way disrupts the peace and privacy of another person, the premises where he/she
lives or works, or visits, follows, disturbs the assets and property of another person, gives and sends
offensive contents or leaves such contents in places where it is probable that this person will find them
or they will be given to this person shall be punished by a fine or imprisonment not exceeding one
year.
(2) If the harassment is frequent and causes in the other person well-founded fear for his/her health,
safety, property, or health, or for the safety of property or occupation of a person close to him/her, the
perpetrator shall be punished by imprisonment for six months to three years.
(3)If weapons or dangerous implements were used to harass another person, or if more serious
consequences have arisen, or if the criminal offence was committed against a child or a minor, the
perpetrator shall be punished by imprisonment for one to three years.

“Sexual harassment”
(1) Whoever, through harassment, insults or impudent conduct, of a physical or verbal nature, attacks
another person’s sexual freedom or dignity, provided that, by doing this, he/she has not committed the
criminal offence of rape, sexual intercourse by duress, sexual intercourse by abuse of position, and
sexual intercourse with a child, shall be punished by imprisonment for six months to three years.
(2) If weapons or dangerous implements were used to harass another person, or if more serious
consequences have arisen, or if the criminal offence was committed against a child or a minor, the
perpetrator shall be punished by imprisonment for not less than three years.

“Soliciting or inducing a child or a minor with the aim of sexual abuse”
(1) Whoever proposes to a child or a minor or solicits and induces a child or a minor, directly, or by
engaging an intermediary, or through a telecommunication device or computer system or network or in
any other way, to establish personal contact with him/her or with another person with the aim of
committing any of the criminal offences against sexual freedom against this child or minor, shall be
punished by imprisonment for one to five years.
(2) The same punishment as referred to in paragraph 1 shall be imposed upon whoever acts as an
intermediary in inducing and soliciting a child or minor with the aim of establishing personal contact for
the purpose of committing criminal offences against sexual freedom.
(3) The perpetrator of the criminal offence referred to in paragraph 2 of this Article who voluntarily
significantly contributes to the disclosure of the crime may be relieved from the sentence.


4.0      DOMESTIC VIOLENCE
Reported in previous sections. See items 1 and 2.

4.1      ARE THERE SPECIFIC LAWS TO COMBAT DOMESTIC VIOLENCE?
In the Republic of Croatia the Act on Protection against Family Violence is a special act that came into
force on 30 July 2003 and sanctions misdemeanour offences of violent conduct within the family. Prior
to this Act, the misdemeanour offence of violent conduct within the family had been sanctioned
through the provisions of the Family Act of 1998. The criminal offence of violent conduct within the
family is sanctioned through the provisions of the Criminal Code as a criminal offence against
marriage, family and youth, and is referred to in Article 215a.
CROATIA                                                                                                69



The recorded cases of women killed by their partners showed the need to establish better links among
all the services in charge of providing assistance and protection to the victims of domestic violence.
The Rules of Procedure in Cases of Family Violence were adopted for this purpose, prescribing the
duties, forms, method and content of cooperation among the competent authorities and other factors
that are engaged in disclosing and suppressing violence and in providing help and protection to
persons exposed to domestic violence.
A significant problem is the return of the victim to the violent partner due to his/her economic
dependence on the partner. We consider that the Republic of Croatia has sound regulations to
implement first-step measures, including taking immediate care of the victim, removing the perpetrator
from the family, and bringing him/her before the competent judge through an expeditious procedure
with the aim of imposing an appropriate misdemeanour or criminal sanction.

4.2       ARE CURRENT DEFENCES ADEQUATE WHEN WOMEN KILL ABUSIVE HUSBANDS/PARTNERS?
Current defences are adequate when women kill abusive husbands/partners.

4.3       IS PRIVATE VIOLENCE PUNISHED IN THE SAME WAY AS PUBLIC VIOLENCE?
With the coming into force of the Family Act in 1998, the family, as a fundamental institution of society,
moved from a private domain to a public interest domain. Perpetrators of domestic violence are
punished regardless of whether they committed violence against another member of the family in a
private apartment or in a public place. If the violence happened in a public place, it is also possible to
sanction the perpetrator for disturbing public order and peace, if the legal domains that protect the
public order and peace of citizens have been violated. The amendments of the Criminal Code of 2000
introduced the punishable act of violent conduct within a family as a criminal offence. The procedure
for a misdemeanour offence and that for a criminal offence are instigated and conducted ex officio.


5. 0      RAPE AND SEXUAL ASSAULT IN MARRIAGE
5.1       IS RAPE IN MARRIAGE OUTLAWED AND PROSECUTED IN THE SAME WAY AS OTHER FORMS OF
          RAPE?
Rape in marriage or in a marital community has been fully equalised with rape committed outside
marriage or the marital community. The Criminal Code, adopted on 19 September 1007, regulates that
proceedings against the perpetrator of the criminal offence of rape, if he lives in a marital community
with the person against whom the criminal offence was committed, shall be instigated on the motion of
the injured person. With the Amendments to the Criminal Code of 14 December 2000, the provisions
concerning the instigation of proceedings for the criminal offence of rape on the motion of the injured
person were deleted. These Amendments to the Criminal Code mean that the provisions on instigating
criminal proceedings ex officio began to be applied to the criminal offences of rape in marriage in the
same way as for other reported rape crimes.

5.2       ARE THE SANCTIONS FOR RAPE AND RAPE IN MARRIAGE THE SAME?
Sanctions for rape in marriage or in a marital community have been equalised with the sanctions for
rape. The Criminal Code prescribes equal sanctions for rape in marriage as for other cases of rape,
regardless of the relationship between the perpetrator and the victim.

5.3.      HAVE ANY SPECIFIC SOLUTIONS BEEN SUGGESTED FOR RAPE IN MARRIAGE (RESTRICTIONS AND
          BANNING ORDERS)?
The Croatian criminal legislation in force treats rape in marriage or in a marital community completely
equally with rape committed outside marriage or outside a marital community.
The legislation does not include any specific solutions related to the punishable acts of rape in
marriage. However, appropriate misdemeanour sanctions may also be imposed upon such
perpetrators pursuant to the Act on Protection against Family Violence and the Misdemeanour Act
with a view to more fully protecting rape victims.
70                                                                                                    CROATIA



5.4       ARE THERE CIVIL-LAW REMEDIES – INCLUDING MEASURES RELATING TO THE FINANCIAL
         SITUATION OF WIVES/COHABITERS AFTER SEPARATION OR DIVORCE?
Pursuant to the Family Act (Article 3), a marital and cohabitation community are equal if the
cohabitation community has lasted uninterruptedly for a minimum of three years, or less if the partners
have a child. The provisions on the division of the spouses’ shared property after the break-up of the
marriage and other provisions on the property-law relations of spouses are appropriately applied to a
marital community, or to a cohabitation community, which, pursuant to the law, is equal to marriage.

5.5      IS THERE SPECIAL LEGISLATION TO DEAL WITH RAPE IN MARRIAGE?
See items 1 and 6
The criminal offences of rape are sanctioned pursuant to the provisions of the Criminal Code.
However, since in this case this represents the violence inflicted by one member of the family on
another, appropriate solutions that are offered by the Act on Protection against family Violence may
also be applied, and especially the solutions offered in the part dealing with the delivery and
implementation of security measures, which are rendered against the perpetrator of the criminal act.


6. 0     RAPE AND SEXUAL ASSAULT
6.1      HOW IS SEXUAL CRIME DEFINED?
         CRIME AGAINST THE PERSON
         CRIME AGAINST INDIVIDUAL FREEDOM
         CRIME AGAINST MORALITY/HONOUR/SOCIETY
Reported in previous sections. See also items 1 and 5.
Rape is sexual intercourse with another person, or an equivalent sexual act, by using force or the
threat of a direct attack on his/her life or limb or on the life or limb of a person close to him/her. The
criminal offence of rape, as is the case with most other criminal offences related to forms of sexual
harassment and abuse, are included in Chapter XIV of the Criminal Code which regulates offences
against sexual freedom and sexual morality.
Attacking the sexual integrity of another person represents an offence to other legal domains, such as
the life and limb of the assaulted person, and his/her honour and reputation. By regulating these
criminal offences, the legislator also aims to protect the right to the personal choice of sexual partner
and moral values, which is why these criminal offences are included in the group of crimes against
sexual freedom and sexual morality.

6.2       DOES THE DEFINITION OF RAPE INCLUDE ALL ASPECTS OF SEXUAL VIOLENCE?
Reported in previous sections. See item 1.3.
The criminal offence of rape, as referred to in Article 188 of the Criminal Code, does not include all
possible aspects of forceful sexual intercourse. Therefore, the Criminal Code regulates other criminal
offences against sexual freedom and sexual morality, a total of 12 offences, such as sexual
intercourse with a helpless person, as referred to in Article 189, when the perpetrator takes advantage
of the victim’s mental illness, temporary mental disorder, mental deficiency, or some other more
serious mental disturbance or any other condition which prevents such a person from resisting.
Another example is the crime of sexual intercourse by abuse of position, when the perpetrator, by
abusing his/her position, induces the victim to submit to sexual intercourse, or to an equivalent sexual
act, and where the person is in a position dependent on him/her on account of harsh material, family,
social, health or other condition or circumstances.

6.3       ARE THERE DIFFERENT DEGREES OF RAPE/SEXUAL HARASSMENT?
Yes. The difference was explained in answering earlier questions.
The basic form of the criminal offence is committed by a perpetrator who induces another person by
use of force or the threat of a direct attack on his/her life or limb, or on the life or limb of a person close
to him/her, to sexual intercourse, or to an equivalent sexual act. All other immissions that serve to
satisfy sexual drive, needs or desires, and are similar to sexual intercourse, are deemed to be
equivalent to sexual intercourse.
CROATIA                                                                                                 71



The law also prescribes qualified forms of this criminal offence, which occur in the following situations:
      a.) If the offence was committed in a particularly cruel way;
      b.) If the offence was committed in a particularly humiliating way;
      c.) If on the same occasion a number of perpetrators perform a number of acts of sexual
          intercourse or equivalent sexual acts against the same victim;
      d.) If the death of the raped person has been caused;
      e.) If serious bodily injury is inflicted on the raped person or his/her health is severely impaired;
      f.) If the raped person remains impregnated;
      g.) If the criminal offences referred to in a) or b) or c) or d) have caused some of the
          consequences referred to in d) or f) or g).

6.4        HOW IS CONSENT DEFINED?
Consent is not defined in the legislation, this is left to jurisprudence.
Rape refers to a sexual act performed against a person’s will. Consent is based on a choice which is
not subject to force or threat. Force or threat (on the life or limb of the victim or a person close to the
victim) is an element of rape referred to in Article 188 of the Criminal Code, while other aspects of
involuntary sexual intercourse are not included in the definition of the criminal offence of rape,
although some of these aspects may be prosecuted as another criminal offence against sexual
freedom and sexual morality. Examples of this are the crimes of sexual intercourse by abuse of
position, sexual intercourse with a helpless person and sexual intercourse with a child, where the
perpetrator may not use force and threat, but the victim’s consent still cannot be assumed, since the
victim is a person who, due to his/her young age may not give consent, such as is the case with the
criminal offence of sexual intercourse with a child or the criminal offences of sexual intercourse with a
helpless person and sexual intercourse by abuse of position, where the perpetrator takes advantage
of a special state of the victim due to which the victim cannot show resistance.
Absolute force is the use of physical force or means due to which the person against whom this force
is applied is not capable of behaving in conformity with his/her will or is forced to behave against
his/her will.
Psychological force is action towards a person who may be able to offer physical resistance to the
attacker, but due to his/her psychological condition to which he/she is brought by this action, the victim
cannot offer resistance. In this case, it is not important what blockage mechanisms the injured party
suffers from, and neither are his/her emotional or other reasons for not offering resistance or for giving
up resistance significant for the existence of the criminal offence.
Article 89 of the Criminal Code defines force also as the application of hypnosis or intoxicants, used to
bring a person, against his/her own will, into a state of unconsciousness or to incapacitate him/her
from offering resistance.

6.5        WHAT KIND OF TECHNICAL EVIDENCE IS NECESSARY IN A RAPE TRIAL?
There are no special regulations in this area. A draft proposal of the Rules of Procedure in Cases of
Sexual Violence is currently being prepared which will, among other things, regulate the procedures of
individual competent authorities in the case of the criminal offence of rape.

6.6.       IS CROSS-EXAMINATION ON THE VICTIM’S SEXUAL HISTORY AUTHORISED IN RAPE TRIALS AND IN
           WHAT CONTEXT?
This is within the competence of the county court. However, we wish to stress that the Croatian
criminal procedure does not use the institute of cross-examination. This has only been introduced by
the new Criminal Procedure Act (OG 152/08), which came into force on 1 July 2009, but only for
criminal offences within the competence of the Office for the Suppression of Corruption and Organised
Crime (USKOK). The Criminal Procedure Act (OG 152/08) states that a witness is not obliged to
answer questions as referred to in Article 45 paragraph 1 item 3: “A victim of a crime against sexual
freedom and morality is also entitled to refuse to answer questions related to his/her strictly private
life”.

6.7        WHICH COURT RULES IN CASE OF RAPES?
72                                                                                                CROATIA



6.8.     WHICH COURT RULES ON CASES OF RAPE AND DOES MEMBERSHIP OF THIS COURT REFLECT THE
         PRINCIPLE OF EQUAL OPPORTUNITIES?
The County Court has jurisdiction to proceed in cases of rape. Yes it does.

6.9      WHAT SENTENCES ARE USUALLY APPLIED TO RAPISTS?
The sentences that are applied to the criminal offence of rape are in line with sentences prescribed by
law for this criminal offence.
Generally, sentences most frequently applied to rapists are imprisonment for three to twelve years.

6.10.    ARE FEMALE POLICE OFFICERS PRESENT IN ALL BODIES CHARGED WITH EXAMINING AND
         PROSECUTING RAPE?
If the victim of a criminal offence against sexual freedom and morality is a woman, the crime
investigation of the reported rape is mostly conducted by female police officers. When investigating
these crimes, the wishes of the victim are considered in relation to the gender of the interviewer. The
Criminal Procedure Act, whose provisions in the part concerning investigation and prosecution of this
type of criminal offences, will begin to be applied from 2011. Such provisions in Article 45 explicitly
prescribe the right of the victim to be interviewed by the police and at the state attorney office by a
person of the same sex. The Ministry of the Interior of the Republic of Croatia conducts targeted
training of police officers in the field of investigating criminal offences against sexual freedom and
sexual morality and the criminal-law protection of children and minors. For this reason, police officers
with additional expertise necessary for the investigation of this type of crime are often engaged in this
kind of criminal investigation.

6.11     HAVE PROVISIONS BEEN MADE FOR FEMALE FORENSIC EXAMINERS?
There are no special legal regulations which refer to female forensic examiners. However, in terms of
conducting criminal investigation, it is important to stress that the provision of Article 76 of the Act on
Police Affairs and Competences prescribes that the physical examination of a person is conducted by
a person of the same sex. As an exception, when an urgent physical examination of the person is
necessary in order to seize weapons or objects that may be used for an attack or for inflicting self-
injury, the examination may be conducted by a person of the opposite sex.


7. SEXUAL HARASSMENT
7.1.     DOES YOUR COUNTRY HAVE LEGISLATION TO PROTECT THE DIGNITY OF WOMEN AT WORK?
On 15 July 2008, the Croatian Parliament adopted the new Gender Equality Act which has been
aligned with the provisions of international standards in force and with the EU directives in the area of
gender equality. The Act prescribes a general prohibition of discrimination on grounds of gender,
marital or family status and sexual orientation. Less favourable treatment of women for reasons of
pregnancy, maternity and all forms of custody is also deemed to be discrimination. The Act extends
the area of prohibition of discrimination to the field of recruitment, work and education, it promotes
raising public awareness of the equality of men and women, and keeping statistics disaggregated by
gender.
In line with the above, Article 13 of the Act lays down the following:
(1) There shall be no discrimination in the field of recruitment and work in the public or private sector,
including public bodies, in relation to:
1. conditions for access to employment, to self-employment or to occupation, including selection
criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional
hierarchy;
2. promotion;
3. access to all types and to all levels of education, professional guidance, vocational training,
advanced vocational training and retraining;
4. employment and working conditions, all occupational benefits and benefits resulting from work,
including equal pay for equal work and work of equal value;
CROATIA                                                                                                 73



5. membership of, and involvement in, organisations of workers or employers, or any professional
organisation, including the benefits provided for by such organisations;
6.balance between professional and private life;
7. pregnancy, giving birth, parenting and any form of custody.
(2) When advertising vacancies, job advertisements shall include a clear indication that persons of
either gender may apply for the job in question.
(3) Where a special law requires the publication of an invitation to submit applications, the invitation
shall include a clear indication that persons of either gender may apply for the job in question.
(4) An invitation to submit applications is not required to include an indication that persons of either
gender may apply for the job only in relation to a specific job where the nature of the occupational
activities concerned is such that characteristics related to any of the grounds referred to in Article 6 of
this Act constitute a genuine and determining occupational requirement, provided that the objective is
legitimate.
(5) No expressions shall be used in job advertisements that cause or might cause discrimination on
the grounds of gender, marital or family status and sexual orientation.
(6) Where decisions on job assignments or other decisions on the rights and obligations of civil
servants are adopted, the title of a post shall be used in the masculine and feminine form.
Improvements have also been introduced in the area of judicial protection against discrimination
through institutes such as the joint claim, establishing the burden of proof and the principle of
expediency in court proceedings. In addition to protection in the civil procedure, victims of
discrimination may also ensure judicial protection in misdemeanour proceedings, which is a significant
novelty, because it was precisely the lack of sanctions in the previous Act (of 2003) that raised most
objections, pointing to its declarative character.
On 1 January 2009, the Anti-discrimination Act also came into force, creating the preconditions for
establishing equal opportunities and also regulating protection against discrimination on grounds of
gender (in addition to race, ethnic belonging, colour, language, religion, political or other belief,
national or social origin, material status, membership of a trade union, education, social status, marital
or family status, age, health condition, disability, genetic heritage, gender identity, expression or
sexual orientation.
The drafting of the Anti-mobbing Act, which will elaborate this issue in more detail, has begun.
The dignity of women is also protected by the provisions of the Labour Act, which in its Article 30 lays
down the employer’s duty and obligation to protect the workers’ dignity during work by providing
working conditions in which they will not be exposed to harassment or sexual harassment. This
protection also includes the undertaking of preventive measures. The workers’ dignity is protected
from harassment or sexual harassment by the employer, superiors, co-workers and persons with
whom workers come into regular contact during their work. In the sense of this Act, harassment and
sexual harassment constitute a violation of employment obligations.

7.2       ARE OTHER FORMS OF SEXUAL VIOLENCE LEGISLATED AGAINST?
On the proposal of the Government, the Croatian Parliament adopted in 2006 the National Policy for
the Promotion of Gender Equality as the basic strategic document of the Republic of Croatia for
eliminating discrimination against women and establishing genuine equality, for the period of 2006 –
2010. The provisions of this, the third in a row, National Policy for the Promotion of Gender Equality
are based on national legislative and other regulations, and confirm the guarantees of gender equality
which are part of international law, the acquis communautaire, the UN Convention on the Elimination
of All Forms of Discrimination against Women, the ILO Convention, the European Convention for the
Protection of Human Rights, and the Beijing Declaration and Platform for Action. The aims and
measures of these documents are integrated in the National Policy, including the Concluding
Comments of the UN Committee on the Elimination of Discrimination against Women, confirming the
principles of the Declaration of the UN Committee on the Elimination of Discrimination against Women
of July 2005 on gender mainstreaming through the full and efficient application of the provisions of the
Convention as a precondition for achieving the Millennium Development Goals in the strategy of
improving gender equality in the Republic of Croatia. State institutions are responsible for the
implementation of the measures of the National Policy, and a large number of activities are also
conducted in cooperation with civil society organisations. The Strategic Framework and Action Plan
74                                                                                              CROATIA



contain defined goals and a large number of measures for their implementation through seven critical
areas. Violence against women is one of these areas. The relevant chapter lists 25 measures whose
implementation strives to suppress and eliminate domestic violence and all forms of violence against
women.
In addition, the Office for Gender Equality, in cooperation with NGO and local self-government
representatives, established a Working Group to draw up an analysis and an action plan for the
suppression of all forms of violence against women, including the collection of statistical data. This
Working Group has drafted the proposal of the Rules of Procedure in Cases of Sexual Violence, and
is currently engaged in drafting the proposal of the Action Plan for Suppressing All Forms of Violence
against Women.


8.0      INCEST/SEXUAL ABUSE OF GIRLS
8.1      WHAT IS THE AGE OF SEXUAL MAJORITY?
In the Republic of Croatia, sexual intercourse with a child under 14 years of age is punishable,
regardless of whether sexual intercourse was voluntary or violent. The Criminal Code in its Article 192
sanctions the criminal offence of sexual intercourse with a child as a criminal offence against sexual
freedom and sexual morality.

8.2      DOES THIS CORRESPOND TO THE AGE OF CONSENT?
A child under 14 years of age is not capable of giving consent to sexual intercourse. Thus, voluntary
sexual intercourse with a person under 14 years of age is punishable by law.

8.3      IS THERE SPECIFIC LEGISLATION AGAINST CHILD PROSTITUTION?
Reported in previous sections. See item 1.7.
There is no special law regulating the criminal offences of child prostitution, but the criminal offences
of child prostitution are regulated by the Juvenile Courts Act and the Criminal Code.

8.4      WHAT OTHER FORMS OF SEXUAL ABUSE ARE LEGISLATED AGAINST? (SEXUAL HARASSMENT,
         FEMALE GENITAL MUTILATION)?
Reported in previous sections. See item 1.

8.5      ARE THERE PROVISIONS FOR THE REMOVAL OF ABUSERS FROM HOUSEHOLDS?
Reported in previous sections. See items 1.1 and 1.2.
Appropriate sanctions may be imposed upon domestic violence perpetrators with a view to removing
abusers from households or issuing restraining orders to prohibit abusers approaching the victims of
domestic violence, and precautionary measures to ensure their presence in the proceedings, to
prevent the commission of new criminal acts and to prevent them from obstructing the presentation of
evidence in the procedure.
In misdemeanour proceedings, the court may impose the following: a protective measure of
mandatory psychosocial treatment; the issuing of a restraining order concerning the victim of violence;
the prohibition of harassment or stalking of the person exposed to violence; removal from the
apartment, house or other housing premises; ensuring the protection of the person exposed to
violence; the mandatory treatment from addiction and seizure of objects for the purpose of, or which
have been used in, committing the misdemeanour offence.
Precautionary measures in the misdemeanour procedure include: prohibition to leave a place of
residence without permission from the court; prohibition to visit a particular place or territory;
prohibition to approach a particular person and prohibition to establish or maintain contacts with a
particular person; prohibition to engage in a particular business activity; temporary seizure of passport
or other document which serves to cross the state border; temporary seizure of a driving licence,
sailing licence, flying licence or licence to drive any other means of transport.
Precautionary measures may not be used to restrict the right of defendants to their own apartment,
and the right to unlimited contact with members of the household, spouse, cohabitant or former
spouse, with the children of each of them, parents, adoptee, adopter and person with whom they have
CROATIA                                                                                                  75



common children, with the same-sex partner with whom they cohabit and with the former same-sex
partner with whom they used to cohabit, unless proceedings are conducted on account of
misdemeanour offences related to domestic violence.
Precautionary measures in the criminal procedure are: prohibition to leave a residence; prohibition to
visit a certain place or territory; the obligation of the defendant to call periodically a certain person or
authority; prohibition to approach a certain person and prohibition to establish or maintain contacts
with a certain person; prohibition to engage in certain business activities; the temporary seizure of a
passport or other document which serves to cross the state border; the temporary seizure of a licence
to drive a motor vehicle.

8.6       ARE THERE DIFFICULTIES REGARDING THE CREDIBILITY OF CHILDREN AS WITNESSES?
Reported in previous sections. See items 1 and 3.
The provision of Article 244 paragraph 4 of the Criminal Procedure Act is relevant to the right of giving
testimony in criminal proceedings. Pursuant to this provision, a minor who due to his age and mental
development is unable to understand the meaning of the right to exemption from testifying cannot
testify as a witness; however, the information obtained from him/her through experts, relatives or other
persons who have been in contact with him/her may be used as evidence. In addition, when
examining a minor, especially if the minor is the injured party of a crime, the examination must be
carried out with special consideration so that it does not affect the psychological state of the minor. If a
child who is the injured party of a criminal offence is examined, the examination must be conducted
with the assistance of a psychologist, educator or other expert person. The investigating judge will
order that the examination of the witness be video-taped and audio-taped. The examination shall take
place in the absence of the judge and parties in the room where the child is situated, so that the
parties may ask questions through the investigating judge and a psychologist, educator or other expert
person (Article 248 of the Criminal Procedure Act). Furthermore, if a minor is examined as a witness,
the panel may order that he/she be examined by the president of the panel or a judge member of the
panel outside the main trial, or that the examination be conducted through the investigating judge on
whose territory the witness, or expert witness is situated.

8.7       ARE THERE ANY SPECIAL PROVISIONS FOR EVIDENCE GIVEN BY CHILDREN?
Reported in previous sections. See items 1 and 3.
The Juvenile Courts Act, which contains comprehensive procedural provisions, provides stricter
protection in proceedings for criminal cases against perpetrators of criminal offences against children
and minors. Based on the provisions of this Act, when performing procedural actions in criminal cases
involving perpetrators of criminal offences against children and minors, the juvenile judge shall treat
with special consideration the child or minor who was a victim of the criminal offence, paying special
attention to his or her age, personality features, education and circumstances in which he or she lives
in order to avoid possible adverse consequences for his or her education and development. In the
interest of protecting the child, cross-examination is not applied in the pre-investigation and
investigation procedure. The special manner of examining a child–injured party is focused on the
stronger protection of the child against suffering from secondary traumatisation from the proceedings,
so that the examination of the child or minor is conducted with the assistance of an educator,
psychologist or other professional. The examination of a child or minor victim of a criminal offence may
be conducted twice at the most. Depending on the circumstances of the case, and especially on the
age and status of the child-witness, the investigating judge will order that the examination of the
witness be recorded through technical video and audio equipment. The examination may be
conducted in the absence of the judge and parties in the room where the child is situated so that the
parties may ask questions through the investigating judge and psychologist, educator or other
professional. In addition to this, instead of in the court, children and younger minor victims of a criminal
offence may also be examined in their own apartment or other premises where they reside or in the
premises of the social welfare centre. When the child or younger minor has been examined, the
records on the witness’s testimony will be read at the main trial, or the recording of the examination
will be reproduced. Data collected through technical video and audio devices shall be destroyed after
the expiration period of five years following the execution of the judgement.
The Act on Police Affairs and Competences prescribes that a specially trained police officer collects
information from a child, generally in the presence of a parent, guardian, foster parent, person to
whom the child was entrusted for care and education, or a professional of the social welfare centre, if
76                                                                                               CROATIA



possible in the child’s home. Information may also be collected from a child in the premises of the
school in the presence of the school principal or educator, or the psychologist he/she nominates, and
only if the above persons cannot or do not wish to come. If it is suspected that the parent, guardian,
foster parent, person to whom the child was entrusted for care and education or the professional of the
social welfare centre has committed the punishable act against the child or minor, they will not be
present during the collection of information.
“(1) When proceeding in criminal cases against perpetrators of criminal offences to the detriment of
children and minors, the juvenile judge and the investigating judge shall treat the child or minor who
has been a victim of a criminal offence with special consideration, paying special attention to his/her
age, personality features, education and circumstances in which he/she lives, in order to avoid
possible adverse consequences for his/her education and development. The examination of a child or
minor shall be conducted with the assistance of an educator, psychologist or other professional.
(2) If a child or younger minor who has been the victim of the criminal offence referred to in Article 117
of this Act is being examined, such examination may be conducted twice at the most. The examination
shall be conducted with the assistance of a psychologist, educator or other professional. The
investigating judge shall order that the examination of the witness be recorded through technical video
and audio equipment, the examination shall be conducted in the absence of the judge and parties in
the room where the witness is situated, so that the parties may ask questions through the investigating
judge, and through the psychologist, educator or another person.
(3) Children and younger minors, as witnesses who are victims of the criminal offence referred to in
Article 117 of this Act, may, instead of in the court, be examined in their apartment or other premises
in which they reside, or in the social welfare centre. The examination of the witness shall be conducted
as prescribed in paragraph 2 of this Article.
(4)When a child or younger minor has been examined by applying the provision of paragraphs 2 and 3
of this Article, the report on the witness testimony shall always be read at the main trial, or the
recording of the examination shall be reproduced.
(5) The data collected through technical video and audio equipment shall be destroyed following the
term of five (5) years following the delivery of the final judgment.
(6) The provisions of Article 55 of this Act are respectively valid for criminal cases against the
perpetrators of criminal offences to the detriment of children and minors.

8.8      ARE CHILDREN ALLOWED TO RECEIVE THERAPEUTIC SUPPORT BETWEEN THE TIME OF REPORTING
         AND THE COURT CASE?
Reported in previous sections. See items 1 and 3.
The police inform the competent social welfare centre about the criminal offence that was committed
against a child in order for adequate family-law security measures to be undertaken. The nature of the
family-law security measures that will be taken in a specific case depends upon the assessment of the
competent social welfare centre.

8.9      ARE ANY SPECIFIC MEASURES TAKEN TO COMBAT ORGANISED/NETWORKED RITUAL ABUSE OF
         CHILDREN?
No occurrences of ritual abuse of children have been reported in the Republic of Croatia.
CYPRUS                                                                                                 77




                                               CYPRUS

Information provided by the Ministry of Justice and Public Order in November 2000, March 2003,
September 2006 and September 2009.


1.0      LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
Legal reform, aiming at the elimination of discrimination and the further safeguarding of women’s
rights in all fields of law and, in particular, in Family and Labour Law, has been pursued, bringing
national laws in line with relevant international instruments and in particular with the U.N. Convention
on the Elimination of All Forms of Discrimination against Women, ratified by Law 78/1985 and its
Optional Protocol ratified by Law 1(III)/2002.
Important legislation, including the Civil Marriage Law, 1990 (L. 21/1990, as amended and later
repealed by the Marriage Law, 2003 (L. 104(I)/2003), as amended) the Relations between Parents
and Children Law, 1990 (L.216/1990, as amended), the Regulation of Spouses Property Relations
Law, 1991 (L.232/1991, as amended), the Family Courts Law, 1990 (L.23/1990, as amended), the
Equal Treatment of Men and Women in Employment and Vocational Training Law, 2002 (L.
205(I)/2002, as amended), the Equal Pay Between Men and Women for the Same Work or for Work of
Equal Value Law, 2002 (L. 177(I)/2002, as amended), the Maternity Protection Law, 1997 (L.
100(I)/1997) and the Parental Leave and Leave on Grounds of Force Majeure Law, 2002 (L.
69(I)/2002 as amended) have been enacted during the last years.
Another development has been the enactment of the Combating of Trafficking and Exploitation of
Human Beings and the Protection of Victims Law [L.87/(I)/2007] in 2007 replacing the initial law of
2000. The scope of the new law is to fully harmonize the national legislation with the European Acquis
as well as to better implement the Council of Europe Convention on Combating Trafficking in Human
Beings ratified in 2007 and other international instruments. It is worth mentioning that Cyprus was
among the first ten countries to sign and ratify the Council of Europe Convention and it came into force
in February 2008.

1.1      LETTER OF LAW – DEFINITIONS
Cyprus is one of the few countries to have enacted as from 1994 a law dealing specifically with
domestic violence. The violence in the family (Prevention and Protection of Victims) Law, 1994 (L.
47(I)/1994), replaced by Law 119(I)/2000, was later amended in 2004 by Law 212(I)/2004.
In accordance with Article 3 of the Law 212(I)/2004, «violence means any act, omission or behaviour
which causes physical, sexual or mental injury to any member of the family by another member of the
family and includes violence used for the purpose of having sexual intercourse without the consent of
the victim as well as restricting its freedom».

1.2      DOMESTIC VIOLENCE
In 1994, a law was enacted for the prevention of domestic violence and the protection of victims. The
Violence in the Family (Prevention and Protection of Victims) Law, 1994 (L. 47(I)/1994), condemns
any act of violence within the family, raises substantially the penalties for violence and provides
protection to victims mainly by empowering the Court to issue restraining orders prohibiting the
aggressor from entering or staying in the marital home. In addition, Law 47(I)/1994 clarifies that rape
can be committed within marriage, speeds up trials dealing with cases of domestic violence, facilitates
the reporting of violent incidents, provides for the appointment of Family Counsellors, for the setting up
of an Advisory Committee to monitor the implementation of the Law and for a Multidisciplinary Group
of Experts to give the necessary assistance to children and young victims.
Soon after the enactment of this law certain difficulties were encountered in the implementation of the
law and a process started for its amendment. An amending bill was prepared in which a number of
78                                                                                                   CYPRUS



new provisions were included, such as to take the victim’s statement by electronic means, to use such
statements as the evidence of the witness in chief which was subjected to cross-examination, the
setting up of a fund for financial assistance to victims and witnesses, both in the court and outside, the
protection of victims and witnesses, the establishment of a shelter where victims can have protection,
the possibility of making the spouse a compellable witness if the victim is another member of the
family, etc. Owing to the extensive amendments proposed, it has been decided to prepare a new law
to repeal and replace the old law. Thereafter, a new bill was prepared which was enacted in July 2000.
The new law has been completely restructured. Briefly, Part I contains introductory provisions, Part II
deals with the meaning and the scope of violence and Part III with the appointment of family
counsellors and committees. Part IV introduces new provisions regarding the taking of statements by
the use of audiovisual electronic means. Statements obtained by the use of these means may be
produced in evidence without any need to re-examine the witness in chief, which, however, is
available for the other side for cross-examination. Part V contains provisions for speedy trial and for
the protection of the witness from harassment or intimidation. Part VI contains provisions for court
orders and the treatment of the accused, Part VII contains new provisions regarding the establishment
of a fund for assistance to victims of violence, Part VIII contains provisions for shelters and relevant
offences and Part IX contains provisions for budgets, annual report, regulations etc. More specifically:
Section 9 provides that the testimony of the victim is taken by a police person of the same sex.
Sections 10-13 provide that video recorded testimony may be admissible.
Section 14 provides that an incident which is reported directly to a police man or a family or social
counsellor is admissible as evidence.
Section 17 deals with the admissibility of the evidence of a psychiatrist to whom a child patient during
psychiatric treatment refers to incidents of ill treatment by any person. Such evidence requires,
however corroboration by independent evidence. It constitutes an exception to the hearsay rule.
Under section 18, the court is empowered to provide protection to victims and witnesses of violence by
taking their evidence as to avoid direct confrontation with the accused, but without depriving the
accused of his right to examine the witness. The use of screens, close circuit television links and other
means producing the same effect may achieve this.
Under section 19, the court may interfere and give directions regarding the mode of cross-examination
with the view to avoid bullying the witness.
Section 20 makes the spouse a compellable witness if the victim of domestic violence is another
member of the family. It is interesting to note that in an indirect way, the spouse is a compellable
witness even when the violence is directed against the spouse and this is done in the presence of
children, because in such a case the violence is deemed to be exercised against the child.
Sections 21 to 24 deal with the issue of restraining orders.
Section 31 provides for the establishment and operation of shelters for victims. Any person who
harasses a person residing in a shelter commits an aggravated offence and is sentenced to up to 5
years of imprisonment.
Section 32 provides that, if the harassment or intimidation of a victim of violence or, of a witness of
family violence takes place elsewhere, the harassment or intimidation constitutes an offence
punishable with 3 years of imprisonment.
Finally, it is an offence under section 34 to disclose the identity of the victim or of the offender that may
lead to the identification of the victim. This is an absolute prohibition and covers practically any person
who acts contrary to the provision in this section.

1.3      RAPE
According to Article 144 of the Criminal Code «any person who has unlawful carnal knowledge of a
female, without her consent, or with her consent, if the consent is obtained by force or fear or bodily
harm, or, in the case of a married woman, by personating her husband, is guilty of the felony termed
rape». According to Article 145 of the Criminal Code «any person who commits the offence of rape is
liable to imprisonment for life, while according to Article 146 «any person who attempts to commit rape
is guilty of a felony, and is liable to imprisonment for ten years».
CYPRUS                                                                                                    79




1.4      CHILD SEXUAL ABUSE/INCEST
A major development has been the enactment of the Combating of Trafficking and Exploitation of
Human Beings and the Protection of Victims Law (L.87/ (I)/2007) in 2007, which replaced previous
laws relevant to such issues. The purpose of this Law is the penalisation of trafficking, exploitation and
child pornography, the promotion of measures for the protection and support of victims of such crimes
and the creation of a monitoring system for the implementation of such measures. The new law
includes specific provisions concerning the sexual exploitation of children, trafficking of children and
child prostitution and specifies strict penalties.
Under the Criminal Code (Section 147) any male person who has carnal knowledge of a female
person, irrespective of whether with the consent or not of such female person, who is to his knowledge
his granddaughter, daughter, sister or mother shall be guilty of the offence of incest and shall be liable
to imprisonment for fourteen years.
The Commissioner for Children’s Rights is an independent institution dealing exclusively with the
rights of children, whose competences and obligations are prescribed by law. The Commissioner is
appointed by the Council of Ministers pursuant to the Commissioner for the Protection of Children’s
Rights Law, 2007 (Law 74(I)/2007) which came into force on 22/6/2007. The mission of the
Commissioner, among other things, is to protect and promote the rights of the child, monitor legislation
relating to children, submit proposals aiming at their harmonization with the Convention on the Rights
of the Child. The Convention is the basic tool which covers the entire spectrum of children’s human
rights, including civil, political, economic, social and cultural rights. Specifically, protection covers any
form of abuse, neglect, exploitation, abuse of substances, injustice, controversy and clash.

1.5      SEXUAL HARASSMENT
According to the Equal Treatment between Men and Women in Employment and Vocational Training
Laws of 2002 to 2009, sexual harassment is defined to exist «where any form of unwanted verbal,
non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the
dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or
offensive environment». As regards sexual harassment it is included as part of the anti-discrimination
legislation and covers sexual harassment against both men and women.

1.6      PORNOGRAPHY
According to the Combating of Trafficking and Exploitation of Human Beings and the Protection of
Victims Law [L.87/ (I)/2007] in 2007, child pornography constitutes an offence and it is punishable with
an imprisonment up to 10 years or a penal sum of €42.750 or both of the said penalties are imposed.

1.7      PROSTITUTION
According to Article 164-(1) of the Criminal Code every person who (a) knowingly lives wholly or in
part on the earnings of prostitution; or (b) in any public place persistently solicits or importunes for
immoral purposes is guilty of a misdemeanour.

1.8      OBSCENE PHONE CALLS/TELEPHONE SEX
None.

1.9      FEMALE GENITAL MUTILATION
With an amendment of the Criminal Code in 2003, genital mutilation constitutes a criminal offence and
it is punishable with an imprisonment of 5 years.

1.10     INTERNATIONAL CONVENTIONS
Cyprus has ratified all relevant international human rights instruments.
In relation to the Convention on the Elimination of All Forms of Discrimination against Women (New
York, 18 December 1979), though, Cyprus has deposited upon ratification, a reservation in respect of
Article 9(2) on 28/6/2000, the Government notified the Secretary-General that it had decided to
withdraw its reservation. Cyprus has accepted on 30 July 2002, the amendment to Article 20,
paragraph 1 of the CEDAW (New York, 22 December 1995). Cyprus has ratified the Optional Protocol
to the CEDAW on 26 April 2002 without any reservation.
80                                                                                             CYPRUS



Besides, Cyprus ratified the Council of Europe Convention on Combating Trafficking in Human Beings
in 2007.

1.11     PROTECTION OF PREGNANCY/PREGNANT WOMEN

2.0      SENTENCING
2.1      SENTENCING DOMESTIC VIOLENCE
The Violence in the Family Law lists offences of the Criminal Code which when committed within the
family, are treated as particularly aggravated and consequently the penalty contained in the penal
code may be increased to reflect this. The table below indicates this change in (presumably) the
maximum sentence.

Indecent assault on females                         Increased from 2 -> 5 years imprisonment

Indecent assault on males                           Increased from 2 -> 5 years imprisonment

Defilement of girls under 13 years                  Remains life imprisonment

Attempted defilement of girls under 13 years        Increased from 3 ->7 years imprisonment

Defilement of girls 13 - 16 years                   Increased from 2 ->10 years imprisonment

Defilement of idiot or imbecile                     Increased from 2 ->12 years imprisonment

Unnatural offences                                  Increased from 5 ->10 years imprisonment

Unnatural offence with violence                     Increased from 14 years to life imprisonment

Attempted unnatural offence                         Increased from 7 ->10 years imprisonment

Grievous bodily harm                                Increased from 7 ->10 years imprisonment or the
                                                    fine provided is imposed or both of the said
                                                    penalties are imposed

Common assault                                      Increased from 1 ->2 years imprisonment or the
                                                    fine provided is imposed or both of the said
                                                    penalties are imposed

Wounding and similar acts                           Increased from 3 ->5 years imprisonment

Rape                                                Life imprisonment


        SUSPENDED SENTENCES AND PROBATION
The court may suspend sentences.
The court also has the power, with the request of the accused, place him on probation «with the
requirement that he shall submit himself to treatment for self control by specialists to such behaviour
or with other requirements as the court may consider necessary for preventing the repetition of such
acts of violence», (L. 119 (I)/2000, Section 25).


3.0      EFFECTIVENESS OF LEGISLATION
Role of NGOs
The Association for the Prevention and Handling of Violence in the Family is an NGO providing
support and protection to victims through their Helpline and Shelter. The Association has started in
2006 an Intervention Program named “Compassion” designed to help people who practice domestic
violence (perpetrators), as well as victims of domestic violence. The Program is targeted towards
individual and/ or couples. It teaches people a specific empathy technique designed to strengthen
CYPRUS                                                                                                 81



relations with loved ones and weaken negative thoughts and feelings, such as anger and frustration.
The activation and strengthening of the positive inner self allows people to drive their attention towards
that part of themselves that rejects violence, but instead strives towards connection, improvement and
protection. As a result, the person becomes stronger due to self-enhancing, steaming from empathy
which is exhibited towards oneself and others. In addition, the person can automatically overcome
his/her negative mood by composing a positive response that reinforces self-worth whenever negative
feelings occur. The Program is subsidized by the Social Welfare Services.

3.1          SUPPORT/PROTECTION

         RESTRAINING ORDERS
Restraining orders may be made against a person accused of an offence of violence that orders him
not to enter or stay in the marital home in the following circumstances:
         -      He has a history of repeated acts of violence against members of his family or at least
                has 2 convictions in the last 2 years for similar offences;
         or
         -      The violence caused such actual, physical, sexual or psychological injury to endanger the
                life, corporal integrity or sexual or psychological health of the victim;
         or
        -    The accused refused to submit him to treatment for self-control as required.
The conditions of a restraining order may be varied at an enquiry hearing in which all parties affected
by it may make representation, the accused may apply for its revision or revocation. If the accused
owns more than half the property, the court inquires into accommodation for the accused. If he owns
less than half, this is delegated to a family counsellor.

         CORROBORATION
The reporting of the attack to an appropriate person within a reasonable time from the commission of
the offence constitutes corroboration of the victim's evidence. Appropriate persons include: a police
officer; family counsellor; welfare officer; doctor who examines the victim; member of the advisory
committee; member of the Association of the Prevention of Violence in the family; any member of the
close environment of the victim.

         CRIMINAL PROCESS
The court, upon application by police, may issue a warrant for the arrest of anyone accused of
violence as defined in the Act. The accused is brought before the court to be charged within 24 hours
or to issue a remand order. Investigation and trial follow without delay. The court may, before the trial,
either direct the detention or release on surety of the accused or his compliance with any terms the
Court imposes for the protection of members of his family including an order prohibiting him from
visiting or harassing any member of his family.
The Attorney General may consent to trial by a senior court, despite the fact he may not face a seven-
year sentence - the usual criteria.

         COURT ORDER FOR THE REMOVAL OF A MINOR
During the trial of violence against a minor, the court may order that the minor to leave the home and
reside at a place of safety. An interim order may be applied for by police, prosecutor, family
counsellor, or by any person acting on the child's behalf or sworn statements by the victims. It lasts
until the case is determined.

         WITNESS PROTECTION
Under the Law dealing with Domestic Violence, a victim may with confidence report the case to the
family counsellor who would take all measures and steps for bringing the case before the court.
82                                                                                                  CYPRUS



The court may order that the evidence of the victim or witnesses may be heard, or that the whole trial
may be held in camera, or may give such directions necessary for the protection of victims or other
persons without prejudicing the rights of the accused to a fair trial.
No information may be published in the press that would lead to the identification of the victim.
Family Counsellors, are appointed:
        -     To receive complaints of violence and carry out investigations;
        -     To advise, counsel, and mediate any problems in the family that are likely to lead to, or
              have led to, the use of violence;
         -    To make arrangements for an immediate medical examination of the complainant;
         -    To take all necessary steps for the commencement of criminal proceedings against the
              perpetrator;
         -    To carry out investigations into the accommodation/financial affairs of the family and the
              perpetrator, if an inhibition order is being considered;
         -    To carry out any other function assigned.
Family counsellors may seek the protection of the police/any government officer in carrying out their
duties. In carrying out investigations, family counsellors have the same powers as investigating police
officers.
The family counsellor may take advice from the multidisciplinary group when an act of violence against
a person under 18 is reported.
The Law on Domestic Violence 119 (I)/2000, the Law on the Protection of Witnesses 95(I)/2001, and
the Law on Trafficking and Exploitation of Human Beings 87(I)/2007 provide for similar and/or identical
protective measures concerning vulnerable witnesses. Victims of Domestic violence, victims of sexual
exploitation or trafficking, and children (under 18) in all three Laws fall within the categories of
witnesses/victims to be benefited from the relevant provisions. The provisions include the following:
    1. The whole or part of the case be tried in camera (exclusion of the public from the court room),
    2. The testimony of any victim of violence and any other person for whom there is reasonable
        suspicion that he/she is in any danger or under threat by a reason of the fact that he/she will
        testify as a witness, or that his/her testimony may be adversely affected, be taken in the
        absence of the accused giving all those directions and causing all the necessary arrangements
        to e made so that the accused will know of the testimony of the said witness and cross-
        examine him/her.
    3. The placing of a special screen, or the use of a closed television circuit; or the use of any other
        means or system in a manner that the witness shall not be visible by the accused and vice
        versa. In order to safeguard the rights of the accused the appropriate technological
        arrangements or other installations shall be made in the aforesaid cases, so that the accused
        shall be able to listen to the procedure and give instructions to his lawyer (eg. CCTV),
    4. The Court may intervene during the cross-examination of minors or other victims of violence
        and give the appropriate directions to prevent their intimidation by aggressive and intensive
        questioning or by questions containing threats of any kind,
    5. A video recorded statement given to a competent person by any person who is a victim of
        violence or a witness to the commission of an offence in contravention of the provisions of this
        Law, may, with the leave of the court, be submitted as evidence.
Further to the above, concerning victim harassment, the Law on Domestic Violence (Article 32)
provides that an accused or any other person acting on his behalf or by his own motion, who harasses
or intimidates a victim of violence or a relative thereof in any place, and in a manner which affects or
could affect the investigation or trial of a case of violence or causes mental agitation to a victim of
violence or a witness in a case of violence knowing that he is a victim of violence or a witness in a
case of violence, shall commit an offense punishable with imprisonment up to three years or a fine up
to one thousand five hundred pounds or with both such penalties and where the harassment or
intimidation is committed against a victim accommodated in a shelter, the offence shall be punishable
with imprisonment up to five years or with a fine up to three thousand pounds or with both such
penalties.
Cyprus Police is equipped with video recording systems in specially designed and furnished premises,
which are used for obtaining video recorded statements from vulnerable witnesses. A sufficient
number of personnel have been especially and extensively trained on how to conduct such interviews.
CYPRUS                                                                                              83



District (Criminal) Courts are equipped with CCTV systems, which allow vulnerable witnesses such as
children to give their testimony and to be cross and re-examined from a special room other than the
Court Room.

         ADVISORY COMMITTEE FOR THE PREVENTION AND HANDLING OF VIOLENCE IN THE FAMILY
Established under this Act for the prevention and combat of violence in the family, the committee's
remit is to:
         -   Monitor the problem of violence in the family in Cyprus;
         -   Inform and enlighten the public and professionals using the media, conferences,
             seminars and re-education programmes;
         -   Promote research;
         -   Promote services necessary to deal with all aspects of violence in the family;
         -   Monitor the effectiveness of related services and the application and enforcement of the
             relevant legislation.
The committee members have knowledge and experience in matters relating to violence in the family
and are selected from public and private sectors. Ministry of Health, Justice and Public Order, Social
Welfare, Legal Service and Police select appointees from the public sector. Private sector appointees
are selected by associations/organisations involved in combating family violence. In cases where the
victim is under 18, the committee will include a child psychologist, a paediatrician, a clinical
psychologist, a welfare officer and any other persons possessing qualification considered necessary.
During the last years, the Committee has been very active and has played a vital role in raising
awareness, carrying out research, strengthening interdepartmental cooperation, monitoring
implementation of the relevant law and evaluating existing services, providing training to relevant
professionals, and most importantly, in developing a National Action Plan on Combating Violence in
the Family.
The Advisory Committee for the Prevention and Handling of Violence in Family has taken a leading
role in commissioning research on violence in the family, the most recent being “Dimensions and
Forms of Violence against Children within the Cypriot Family”. The Committee has also taken the lead
in the development of a unified data collection system for family violence as well as in the completion
of the mapping of all cases of violence in the family in Cyprus (1998-2005).

         MANDATORY REPORTING
The reporting of family violence cases is not compulsory by law. However, public officers of the
Ministries of Health, Education, Justice and Public Order (Police) and Labour and Social Insurance
(Social Welfare Services) have a mandatory duty to report to the Attorney’s General’s Office any
referrals regarding concerns, suspicions or evidence of family violence including domestic violence.
Additionally, according to the article 35A, any person who omits to report a case of violence against a
minor or a person having severe mental or psychological deficiencies, which came to his or her
knowledge, commits an offence.

         MANUAL OF INTERDEPARTMENTAL PROCEDURES
A manual of interdepartmental procedures concerning family violence was approved by the Council of
Ministers. This document provides a national framework within which statutory departments and
professionals draw up and agree upon detailed procedures and ways of working together. The manual
of interdepartmental procedures will be updated according to Council of Ministers’ decision.

         NATIONAL ACTION PLAN FOR THE PREVENTION AND COMBATING OF VIOLENCE
The Advisory Committee for the Prevention and Handling of Violence in the Family has prepared the
first National Action Plan for the Prevention and Combating of Violence in the Family and has
submitted it to the competent Minister of Labour and Social Insurance. The aim of the National Action
Plan is to monitor the extent of violence in the family in Cyprus, to raise awareness and sensitize the
public as well as relevant professionals using various mediums, including special conferences and
seminars and information campaigns and programmes, to promote scientific research on violence in
84                                                                                              CYPRUS



the family, to promote services dealing with all aspects of the problem and specifically for support and
protection of victims, monitor the effectiveness of services and the enforcement of the relevant
legislation.

       RESPONDING TO VICTIMS
Response to victims of domestic violence is undertaken by Family Counsellors whose role, as
specified by the law, includes carrying out investigations, making arrangements for the medical
examination, the safety and well-being of the victim, providing advice, counselling and mediation and
taking steps for the commencement of proceedings against the perpetrator. Social Welfare Services
provide counselling, financial and practical assistance, as well as information on existing services.
They also undertake to make referrals with the victim's consent.

       TRAINING OF THE POLICE
Members of the police undergo specific training on the subject of Domestic Violence so that they can
deal with such cases, to understand and respond to them appropriately and adequately. Given the fact
that most complaints are filed by women, special training emphasis is given to women police officers
to whom most cases are referred.
The major objective of the training programmes is to increase the participants' awareness and
capabilities to assist mainly women and children victims of violence and/or rape, and to advance their
knowledge and skills in the handling of such cases. Topics covered in these courses include the
following:
       -    Assisting/treating rape victims
       -    Assisting/treating women victims of violence
       -    Assisting/treating abused children
       -    Visits to other related agencies, or by their representatives
       -    Victimology
       -    The relevant laws, procedures and their enforcement
       -    Domestic violence: causes, cycle, effects, characteristics of abusers and victims,
            prevention, myths and reality
       -    Abnormal behaviour
All courses are presented by professionals in their respective fields (sociologists, psychologists,
criminologists, lawyers, psychiatrists, and social workers).
During each training programme great effort is taken to demystify the stereotypical perceptions
possibly held by participants with regard to violence against women and children. This is achieved
through a gradual process that includes introduction, suggestion, challenge, and confrontation. A pre-
and post-training attitude questionnaire is administered to monitor any attitudinal or other learning
changes. Although in class experiences indicate some levels of resistance, information collected from
independent non-police agencies that are concerned with and involved in the of violence against
women and children indicate significant improvements both in attitudes as well as in assistance and
treatment provided in such cases.
A “miniature” (eleven hours) training session on domestic violence has been designed and
incorporated in basic police training curricula in the Cyprus Police Academy.
The investment in Police training in the field of Domestic Violence has over the past few years
continued and intensified. Training at the level of cadet, sergeant and inspector continues and
specialised week long seminars are organised annually for officers who investigate cases of Domestic
Violence. Professionals from European countries and the United States are occasionally involved in
our training and members of our Police attend Domestic Violence training programs delivered in the
UK or in the United States.
Police personnel attend local and international meetings and conventions on the issue and Police
spokespersons regularly raise the issue during media presentations (TV, radio, newspapers,
magazines) and at special meetings/ gatherings of various associations.
CYPRUS                                                                                                  85



Police personnel are instructed not to mediate between the parties in cases of domestic violence,
knowing and teaching basic mediation techniques is believed to be a useful social skill that could be
utilised in the future as part of the healing process in some cases. Therefore, the police of Cyprus
have invested in the mastery of mediation skills by some of its personnel.
Police officers are instructed to investigate each case thoroughly and in great detail, and to always
seek corroborating evidence. Due to the nature of most incidences of violence against children and
women, all reasonable measures are taken to provide and secure privacy. In cases of domestic
violence against a spouse, police are advised to refrain from asking direct questions about the causes
of the violent behaviour (e.g. “What did you do to your spouse that triggered the violent response?");
instead, they are advised to ask more general questions (e.g. “What happened between you two?")
that can elicit the same information without indirectly blaming the victim.
Violence against women is of great importance to the police of Cyprus at the top level. Internal police
circulars memoranda which remind and instruct police personnel on how to deal with cases of violence
against women have been /are issued by the Chief of Police.
Police guidelines on handling incidents of domestic violence, which are partly based on the Manual of
Interdepartmental Cooperation, among others, include the following:
         -   Immediate response and priority to cases of domestic violence
         -   Respect of the privacy of the victim, and extreme sensitivity concerning confidentiality
         -   Provisions for medical support and examination
         -   Collection of corroborating testimony and other evidence
         -   Cooperation with victim support services to arrange temporary shelter for the victim if
             necessary
         -   Objectivity and neutrality. Avoidance of imposing on, or suggesting to the victim as to
             what course of action should be taken (e.g. file a complaint or simply warn the
             offender/victimizer)
         -   Attention paid to the offence committed and not to the alleged triggering event (excuse)
         -   Refer the victim to the Social Welfare Department, to a telephone helpline operated by
             the Association for Prevention and Response to Domestic Violence, and to other
             agencies or specialists.
         -   Refrain from acting as family counselor, psychologist, social worker, or mediator
         -   Informing the victim about rights and give options and alternative routes of action
         -   Respect for the victim’s decision to file or not charges
The underlying strategy behind these directions is that the police officer’s role in such cases is to
broaden the victim’s horizons by providing new additional information, and to empower the victim by
offering so-called “psychological first aid”.
Cyprus Police is equipped with video recording systems in specially designed and furnished premises,
which are used for obtaining video recorded statements from vulnerable witnesses. A sufficient
number of personnel have been especially and extensively trained on how to conduct such interviews.
The Police, at headquarters level, operate the Domestic Violence and Child Abuse Office, which
specializes on the two issues. The personnel of the Office, which include two staff psychologists,
provide consultation and guidance to investigating officers and in cases of highly sensitive and
delicate nature, the personnel of the Office oversee on site or undertake the video recording of victim
statements either at district police divisions or at the premises of the Office. Furthermore, the Office
liaison maintain close cooperation with other involved in the issue of child abuse agencies, such as the
Department of Welfare and the Child and Adolescent Psychological Services at public medical
centers.
86                                                                                              CYPRUS



       SUPPORT SERVICES
The police of Cyprus co-operates with the Association for Prevention and Response to Domestic
Violence that operates a twenty-four hour telephone helpline, and can provide temporary shelter for
women victims and their children.


4.0      DOMESTIC VIOLENCE
See Section 1.2 above.


5.0      RAPE AND SEXUAL ASSAULT IN MARRIAGE
According to Article 5 of the Law on Domestic Violence rape within marriage constitutes a criminal
offence. Rape is also considered an offence in the case where the perpetrator and the victim have
received a divorce or are separated.


6.0      RAPE AND SEXUAL ASSAULT
According to Article 144 of the Criminal Code rape is a criminal offence and provides a sentence of life
imprisonment, while according to Article 151 any person who unlawfully and indecently assaults any
female is guilty of a misdemeanour.


7.0      SEXUAL HARASSMENT
According to the Equal Treatment of Men and Women in Employment and Vocational Training Law,
sexual harassment and harassment on the grounds of sex is considered sex discrimination and, as
such, it cannot be tolerated in the workplace. The legislation also confers to the employer
responsibility for his/her employees’ actions that may constitute sexual harassment and/or
harassment.
According to the abovementioned law, harassment on the grounds of sex (which is defined to exist
«where unwanted conduct related to the sex of a person occurs with the purpose of effect of violating
the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or
offensive environment».


8.0      INCEST/SEXUAL ABUSE OF GIRLS
See Section 1.4 above.
CZECH REPUBLIC                                                                                           87




                                         CZECH REPUBLIC

Information provided by the Ministry of Foreign Affairs in November 2000, February 2003 and
September 2006 and updated by the Office of the Government of the Czech Republic
in October 2009.


1.0      LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
In the Czech Republic, since 1998 the elimination of violence against women forms part the Czech
Government’s programming document “Priorities and Procedures of the Government in Promoting
Equal Opportunities for Women and Men”, within the framework of implementation of the Convention
on the Elimination of All Forms of Discrimination Against Women.
Protection of personal integrity against violent attacks is laid down in law. The protection of women is
an integral part of criminal law, social and family law, and the civil code.
The relevant provisions of the Criminal Code (Act No. 140/1961 Coll., as amended) are, inter alia,
bodily harm, restriction of personal liberty, deprivation of personal liberty, extortion, oppression,
violence against a group of persons and against an individual, rape, sexual abuse, abandonment of a
child, neglect of compulsory maintenance, maltreatment of person entrusted to one’s care,
maltreatment of person living in a shared apartment or house.
On 8th January 2009, the Czech Parliament approved a new Criminal Code (Act No. 40/2009 Coll.)
which represents completely new legal regulation of Criminal Law in the Czech offences. Among the
most important ones is stalking incorporated into Section 354. The new Criminal Code abrogates the
present Criminal Code No. 140/1961 Coll. and comes into force on 1st January 2010.

1.1      LETTER OF LAW – DEFINITIONS
There is no specialised legislative instrument governing violence against women. Protection of
personal integrity against violent attacks is laid down in law. The protection of women is an integral
part of criminal law, social and family law, and the civil code.
As a response to a general rising crime rate, the criminal law and crime prevention programmes are
being gradually overhauled. One concern in the overhaul is women as victims of crime.

1.2      DOMESTIC VIOLENCE
Domestic violence is included under the protection of personal integrity against violent attacks and
personal liberty in the Criminal Code (Act No. 140/1961 Coll., as amended) (hereinafter referred to as
the “Criminal Code”).
An amendment introduced by Act No. 91/2004 Coll. effective from 1 June 2004 criminalized domestic
violence by introducing the criminal offence maltreatment of a person living in a jointly occupied
flat or house - section 215a:

Section 215a
(1)   Whoever maltreats a next of kin or other person, that lives with him/her in jointly occupied flat or
      a house shall be liable to imprisonment for a term not exceeding three years.
(2)   The offender shall be liable to imprisonment for a term of two to eight years,
           a. if he commits the act defined in paragraph 1 in especially cruel manner or on more
               then one person, or
           b. if the contravention has continued for a prolonged period of time.

“Next of kin” is a relation of a direct line of descent, adoptive child, adoptive parent, sibling and spouse
and partner; other persons related by blood or marriage are considered next of kin only if a damage
sustained by one of them would be rightly felt by another as damage sustained by himself.
88                                                                                        CZECH REPUBLIC




Another typical crime committed within the family or household and motivated by a sexual or other
personal relationship is murder under Section 219, paragraph 1 of the Criminal Code.

Section 219
 (1) “A person who intentionally kills another person shall be liable to imprisonment for a term of ten
       to fifteen years.”
Paragraph 2 enumerates aggravating circumstances that justify tighter sanctions:
 (2) “The offender shall be liable to imprisonment for a term of twelve to fifteen years or to an
      exceptional penalty if he commits the act defined in paragraph 1
      (a) against two or more persons,
      (b) in a particularly cruel or torturous manner,
      (c) repeatedly,
      (d) against a pregnant woman,
      (e) against a person below the age of fifteen years,
      (f) against a public official in the course of the execution of his official duties or for reasons
          connected with the execution of his official duties,
      (g) against another person for reasons of race, ethnic origin, nationality, political opinion,
          religion or because the person has no religion, or
      (h) with the intention to obtain considerable gain or to conceal or facilitate another crime, or
          for any other particularly condemnable reason.”

“Particularly cruel” murder means an uncommonly brutal assault, with prolonged agony and excessive
injuries. The murderer may use several instruments or mechanisms to make the victim suffer as much
as possible. The “particularly cruel” classification is the method of commission.
Unlike the term “particularly cruel” which characterises the actions of the murderer, the term
“particularly torturous” characterises the feelings of the victim, namely the particularly strong and
increasing suffering due to starvation, thirst or slow strangling. Both terms are not mutually exclusive;
certain murders have been classified as “particularly cruel” as well as “particularly torturous.”
Statistics show that most victims of murder motivated by personal relations are women aged eighteen
years and over.
Another crime typically committed within the family or household (related family members and
unrelated persons residing together in a household) is bodily harm under Sections 221 and 222 of
the Criminal Code:

Section 221
 (1) A person who intentionally injures another person shall be liable to imprisonment for a term not
      exceeding two years.
 (2) The offender shall be liable to imprisonment for a term of one year to five years,
      […]
      c) if by such an act he causes grievous bodily harm.
 (3) The offender shall be liable to imprisonment for a term of three to eight years, if by the act
      defined in paragraph 1 he causes death.”

Section 222
 (1) A person who intentionally causes grievous bodily harm to another person, shall be liable to
      imprisonment for a term of two to eight years.
 […]
 (3) The offender shall be liable to imprisonment for a term of ten to fifteen years if by the act
      defined in paragraph 1 [….] he causes death.
CZECH REPUBLIC                                                                                           89



The offenders are typically tried for combined charges of bodily harm and maltreatment of a ward
under Section 215 of the Criminal Code.

Section 215
  (1) A person who maltreats a person with whose custody or education he has been entrusted shall
       be liable to imprisonment for a term of six months to three years.
  (2) The offender shall be liable to imprisonment for a term of two to eight years,
       a) if he commits the act defined in paragraph 1 in a particularly cruel manner or against
             more than one person, or
       b) if the contravention has continued for a prolonged period of time.

“Maltreatment” is defined as a prolonged period of rough and cruel treatment. The necessary condition
is that the victim feels wronged by such treatment. For adjudication purposes, the “prolonged period”
is a flexible criterion applied with regard to the severity of the victim’s suffering. In any case,
maltreatment causing or intended to cause severe suffering or serious injury is classified as
particularly dangerous to society and carries stricter penalties. Besides children, the victim may be any
other person in the offender’s custody, irrespective of the legal basis for such custody (law, court
order, contract). There are no limitations as to the category of persons who can be prosecuted on this
charge (parents, teachers, trainers, wardens, nurses...).
Domestic crime patterns include restriction/deprivation of personal liberty (Section 231 and 232 of
the Criminal Code):

Section 231
  (1) A person who without authority restricts another person in the enjoyment of personal liberty
       shall be liable to imprisonment for a term not exceeding two years.
  (2) The offender shall be liable to imprisonment for a term not exceeding three years if he commits
       the act defined in paragraph 1 with the intention to facilitate another crime.
  (3) The offender shall be liable to imprisonment for a term of two to eight years if he commits the
       act defined in paragraph 1 as a member of an organised group.
  (4) The offender shall be liable to imprisonment for a term of three to ten years if by the act defined
       in paragraph 1 he causes grievous bodily harm, death or any other particularly serious
       consequence.

Section 232
  (1) A person who deprives another person of personal liberty shall be liable to imprisonment for a
       term of three to eight years.
  (2) The offender shall be liable to imprisonment for a term of five to twelve years, if by the act
       defined in paragraph 1 he causes grievous bodily harm, death or any other particularly serious
       consequence.
The legislation cited above is designed to protect freedom of movement. “Restriction” means
obstacles that are difficult to overcome; the actual duration of this situation is immaterial. “Deprivation”
means a prolonged period of de facto imprisonment.
Act No. 135/2006 Coll. amending certain acts relevant to protection against domestic violence
(Protection against Domestic Violence Act) was passed by the Czech Parliament on 14 March
2006 and took effect on 1 July 2007. It fundamentally changed the approach to the protection of
persons at risk of domestic violence, placing emphasis on prevention – the need to act before the
abusive behaviour escalates into a crime, causing the victim severe mental or physical harm.
The Protection against Domestic Violence Act established an integrated system for the protection of
domestic violence victims. To avert the immediate danger, the police exclude the abusive partner from
the family home and continue to check his/her compliance with the order. The Intervention Centre
takes the next steps necessary to accomplish the purpose of the Protection against Domestic Violence
Act: the abuser is temporarily separated from the abused partner, the victim is given expert
assistance, including time to recover and decide on his/her next step, and offered other services; the
Intervention Centre also coordinates the action of bodies involved in the protection of abuse victims.
90                                                                                                                 CZECH REPUBLIC



The relevant amended legislation included, inter alia, Act No. 283/1991 Coll., the Czech Republic
Police Act. The new legislation introduced the institute of “eviction (restraining) order”1 in the Czech
law (a temporary separation of the violent person from the victim), setting forth the rights and
obligations of the Czech Republic Police authorities regarding its application. The a.m. changes in
legislation were followed by a new internal Police regulation laying down the procedures to be taken
by the police in cases of domestic violence. In 2008, a new police act was passed (Act No. 273/2008
Coll., on the Police of the Czech Republic, which came into force on 1st January 2009), which further
simplifies police procedures for evicting violent individuals from a shared residence.
The role of the Intervention Centres is described in the Social Services Act (Act No. 108/2006 Coll.,
as amended), which took effect on 1 July 2007 together with the Protection against Domestic Violence
Act. Following a restraining order issued under special regulations, the person threatened by the
violent conduct of the excluded person shall be offered assistance within 48 hours from the service of
a copy of official record of eviction. In such case, the service includes coordination of the assistance
provided to the threatened person by public authorities and other legal entities and natural persons.
Section 171 of the Criminal Code (obstructing the execution of an official order) was amended by the
Protection against Domestic Violence Act to include a specific reference to the act of obstructing the
execution of restraining orders issued by the police or courts.
The Protection against Domestic Violence Act involved also an amendment to the Civil Procedure
Code (Act No. 99/1963 Coll., as amended). A new preliminary injunction was included in the Civil
Procedure Code (Section 76b and Section 273b). The person committing violence may be ordered to
leave the shared dwelling for one month and refrain from making any contact with the petitioner
according to a judicial decision issued based on a request of the person under the treat of domestic
violence. This preliminary measure does not require previous eviction by the Police and may be
extended for up to 1 year under certain specified circumstances.
During 2008, an amendment to the Civil Procedure Code was passed. Some of the changes it brought
are significantly contributing to a reduction in domestic violence and to better protection of its victims
(e.g. the list of restraining orders that can be enforced as a preliminary measure was increased to
include additional restraining orders for the protection of the plaintiff). To combat manifestations of
stalking, a restraining order, calling for a cessation of the stalking and any type of harassment of the
plaintiff, should protect the plaintiff. Other restraining orders in the amendment to the Civil Procedure
Code include a ban on residing in a shared residence and a ban on lingering in the immediate vicinity
of the shared residence. As a new change, a court is authorised, at any time and without delay, upon
request of an authorised person, to enforce a repeat verdict banning an aggressor from the shared
residence, if the aggressor violates his/her obligation to neither enter the shared residence nor to
reside in it, after he/she has already been evicted.
On 8th January 2009, the Czech Parliament approved a new Criminal Code (Act No. 40/2009 Coll.)
which represents completely new legal regulation of Criminal Law in the Czech Republic. The new
Criminal Code introduces approximately 60 new acts that are deemed as criminal acts. Among the
most important ones is stalking incorporated into Section 354. The new criminal Code abrogates the
present Criminal Code No. 140/1961 Coll. and comes into force on 1st January 2010.

1.3          RAPE/SEXUAL ASSAULT
Section 241, paragraph 1 of the Criminal Code, Act No. 140/1961 Coll. as amended (hereinafter
referred to as the “Criminal Code”) contains the following definition of rape:

Section 241
    (1) A person who through violence or threat of immediate violence forces another person to genital-
         genital or analogous sexual intercourse, or a person who commits the act taking advantage of
         another person’s defencelessness, shall be liable to imprisonment for a term of two to eight
         years.
    (2) The offender shall be liable to imprisonment for a term of three to ten years if he commits the
         act defined in paragraph 1 against a person under eighteen years old.
    (3) The offender shall be liable to imprisonment for a term of five to twelve years


1
    Under the Domestic Violence Act it means order to leave and prohibition to enter the flat for 10 day period.
CZECH REPUBLIC                                                                                         91



       (a)                    if by the act defined in paragraph 1 he causes grievous bodily harm, or
       (b)                              if he commits the act against a person under fifteen years old.
  (4) The offender shall be liable to imprisonment for a term of ten to fifteen years or to extraordinary
       sentence if by the act defined in paragraph 1 he causes death.
The rape legislation provides for situations when the offender through force or threat of force makes a
person perform sexual intercourse with another person. The offender’s gender is regarded as
immaterial.
“Force or threat of force” is defined as use of physical force by the offender with the intention to
overcome or prevent serious resistance of the victim and perform sexual intercourse. The use of force
in other forms of sexual assault does not fall under the rape legislation; it is commonly classified as
extortion under Section 235 of the Criminal Code:

Section 235
  (1) A person who through force, the threat of force or the threat of any other serious harm makes
       another person perform, omit or tolerate any actions, shall be liable to imprisonment for a term
       not exceeding three years;
  (2) The offender shall be liable to imprisonment for a term of two to eight years,
       a) if he commits the act defined in paragraph 1 as a member of an organised group,
       b) if he commits the act together with two or more persons,
       c if he commits the act with a weapon,
       d) if by the act he causes grievous bodily harm or “considerable damage”2,
       e) if he commits the act against a witness or expert witness or interpreter for any reason
                 relating to the discharge of their official duties, or
       f) if he commits the act against another person for reasons of race, ethnic origin, nationality,
                 political opinion, religion or because the person has no religion.
  (3) The offender shall be liable to imprisonment for a term of five to twelve years if by the act
       defined in paragraph 1 he causes damage of a large extent2;
  4) The offender shall be liable to imprisonment for a term of ten to fifteen years or to extraordinary
      sentence if by the act defined in paragraph 1 he causes death.
Rape in marriage is criminalised, but there is a specific requirement that the injured party's consent is
needed to open the prosecution when the accused is her husband or common law husband. This
requirement does not exist in other offences of violence.

1.4       CHILD SEXUAL ABUSE/INCEST

        SEXUAL ABUSE
The legislation distinguishes between sexual abuse in general, cases where the abused girl-child is
given to the abuser or pimp in return for money or other compensation or cases of sexual abuse within
the family.
The first situation is classified as particularly dangerous to the society and carries stricter sanctions.
(Section 241, paragraph 2). The second situation is basically defined in Section 242, paragraph 1 of
the Criminal Code as performance of sexual intercourse with a person below the age of fifteen years
or other forms of sexual abuse of such person. Stricter sanctions are tied to the victim’s dependent
status or grave consequences of abuse. (Section 242, paragraph 2 and 3):

Section 242
  (1) A person who performs sexual intercourse with a person under fifteen years of age or otherwise
       sexually abuses such person shall be liable to imprisonment for a term of one to eight years.
  (2) The offender shall be liable to imprisonment for a term of two to ten years if he commits the act
       defined in paragraph 1 against a person under his supervision, taking advantage of the
       person’s dependent status.

2 Considerable damage – at minimum 500.000 CZK, damage of a large extent – at minimum 5.000.000 CZK
92                                                                                        CZECH REPUBLIC



  (3) The offender shall be liable to imprisonment for a term of five to twelve years if by the act
        defined in paragraph 1 he causes grievous bodily harm,
  (4) The offender shall be liable to imprisonment for a term of ten to fifteen years or to extraordinary
        sentence, if by the act defined in paragraph 1 he causes death.
The words “otherwise sexually abuses” in paragraph 1 mean major violations of the victim’s sexual
sphere for the abuser’s sexual excitement. “Taking advantage of the victim’s dependent status” means
that the victim’s opinions are limited due to a certain degree of dependence on the abuser. The
simplest case is de facto dependence; e.g. the abuser has the custody of the victim.
Section 243 provides less stringent sanctions for the sexual abuse of victims above the age of fifteen
years:
 “A person who, taking advantage of the dependent status of a person under eighteen years of age or
a person under his supervision, performs extramarital sexual intercourse with such person or
otherwise sexually abuses such person taking advantage of his/her dependent status, shall be liable
to imprisonment for a term not exceeding two years.”
Dependent status of the victim is the decisive criterion for categorisation of sexual abuse in police
statistics.
Sexual abuse charges are thus based on several separate sections of the Criminal Code according to
the age/gender of victim-offender relation.

       INCEST
The relevant legislation includes Section 245 of the Criminal Code criminalising incest – sexual
intercourse between relatives in the direct line or between siblings:
“A person who performs sexual intercourse with a relative in the direct line or with a sibling shall be
liable to imprisonment for a term not exceeding two years.” (Section 245)
Cases of rape or sexual abuse of a relative in the direct line or a sibling are tried on a combination of
charges under Section 241 or 242 and Section 245.
The crimes mentioned above belong to Chapter 8 of the Criminal Code – Crimes against Individual
Liberty and Human Dignity. The typical aggravating circumstances are that the offender committed the
crime (attempted crime) as an organiser, member of an organised group or a conspiracy.

       TRAFFIC IN CHILDREN
A person who entrusts another person with the custody of a child-girl in return for money or other
compensation commits traffic in children under Section 216a of the Criminal Code (Act No. 537/2004
effective from 22 October 2004 introduced in the Criminal Code new Section 216a):

Section 216a
 (1) A person who, in return for a compensation, entrusts another person with the custody of a child
      for the purpose of adoption or for any other purpose, shall be liable to imprisonment for a term
      not exceeding three years or to a financial punishment.
 (2) The offender shall be liable to imprisonment for a term of two to eight years,
     a) if he commits the act defined in paragraph 1 as a member of an organised group, or

        b)                                                  if by such act he obtains substantial gain.
  (3) The offender shall be liable to imprisonment for a term of three to ten years if by the act defined
        in paragraph 1 he causes grievous bodily harm, death or any other serious consequence.
The Criminal Code protects all children irrespective of gender. For the purpose of the section 216a,
the term “child” means a person under 18 years old (Section 216b).

1.5      SEXUAL HARASSMENT
Act No. 198/2009 Coll. on equal treatment and on legal means of protection against discrimination and
on the changing of some laws (the Anti-Discrimination Act) (effective partly from 1 September 2009
and partly from 1 December 2009) more closely defines the right to equal treatment and ban on
CZECH REPUBLIC                                                                                            93



discrimination in the areas, inter alia, of the right to employment and right of access to employment,
the right of access to professions, trades and other independently remunerative activity, the
performance of dependent work, social security (including the provision of social care), access to
education and its provision, and access to goods and services, including housing, if they are offered to
the public or in the event of their provision.
The Anti-Discrimination Act expressly prohibits discrimination and establishes the victim’s entitlement
to compensation, including compensation for other than proprietary harm (moral harm). Harassment,
sexual harassment, persecution, an instruction to discriminate and the instigation of discrimination are
all considered to constitute discrimination and therefore banned.
Sexual harassment could also fall in the category of “breaches of good civil relations” under Section
49 of the Act on Misdemeanours No. 200/1990 Coll., as amended:

Section 49 – Breaches of good civil relations
 (1) An offender commits a misdemeanour if he
       a) harms the reputation of other by insult or by ridicule,
       b) inflicts negligent damage to the health of other person,
       c) intentionally violates good civil relations through threats of bodily harm, minor injury, false
                  accusation of a misdemeanour, wilful and wanton acts, or other gross misconduct,
       d) limits or denies exercise of rights of a national minority to a member of such a minority,
       e) causes damage to another for his membership to national minority or for his ethnical origin,
                  for his race, colour, sex, sexual orientation, language, faith or religion, political or
                  another opinion, membership or activity in political parties or political movements,
                  union organizations or other societies, for his social origin, wealth, family, health or for
                  his marriage or family status.
 (2) The penalty for misdemeanour under paragraph 1(a) shall be a fine not exceeding 1.000 CZK,
       the penalty for misdemeanours under paragraph 1 (b) and (c) shall be a fine not exceeding
       3.000 CZK and the penalty for misdemeanours under paragraph 1 (d) and (e) shall be a fine
       not exceeding 5.000 CZK.
Harassment cases with criminal elements are classified as oppression (Section 237 of the Criminal
Code):
“A person who takes advantage of another person’s dependent status or distress to make such
person perform, omit or tolerate any actions, shall be liable to imprisonment for a term of not
exceeding six months.”
Criminal harassment cases involving the use of force are classified as extortion under Section 235 of
the Criminal Code.

1.6       PORNOGRAPHY
No information provided.

1.7       PROSTITUTION
No information provided.

1.8       OBSCENE PHONE CALLS/TELEPHONE SEX
No information provided.

1.9       FEMALE GENITAL MUTILATION
The Criminal Code does not contain any special provisions on genital mutilation. Depending on the
circumstances, such cases would be classified as grievous bodily harm under Section 222 of the
Criminal Code or murder under Section 219 of the Criminal Code.
A physician has to notify the police or a public prosecutor if there is a suspicion that such an offence
has been committed.
94                                                                                      CZECH REPUBLIC



1.10     INTERNATIONAL CONVENTIONS
The UN Convention on the Elimination of All Forms of Discrimination against Women was signed on
17 July 1980 and entered into force in respect of the Czech Republic on 18 March 1982. The Czech
Republic became a party to the Convention upon its establishment on 1 January 1993, when it
succeeded to all international obligations of the former Czech and Slovak Federal Republic.
The Optional Protocol to the Convention was signed on 10 December 1999 and entered into force in
respect of the Czech Republic on 26 May 2001.

1.11     PROTECTION OF PREGNANCY/PREGNANT WOMEN
Protection of pregnancy is covered by Chapter VII of the Criminal Code, Sections 227-229:

Section 227 - Unauthorised Abortion
(1) A person who assists a pregnant woman or induces her to:
        a) interrupt her pregnancy by herself; or
        b) ask or allow someone else to interrupt her pregnancy in a manner other than that
        admissible under the statutory provisions on abortion;
       shall be liable to imprisonment for a term not exceeding one year.
(2)    An offender shall be liable to imprisonment for a term of one to five years if by an act defined
       under paragraph 1 he causes severe injury or death.

Section 228
 (1) A person who, acting with the consent of a pregnant woman, terminates her pregnancy in a
       manner other than that admissible under the statutory provisions on abortion shall be liable to
       imprisonment for a term of one to five years.
 (2) An offender shall be liable to imprisonment for a term of two to eight years if:
       a) he acquires substantial benefit by an act defined under paragraph 1;
       b) he regularly commits an act defined under paragraph 1; or
       c) he causes grievous bodily harm or death by an act defined under paragraph 1.
 (3) The same punishment (sentence) as that under paragraph 2 shall be imposed on any person
       who terminates a woman’s pregnancy without her consent.
 (4) An offender shall be liable to imprisonment for a term of five to twelve years if he causes death
       by an act defined by paragraph 3.

Section 229
A pregnant woman who terminates her pregnancy herself, or who asks another person or allows
another person to terminate it, shall not be liable to punishment for such act, not even under the
provisions on instigators and assistants.
Murder of a pregnant woman is an aggravated crime under Section 219(2)(d) punished by 12-15
years in prison.
CZECH REPUBLIC                                                                                   95




2.0      SENTENCING
2.1      SENTENCING DOMESTIC VIOLENCE
Police statistics – crimes falling under Section 215a – maltreatment of a person living in a jointly
occupied flat or house:

Table Nr 1 : Information on the victims of domestic violence in 2007



                      2007
                                                      CZECH REPUBLIC

           Total number of cases                             392
                    - a child                                54

 The victim is      - a woman                                348
                    - a man                                  16
                    - a senior citizens                      43
                    - married couple                         192
                    - former married couple                  33

 Relationship       - cohabitees                             80
between victim      - a child living in a jointly
     and            occupied house                           61
  perpetrator       -           intergeneration
                    relationship                             72
                    - another person living in
                    a jointly occupied house                 23


Table Nr 2 : Persons convicted for crime under Section 215a Criminal Code
Maltreatment of a person living in a jointly occupied flat or house in the
period 2004 - 2007


                                  Total number of
             2004                                     Woman         Men
                                 convicted persons*

Czech Republic                          1               0              1
*Remark.: convicted persons for the period 1/6/2004 – 31/12/2004

                                  Total number of
            2005                                      Women         men
                                 convicted persons

Czech Republic                            134            3          131

                                  Total number of
            2006                                      Women         Men
                                 convicted persons

Czech Republic                            256            6          250

                                  Total number of
            2007                                      Women         Men
                                 convicted persons

Czech Republic                            291            8          283
96                                                                                        CZECH REPUBLIC



3.0      EFFECTIVENESS OF LEGISLATION
3.1      SUPPORT/PROTECTION

        FINANCIAL ASSISTANCE BY THE STATE TO CRIME VICTIMS
Financial assistance by the state to crime victims was introduced by Act No. 209/1997 Coll. on the
provision of financial assistance to crime victims (hereinafter referred to as the “Financial assistance
Act”). The definition of “crime victim” in Section 2 includes natural persons “who have suffered injury
as a consequence of a crime” and natural persons for whose maintenance the aforesaid person is
responsible.
Under Section 2, paragraph 3, the purpose of the lump-sum payment is to help the victim in the initial
period of hardship caused by the criminal injury. The legislator stresses that the scheme is open only
to victims injured by crimes under the Criminal Code:
“For the purpose of assistance under the present Act, the term “crime” means acts constituting crimes
or attempted crimes under the Special Part of the Criminal Code.” (Section 2, paragraph 4)
Eligibility for assistance is subject to procedural criteria specified in Sections 4-6:
“The assistance shall be payable in cases where full compensation for the criminal injury or damage
resulting from the death of the victim has not been provided.” (Section 4)
“The assistance shall be payable in cases where the guilt of the person who committed the crime that
caused the injury has been determined by a judgment of conviction or acquittal on grounds of insanity.
If such judgment has not been delivered or is not final or if the criminal prosecution has not been
instituted because the perpetrator is unknown or cannot be charged with an offence if there are legal
obstacles to the criminal prosecution, the assistance shall be payable provided that an examination
conducted by the law enforcement authorities has established beyond all reasonable doubt that the
crime as a consequence of which the victim suffered injury was committed.” (Section 5)
“The state shall not provide assistance, if the victim
  a)  is a co-defendant in the criminal proceedings concerning the crime as a consequence of which
        he suffered injury, or was an accomplice in such crime,
  b) did not express consent with the criminal prosecution of the perpetrator, provided that such
        consent is necessary for the criminal prosecution to be instituted or proceed or if the victim
        withdrew his consent, or
  c) failed to provide the necessary assistance to the law enforcement authorities, namely failed to
        report the crime in respect of which he claims compensation or, in his position as a witness in
        the criminal proceedings, exercised the right to deny testimony on the grounds of his relation
        to the offender.
The state shall not provide assistance in cases where the injury as measured in the standard units is
not assessed at 100 units and over.” (Section 6)
The standard injury assessment list is in Decree of the Ministry of Health No. 440/2001 Coll. on
compensation for injury and limited capacity to earn sufficient livelihood, as amended.
The Financial Assistance Act specifies the amount of compensation for loss of earnings and medical
expenses (Section 7, paragraph 1). The application for assistance should be filed with the Ministry of
justice within one year of the crime (Section 9). This is a strict time limit.
The Financial Assistance Act specifies the particulars of the application and the powers of the
responsible government and law enforcement authorities to verify the data given in such applications.
An important rule is that law enforcement authorities must inform victims about the availability of
financial assistance.

        WITNESS PROTECTION
The Code of Criminal Procedure, Act No. 141/1961 Coll. as amended, provides in Section 163,
paragraph 1, and Section 100, paragraph 1 and 2:
CZECH REPUBLIC                                                                                         97



       “Criminal prosecution for crimes….of bodily harm under Section 221, 223 and 224,….restriction
        of personal liberty under Section 231, paragraph 1 and 2, extortion under Section 235,
        paragraph 1 ….of the Criminal Code conducted against a person in respect of whom the
        victim, in his position as a witness, has the right to deny testimony (Section 100, paragraph 2),
        and criminal prosecution for the crime of rape under Section 241, paragraph 1 and 2
        conducted against a person who is, or was at the time of commission, a spouse, partner or
        common law spouse of the victim,…. if the actions of such person otherwise constitute any of
        the crimes cited above, shall be instituted and the instituted criminal prosecution shall proceed
        only with the consent of the victim. If there are several victims of one crime, the consent of one
        of them shall suffice.” (Section 163, paragraph 1)
      “A relative of the person charged in the direct line, his/her sibling, adoptive parent, adoptive
       child, spouse, partner and common law spouse shall have the right to deny testimony; if
       several persons are charged and the witness has any of the relationships cited above to one of
       them, he/she shall have the right to deny testimony in respect of the other persons charged
       only if the testimony regarding such other persons is inseparable from the testimony regarding
       the person to whom the witness is related.” (Section 100, paragraph 1).
      “A witness shall have the right to deny testimony if the testimony would be self-incriminating or
       would expose to criminal prosecution his relative in the direct line, his sibling, adoptive parent,
       adoptive child, spouse, partner or common law spouse or any other family members or
       persons having a similar degree of relationship to the witness, provided that the witness has
       the reasonable grounds for regarding any harm caused to such persons as harm caused to
       himself.” (Section 100, paragraph 2)
Criminal prosecution in such cases is waived or is not instituted at all:
(1)    Criminal prosecution shall not be instituted, and if has already been instituted, shall not proceed
        and must be waived…
  f)   if the criminal prosecution is subject to the consent of the victim and such consent is not given
         or is withdrawn (Section 163a)….. (Section 11, paragraph 1)

        OTHER SERVICES
Asylum houses in the Czech Republic are operated by the communities and non-governmental
organisations. The founders are mostly non-profit organisations (civic association, churches), aided
and advised by the Ministry of Labour and Social Affairs.
Social prevention services are one of the priorities of the Ministry of Labour and Social Affairs’ subsidy
policy. There are 87 emergency shelters for families with children (Section 57 of Act No. 108/2006
Coll., on social services) in the Czech Republic. As part of the Ministry of Labour and Social Affairs’
subsidy policy, support was provided to registered service providers, whose target group is comprised
of families with children, during 2008. The Ministry of Labour and Social Affairs continues with its
methodical direction of social workers from institutions for the socio-legal protection of children in
connection with the issue of equal opportunities for both parents in caring for children.


4.0       DOMESTIC VIOLENCE

        LEGISLATION AND SANCTIONS
See Section 1.2 above

        IMPLEMENTATION OF THE LEGISLATION
In general, the first year of the implementation of the Protection against Domestic Violence Act (Act
No. 135/2006 Coll. with effect from 1 July 2007) showed that the Act is a comprehensive legal
framework of prevention against domestic violence. It makes it possible to prevent dangerous attacks
against life and limb by the police eviction order, while creating conditions for immediate
psychological, social and legal assistance to victims in intervention centres and cross-disciplinary
cooperation among state, municipal and non-governmental organizations involved in the prevention
and assistance to victims of domestic violence and their minor children.
98                                                                                          CZECH REPUBLIC



There are sixteen intervention centres in the Czech Republic (fifteen in 2007). They are obliged to
provide assistance to all victims of domestic violence, i.e. not only those whose cases are dealt with
by the Czech Republic Police, but also to persons who contact one of the intervention centres, so to
say, directly from the street. Relevant statistics enable comparison of all contacts made with those
made solely upon the notification of the Police of the Czech Republic.
In 2007, the total number of Police eviction orders in the Czech Republic recorded by the intervention
centres was 862. In these cases, the police considered previous incidents and assessed the risk level
of the current situation. The total number of persons directly facing the threat of domestic violence in
2007 was 1833 (adult victims + children present during a violent incident and police intervention); the
institute of the eviction order ensured their protection against further violence.
Repeated eviction orders were issued with respect to 58 persons. In the 862 cases in which eviction
orders were issued, there were 892 adult victims, including 858 women and 34 men. In the period
monitored, the Police of the Czech Republic recorded the total of 941 children present at the police
interventions and the violent incidents preceding them.
From the total of 862 eviction orders, 854 concerned men and 8 women. As regards the relationship
between the violent person and the victim, most cases involved spouses – 467 cases (54 %), followed
by cohabitees – 205 cases, intergeneration violence – 134 cases and divorced spouses – 55 cases. A
small number of eviction orders concerned partners, siblings and others. The data regarding the
monitored period of 2007 indicates a significant difference between individual regions of the Czech
Republic3. The average number of eviction orders in one region in the year was 61.6.
In connection with eviction orders, the intervention centres made 3,942 recorded contacts with victims
in 2007 (including 2,880 by telephone, 587 in person in the intervention centres, 153 in person at the
victims’ homes, 322 in writing). The services of the intervention centres were used rather unevenly by
other persons facing the threat of domestic violence. The intervention centres keep records on the
total of 5,364 other contacts made in 2007 (this number does not include contacts from professionals),
of people looking for information, advice, support and assistance related to domestic violence. On
average, one intervention centre had 620 contacts with clients during 2007.
In the course of 2007, i.e. the first year of effect of the Domestic Violence Act, victims started to apply
directly to civil courts asking for preliminary ruling, even in situations not preceded by the police ten-
day eviction order. Out of the total of 862 cases of police eviction orders, in 337 cases the victims
applied for a court preliminary ruling to extend the restraint period. 73.5 % (i.e. 190) of these
applications were granted by the courts; 14 % were dismissed.
Since 2002, the Ministry of the Interior has been coordinating an interministerial cooperation to
establish an integrated system of assistance to victims of domestic violence and since 2004 it has
regularly monitored the fulfilment of measures aimed at interdisciplinary solutions of the problem of
domestic violence in the Czech Republic. To that end, a joint team of experts was created, consisting
of representatives of the Ministry of the Interior, the Ministry of Justice, the Ministry of Labour and
Social Affairs, the Ministry of Health, the Ministry of Education, Youth and Sports, the Police of the
Czech Republic and several NGOs. Each year, the a.m. team prepares an annual report on the
actions of the Czech Republic to reduce domestic violence and assist its victims, which the Minister of
the Interior submits to the Government of the Czech Republic.

           SUPPORT AND ASSISTANCE TO VICTIMS
Measures intended to support and assist victims are taken not only by the state administration
authorities and local self-governments, but to a great extent also by non-governmental organizations,
which focus their activities on specific help to the victims of domestic violence and the protection of
their rights. In the Czech Republic, the cooperation between the governmental and non-governmental
sectors is efficient, the latter being represented by several NGOs active not only in the area of
domestic violence, but violence against women in general (e.g. the White Circle of Safety, ROSA, o.s.,
Acorus, o.s., ProFem, o.p.s. and others – see below.)
Koordona associates NGOs focusing on the problem of domestic violence, violence against women
and women’s rights, either by directly helping the victims or organizing educational campaigns,
preparing publications, training and educating professionals and general public and promoting system


3
    The Czech Republic is divided into 14 administrative regions.
CZECH REPUBLIC                                                                                             99



changes in this area. For instance, in 2007, Koordona drew up common standards for working with
victims of domestic violence. The Koordona member organizations cooperate intensely with local
NGOs and NGOs on both the national and international levels. Cooperation on the national level
concerns e.g. trainings and seminars for helping professionals, police officers, state officials,
conferences, discussion panels, meetings with students/citizens etc.
Koordona’s international activities include the organization of conferences and seminars;
representatives of its member organizations also participate in conferences and seminars abroad.
Recommendations of the Council of Europe were heard in 2007 e.g. at the international congress The
Law Against Domestic Violence”, focused on methods of application and possibilities of the law with
respect to domestic violence – violence against women, comparison in the European context, or the
international conference “Stop Domestic Violence Against Women – 10 years of Austrian Anti-
Violence Legislation in the International Context”. A project of the White Circle of Safety on the
“Prevention of Domestic Violence – Change in Legislation” and the project of ROSA, o.s. “Partnership
Against Violence“ represented the Czech Republic at the ECPA competition (European Crime
Prevention Award) in Lisbon in December 2007, having domestic violence as its topic for 2007. In
2008, Koordona also organized a conference on domestic violence called “And what will come
afterwards? When domestic violence does not end with a divorce… Three instruments in the hands of
aggressors – who is protected by the state?”. The conference mainly recommended completing the
missing legislation.
In October 2008, the Crime Prevention Unit of the Ministry of the Interior prepared and issued a jigsaw
puzzle for the public that read “STOP domestic violence”. Approximately 100,000 puzzles were
distributed. During June 2008, after agreement with the citizens’ association White Circle of Safety, an
instructional aide in the form of a DVD entitled “Dam against Domestic Violence” was distributed
through the Crime Prevention Unit of the Ministry to units of the Police of the Czech Republic and to
municipal police departments.
Apart from training and educational activities, individual organizations are involved also in direct
assistance to victims of domestic violence. They provide their clients particularly with psychological,
legal and social consultancy, accommodation in asylum shelters (with a confidential address if
necessary), accompaniment to authorities and institutions, and a number of other services. In 2007,
the Koordona member organizations provided shelter for a total of 326 women and 420 children
threatened by domestic violence.

          NATIONAL ACTION PLAN
The National Action Plan of Prevention of Domestic Violence (NAP) is currently under preparation; it is
being drawn up by the central state administration authorities in cooperation with several NGOs. The
NAP should cover at least 5 years, and the Government should be submitted detailed annual reports
on its fulfilment. The target groups of the NAP include: women/men - victims (subgroups – women
foreigners and with medical or social handicaps), children, senior citizens, perpetrators of domestic
violence, institutions providing assistance (e.g. psychologists, social workers, doctors etc.) and the
public.
The preliminary structure of the NAP is as follows:
     1)          a preamble specifying domestic violence (description of the situation, legislation in the
                 national and international context, recommendations of the Council of Europe, objectives
                 and tasks), main target groups,
     2)          assistance to and services for the victims of domestic violence (definitions of the
                 categories of persons threatened by domestic violence – women, children, senior
                 citizens), objectives (e.g. in the area of services – standards for counselling centres,
                 asylum houses etc.),
     3)          specific protection of children – witnesses of/victims of violence,
     4)          offenders and work with them – resocialization programmes, mediation etc.,
     5)          institutions providing assistance – establishing the principle of interdisciplinary approach
                 – the principle of team cooperation of schools, authorities of social and legal protection of
                 children, NGOs + the system of education in the given area,
     6)          the public – prevention, education
100                                                                           CZECH REPUBLIC



      7)      activities in the areas of research, training and prevention.
      8)      legislation


5.0        RAPE AND SEXUAL ASSAULT IN MARRIAGE
See Section 1.3 above.


6.0        RAPE AND SEXUAL ASSAULT
See Section 1.3 above.


7.0        SEXUAL HARASSMENT
See Section 1.5 above.


8.0        INCEST/SEXUAL ABUSE OF GIRLS
See Section 1.4 above.
DENMARK                                                                                             101




                                            DENMARK

Information provided by the Department of Gender Equality in November 2000 and in May 2003 and
updated by the Ministry of Justice, Law Department, in September 2009.


1.0       LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
The Minister of Gender Equality has established a working group together with the Ministry of Justice,
The Ministry of Social Affairs, The Ministry of Health and the Ministry of Domestic Affairs to work on
the issues of violence against women and trafficking in human beings. The working group shall give
recommendations for initiatives to combat violence against women and trafficking. NGOs and experts
are involved in the work of this group.

1.1       LETTER OF LAW – DEFINITIONS
The Criminal Code was amended in 1994. The provisions in the amended legislation concern
"physical offences of a grave character but psychological impact and the insult to the victim's
conceptions of honour, moral, or chastity are not included".
The main aims of the Plan of Action to Combat Violent Crime are to increase sentences for repeat
offenders convicted of violent offences; to facilitate access to justice; and encourage reporting of
violent crime, by offering some protection to victims and witnesses. Persons considered to be
especially susceptible to violence are defined by profession and include taxi drivers, visiting medical
staff and staff of 24 hour shops and petrol stations.
In 1995/1996 the National Commissioner of Police carried out an interview-based survey on violence
in the street, in the home and at the workplace. Not since 1987 had a survey on violence been carried
out which is comparable with the surveys of 1995/1996.
The overview of the result shows that there has been stagnation/a decrease in violent crime, not least
in domestic violence. Furthermore there is a clear connection between income-based position and risk
of domestic violence.

1.2       DOMESTIC VIOLENCE

       DANISH LEGISLATION ON VIOLENCE– THE DANISH PENAL CODE

           Chapter 23 - Offences Against Family Relationships

Section 213
“1) Any person who, by neglect or degrading treatment, insults his spouse, his child or any of his
dependants under the age of 18 or any person to whom he is related by blood or marriage in lineal
descent, or who by deliberately evading his duties to maintain or contribute to the maintenance of any
such persons, exposes them to distress, shall be liable to imprisonment for any term not exceeding
two years”.
Specific figures on cases of domestic violence are not collected in Denmark, although some research
(Rapport om vold mod kvinder i Denmark / Report on violence against women) 1992) has been
completed.
The survey 1995/1996 shows that women in the highest income brackets are seldom exposed to
domestic violence.
There are no specific laws in place to deal with domestic violence; domestic violence is classified with
other offences of violence in the Criminal Code. Women are critical of legal response to domestic
violence; the burden of proof is too hard and there is no system of compensation for women.
102                                                                                            DENMARK



The National Commissioner of Police have in guidelines to the local police authorities announced that
a case of domestic violence should not be given up if there are objective signs of violence, even if the
victim will not press charges against the offender.
Information from the National Organisation of Women’s Crisis Centres (LOKK, 1999) shows that there
are 34 crisis centres around the country dealing with victims of domestic violence. These are partly
based on public service and partly voluntary. The number of residents on the centres is approximately
200 women and the same number of children. Even if the group of women who has been exposed to
physical violence is in all ages from 18 to 60, around 80 % of the women living at the centres are
under the age of 40 years.

           Chapter 25 - Offences of violence against the person

Section 244
“Any person who commits an act of violence against, or otherwise attacks the person of others, shall
be liable to a fine or to imprisonment for any term not exceeding three years”.

Section 245
“1) Any person who commits an assault of a particularly heinous or brutal or dangerous character or
who is guilty of cruelty shall be liable to imprisonment for any term not exceeding six years. If such an
assault has caused significant damage to another person, or to the health of another person, it shall
be considered a particular aggravating circumstance.
2) Any person who, in circumstances other than those covered by Subsection (1) above causes
damage to another person or to the health of another person shall be liable to imprisonment for any
term not exceeding six years”.

Section 246
“If an assault as indicated in Section 245 of this Act has been of such a gross character or has caused
such serious consequences that the circumstances are particularly aggravating, the penalty may be
increased to imprisonment for any term not exceeding ten years”.
Articles 244-249 of the Criminal Code, punishing acts of violence, cover acts of violence irrespective of
the gender of the victim (except for section 245a, which deals with female genital mutilation only, see
Section 1.9 below). In determining the sentence, account shall be taken, inter alia, of the seriousness
of the offence, according to section 80 of the Criminal Code. This assessment includes information
regarding the victim, including any elements that may be specific to female victims”.

Section 262 a.
 “(1) Any person who recruits, transports, transfers, harbours or subsequently receives a person by
       means, whether present or past, of
       (i) unlawful coercion pursuant to section 260;
       (ii) deprivation of liberty pursuant to section 261;
       (iii) threats pursuant to section 266;
       (iv) the unlawful creation, confirmation or exploitation of a mistake; or
       (v) any other undue method, for the purpose of exploitation of that person by sexual
             immorality, forced labour or services, slavery or practices similar to slavery, or the
             removal of organs, shall be liable to imprisonment for any term not exceeding 8 years for
             trafficking in persons.
 (2) The same penalty shall apply to any person who, for the purpose of exploitation of the victim by
       sexual immorality, forced labour or services, slavery of practices similar to slavery,
       (i) recruits, transports, transfers, harbours or subsequently receives a person under 18; or
       (ii) gives payment or other benefit to achieve the consent to such exploitation from a person
             having control over the victim, and to the person receiving such payment or benefit”.
DENMARK                                                                                              103




          ACT ON EXPLUSION AND RESTRAINING ORDER
In July 2004 a new act on expulsion and restraining order came into force. The act provides the
Danish Police with the authority to – under certain conditions – to expel a person that is displaying
violent or threatening behaviour from the shared home for a period of time in order to prevent (further)
violence against other members of the household.
In April 2008, the Danish Parliament adopted an amendment to the Criminal Code entailing an
increased penalty when coercion is committed in relation to forced marriage.

1.3           RAPE/SEXUAL ASSAULT

          DANISH LEGISLATION ON VIOLENCE – THE DANISH PENAL CODE

               Chapter 24 - Sexual Offences

Section 216
“1) Any person, who enforces sexual intercourse by violence or under threat of violence, shall be guilty
of rape and liable to imprisonment for any term not exceeding eight years. The placing of a person in
such a position that that person in unable to resist the act shall be equivalent to violence.
2) If the rape has been of a particularly dangerous nature, or in particularly aggravating circumstances,
the penalty may be increased to imprisonment for any term not exceeding 12 years”.

Section 217
“Any person who by other unlawful coercion (according to Section 260 of this Act) than violence or
threat of violence, procures for himself sexual intercourse, shall be liable to imprisonment for any term
not exceeding four years”.

Section 224
“The provisions of sections 216-223A of this Act shall apply correspondingly in connection with sexual
acts other than intercourse.”
                                                                 2006       2007        2008
Rape (section 216 and section 224, cf. section 216)               491        527         430
Sexual intercourse through unlawful coercion (section
217 and section 224, cf. section 217)                              21         23          29
Other sexual offences                                            2139       2052        2017

In 2003, Denmark participated in the International Violence Against Women Survey, which maps out
the number of women being raped or victims of other sexual or violent offences. Since 2008, rape
victimisation is included in the Danish Crime Victim Survey.

          LEGAL DEFINITIONS
The Danish Criminal Code criminalises:
          -   Rape;
          -   Sexual intercourse forced by other unlawful compulsion than assault;
          -   Sexual intercourse by exploitation of another person's mental disease or deficiency or
              other state of dependency;
        -     Sexual intercourse with children under 18 years;
        -     Offences against decency.
Maximum and minimum penalties for the perpetrator for individual crimes vary with the grossness of
the crime. In 1989 witness protection rules were adopted:
          -      The right to close the doors during interrogation of the injured party in proceedings
                 relating to rape and sexual assault;
104                                                                                            DENMARK



        -   The injured party’s right to legal representation in all sexual crimes has been extended to
            include the investigation, trial and claims for compensation with legal fees being paid by
            the State.
However, in the opinion of the police, these measures have had no impact.
Other initiatives include:
        -    Police training, including psychology to improve their interrogation of people in crisis;
        -    As far as possible, the injured party is given the option to be interrogated by a woman
             police officer;
        -    Police have a duty to inform the injured party of her right to legal representation and to
             provide a booklet containing information on her rights;
        -    The police have begun profiling rape: details of the act itself and the circumstances of the
             perpetrator and victim. The aim is to increase police efficiency and effectiveness and
             prevention of rape.
Crisis centres and Women's Centres also offer advice and support to women. In 1989 the Crime
Prevention Council produced a booklet on preventing rape, and 150,000 copies have been distributed.
“Information spots” followed this up on television. The impact of these measures has not been
evaluated.
Women's organisations do not think women obtain justice, protection and redress from the justice
system because: the burden of proof is too hard and compensation payments are too low.

1.4         CHILD SEXUAL ABUSE/INCEST

        LEGAL DEFINITIONS
The Danish Criminal Code forbids sexual relationships with a child less than 16 years of age; sexual
relationships with a person under 18 years are forbidden if the person is an adopted child, entrusted
for education and upbringing. Producing, selling or possession of child pornography is forbidden.
Victims of sexual abuse have the right to legal representation during the case. There is more
understanding of the problem and more co-operations between professional agencies (investigation,
trial and compensation claims).
Women's organisations are not satisfied with present law: the burden of proof is too hard.
In recent years, added attention has been given to incest. Material, including videos, has been
produced for schools and social workers, but so far has not been evaluated. Support services:
shelters, self help groups, counseling groups exist for women and girls victimized by sexual abuse.
In March 2003, the Danish Parliament adopted an amendment to the Criminal Code. The amendment
broadened the scope of section 223 a, criminalizing any person who, as a client, has sexual
intercourse with a person under the age of 18, based on payment or promise of payment. The
maximum sentence for this offence is two years’ imprisonment.
In June 2006, the parliament adopted an amendment to the Criminal Code which has broadened the
scope of Danish criminal jurisdiction to include breaches of certain provisions regarding protection
against sexual exploitation of persons younger than 18 years performed on another state’s territory by
Danish subjects or persons residing in Denmark. Dual criminality is not a condition in these cases, if
the offender was a Danish subject or residing in Denmark both at the time of the offence and the
charge.
In June 2008, the parliament adopted an amendment to the Criminal Code which entails that the court
shall consider it an aggravating circumstance that the perpetrator has procured intercourse with a child
under 15 by exploiting physical or psychological superiority.
In April 2009, the parliament adopted an amendment to the Criminal Code. The amendment
implemented the European Council Convention on the Protection of Children against Sexual
Exploitation and Sexual Abuse. The amendment criminalizes 1) access to child pornography on the
Internet even though the pornography is not stored on the computer and even though the pornography
is free of charge, 2) recruiting or otherwise procuring or exploiting persons under 18 taking part in
obscene live shows and 3) watching such shows. Furthermore, it was ensured that the period of
DENMARK                                                                                              105



limitation is not reckoned before the victim is 18 in cases concerning inter alia sexual intercourse with
persons under 18 for payment.
In July 2008 Parliament adopted an amendment to the Law of Social Services, which entailed that all
children over the age of 6, who followed their mother to a crisis center for battered women, had the
right to receive treatment from a psychologist. As of Juli 2009 this right includes all children,
irrespective of their age.

1.5       SEXUAL HARASSMENT
Sexual harassment is included in civil legislation prohibiting "different treatment on account of sex" in
the Act on Equal Opportunity between Men and Women. It is not seen as a criminal offence. If sexual
harassment has the nature of criminal assaults against employees it will, subject to circumstances,
imply a violation of the Criminal Code. Women's organisations do not consider this to be an adequate
legal framework.
The purpose of the Act on Equal Status for Women and Men of 30 May 2000, dealing with gender
equality in the public administration and in connection with occupational and general activities, is to
promote gender equality and to “counteract sexual harassment”. Persons who are exposed to sexual
harassment may be awarded compensation. In relation to the compensation special regard shall be
paid to whether a relationship of dependence has existed between the person who has been exposed
to the harassment and the person who exercised it.
The Joint Industrial Council, which includes both sides of the labour market, provides advice and
support on this problem. The Council discusses and approves staff conditions, including sexual
harassment and how to deal with it. The Danish Confederation of Trade Unions, The Danish
Employers’ Confederation and the Union of Commercial and Clerical Employees have written an
advice booklet on dealing with sexual harassment. The trade unions have encouraged every
workplace to develop prevention programmes.

1.6       PORNOGRAPHY
No information provided.

1.7       PROSTITUTION
No information provided.

1.8       OBSCENE PHONE CALLS/TELEPHONE SEX
No information provided.

1.9       FEMALE GENITAL MUTILATION
In May 2003, the Danish Parliament amended the Criminal Code concerning female genital mutilation.
The performance of female genital mutilation was illegal in Denmark already before the amendment.
However, the new amendment includes the insertion of a new, separate provision – section 245 a – on
female genital mutilation in order to make it clear that such practices are unacceptable. It has also
been expressly stated in the Criminal Code that consent to female genital mutilation, be it from the girl
or from the parents, can under no circumstances lead to exemption from punishment for the
perpetrators.
Furthermore, the requirement of so-called dual criminality in relation to female genital mutilation was
abolished. Thus, it is now possible to punish Danish nationals as well as persons resident in Denmark
who perform or who assist in performing female genital mutilation abroad, even when female genital
mutilation is not a crime in the country in which it is performed.
Section 245 a provides for a maximum penalty of six years’ imprisonment.

1.10      INTERNATIONAL CONVENTIONS
No information provided.

1.11      PROTECTION OF PREGNANCY/PREGNANT WOMEN
No information provided.
106                                                                                            DENMARK



2.0      SENTENCING
2.1      SENTENCING DOMESTIC VIOLENCE
See Section 1.2 above.
In October 2008, the Director of Public Prosecutions delivered a memorandum on domestic violence
and homicide. The director concluded that the courts take the same circumstances into consideration
when deciding the penalty for domestic violence as in cases of other types of violence. Furthermore,
there is no reason to presume in general that the sentences in cases of domestic violence are milder
than the sentences in comparable cases of other types of violence. The director also concluded that
case law entails a lower starting point for sentencing in cases of domestic homicide than in cases of
other types of homicide. The director will now ensure that the prosecution will try to obtain the courts’
consent to a starting point for sentencing in case of domestic homicide leveling the starting point for
sentencing in cases of other types of homicide.


3.0      EFFECTIVENESS OF LEGISLATION
In May 2008, the Director of Public Prosecutions issued new and revised instructions for the
investigation and prosecution in cases regarding domestic violence. The aim of the instructions is to
strengthen the pro-cess concerning cases regarding domestic violence, within the police and the
prosecution, and thereby increase the efficiency of investigations and prosecution of cases regarding
domestic violence.

3.8      GENDER PERSECUTION AS GROUNDS FOR GRANTING REFUGEE STATUS?
Asylum applications based on gender related persecution is - as any other application for asylum -
considered under section 7 of the Danish Aliens Act. It is generally accepted that women can be
exposed to specific types of harm resulting in a need for protection. As in all asylum cases the Danish
asylum authorities (the Immigration Service and the Refugee Appeals Board) make an assessment of
whether the application falls within the scope of section 7 of the Aliens Act based on the specific and
individual circumstances of each application and the available information about the applicant´s
country of origin. The question of whether the applicant has been exposed to gender based
persecution is a part of this assessment. The practice of the Refugee Appeals Board has numerous
examples of cases in which the Board has granted a residence permit on the basis of the applicant
having been exposed to gender related harm or persecution.
Further The Ministry of Refugee, Immigration and Integration Affairs can inform that the Danish
immigration authorities can revoke or refuse to extend a time-limited residence permit if the basis for
the permit is no longer valid. This may be the case if a foreign national has received a residence
permit on the grounds of marriage, and the spouses no longer live together.
In decisions on revocation of residence permits and refusal of extension of residence permits regard
must be had to whether the revocation or refusal must be assumed to be particularly burdensome
owing to the alien's personal circumstances and whether the applicant will suffer injury or harm in his
or her country of origin.
In such decisions regarding residence permits issued on the basis of spousal reunification special
regard must be had to whether the basis of residence is no longer present because of cessation of
cohabitation due to the fact that the alien concerned has been exposed to outrages, abuse or other ill-
treatment, etc., in Denmark.
The Danish immigration authorities follow this particular area very close and have a current focus on
any need of adjustment. Since 2002 the practise has been as follows:
The alien must substantiate the invoked abuse. The assessment of whether the abuse is
substantiated is based on a specific, individual assessment and weighing of the information given by
parties of the case and the possible provided documentation. All kind of documentation can be put
forward and enter into the assessment, for instance reports from the police, emergency rooms,
statements from doctors, statements from women's safe houses, court judgements regarding the
abuse, etc.
In cases, where the Danish immigration authorities find the invoked abuse substantiated, the
authorities make an assessment, whether the abuse has caused the cessation of cohabitation.
DENMARK                                                                                               107



The Danish immigration authorities will in cases, where the abuse is substantiated and is assessed to
be the real cause of the cessation of cohabitation, make the decision whether revocation or refusal
must be assumed to be particularly burdensome owing to the alien's personal circumstances and
whether the applicant will suffer injury or harm in his or her country of origin. This decision is made on
the basis of a specific, individual assessment and weighing of the circumstances in each case.
According to administrative practice foreigners who due to abuse, cf. above, leave their spouses
before receiving a permanent residence permit are - depending on their connection to Denmark - in
general allowed to stay in Denmark, already after approximately two years residence in Denmark.


4.0       DOMESTIC VIOLENCE
See Section 1.2, 2.1 and 3.0 above.


5.0       RAPE AND SEXUAL ASSAULT IN MARRIAGE
No information provided.


6.0       RAPE AND SEXUAL ASSAULT
See Section 1.3 above.


7.0       SEXUAL HARASSMENT
See Section 1.5 above.


8.0       INCEST/SEXUAL ABUSE OF GIRLS
See Section 1.5 above.
ESTONIA                                                                                               109




                                              ESTONIA

Information provided by the Department of Gender Equality, Ministry of Social Affairs,
in September 2009.


1.0       LEGISLATION AND SANCTIONS
1.2       DOMESTIC VIOLENCE
Estonian Penal Code does not make any distinction between domestic and other types of violence.
However, there are several provisions that might be relevant in cases of domestic violence.
Causing of health damage, which results in a danger to life, a severe physical illness, a severe mental
disorder, miscarriage, a permanent mutilating facial injury, or the loss or cessation of functioning of an
organ, is punishable by 4 to 12 years’ imprisonment.
Continuous physical abuse or abuse which causes great pain is punishable by a pecuniary
punishment or up to 5 years’ imprisonment.
Causing damage to the health of another person, or beating, battery or other physical abuse which
causes pain is punishable by a pecuniary punishment or up to 3 years’ imprisonment. A regulation
creating special procedure demanding the victim to request the commencement of criminal
proceedings in these cases was abolished some years ago.
Estonia has not enacted any special legislation on domestic violence. Domestic violence falls into the
category of ordinary violence, i.e. offences against the person.
With regard to domestic violence it is worth mentioning also that a threat to kill, cause health damage
or cause significant damage to or destroy property, if there is reason to fear the realisation of such
threat, is punishable by a pecuniary punishment or up to one year of imprisonment.
If a woman kills her abusive husband or partner, the provisions on manslaughter in a provoked state
may be applied. The punishment for manslaughter is 6 to 15 years’ imprisonment. Manslaughter, if
committed in a state of sudden extreme emotional disturbance caused by violence or insult inflicted on
the killer or a person close to him or her by the victim, is punishable by 1 to 5 years’ imprisonment.
Sudden extreme emotional disturbance article can be used only when the expertise of forensic
psychiatry has affirmed that the women was in that kind of state and also it has to be proved that this
emotional state was caused by violence or insult from the victim. Otherwise the articles of
manslaughter and murder will be applied.
Commission of the offence in a highly provoked state caused by unlawful behaviour or commission of
the offence by a pregnant woman or a person in an advanced age or commission of the offence in
excess of the limits of self-defence are considered to be mitigating circumstances. The maximum rate
of a mitigated punishment shall not exceed two-thirds of the maximum rate of the punishment provided
by law. The minimum rate of a mitigated punishment shall be the minimum rate of the corresponding
type of punishment provided for in the General Part of the Penal Code. Taking into consideration
special circumstances, a court or an extra-judicial body may impose a less onerous punishment than
the minimum term or rate provided by law. But in case the minimum term of imprisonment provided for
in the Special Part of the Penal Code is at least five years, imprisonment shall not be imposed for a
term of less than one year.
From the beginning of 2006 there are new paragraphs in the Code of Civil Procedure that can be used
in cases of domestic violence.
110                                                                                                 ESTONIA



Paragraph 544 – Application of restriction order and other measures for protection of
personality rights
(1)      In order to protect the personal life of a person or other personality rights, the court may apply
a restriction order or other measures based on § 1055 of the Law of Obligations Act. Such measures
may be applied with a term of up to three years.
(2)      If the court conducts proceedings in the matter of application of measures in order to protect a
personality right in connection with a family relationship, the provisions regulating family matters on
petition additionally apply, unless otherwise provided by this Chapter.

Paragraph 545. Hearing and conciliation of participants
Before applying a restriction order or another measure for protection of personality rights, the court
shall hear the person with respect to whom application of such measure is requested and the person
in the interests of whom proceedings are conducted for application of such measure. Where
necessary, the court shall also hear the persons close to the persons specified above, and the rural
municipality or city government or police authority of the residence of the persons.

Paragraph 546. Application of provisional legal protection
Where necessary, the court may secure a petition for application of a restriction order or another
measure for protection of personality rights or apply provisional legal protection by a ruling. As a
measure of provisional legal protection, measures for securing the action may be applied pursuant to
the procedure for securing an action.

Paragraph 547. Service and entry into force of ruling
A ruling on application of a restriction order or another measure for protection of personality rights
shall be served on the persons with regard to and in the interests of whom such measures are applied.
The ruling enters into force upon service thereof on the persons obligated to comply therewith.

Paragraph 548. Recall and amendment of measures for protection of personality rights
If circumstances change, the court may recall or amend a restriction order or another measure for
protection of personality rights. Before recalling or amending a measure, the court must hear the
participants.

Paragraph 549. Filing of appeal against ruling
(1)      A ruling on application of a restriction order or another measure for protection of personality
rights is subject to appeal by the persons obligated to comply therewith.
(2)    A ruling whereby the court refuses to satisfy a petition for application of a restriction order or
another measure for protection of personality rights, or recalls or amends such measure is subject to
appeal by the person who requested application of the measure or in whose interests the measure
was applied.
Also, from July 2006 there is a possibility under the Code of Criminal Procedure for a court, in order to
protect the personal life of a person or other personality rights, in cases of offences against the person
or against the minor to forbid temporarily the suspect or the accused to be in places or to approach or
communicate with the persons designated by the court. Such a temporary restriction order can be
applied only with the consent from the victim. By the request from the victim or the prosecuting
authority the conditions of the temporary restriction order can be changed or it can be annulled. After
the perpetrator has been sentenced, the court may, under the Law of Obligations Act and if requested
by the victim, for the protection of the personal life of a person or other personality rights, to impose on
the convicted offender a restriction order with the term of maximum 3 years. For cases when the
breach of this latter restriction order has caused danger to the life of a person or his/her health or
possessions or when the breach is repeated, the Penal Code establishes a pecuniary punishment or
imprisonment for up to 1 year.
ESTONIA                                                                                                111




1.3        RAPE/ SEXUAL ASSAULT
The Penal Code considers rape to be one of the forms of offences against sexual self-determination.
There are different types of sexual assaults: 'ordinary' rape, rape under aggravating circumstances,
the satisfaction of sexual desire by violence and compelling person to engage in sexual intercourse.

Rape
Rape is defined in the Penal Code as sexual intercourse with a person against his or her will by using
force or taking advantage of a situation in which the person is not capable of initiating resistance or
comprehending the situation. The definition of sexual intercourse includes also oral and anal sexual
intercourse. Person is considered to be guilty in rape also when s/he is forcing the victim into sexual
intercourse with another victim or an animal. Rapist can be both male and female. Rape is punishable
by 1 to 5 years’ imprisonment.
There are also several other provisions in the Penal Code that are related to rape.
          RAPE UNDER AGGRAVATING CIRCUMSTANCES
Rape is punishable by 6 to 15 years` imprisonment if it is committed against a person of less than 18
years of age, committed by two or more persons, serious damage is thereby caused to the health of
the victim, it causes the death of the victim, it leads the victim to suicide or a suicide attempt, or it is
committed by a person who has previously committed offences against sexual self-determination.
          SATISFACTION OF SEXUAL DESIRE BY VIOLENCE
Involving a person against his or her will in satisfaction of sexual desire in a manner other than sexual
intercourse by using force or taking advantage of a situation in which the person is not capable of
initiating resistance or comprehending the situation is punishable by up to 3 years’ imprisonment. The
same act, if committed against a person of less than 18 years of age or by a person who has
previously committed offences against sexual self-determination, is punishable by up to 5 years’
imprisonment. This article refers to all kinds of actions the aim of which is meant to arouse or increase
sexual excitement until final satisfaction. In this case ”involving” means forcing to take part.
          SEXUAL INTERCOURSE WITH A PERSON AGAINST HIS OR HER WILL BY TAKING ADVANTAGE
          OF THE DEPENDENCY OF THE VICTIM FROM THE OFFENDER
A new offence is sexual intercourse with a person against his or her will by taking advantage of the
dependency of the victim from the offender but without using force or outside a situation where the
person was not capable of initiating resistance or comprehending the situation as provided for in the
article concerning rape, is punishable by up to 3 years’ imprisonment. The same act, if committed
against a person of less than 18 years of age or by a person who has previously committed offences
against sexual self-determination, is punishable by up to 5 years’ imprisonment. Victim is considered
to be dependent on the offender if the latter has some kind of legal power over the victim, for example
in case of superior and subordinate, teacher and student, psychiatrist and the patient, creditor and
debtor etc. Taking advantages is wider concept than direct threat or demanding of sexual intercourse.
It involves also suggestions, allusions.
          COERCING A PERSON TO SATISFY THE SEXUAL DESIRE
Involving a person against his or her will in satisfaction of sexual desire in a manner other than sexual
intercourse, by taking advantage of the dependency of the victim from the offender (in the absence of
using force or taking advantage of a situation in which the person is not capable of initiating resistance
or comprehending the situation as provided for in the article concerning satisfaction of sexual desire
by violence), is punishable by up to 2 years’ imprisonment. The same act, if committed against a
person of less than 18 years of age, or by a person who has previously committed offences against
sexual self-determination, is punishable by up to 5 years’ imprisonment.

          RAPE IN MARRIAGE
The Penal Code’s rape provision encompasses marital rape as well as rape between non-married
people.
112                                                                                                  ESTONIA



1.4      CHILD SEXUAL ABUSE/ INCEST
The age of consent under Estonian law is 14 years. An adult person who engages in sexual
intercourse with a person of less than 14 years of age shall be punished by up to 5 years’
imprisonment. An adult person who involves a person of less than 14 years of age in satisfaction of
sexual desire in a manner other than sexual intercourse shall be punished by up to 5 years’
imprisonment.
A parent, a person with the rights of a parent, or a grandparent, who engages in sexual intercourse
with his or her child or grandchild shall be punished by up to 5 years’ imprisonment.
As the law states that person who is under ten years of age is absolutely unable to understand sexual
acts, in the case when a person has engaged in sexual intercourse with a child of that age (0-10) or
has involved a child of that age in satisfaction of sexual desire in a manner other than sexual
intercourse is always guilty of rape or satisfaction of sexual desire by violence (see 1.3).
The Penal Code contains several provisions relating to child prostitution. In recent years, sexual as
well as physical and mental abuse of children has been a subject of increasing interest. The police
have opened special child interrogation rooms in two major cities. Interrogation of a person younger
than 15 years takes place in the presence of a psychologist or a teacher. If necessary, the parents of
the child are also present. The same procedure applies both to preliminary investigation and to
criminal court procedure.
A procedure for the removal of abusers from the household has not been legally specified, except for
the custody procedure. In practice, very often it is the child who has to leave home.
The network of social institutions and non-governmental organisations dealing with abuse of children
has developed rapidly in recent years, but the legal measures have lagged behind.

1.5      SEXUAL HARASSMENT
Sexual harassment is defined and prohibited in the Gender Equality Act. The act applies to all areas of
social life, except to professing and practising faith or working as a minister of a religion in a registered
religious association and to relations in family or private life. The act pays specific attention to the
working life. The activities of an employer are deemed to be discriminating if the employer harasses
sexually or fails to ensure that employees are protected from sexual harassment in the working
environment (duty of care). An employer is responsible for failure to perform the duty of care if the
employer is aware or should reasonably be aware that sexual harassment has occurred and fails to
apply the necessary measures to terminate such harassment. Estonian law does not criminalize
sexual harassment as such. In the Penal Code an article of compelling person to engage in sexual
intercourse (more precisely in 1.3 under relevant heading) can be used in relevant cases.

1.6      PORNOGRAPHY
The exhibition outside specialised businesses of works that contain pornography or promote violence
or cruelty is punishable with a fine.
According to the Penal Code use of a person of less than 18 years as a model or actor in the
manufacture of a pornographic picture, film or other work; and use of a person less than 14 years of
age as a model or actor in the manufacture of a pornographic or erotic picture, film or other work is
punishable by a pecuniary punishment or up to five years of imprisonment. The same act is also
punishable when committed by a legal person. In that case it is punishable by a pecuniary
punishment. Act to Regulate Dissemination of Works, which Contain Pornography or Promote
Violence or Cruelty defines pornography as a manner of representation in which sexual acts are
brought to the foreground in a vulgar and intrusive manner and other human relations are disregarded
or relegated to the background.
It is enacted in Penal Code that a person who manufactures, stores, hands over, displays or makes
available in any other manner pictures, writings or other works or reproductions of works depicting a
person of less than 18 years of age in pornographic situations and a person of less than 14 years of
age in erotic or pornographic situations shall be punished by a pecuniary punishment or up to 3 years
of imprisonment. The same act, if committed by a legal person, is punishable by a pecuniary
punishment.
ESTONIA                                                                                               113



Also, a person who hands over, displays or makes otherwise knowingly available pornographic works
or reproductions thereof to a person of less than 14 years of age, engages in sexual intercourse in the
presence of such person or knowingly sexually entices such person in any other manner is punished
by a pecuniary punishment or up to one year of imprisonment. The same act, if committed by a legal
person, is punishable by a pecuniary punishment.
According to the Act to Regulate Dissemination of Works which Contain Pornography or Promote
Violence or Cruelty the presence of minors in shops, cinemas, video theatres or on the premises of
other places of business (specialised places of business) which are licensed to disseminate or exhibit
works which contain pornography is prohibited. Specialized places of business should display a sign
“prohibited to minors.” Works which contain pornography or promote violence or cruelty may only be
exhibited in specialized places of business. Upon dissemination outside of specialized places of
business of works which contain pornography these shall be offered in a manner which prevents
examination of the works by minors or the works shall not be displayed in a visible place. Violation of
the requirements for dissemination or exhibition of works which contain pornography or promote
violence or cruelty is punishable by a fine of up to 200 fine units. The same act, if committed by a legal
person, is punishable by a fine of up to 50 000 kroons.
The new Advertising Act came into force on 1st of November 2008. The new law has several articles
that concern issues of gender equality, among those also prohibition of advertising of works which
contain pornography.

1.7        PROSTITUTION
Aiding prostitution by pimping (procuration), providing premises for the purposes of prostitution or
aiding prostitution in any other manner, is punishable by a pecuniary punishment or up to 5 years’
imprisonment. If committed by a legal person, the punishment is pecuniary. The same act, if
committed by group or criminal organisation, or by a person who has committed the same crime or
aiding minor prostitution before, is punishable by 3-12 years’ imprisonment or in case of legal person
by pecuniary punishment or compulsory dissolution.
Penal Code enacts that a person who by inducement, threat or any other act influences a person of
less than 18 years of age in order to cause him or her to commence or continue prostitution, but the
act does not have the necessary elements of an offence of enslaving or compelling person to engage
in sexual intercourse, shall be punished by a pecuniary punishment or up to 5 years’ imprisonment.
The person being accused of this offence can also be under 18. Prostitution refers here to offering a
service that includes either sexual intercourse or satisfaction of sexual desire in a manner other than
sexual intercourse (also striptease). In latter case only when there is a personal contact between
prostituting person and client. It is important to mention that if underage person, being afraid of the
threat starts prostituting him/herself or continues such acts because of being afraid, the offence turns
into enslaving (see next chapter).
Aiding prostitution involving a person of less than 18 years of age by mediation, provision of premises
or in any other manner is punishable by a pecuniary punishment or up to 5 years’ imprisonment. If
committed by a legal person, the punishment is pecuniary. The same act, if committed by group or
criminal organisation, or by a person who has committed the same crime, or the crime of aiding
prostitution, is punishable 3-15 years’ imprisonment or in case of legal person by pecuniary
punishment or compulsory dissolution. Mediation here means procuration. “In any other manners”
refers to pimping but also to advice, monetary support etc.
The new Advertising Act prohibits also advertising of services offered for satisfaction of sexual desire,
including advertising of prostitution, and advertising referring to such services or contributing to
procurement.

          TRAFFICKING IN HUMAN BEINGS
Estonia is a party of the International Agreement for the Suppression of the "White Slave Traffic" and
International Convention for the Suppression of the Traffic in Women and Children. These
international instruments are a constituent part of the Estonian legal system and have superior powers
over the laws of the Republic of Estonia. Estonia has also ratified the UN Palermo Protocol.
According to the Penal Code the sale or purchase of children is punishable by 1 to 5 years’
imprisonment. The same act, if committed by a legal person, is punishable by a pecuniary
punishment.
114                                                                                                ESTONIA



Enslaving is considered to be an offence against liberty. Penal Code states that placing a human
being, through violence or deceit, in a situation where he or she is forced to work or perform other
duties against his or her will for the benefit of another person, or keeping a person in such situation, if
such act is performed through violence or deceit or by taking advantage of the helpless situation of the
person, is punishable by 1 to 5 years’ imprisonment. The same act, if committed against two or more
persons, or against a person of less than 18 years of age, is punishable by 3 to 12 years’
imprisonment. The commentaries to that article show clearly that it can also be used in cases of
trafficking in women.
Abduction is taking or leaving a person, through violence or deceit, in a state where it is possible to
persecute or humiliate him or her on grounds of race or gender or for other reasons, and where he or
she lacks legal protection against such treatment and does not have the possibility to leave the state.
Abduction is punishable by a pecuniary punishment or up to 5 years’ imprisonment. The same act, if
committed against two or more persons, or against a person of less than 18 years of age, is
punishable by 2 to 10 years’ imprisonment.
An article of unlawful deprivation of liberty of another person could also be used when trafficked
person is being restricted from leaving the premises where she is forced to work. Unlawful deprivation
of the liberty of another person is punishable by a pecuniary punishment or up to 5 years’
imprisonment. The same act, if committed against a person of less than 18 years of age, is punishable
by 1 to 5 years’ imprisonment.

1.8      OBSCENE PHONE CALLS/ TELEPHONE SEX
Obscene phone calls and telephone sex are not punishable under Estonian law.

1.9      FEMALE GENITAL MUTILATION
Female genital mutilation could be punished under the Penal Code as an act of causing damage to
the health of another person.

1.10     INTERNATIONAL CONVENTIONS
The Republic of Estonia is a party to European Convention for the Protection of Human Rights and
Fundamental Freedoms as amended by Protocols Nos. 3, 5, 8 and as completed by Protocol No. 2
and its protocols Nos. 1, 4, 6, 7, 9, 10, 11, the International Covenant on Civil and Political Rights,
Optional Protocol to the Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. Estonia is also party to the Convention on the Elimination of All
Forms of Discrimination against Women. Estonia has ratified also European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its protocols Nos. 1, 2,
Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, International
Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of the
Child, Convention relating to the Status of Refugees and Protocol relating to the Status of Refugees,
International Agreement for the Suppression of the "White Slave Traffic", International Convention for
the Suppression of the Traffic in Women and Children, International Convention for the Suppression of
the Circulation of and Traffic in Obscene Publications (older redaction).        Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the
United Nations Convention Against Transnational Organized Crime was ratified by Estonian
parliament in 2004.

1.11     PROTECTION OF PREGNANCY/PREGNANT WOMEN
Termination of a pregnancy against the will of the pregnant woman is punishable by 3 to 12 years’
imprisonment.
Termination of a pregnancy at the request of the pregnant woman by a person without the right arising
from law to terminate pregnancy is punishable by a pecuniary punishment or up to 3 years’
imprisonment. The same act is punishable by up to 5 years’ imprisonment if the pregnancy has lasted
for more than twenty-one weeks.
A person with the right to terminate pregnancy who terminates the pregnancy of a woman at the
request of the pregnant woman later than permitted by law shall be punished by a pecuniary
punishment or up to one year of imprisonment.
ESTONIA                                                                                               115



A woman who consents to termination of her pregnancy by a person without the right arising from law
to terminate pregnancy or termination of pregnancy later than permitted by law shall be punished by a
pecuniary punishment.
Transfer of a foreign ovum, or an embryo or foetus created therefrom to a woman whose intention to
give away the child after birth is known is punishable by a pecuniary punishment.
According to the Penal Code damaging an embryo or foetus by injuring, administering a substance to
or performing any other act with regard to the embryo or foetus while it is in the uterus of a woman if
such act results in miscarriage or the death of the embryo or foetus is punishable by a pecuniary
punishment or up to 5 years’ imprisonment.


2.0       SENTENCING
2.1       SENTENCING DOMESTIC VIOLENCE
See Section 1.2 above.


3.0       EFFECTIVENESS OF LEGISLATION
3.1       ROLE OF NGOS IN JUDICIAL PROCEEDINGS
NGO Eluliin provides support for trafficked/prostituted women during the judicial proceedings.
Psychologists of the rehabilitation centre “Atoll” council and support the victim through the whole
process, at the same time having cooperation with prosecutor and police. NGO Eluliin also hires a
lawyer if needed (to council the victim). Also victims of domestic violence receive support from NGOs
through judicial proceedings.

3.3       MAIN PROBLEMS
1) General attitudes
One of the problems is the persistence of traditional stereotypes regarding the role of men and women
in the family, in employment, in political and public life and in society at large. However, the attitudes
have started to change slowly.
2) Low awareness among people dealing with violence against women
The enforcement and interpretation of laws, as well as the police and court practice in domestic
violence and trafficking in women cases are too narrow and do not take fully into account the specific
nature of violence against women.
Police has indicated the need to define domestic violence very clearly in legislation and develop
distinct instructions for action. Ministry of Interior has put forward some ideas to change laws in order
to protect victims of domestic violence more effectively.
A large number of Estonian police officers have received training on violence against women.
However, due to personnel changes the trainings should be regular.
3) Insecurity related to victim’s support
Women’s shelters depend on project funding, which makes it difficult to guarantee sustainability.

3.6 SPECIALIST POLICE UNITS - COUNTRY WIDE OR PATCHY
There is a special police unit working in the North Police Prefecture dealing with procurement and
human trafficking cases. Also, there is a special unit dealing with the cases of sexual exploitation of
children (pornography and commercial sexual exploitation).

3.8       GENDER PERSECUTION AS GROUNDS FOR GRANTING REFUGEE STATUS?
According to the Act on Granting International Protection to Aliens a refugee is an alien who, owing to
a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or
membership of a particular social group, is outside the country of nationality and is unable or, owing to
such fear, is unwilling to avail himself or herself of the protection of that country and with regard to
116                                                                                            ESTONIA



whom no circumstance exists precluding recognition as a refugee. Sex of person can be regarded as
a ground for belonging to a particular social group (women or men).
The act also states that the before mentioned persecution must be serious and continuous and
violating human rights except in the case provided for in clause 15 2) of the Convention for the
Protection of Human Rights and Fundamental Freedoms and that among others, these relevant
circumstances observable in a state are considered to be persecution: 1) physical or mental violence,
including sexual abuse; 2) discriminatory measures of legislative, executive or judicial power or
implementation of measures by the said powers in a discriminatory manner; 3) discriminatory or
disproportional prosecution or punishment; 4) dismissal of a claim for compensation for acts of
 discriminatory or disproportional prosecution or punishment; 5) gender-specific acts and acts directed
against minors. Fear of persecution may be based on events which have taken place in the country of
origin of the applicant after the applicant left the country. Sources of persecution can be authorities
governing a state or part of it or other institutions which are not able to offer protection from
persecution.


4.0      DOMESTIC VIOLENCE
See Section 1.2 above.


5.0      RAPE AND SEXUAL ASSAULT IN MARRIAGE
See Section 1.3 above.


6.0      RAPE AND SEXUAL ASSAULT
See Section 1.3 above


7.0      SEXUAL HARASSMENT
See Section 1.5 above.


8.0      INCEST/SEXUAL ABUSE OF GIRLS
See Section 1.4 above.
GEORGIA                                                                                             117




                                             GEORGIA

1.0       LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
1.1       LETTER OF LAW – DEFINITIONS
Legislation of Georgia envisages crimes against women, including domestic violence, rape and sexual
assault, as well as child sexual abuse, sexual harassment, and pornography.

1.2       DOMESTIC VIOLENCE
The Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its
Victims represents a commitment to address domestic violence through a wide array of social and
legal services. The Law defines domestic violence, provides new remedies for victims and guarantees
legal and social protection for victims. The Law calls upon the government to empower the legal and
social systems to provide these services.
The definition of domestic violence provided in the Law is very broad. Domestic violence
encompasses a violation of constitutional rights and freedoms by physical violence, which includes
battery, torture, and restriction of liberty. Domestic violence also encompasses harming the health of a
minor. It covers psychological violence, including blackmail and degrading treatment, as well as sexual
and economic violence and coercion. A family member is defined to include relatives by blood,
marriage or adoption, as well as persons who live or lived together.
Criminal Code of Georgia envisages sanctions for violence (Article 126, as amended on
28/04/2006), which is defined as systematic beating or other assault, causing victim’s physical or
psychological misery, but has not resulted into acts envisaged by Article 117 (Intentional Damage to
Health) or Article 118 (Less Serious Damage to Health on Purpose) of the Criminal Code. The Article,
under its aggravating circumstances, has envisaged the commission of this crime among others
against two or more persons, against a pregnant woman at the previous knowledge of the perpetrator,
as well as against a minor, person being in a helpless conditions or a person dependent on the
criminal materially or otherwise.

1.3       RAPE/SEXUAL ASSAULT
Article 137 of Criminal Code of Georgia envisages rape as a separate crime. Rape is defined therein
as follows:
1.    Rape, i.e. sexual intercourse through violence, threat of violence or abusing the helplessness of
      the victim, -
      Aggravating circumstances for committing rape are listed as follows:
2.    The same action perpetrated:
      a) repeatedly;
      b) by the one who had previously committed one of the offences set forth in Articles 138-141 of
           this Code
      (Article 138. Sexual Abuse under Violence, Article 139. Coercion into Sexual Intercourse or Other
      Action of Sexual Character, Article 140. Sexual Intercourse or Other Action of Sexual Character
      with One under Sixteen, Article 141. Perversion), -
3.    Rape:
      a) by a group;
      b) of a pregnant woman or other person at the previous knowledge of the offender;
      c) under extreme violence against the victim or other person;
      d) by using one’s official position;
      e) that through negligence has resulted in the death of the victim;
118                                                                                              GEORGIA



      f) that through negligence has been corollary to the victim’s contraction of AIDS, serious
         rupture of health or other grave consequence, -
4.    Raping of a person less than fourteen years.

1.4        CHILD SEXUAL ABUSE/INCENT
Child sexual abuse is envisaged by Article 140 and Article 141 of Criminal Code of Georgia.
Article 140 established criminal sanctions for Sexual Intercourse or Other Action of Sexual Character
with One under Sixteen (age of) is defined therein as follows:
Major’s sexual intercourse, homosexuality, lesbianism or other sexual contact distorted in form at the
previous knowledge of the offender with one under sixteen years, -
Article 141 criminalizes Perversion, defined as follows:
Perversion without violence at the previous knowledge of the offender with the one under sixteen
years, -
Article 171 of Criminal Code of Georgia criminalizes involving of a minor into anti-public activity,
paragraph 3 of which is defined as follows:
Involving a minor into prostitution without violence, threat thereto or deceit.
All the listed offences do not distinguish who commits a crime against minor – a blood-relative or a
stranger; the envisaged sentences are equally tough in both cases.

1.5        SEXUAL HARASSMENT
Article 138 of Criminal Code of Georgia envisages a separate crime of sexual abuse under
violence. The crime is defined as follows:
1.  Homosexuality, lesbianism or other sexual intercourse distorted in form committed under
    violence, threat of violence or abusing the helplessness of the victim, -
The aggravating circumstances among others also include the following:
2. The same action perpetrated:
    a) …
    b) …
    c) …against a pregnant woman or a minor at the previous knowledge of the offender, -
3.    Sexual abuse under violence:
      a) against the one who has not reached fourteen years;
      b) by a group;
      c) that through negligence has resulted in the death of the victim;
      d) that through negligence has been corollary to the victim’s contraction of AIDS, serious health
         rupture or other grave consequence;
      e) under extreme violence;
      f) by using one’s official position, -

1.6        PORNOGRAPHY
Pornography offences are dealt with by Art. 255 (illegal production and distribution of pornographic or
other material) and Art. 2551 (involving a child in the illegal production and distribution of pornographic
or other material).
Article 255, criminalizing Illegal Production and distribution of pornographic or other material is
formulated as follows:
1. Illegal production, distribution or advertising, as well as selling or/and possession for the purpose
   of selling or distribution-
2. production or/and possession, as well as offering, transmission, dissemination, selling, advertising
   or otherwise making available of child pornography material –
GEORGIA                                                                                                119



     Note: Child pornography shall mean any visual or audio material produced in any form, in which a
     particular child can be identified in a real or simulated sexual performance, his/her voice is used or
     child’s genitals are shown to satisfy viewer’s sexual needs.
Article 255¹, which envisages involving a child in the illegal production and distribution of pornographic
or other material, provides for the following:
Involving a child in the illegal production, dissemination, advertising and distribution of pornographic
material or other objects of pornographic nature,-

1.7        PROSTITUTION
Georgian legislation does not criminalize prostitution. This action falls under administrative offences.
However, Criminal Code of Georgia envisages such actions as Engaging Someone in Prostitution and
Transferring/giving at a disposal premises for Brothel. Namely, these two are defined as follows:

Article 253. Engaging Someone in Prostitution
Engaging someone in prostitution under violence, by threatening to use violence or destroy property,
by blackmail or deception,-
The same action committed by an organized group or against a pregnant woman at the previous
knowledge of the offender,

Article 254. Transferring/giving at a disposal premises for Prostitution (Brothel)
Transferring/giving at a disposal premises for Prostitution (Brothel)

1.8        OBSCENE PHONE CALLS/TELEPHONE SEX


1.9        FEMALE GENITAL MUTILATION
Not applicable in the context, not relevant in Georgia.

1.10       INTERNATIONAL CONVENTIONS
Georgia is a party to major international conventions combating violence against women. These
include: Convention on the Political Rights of Women, Convention on the Elimination of All Forms of
Discrimination against Women, Convention concerning Equal Remuneration for Men and Women
Workers for Work of Equal Value (Convention C 100)

1.11       PROTECTION OF PREGNANCY/PREGNANT WOMEN


Illegal Abortion is criminalized. This in Article 133 includes the following actions:
1.        The illegal abortion, -
2.     The same action perpetrated by the person previously convicted of illegal abortion or which
has resulted in the permanent loss of childbearing or has given rise to any other grave consequence,-
3.        Illegal abortion which has resulted into a loss of life
Pregnant women are protected by Criminal Code as there are numerous provisions on not execution
of judgments against them.
Specifically:

Article 44 envisages Socially Useful Labor as a form of criminal liability.
According to the Article:
“1. Socially useful labor shall mean free unpaid labor at the spare time of the convict. …
Paragraph 4 of the same Article provides that
120                                                                                               GEORGIA



1.      Socially useful labor shall in no way be awarded against the disabled of first and second
groups, a pregnant woman, a woman having a child up to seven years, a person of pension age
as well as a conscript military.
Along with the above-mentioned the Criminal Code of Georgia provides for a number of provisions
protecting pregnant women from the sanctions envisaged in the Code. These include:
“…Restriction of freedom shall not be awarded against … a pregnant woman, a woman having a child
up to seven years.” (Article 47.5)
According to Article 75 of Criminal Code of Georgia, Suspension of the Sentence for Pregnant
Woman or Mother of Child under Seven is envisaged.
1. A court may suspend the sentence of a pregnant woman or mother of the child less than five years,
till the child becomes five years old.
Article 109 envisaging crime of Premeditated Murder under Aggravating Circumstance among other
aggravating circumstances also includes murder of a pregnant woman at the previous knowledge of a
criminal.
The same is provided for the crime of Intentional Serious (Grave) Damage to Health (Article 117),
violence (Article 126), Less Serious Damage to Health on Purpose (Article 118), AIDS Contraction
(Article 131), Infecting Especially Dangerous Infectious Disease (Article 132), Coercion into Taking
Member, Part of Member or Tissue of Person (Article 134), Rape (Article 137), Sexual Abuse under
Violence (Article 138), Illegal Deprivation of Liberty (Article 143), Trafficking in Human Beings (Article
1431), Use of Services of a Victim of Trafficking Human Beings (Article 1433), Hostage-Taking (Article
144), Torture (1441), Degrading or Inhumane Treatment (Article 1443),
Article 117 (Intentional Serious (Grave) Damage to Health) also envisages termination of pregnancy
as one of the consequences of the crime envisaged therein.
Labor Code of Georgia provides for special protection measures for pregnant women. Thus, Article 4
of the Labor Code outlaws concluding a contract with a pregnant woman or a breast-feeding woman to
perform dangerous and heavy/hard work. They are also protected against overtime work, as well as
night-time (10 pm to 6 am) work. Maternity leave does not count against ordinary leave for a woman. A
woman is entitled to 477 calendar days of maternity leave. 126 to 140 calendar days are fully
reimbursed out of the 477 calendar days.


2. 0     SENTENCING
2.1      SENTENCING DOMESTIC VIOLENCE
All the above-mentioned crimes, which constitute parts of domestic violence, along with a crime of
violence, envisage respective sentences.
First and foremost, violence (Article 126) shall be taken into consideration in this respect, which
envisages deprivation of liberty (prison term) for one to six years. Along with this sanction, limitation of
liberty up to two years, as well as deprivation of a right to occupy certain position or practice certain
profession is also envisaged up to three years.


3.0      EFFECTIVENESS OF LEGISLATION
3.1      ROLE OF NGOS IN JUDICIAL PROCEEDINGS
NGOs are entitled to be involved in judicial proceedings regarding violence against women. They may
complement state provided legal aid support to victims. NGOs may act before the Court and represent
interests of victims. They may fully assume a role of a lawyer, as provided by the Georgian legislation.
NGOs are very actively involved in all the above-listed activities.

3.2      ARE SPECIAL PROVISIONS MADE TO SUPPORT WOMEN AND GIRLS GIVING EVIDENCE?
Special protection measures may be used, if required.
GEORGIA                                                                                              121




3.3       MAIN PROBLEMS AND NEW SOLUTIONS
Main problems and new solutions are related to providing shelter support to victims of violence against
women. In this light the State is undertaking numerous activities to ensure shelter availability for
victims of violence against women and ensure NGOs’ involvement in this process as broadly as
possible in service provision.

3.4       SPECIAL LEGISLATION ADDRESSING VIOLENCE AGAINST WOMEN (TREATMENT OF WOMEN AS A
          “SPECIAL CASE” OR AS PART OF ANTI-DISCRIMINATION LEGISLATION”?)
There is no need of having any additional legislation which would qualify as “anti-discrimination
legislation”, as the legislation was recognized as non-existent recently during drafting gender related
legislation by a very active group of NGOs working with the support of international expert. There is a
package of legislation addressing violence against women. This includes a special law, as cited above
as well as respective provisions in all relevant legislation.

3.5       CRIMINAL LAW/CIVIL LAW
Civil law provides for equal opportunities for men and women. Under criminal law there are no
provisions putting women in worst condition than men.

3.6       SPECIAL POLICE UNITS – COUNTRY WIDE OR PATCHY
Police are being specifically trained to deal with cases of violence against women. The training
addresses police forces country-wide, as the basic training starts at the Police Academy. Retraining is
also required and obligatory for police officers country-wide.

3.7       VIOLENCE AGAINST WOMEN – AN OBSTACLE TO EQUALITY?
There is no issue of equality put at stake when discussing violence against women.

3.8       GENDER PERSECUTION AS GROUNDS FOR GRANTING REFUGEE STATUS?
Georgian legislation on refugee status determination and respective practices are fully in line with
1951 Geneva Convention and respective international legal framework. Therefore, any ground for
granting refugee status contemplated therein would serve the purpose of doing so in Georgia as well.

3.9       WHAT GOOD IDEAS HAVE BEEN SUGGESTED BUT NOT YET IMPLEMENTED?
There is an active work under way at the moment to strengthen state-NGO cooperation in provision of
full protection and rehabilitation package to victims of violence against women. This includes provision
of state run shelter, respective protection and rehabilitation support with the joint management of state
and civil society.


4.0       DOMESTIC VIOLENCE
4.1       ARE THERE SPECIFIC LAWS TO COMBAT DOMESTIC VIOLENCE?
The Law of Georgia on Elimination of Domestic Violence, Protection of and Support to Its Victims
represents major piece of legislation in this respect. This Law along with Criminal, Civil and
Administrative legislation and numerous subordinated legislative acts constitute legal basis to combat
domestic violence.
The Law addresses the prevention of domestic violence in great detail, and requires the state to
support and ensure the mechanisms of prevention, which are envisaged as a “unity of social,
economic, legal and other means, aimed at elimination of reasons and preconditions of domestic
violence, as well as the fact of the violence itself and the prosecution of the abuser.”
Prevention mechanisms include introducing effective legal methods to identify and eliminate domestic
violence, holding a know-your-rights awareness-raising campaign which will provide information on the
rights of victims, offering educational courses to support and protect victims and rehabilitate abusers,
and developing programs with stakeholder organizations to ensure the implementation of the above
measures. These measures are to be introduced by the Ministry of Labor, Health and Social Affairs,
the Ministry of Internal Affairs, the Ministry of Education and Science, and the Procurators and
122                                                                                                GEORGIA



Judiciary of Georgia. They are charged with cooperating with other stakeholders working on domestic
violence in planning and implementing joint projects.
The new Law requires the Ministry of Labor, Health and Social Affairs to establish all means to prevent
domestic violence by providing social services to families, and by providing shelters for victims. The
Ministry must provide for the study and analysis of the causes of domestic violence, give support to
victims, and work with relevant state institutions in identifying those at risk for committing domestic
violence. The Ministry must establish and regulate a system of shelters.

4.2      ARE CURRENT DEFENSES ADEQUATE WHEN WOMEN KILL ABUSIVE HUSBANDS/PARTNERS?
Yes (e.g. Premeditated Murder under Sudden Extreme Emotional Excitement or Murder beyond
Necessary Defense).

4.3      IS PRIVATE VIOLENCE PUNISHED IN THE SAME WAY AS PUBLIC VIOLENCE?
Absolutely so, if reported or otherwise made known. Georgian legislation does not provide for any
difference in this respect.


5.0      RAPE AND SEXUAL ASSAULT IN MARRIAGE
5.1      IS RAPE IN MARRIAGE OUTLAWED AND PROSECUTED IN THE SAME WAY AS OTHER FORMS OF
         RAPE?
Yes, the Georgian legislation does not provide for distinction in between the two. Article 137.1 of
Criminal Code of Georgia treats the other cases in the same manner, as provided below: “Rape, i.e.
sexual intercourse through violence, threat of violence or abusing the helplessness of the victim.”

5.2       ARE THE SANCTIONS FOR RAPE AND RAPE IN MARRIAGE THE SAME?
The sanctions for rape and rape in marriage are absolutely the same, as there is no distinction in
between the two. The sanctions altogether vary from 4 to 20 years of deprivation of liberty, depending
on gravity and involved aggravating circumstances.

5.3      HAVE ANY SPECIFIC SOLUTIONS BEEN SUGGESTED FOR RAPE IN MARRIAGE (RESTRICTIVE AND
         BANNING ORDERS)?
Restrictive and banning orders are envisaged by the Georgian legislation and used in practice.
However, as rape by itself already constitutes criminal act, including a rape in marriage, this would be
immediately subjected to Criminal proceedings, without using the softer measures, such as restrictive
and banning orders.

5.4      ARE THERE CIVIL LAW REMEDIES – INCLUDING MEASURES RELATING TO THE FINANCIAL
         SITUATIONS OF WIVES/COHABITERS AFTER SEPARATION AND DIVORCE?
Yes, Georgian civil legislation is based on equality, providing for opportunities for civil remedies.

5.5      IS THERE A SPECIAL LEGISLATION TO DEAL WITH RAPE IN MARRIAGE?
Yes, as already mentioned, criminal legislation does not distinguish between rape and a rape in
marriage. All the protection mechanisms for victims of domestic violence apply in this case, as well as
there is a support provided from the criminal proceedings perspective to support a victim.


6.0      RAPE AND SEXUAL ASSAULT
6.1      HOW IS SEXUAL CRIME DEFINED?
                CRIME AGAINST THE PERSON;
                CRIME AGAINST INDIVIDUAL FREEDOM;
                CRIME AGAINST MORALITY/HONOR/SOCIETY.
Sexual crimes falls under Chapter XXII of the Criminal Code of Georgia, entitled The Crime against
Sexual Freedom and Inviolability.
GEORGIA                                                                                                123




6.2       DOES THE DEFINITION OF RAPE INCLUDE ALL ASPECTS OF SEXUAL VIOLENCE (INCLUDING
          SODOMY FOR EXAMPLE)?
Article 137 of Criminal Code of Georgia criminalizes rape. This crime is defined therein as follows:
“Rape, i.e. sexual intercourse through violence, threat of violence or abusing the helplessness of the
victim.” Sanctions for this crime are envisaged in the range of deprivation of liberty from 4 to 20 years.
Article 138 of the Criminal Code criminalizes Sexual Abuse under Violence, which provides for
sentence as a deprivation of liberty from 4 to 20 years as well. Article 138 therefore envisages the
following actions:
“Homosexuality (sodomy), lesbianism or other sexual intercourse distorted in form committed under
violence, threat of violence or abusing the helplessness of the victim…”

6.3       ARE THERE DIFFERING DEGREES OF RAPE/SEXUAL HARASSMENT?
Article 137 of Criminal Code of Georgia, criminalizing rape, envisages different degrees of rape and
respective aggravating circumstances.
These include: rape perpetrated:
            - repeatedly;
            - by the one who had previously committed one of the offences set forth in Articles 138-
            141 of this Code (Article 138. Sexual Abuse under Violence, Article 139. Coercion into
            Sexual Intercourse or Other Action of Sexual Character, Article 140. Sexual Intercourse or
            Other Action of Sexual Character with One under Sixteen, Article 141. Perversion), -
            Rape:
            - by a group;
            - of a pregnant woman or other person at the previous knowledge of the offender;
            - under extreme violence against the victim or other person;
            - by using one’s official position;
            - that through negligence has resulted in the death of the victim;
            - that through negligence has been corollary to the victim’s contraction of AIDS, serious
            rupture of health or other grave consequence
            - Raping of a person less than fourteen years.

6.4       HOW IS CONSENT DEFINED?
According to the used definition, in practice consent is defined as subjective appreciation, consent is a
part of process which is not a fixed line.

6.5       WHAT KIND OF TECHNICAL EVIDENCE IS NECESSARY IN A RAPE TRIAL?

6.6       IS CROSS-EXAMINATION ON THE VICTIM’S SEXUAL HISTORY AUTHORIZED IN RAPE TRIALS AND IN
          WHAT CONTEXT?
In rape trials victims are protected to a maximum extent possible, trying to avoid any pressure. Also,
evidence of the complainer’s sexual history is admitted only in cases when its relevance to the crime
concerned is demonstrated.

6.7       WHICH COURT RULES ON CASES OF RAPE?
General courts of Georgia rule on cases of rape. Judges receive special training on specific issues
related.

6.8       DOES MEMBERSHIP OF THIS COURT REFLECT THE PRINCIPLE OF EQUAL OPPORTUNITIES?
Great majority of judges are female.

6.9       WHAT SENTENCES ARE USUALLY APPLIED TO RAPISTS?
Average sentence applied to rapists equals to 6-8 years of deprivation of liberty.
124                                                                                               GEORGIA



6.10     ARE FEMALE POLICE OFFICERS PRESENT IN ALL BODIES CHARGED WITH EXAMINING AND
         PROSECUTING RAPE?
There are female police officers present investigating rape offences. There are also female
prosecutors involved in prosecuting rape.

6.11     HAVE PROVISIONS BEEN MADE FOR FEMALE FORENSIC EXAMINERS?
        Yes.


7.0      SEXUAL HARASSMENT
7.1      DOES YOUR COUNTRY HAVE LEGISLATION TO PROTECT THE DIGNITY OF WOMEN AT WORK
         (VIOLENCE AGAINST WOMEN)?
There are numerous provisions in Criminal Code of Georgia protecting dignity of women at work and
any violence against them. Using one’s official position during rape or any other even very minor
sexual misbehavior is perceived as aggravating circumstance.

7.2      ARE OTHER FORMS OF SEXUAL VIOLENCE LEGISLATED AGAINST?
Yes, Criminal Code of Georgia envisages several such crimes. These are as follows: Sexual Abuse
under Violence (Article 138.),
Coercion into Sexual Intercourse or Other Action of Sexual Character (Article 139),
Sexual Intercourse or Other Action of Sexual Character with One under Sixteen (Article 140.),
Perversion (Article 141).


8.0      INCEST/SEXUAL ABUSE OF GIRLS
8.1      WHAT IS THE AGE OF SEXUAL MAJORITY?
The age of sexual majority, as defined by the Georgian legislation, is 18.

8.2      DOES THIS CORRESPOND TO THE AGE OF CONSENT?
The age of sexual majority corresponds to the age of consent.

8.3      IS THERE SPECIFIC LEGISLATION AGAINST CHILD PROSTITUTION?
Child prostitution is prohibited. Article 171 criminalizes involving minor into anti-societal activity. This
action among others includes “involving a minor into prostitution or other sexual perversion or
persuading thereof into any other anti-societal action…”

8.4      WHAT OTHER FORMS OF SEXUAL ABUSE ARE LEGISLATED AGAINST? – SEXUAL HARASSMENT,
         FEMALE GENITAL MUTILATION?
Female genital mutilation is irrelevant. Therefore no provisions are envisaged in the Georgian
legislation.
Sexual Abuse under Violence (Article 138.),
Coercion into Sexual Intercourse or Other Action of Sexual Character (Article 139),
Sexual Intercourse or Other Action of Sexual Character with One under Sixteen (Article 140.),
Perversion (Article 141).

8.5      ARE THERE PROVISIONS FOR THE REMOVAL OF ABUSERS FROM HOUSEHOLDS?
The Law includes greatly expanded responsibility and authority for police in domestic violence cases.
Police are required to inform victims of their rights, transfer them to a hospital or shelter upon request,
help them to transport their personal belongings and ensure the safety of the person who reported the
case of violence (which may or may not be the victim). Police are required to take all measures to
GEORGIA                                                                                                125



eliminate domestic violence. They have explicit authority to remove the victim from her home. They
have implicit authority to remove the perpetrator from the home. They also must issue a restrictive
order, which defines temporary protective measures, and submit it to the court within 24 hours.
If the police issue a restrictive order, the court must review and either extend or deny the order within
twenty-four hours. A victim of domestic violence may also apply directly to the court for protection.
Upon application by a victim, the administrative court must hold a hearing and may issue a protective
order. The details of what provisions and protections the orders should contain are not specified under
the Law.

8.6       ARE THERE DIFFICULTIES REGARDING THE CREDIBILITY OF CHILDREN AS WITNESSES?
Respective staff is being trained to deal with children and prepare them to be witnesses in very rare
cases.

8.7       ARE THERE ANY SPECIAL PROVISIONS FOR EVIDENCE GIVEN BY CHILDREN?
The Article 306 of Criminal Procedure Code of Georgia provides for special rules for interrogation of
minor witness. According to this article:
“1. A minor witness may be interrogated irrespective of his age on condition that he is able to submit
verbally or otherwise the evidence being essential to the matter.
2. The interrogation of a minor witness shall be conducted in the presence of a teacher of legal
representative of the minor. The interrogation of a witness less than 7 years of age may only be
carried out in the presence of the parent or a guardian, in his/her absence – with the consent of
another legal representative.
3. Prior to the start of interrogation, the persons specified in section 2 of this article shall be informed
of the right to be present during the interrogation, to state their opinion, and to put questions with the
consent of the investigator. The investigator is competent to decline the questions being irrelevant to
the matter or leading; however these questions shall be entered in the records of interrogation.
4. A witness under 14 years of age shall be informed of the necessity of giving true evidence, but shall
not be admonished of criminal liability for refusal to testify and for deliberately giving false evidence.”

8.8       ARE CHILDREN ALLOWED TO RECEIVE THERAPEUTIC SUPPORT BETWEEN THE TIME OF REPORTING
          AND THE COURT CASE?
Absolutely so. Even more, they shall be supported by a teacher as well.

8.9       ARE ANY SPECIFIC MEASURES TAKEN TO COMBAT ORGANIZED/NETWORKED RITUAL ABUSE
          RINGS?
Systematic police preventive operations prevent this.
GERMANY                                                                                               127




                                             GERMANY

Information provided by the German Federal Ministry for Family Affairs, Senior Citizens, Women and
Youth in November 2000, February 2003, September 2006 and October 2009.


1.0       LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
Germany recognises that violence against women is part of everyday life in Germany and that it takes
a wide variety of forms. Violence against women is not limited to assaults on the physical and
emotional integrity of women alone, it includes subtle forms of behaviour which prevents a woman
from developing and expressing her own will, and ignores her needs and well-being. The violence
ranges from daily harassment in the street and interference in working life to various forms of
disrespect, degrading women to objects, maltreatment and sexual abuse within the family and in
public, rape, homicide and trafficking in women.
The Federal Government has been dealing with violence against women for over 30 years. In
particular, the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth has, by hosting
studies and pilot projects, clearly illustrated the forms, backgrounds and causes of violence against
women. The Federal Government has also tested possibilities for helping in practice and initiated
numerous amendments to laws in favour of the affected women. Moreover, the Federal Länder have
constantly expanded the network of private and public institutions offering protection and help for
affected girls and women.
In order to combat violence against women more effectively, the Federal Government issued a
comprehensive Action Plan to combat violence against women the 1 December 1999. In September
2007 the Action II to combat violence against women was launched, based on the results of the first
action plan. In doing so, the Federal Government makes it clear that structural changes are
necessary, rather than the occasional, isolated measures that disregard the complexity of the
manifestation of violence.

1.1       LETTER OF LAW – DEFINITIONS

        CONSTITUTIONAL LAW
The constitution provides for comprehensive guarantees for the protection of all fundamental rights of
all human beings, irrespective of nationality, descent, race, language, homeland or country of origin.
Women, like all people, are guaranteed protection against any form of physical and psychological
violence in accordance with particular needs.
Section 2(2) "Everyone has the right to life and freedom from physical harm".
This constitutional provision guarantees protection against violence committed by the state. The State
further has a duty to take all steps to prevent violence against women in all areas of society, including
the family.
Section 2(1) of the constitution:
"Everyone has the right to free development of his or her personality as long as he/she does not
violate the rights of others or violate the constitutional order or the moral code".
Section 1(1) the dignity of men and women is inviolable.
These Constitutional provisions safeguard general rights that exist for the protection of the personality.
This guarantee includes protection against psychological violence committed by the State and the
State has an obligation to take suitable measures to counter psychological violence against women
committed by society as a whole.
128                                                                                             GERMANY



In 1997, the determination of penalties for offences against property and crimes of violence against
persons was modified so that offences against property are no longer sentenced to a higher penalty
than crimes of violence.

       PENAL LAW
The German Penal Code sentences violence against women with high penalties.

1.2      DOMESTIC VIOLENCE
The first periodic safety report of the Federal Government 2001 deals with the protection of women
from violence. The report contains a current description of the development in criminality in the field of
violent crimes with a special regard to sexual offences, sexual violence against children and trafficking
in human beings. Following the statement of facts the report reflects the conclusions of the Federal
Government in the field of criminal and justice policies.

       CRIMINAL LAW
Violence against women is covered by general provisions of criminal law e.g. homicide, bodily harm,
deprivation of liberty (e.g. by a state official) and coercion.
These laws have broad application and provide protection form matrimonial and domestic violence.
As part of the objective of ensuring that cases of domestic violence are not treated as “private” matters
and dismissed by the police and the public prosecution office, the “Guidelines for Criminal
Proceedings” contain provision to ensure that the public authorities deal with domestic violence, i.e.
that the police and the public prosecution office institute legal proceedings when they become aware
of ill treatment. In 2002 the Guidelines were amended. In addition to the Protection against violent act
a public interest in prosecuting bodily harm is assumed in those cases where the victim cannot be
expected to make an application for prosecution because of the personal relationship between victim
and offender”.

       SEPARATE RIGHT OF RESIDENCE FOR WIVES OF FOREIGN NATIONALS
In 1997, the regulation concerning an independent right of residence for foreign spouses was
amended in the Alien’s Act. In cases of special hardship (including domestic violence), the wife can
obtain an independent right of residence without having to comply with a time limit. In the past, a
conjugal community had to have existed for at least 4 years in Germany. This regulation resulted in
that a foreign woman who wished to separate from her violent husband within this period had to count
of expulsion. This year’s (2000) amendment to the same regulation lowered the general period a
marriage had to exist to 2 years.

1.3      RAPE/SEXUAL ASSAULT
German Law regards "violation of a person's right to sexual self-determination" as a serious offence.
Its guiding principle is that a woman's right to sexual self-determination is inviolable and cannot be
either abolished or restricted when a woman gets married.

       RAPE
Rape (section 177(2) of the Criminal Code) and Sexual Coercion (section 177 of the Criminal Code)
are punishable offences if:
"A person by force, or threat of violence which constitutes an actual danger to life or limb, compels a
person to have intercourse or engage in other sexual acts".
“Whoever coerces another person by exploiting a situation in which the victim is unprotected and at
the mercy of the perpetrator’s influence, is also punishable (since July 1997)”. Section 179 of the
Criminal Code covers sexual abuse of persons either physically or psychologically unable to resist the
offence.
In 1997, all forms of penetration were placed on the same level in the amendment, whereas only
vaginal penetration was considered as rape under the old law.
GERMANY                                                                                                 129




        RAPE IN MARRIAGE
In July 1997, after years of debate and several attempts in the German Bundestag, rape in marriage
was criminalised. The previous law only defined extramarital rape as a crime, whereas sexual
intercourse forced on the wife by the husband could only be prosecuted as coercion or bodily harm.

        SEXUAL ABUSE IN A COUNSELLING, TREATMENT OR SUPPORT RELATIONSHIP
In 1998, new penal provisions, imposing penalties for sexual abuse in a counselling, treatment or
support relationship, were introduced (section 174c of the Criminal Code). Any therapist must refrain
from any sexual relationship whatsoever with his female and male patients. In the event of violation of
this regulation, the offender can also be banned from practicing his profession in order to avoid
repeated offences (section 70 of the Criminal Code). This law also benefits handicapped women.

        RULES OF CRIMINAL PROCEDURE
There are possibilities for several crime victims, especially for the victims of sex offences, to receive
assistance of a lawyer throughout the proceedings and to join the proceedings as a private accessory
prosecutor. For victims of sex offences this kind of counsel is provided at the expense of the state,
regardless of the financial situation of the victim. On account of the Second Act to Reform Victims'
Rights which entered into force on October 1st, 2009 (Federal Law Gazette I p. 2280) the possibilities
to join the proceedings as a private accessory prosecutor have been expanded i.e. for victims of
forced marriages.
Victims are entitled to bring an associated action to claim civil damages, especially victims of sexual
offences, defamation and crimes involving bodily harm. The victims have also the following rights:
        -    to join the criminal proceedings as a civil party and to have an active part in the
             proceedings;
        -    to use legal remedies to challenge the court's decisions.

•       Previous sexual history
Section 68a (1) of the Criminal Procedure Code: Questions which may lead to disgrace of a witness or
members of her/his family, or that concern their personal lives may only be asked if the questions are
indispensable. This provision is aimed to prevent victims of rape from questions about their previous
sexual experience.

•       Testimony in the absence of the defendant
If it is feared that a witness will not be truthful if the defendant is present at the examination, the court
may order the defendant to leave the courtroom while testimony is given. The same applies when
there is danger for the health of the witness if he/she testifies in the presence of the defendant.

        OPTIONS FOR GUARANTEEING PROTECTION OF THE GENERAL PUBLIC AGAINST SEX OFFENDERS
Changes in the penal law and in the law of prison administration are intended to give courts and prison
authorities new and more flexible options for guaranteeing protection of the general public against, in
particular, dangerous sex offenders.
The therapy options for treatable offenders are, for example, to be expanded and the options
improved for committing such offenders to a social therapy institution during their prison term. Sex
offenders sentenced to more than two years of imprisonment who are both capable and in need of
being treated must be transferred to a social therapist.
Under certain circumstances German criminal law makes it possible for dangerous repeat offenders to
be held in indefinite detention. It must in principle have already been ordered (section 66 of the
Criminal Code: original detention) or reserved (section 66a of the Criminal Code: reserved detention)
in the judgment. Particularly for the purpose of increasing the protection of women and children
against sexual crimes and crimes of violence, the Act to Introduce Subsequent Preventive Detention
of 23 July 2004 made it possible for placement in preventive detention to be ordered in cases where it
is only after the conviction that facts become apparent indicating that the person convicted presents a
significant danger (section 66b (1) of the Criminal Code). Under strict conditions a subsequent
preventive detention order was also made possible in the case of offenders convicted for the first time
130                                                                                            GERMANY



of particularly serious crimes (section 66b (2) of the Criminal Code). The Act to Reform the
Supervision of Conduct and Amend the Provisions on Subsequent Preventive Detention of 13 April
2007 extended the scope of application of subsequent preventive detention for adults under very
specific circumstances (section 66b (1) sentence 2 of the Criminal Code). This law is likely to affect
very few individual cases.

1.4      CHILD SEXUAL ABUSE /INCEST

       SEXUAL ABUSE
The sexual abuse of children i.e. persons under the age of 14 years, is punishable under section 176
of the Criminal Code.
The 6th amendment to reform the Penal Code, which entered into force on 1 April 1998, introduced
higher penalties for child sexual abuse. Under the new Act, particularly serious cases of child sexual
abuse are no longer classified as mere offences, but as serious crimes and, depending on the severity
of the individual punishable act, will generally be punished with a minimum prison sentence of one,
two or five years. So the minimum sentence in cases of severe life-threatening physical abuse has
been increased from the previous 1 to 5 years of imprisonment. The maximum sentence of
imprisonment is 15 years (section 176a of the Criminal Code).
If the sexual abuse is committed for the purpose of producing and disseminating portrayals of child
pornography, the standard punishment is now between 2 and 15 years imprisonment.
A person who negligently causes the death of a child as a result of sexual abuse, and a person who
commits rape or sexual coercion with a fatal outcome, faces a life sentence or a sentence of not less
than 10 years of imprisonment (sections 176b, 178 of the Criminal Code).
Further improvements have been made by the Act to Amend the Provisions concerning Crimes
against Sexual Self-determination and to Amend Other Provisions of 27 December 2003 (Federal Law
Gazette I p. 3007), which entered into force on 1 April 2004. Inter alia, this Act deleted the less
serious instance of the basic crime of sexual abuse of children and introduced a particularly serious
case of sexual abuse of children in section 176 CC. Furthermore, there was an increase in the severity
of the range of punishment imposable in cases of sexual abuse of children where no bodily contact is
involved (section 176 [4] CC) as well as in cases where there has been serious sexual abuse of
children (sec. 176a [2] CC).
Owing to the deletion of the restricting requirement that the victim be a German citizen, it has now
been possible to hold responsible under criminal law (since 1 September 1993) German tourists who
sexually abuse children abroad, even if the offence is not punishable in the country where it was
committed.

       INCEST
Section 173 outlaws sexual intercourse between related persons.
Section 174 (sexual abuse of a person in one's charge) protects minors in their relationship with
persons to whom they have been entrusted for the purposes of education, training and care, or to
whom they are subordinate under an employment contract. This rule also applies to a man who
engages in sexual acts with his own or adopted children under the age of 18 years.
The punishments imposable are increased by the above-mentioned Act of            27 December 2003 to
imprisonment ranging from three months up to five years.

       TIME LIMITS FOR PROSECUTIONS
In June 1994, the start of the limitation of prosecution under criminal law for certain serious sex
offences to the detriment of children was deferred until the age of 18. This prevents sex offences
committed on children from already being statute-barred by the time the victims are no longer under
the influence of the offender and are in a position to appreciate the wrong done to them and report it to
the police.
GERMANY                                                                                                  131




1.5       SEXUAL HARASSMENT
The protection from sexual harassment at the workplace has been revised by the General Equal
Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG.) According to this act sexual
harassment is a case of forbidden discrimination. The Act obliges all employers to take the necessary
and appropriate protective steps in the event that an employee feels sexually harassed. This includes
consequences for the offenders under labour and disciplinary law.

1.6       PORNOGRAPHY
Section 184 of the Criminal Code provides for punitive measures against distributing pornographic
literature. It is also a punishable offence to publish, distribute, produce or engage in other preparatory
work of pornography involving violence, child sexual abuse or sexual acts carried out by human
beings with animals “(sections 184a, 184b CC).

        CHILD PORNOGRAPHY
In order to more effectively combat child sexual abuse in the production and dissemination of
pornographic films and photographs, the German Bundestag passed the 27th amendment to the
Penal Law - Child Pornography – which entered into force on 1 September 1993. This act increases
the penalties for the production and dissemination of child pornography by extending the range of
punishment to 5 years and makes the possession and procuring of child pornographic portrayals a
punishable offence for the first time.
The 6th amendment to the Penal Code (1998) provides for a maximum prison sentence of 10 years
for the commercial or organised dissemination of child pornography portraying an actual or realistic
event. Cases in which it is impossible to establish whether the portrayal is real or fictitious are also
covered by this regulation.
Using the instruments of the criminal law, the Act to Amend the Provisions concerning Crimes against
Sexual Self-determination and to Amend Other Provisions of 27 December 2003 (Federal Law
Gazette I p. 3007) puts a stop - more firmly than in the past – to dissemination of pornographic
writings involving children. Section 184b creates a criminal offence of its own against dissemination,
purchase, and possession of pornographic writings involving children. According to this provision,
whoever undertakes to obtain possession for another person of pornographic writings involving
children will now be punished with imprisonment ranging from three months up to five years instead of,
as in the past, with a fine or imprisonment of up to one year; where this offence is committed on a
commercial basis or the perpetrator acts as a member of a gang, the punishment imposable amounts
to imprisonment from six months up to ten years provided that the writings reproduce an actual or true
to life event.
Further improvements followed as a result of implementation of the Framework Decision of the Council
of the European Union on combating the sexual exploitation of children and child pornography. By the
Act of Translation of the Framework Decision on combating the sexual exploitation of children and
child pornography of 31 October 2008 (Federal Law Gazette I p. 2149), coming into force at 5
November 2008, the culpability was by a redraft of Section 184c of the Criminal Code extended to the
dissemination, the purchase and the possession of juvenile pornographic scriptures. Therefore by now
persons between 14 and 18 years join the save area of the German criminal law. An offence against
this new regulation is threatened by imprisonment up to three years or by a monetary penalty. . At the
same time, this makes it clear that as soon as a child or juvenile takes up a sexually suggestive pose
this will fall within the concept of child and juvenile pornography, and also that there is criminal liability
for dissemination, purchase and possession of writings reproducing a sexually suggestive pose by
children or juveniles.

1.7       PROSTITUTION
The promotion of sexual acts by minors is an offence punishable under section 180 of the Criminal
Code.
Prostitution as such is not an offence under German law. Prostitutes are protected against exploitation
(section 180a), pimping (section 181a) and trafficking in human beings for the purpose of sexual
exploitation, trafficking in human beings for the purpose of exploitation of workers, promotion of
trafficking in human beings (sections 232 to 233a CC)”.
132                                                                                               GERMANY



        TRAFFICKING IN WOMEN
According to the police, crime statistics compiled by the Federal Office of Criminal Investigation, 482
cases of trafficking in human beings came to light in 2008 and 454 cases in 2007. The number of
victims decreased from 689 in 2007 (95% female) to 676 in 2008 (89% female). 2008 90% of victims
have originated from Europe (2007 89% and 2006 94%).
The Criminal Law was amended in 1992 by the outlawing of trafficking in human beings. This
amendment improves the protection against sexual exploitation, specifically against the dangers of
forced prostitution and trafficking in human beings, that the law, in particular, provides for foreign girls
and women.
Moreover, a law was passed for improving the combating of money laundering, which is intended,
among other things, to expand the possibilities to detect, seize and confiscate the financial resources
of organised traffickers in human beings. In addition, Article 180b of the German Penal code
(trafficking in human beings) has been added to the catalogue of offences open to accessory
prosecution in art. 395 of the German code of Criminal Procedure, so that the victims can also appear
as additional prosecutors with the corresponding rights in theses proceedings.
The revised articles also apply to criminal acts committed abroad, independently of the law applicable
where the offence was committed.

        TRAFFICKING IN CHILDREN
The 6th amendment to the Penal Code (1998) introduced a provision against trafficking in children in
order to allow more effective action to be taken against the sexual abuse of children (section 236).

        MEASURES TO COMBAT TRAFFICKING
The Federal Government combats trafficking in children and women for the purpose of sexual
exploitation by prevention, prosecution of the offender and support to the victims.
For the female victims who act as witnesses in the criminal proceedings against the offenders, it is a
question of the right of residence, special witness protection programmes, accommodation and
maintenance, support in the proceedings, medical and psychological support, the protection of their
families in their home countries against reprisals on the part of the traffickers and reintegration
programmes.
In order to clarify all the associated measures related to the legislation concerning foreign nationals
that affects the responsibility of various Federal and Länder agencies, the police, the courts and the
victim support groups set up a working group in 1997. The “Working Group on Trafficking in Women”
operates under the control of the Federal Ministry of Family Affairs, Senior Citizens, Women and
Youth. The aim of this group is to harmonise and coordinate all the necessary measures to combat
trafficking in women.
Germany has over 35 counselling centres where prostitutes in duress and women in trafficking can get
help.

1.8      OBSCENE PHONE CALLS/TELEPHONE SEX
No information provided.

1.9      FEMALE GENITAL MUTILATION
In Germany female genital mutilation is criminalised under sections 223 ff of the Criminal Code.
Whoever participates in mutilating female genitals is at least threatened with a penalty of deprivation
of liberty of up to five years for inflicting bodily injury (section 223 of the Criminal Code). Since it can
be assumed that for the mutilation a knife or other dangerous tool is used according to section 224 of
the Criminal Code (severe bodily injury) the offender is threatened with a penalty of deprivation of
liberty between three months and 10 years. The same section is applied if the bodily injury is
committed jointly with another participant or by means of a treatment dangerous to life. A person
obliged to care for a person under eighteen years of age or a person who is defenceless due to frailty
or illness who tortures or seriously abuses the person in need of protection or by maliciously
neglecting his duty of care damages the health of the person in need of protection is threatened with a
penalty of deprivation of liberty between six months and 10 years (section 225 (1) of the Criminal
GERMANY                                                                                              133



Code). If the offender places the person in danger of death or serious injury or a substantial
impairment of his physical or mental development the penalty is imprisonment of not less than one
year (section 225 (3) of the Criminal Code). Punishment cannot be avoided by citing religious reasons
for the mutilation since the mutilation of the female genitals seriously harm the bodily integrity of the
girl or woman and is in general irreversible and violates the victim’s dignity.
Since October 2009 the start of the limitation of prosecution under criminal law for offences according
to section 225 of the Criminal Code was deferred until the victim becomes 18. This prevents these
offences from already being statute-barred by the time the victims are no longer under the influence of
the offender and are in a position to appreciate the wrong done to them and report it to the police.

1.10      INTERNATIONAL CONVENTIONS
The Federal Republic of Germany is a signatory to European Convention for the Protection of Human
Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights. Germany has signed the Council of
Europe Convention on Action against Trafficking in Human Beings and is preparing the necessary
steps for its ratification. Furthermore, Germany has adopted a number of international conventions
aiming to protect women from violation of human rights, in particular the Convention on the Elimination
of all Forms of Discrimination Against Women (CEDAW). With the ratification of the CEDAW Optional
Protocol the communication procedure and an inquiry procedure are recognized.
The Federal Republic of Germany is one of the states that always urged and supported the
establishment of a special rapporteur at the UN Commission on Human Rights responsible for human
rights violations in form of violence against women.

1.11      PROTECTION OF PREGNANCY/PREGNANT WOMEN
No information provided.


2.0       SENTENCING
2.1       SENTENCING DOMESTIC VIOLENCE
No information provided.


3.0       EFFECTIVENESS OF LEGISLATION
3.1       SUPPORT/PROTECTION

       SHELTERS
The first German shelter for women, opened in Berlin in 1976, was a project of the Federal ministry for
Family Affairs, Senior Citizens, Women and Youth. There are today more than 400 women’s shelters
in Germany, including 120 in the new Federal Länder, where the Federal Government contributed
towards the establishment of the first women's shelters by granting DM 1.2 million for the framework of
a special programme. Other pilot projects of the Federal Government were:
   -   An emergency helpline for female victims of sexual violence;
   -   A walk-in therapy centre;
   -   Counselling and housing for sexually abused girls;
   -   Counselling and housing for prostitutes under duress and victims of trafficking in women;
   -   Etc.
These pilot projects have often been copied (for instance, there are currently 156 emergency help
lines throughout the country), the Federal Länder and the municipalities finance some projects.
In order to exercise more influence on politics and to improve cooperation and information, the support
institutions are increasingly networking. The Federal government supports this network by providing
financial provision for annual networking meetings of the respective institutions and a national
coordination centre for women's shelters. These networks are also members of the Federal Working
134                                                                                                GERMANY



Group to Combat Domestic Violence, established in 2002, which is one of the steering committees for
the Action Plan II of the Federal Government to Combat Violence against Women.

        DOMESTIC VIOLENCE
In 1995, the “Berlin Intervention Project Against Domestic Violence” was initiated. It is intended to
improve the protection of women subjected to domestic violence during the police and court
proceeding of the offender. This project is modelled on the Duluth, Minnesota, “Domestic Violence
Intervention Project” and is aimed to coordinate measures by all institutions and projects to facilitate
better protection for maltreated women and prosecution of perpetrators.
In September 2004 the findings of a nationwide comparative analysis of ten different interdisciplinary
intervention and cooperation projects in the field of domestic violence, an evaluation of the innovative,
proactive support available to women who are victims of violence and their children, a description of
how state intervention through the police and justice system has evolved and research evaluation
social training courses for men who have committed acts of violence has been published by the
Federal Government under the title "Working together to Combat Domestic Violence: Co-operation,
Intervention, Research. Findings of the Evaluation Research Assessing Intervention Projects against
Domestic Violence (German Acronym WIBIG). The findings of this evaluation were used to set up the
respective chapters in the Action Plan II to Combat Violence against Women.

        RESEARCH AND TRAINING
The Federal Government has conducted and published an important number of studies concerning
violence against women. For evaluating the existing laws and for calculating a possible need for
legislative changes a study was commissioned by the Federal Ministry of Justice and the Länder
Ministries for Justice and carried out by the Kriminologische Zentralstelle “Legal Probation and
Criminal Careers of Sexual Offenders”. Some research projects are intended to support needs for
amendments of the legislation, for example, research concerning legal practice when the marital home
is allocated to the abused wife. Other research projects are the publication of a guide for marriage and
family counselling centres for counselling on domestic violence against women and the production of
continuing training materials for the female staff of women's shelters and for the police. The concept of
training courses for the police concerning violence against women is currently used in the education
programmes of the police training schools of the Länder.
In 2002 a study was started on the law on improving the civil law protection against acts of violence
and stalking as well as for facilitating the allocation of the marital home in cases of separation “Law on
protection against violence”. It’s goal is to evaluate as early as possible -after the entering into force of
the law - the regulations for the allocation of the home and the protective orders as well as regulations
of enforcement. Content of the study is the court practice, bodies of the administration of justice, and
Non court institutions (youth welfare offices, counselling centres, intervention centres and- projects).
The results of the study are expected for the end of 2004.
In September 2004 the results on the first representative study on prevalence of violence against
women was published (Health, Well-Being and Personal Safety of Women in Germany– A
Representative Study of Violence against Women in Germany). In March 2009 the analysis “Gewalt
gegen Frauen in Paarbeziehungen” (Violence against women in relationships) was published. Both
studies prove a relatively high prevalence of violence against women in the life cycle.
In 2009 the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth has started two
projects concerning violence against women with disabilities, also regarding legislative aspects, Goal
of the study „Extent of Violence against Women with disabilities“ is to get reliable and representative
data in order to recognize the need for action and support for this vulnerable group. The second one, a
pilot study, emphasizes the work of equal rights commissioners for women with disabilities, in the
majority with learning disorders, in sheltered workshops. The results of both studies are expected in
2011.

        EDUCATION
Educational public relations work takes an important place among the measures for reducing violence
against women. The Federal Ministry for Women, the Länder Ministries for Women, the municipal
commissioners for women's affairs and the anti-violence projects, have implemented many measures
GERMANY                                                                                                135



designed to effectively attract public attention. There is consequently a host of publications by the
Federal Government on the subject of violence against women, illustrating its different forms and
aspects.
In June 2008 the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth hosted the
conference: “Prevention Measures against Domestic Violence: What can schools do? – to learn from
each other – to cooperate with each other – to find solutions together. The conference convened
experts from schools, research, politics, administration, child and youth welfare organisations and non-
governmental organisations committed for combat violence. The conference aimed at reaching the
responsible actors on the Länder level to implement further practical measures to prevent domestic
violence.

        WITNESS AND VICTIM PROTECTION MEASURES
In December 1998, the Witness Protection Act expanded the right of involvement of victims and
ensured that the burdens placed on victims witnessing in court are kept to an unavoidable minimum.
For instance, it is possible to examine witnesses by audiovisual media, if they then are spared the
ordeal of giving evidence directly in court. In addition, in order to avoid multiple examinations in the
course of the criminal proceeding, the Act also permits, under certain circumstances, the use of
previous examinations recorded on videotape as a substitute for renewed personal examination in
court.
On behalf of the Second Act to Reform Victims' Rights which entered into force on October 1st, 2009
(Federal Law Gazette I p. 2280) the conditions under which witnesses are not obliged to state their
place of residence were expanded in an appropriate fashion to include cases in which it may be feared
that the witness will subjected to improper influence in respect of his/her testimony (section 68 (2) of
the Code of Criminal Procedure). The criminal prosecution authorities are now obliged to inform
witnesses who may be in danger of their rights and support them in stating another address at which
documents can be served (section 68 (4) of the Code of Criminal Procedure).
In order to strengthen especially the rights of children and juveniles who have become victims of
criminal offences or have to give testimony as witnesses in criminal proceedings, the protective age
limit for this group of persons has been raised from 16 to 18 years in a number of provisions of the
Code of Criminal Procedure and the Courts Constitution Act (section 58a (1), section 241a (1), section
247, second sentence, and section 255 (2) of the Code of Criminal Procedure; section 172 of the
Courts Constitution Act). These changes were also carried out by the Second Act to Reform Victims'
Rights.
Under certain circumstances, a legal advisor can be appointed for a witness at the expense of the
state for the purpose of examination, if the witness is not in a position to exercise his or her authorities
personally. On account of the Second Act to Reform Victims' Rights the prerequisites for the
assignment of legal counsel to witnesses who are in special need of protection were simplified.
Furthermore, the right to obtain at any time the services of a lawyer as counsel for the witness will for
the first time be embodied in law of the Code of Criminal Procedure.


In addition, with the Second Act to Reform Victims' Rights the possibilities have been improved for
crime victims to join the proceedings as a private accessory prosecutor. Likewise the possibilities have
been improved to receive assistance of a lawyer throughout the proceedings, which is provided at the
expense of the state, regardless of the financial situation of the victim.

        COMPENSATION
Women who become victims of crimes of violence can demand compensation from the perpetrator for
injuries sustained, medical costs and loss of earnings. In addition, a woman who has suffered bodily
harm, violation of her personality rights or who is a victim of certain sexual offences may be entitled to
claim compensation for non pecuniary damage. The level of compensation varies according to the
circumstances in the individual case.
136                                                                                               GERMANY



        ORGANISATIONAL MEASURES FOR POLICE STATIONS AND PUBLIC PROSECUTOR'S OFFICES
The national and local government are concerned to encourage the police and the public prosecutor's
offices to adopt a sensitive approach to the treatment of victims of violence. The aim is to spare
women from degrading treatment and shame when reporting a criminal offence and in the
proceedings against the offender. To this end:
  -    Special departments of public prosecutors have been established in all Länder for prosecuting
         criminal offences against a person's right to sexual self-determination;
  -    In most Länder, it is an established principle that women and girls victimised by sexual violence
         shall be questioned only by women police officers;
  -    Posts for staff with special responsibilities for dealing with women have been established at
         Bavarian police stations;
  -    The police are endeavouring to take into account religious and cultural traditions in the
         investigations of cases involving women from minority ethnic groups;
  -    Leaflets and brochures have been produced for victims of sexual offences in order to inform
         them of their rights and the assistance available;
  -    In many Länder, special training on sexual offences is given to police officers. The aim is to
         prepare them to adopt a sensitive approach handling victims of violence;
  -    Lectures and seminars on the subject of women and violence are offered to judges and public
         prosecutors.
In July 1995, a ‘course concept’ for police officers concerning “Male violence against women” was
published. This concept is to be incorporated into the continuing education of police officers.

3.2      GRANTING OF ASYLUM
German asylum law provides for protection of women exposed to serious violence in their country of
origin, unless they can find protection there.
When a woman’s life, freedom from bodily harm or liberty is threatened on account of her gender, this
may constitute persecution in line with the Geneva Refugee Convention (Section 60 (1) of the German
Residence Act). She will be granted refugee status, provided that the other criteria of the Geneva
Convention are met.
In cases where the preconditions for refugee status are not met (i.e. because the risk of persecution
ist not related to the gender of the person or any other Convention ground), a form of subsidiary
protection may still apply. In these cases, it generally suffices if there is a risk for the woman’s life or
freedom of bodily harm and if there is no internal protection in her country of origin.
Humanitarian protection may apply in specific cases where women suffer from severe trauma
All forms of protection, as a rule, entail a residence permit and access to welfare and other essential
benefits.
The Federal Office for Migration and Refugees (BAMF) under the Ministry of Interior is responsible for
processing all asylum claims.
There are procedural guarantees meant to ensure that vulnerable groups including women who
suffered from violence, are adequately treated.
Female asylum seekers may request to be interviewed by female eligibility officers. In cases where
the behaviour of an applicant or the circumstances of the case suggest that she belongs to a
vulnerable group (e.g. traumatised individuals or victims of violence), a specifically trained officer will
conduct the interview and decide on the claim. Also, these officers will advice other officers on how to
handle gender issues. Finally, the Federal Office for the Recognition of Foreign Refugees provides
regular training on gender specific issues for all decision makers.


4.0      DOMESTIC VIOLENCE
See Section 1.2 above.
GERMANY                                         137




5.0       RAPE AND SEXUAL ASSAULT IN MARRIAGE
See Section 1.3 above.


6.0       RAPE AND SEXUAL ASSAULT
See Section 1.3 above.


7.0       SEXUAL HARASSMENT
See Section 1.5 above.


8.0       INCEST/SEXUAL ABUSE OF GIRLS
See Section 1.4 above.
GREECE                                                                                                  139




                                               GREECE

Information provided by General Secretariat for Gender Equality of the Ministry of the Interior in
October 2009.


1.0      LEGISLATION ANS SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
1.1      LETTER OF LAW - DEFINITIONS
On the 10th October 2006 the Greek Parliament adopted the Law «On combating domestic violence
and other provisions». The Law addresses the relevant Recommendations of the U.N. CEDAW
Committee, the U.N. Human Rights Committee, the U.N. Committee Against Torture, the U.N.
Committee on Economic, Cultural and Social Rights, as well as those by the Council of Europe. The
new Law on combating domestic violence introduces crucial reforms:
1.       The Law provides for stricter penalties for actions that are already characterized as punishable
         by the Penal Code, when these are performed in the context of domestic violence. Especially,
         it provides for strict penalties for actions of domestic violence that are performed in the
         presence of a minor, against a pregnant woman and against persons unable to defend
         themselves (e.g. disabled persons, senior citizens et.c.)
2.       The provisions of the law extend to non-marital partnerships between men and women.
3.       The institution of mediation in criminal cases is established, bringing into effect the EU Council
         Framework Decision of March 2001, in reference to domestic violence offences.
4.       Rape within marriage, that is, coercion into sexual intercourse without the consent of both
         spouses, is regarded as a criminal offence, in accordance to statutory regulations in other
         Member States of the E.U.
5.       Physical violence against minors as a disciplinary measure in the context of their upbringing is
         explicitly forbidden. Hence the country complies with the Recommendations of the Council of
         Europe and the Committee on the Rights of the Child.

1.2      DOMESTIC VIOLENCE
The Law «On combating domestic violence and other provisions», which was recently adopted by the
Greek Parliament, includes provisions that treat domestic violence as a specific crime (See Section
1.1 above).
         At the level of support/assistance to the victims the new Municipal and Community Code (l.
3463/2006) stipulates, in Article 75 I e par. 2, the incorporation of services for counselling and support
to victims of domestic violence within the competences of Municipalities and Communities.

1.4      CHILD SEXUAL ABUSE/INCEST
The following legislation in the Penal Code protects the young child under 18: Article 336, “Rape”;
Article 337, “Insult of generative dignity”; Article 338, “Abuse in Licentiousness”, Article 339 “Children’s
Seduction”; Article 340, “General Provision”; Article 342, “Exploitation of the young under age in
Licentiousness”; Article 347,” Licentiousness against nature”; Article 349, ”Pandering/Pimping”; Article
351, “Procuring; Article 351A «Lechery with a minor for a fee»; Article 360, “Neglect of the supervision
of the young under age”.
The article 7 of the Law 3064/2002 on “Combating trafficking in human beings, crimes against sexual
freedom, children pornography, and, in general, economic exploitation of sexual life and assistance to
the victims of such crimes” amends and completes the provisions of Article 349 of the Penal Code,
which refer to the crime of pandering or forcing a minor to prostitution as well as inducing or facilitating
minors’ prostitution, and redefines imposed penalties making them stricter. Article 8 of the same Law
amends and completes the provisions of Article 351 of the Penal Code, which refer to minors’
procuring, and imposes imprisonment to the perpetrator for at least ten years. Article 9 completes
article 351 of the Penal Code (Article 351A) concerning the crime of lechery with a minor for a fee, and
140                                                                                                GREECE



imposes penalties depending on the age of the minor victim, exceeding even ten years of
imprisonment (especially when the victim has not completed 10 years of age).
In addition, the Article 24 of the Law on «Combating Domestic Violence and other Provisions»,
amends and completes the provisions of Article 342 of the Penal Code, referring to the crime of
abusing minors with lechery, and redefines perpetrators and imposed penalties. More especially: a)
The number of persons (adults) considered, according to the Penal Law, to commit the crime in
question is widened, b) Penalties imposed on perpetrators are defined to be stricter than in the past,
and they are classified as follows, depending on the victim’s age: i) Imprisonment of at least ten (10)
years, in case that the minor has not completed the four-teenth year of age, ii) Imprisonment, in case
that the victim has completed the above mentioned age, but not the eighteen years of age, c) Adults
who offend, in the prescribed way, the decency of the minor, whose custody or care have undertaken,
are imposed a penalty of imprisonment for at least six (6) months. This penalty increases
(imprisonment of at least two years), in case that the act in question is committed regularly, d) It is
stipulated that the above mentioned crime committed by certain persons (relative, teacher,
psychologist, etc.) constitutes aggravating circumstance, e) The penalties of imprisonment imposed to
adults who offend, through the Internet or other means of communication, the decency of a minor not
having completed the six-teenth (16) year of age, are stipulated, f) the date on which the minor victim
comes of age is stipulated as the beginning of term of limitation of the above mentioned acts.

1.5      SEXUAL HARASSMENT
The Greek Parliament has recently adopted Law 3488/2006 on the «Implementation of the principle of
equal treatment of men and women in the fields of access to employment, vocational training and
promotion, terms and conditions of work». The Law 3488/2006 incorporates Directive 73/2002/EC
into national law and meets relevant Recommendations of the U.N. CEDAW Committee and the
Council of Europe.
The Law 3488/2006 introduces the definitions of direct and indirect discrimination, harassment and
sexual harassment, filling in, therefore, a significant gap in Greek legal order. In particular, the notion
of sexual harassment is, for the first time, defined legislatively in Greek law. Sexual harassment is
explicitly regarded as a form of discrimination in the workplace on the basis of gender, which is
prohibited both where access to employment and where promotion and termination of employment or
service are concerned. At the level of penalties, sexual harassment is punishable through civic,
administrative, disciplinary and criminal penalties. In particular, as regards the criminal part, strictest
custodial penalties are provided for, ranging from six (6) months to three (3) years, as well as
imposition of a penalty payment ranging from 1,000 to 30,000 Euros.

1.6      PORNOGRAPHY
Concerning pornography, the general provisions of the Penal Code are in force, as they are stipulated
in Article 348 of the Penal Code «Facilitation of promiscuity of third persons». The provisions of Article
348A as they have been introduced in the Penal Code through Article 6 of the Law 3064/2002 on
“Combating trafficking in human beings, crimes against sexual freedom, children pornography, and, in
general, economic exploitation of sexual life and assistance to the victims of such crimes confront the
problem of child pornography and punish, with imprisonment of at least one year and a fine of ten
thousand to one hundred thousand euro, anyone who prepares, possesses, supplies him-/herself,
buys, transports, trades, disposes, sells or puts in circulation, in any way, pornographic material
concerning a minor person, on the purpose of speculation. Penalties are much stricter (imprisonment
up to ten years) in cases that the pornographic material is connected to the exploitation of need,
mental deficiency, deafness or inexperience of a minor or by exercising physical violence against
him/her.

1.7      PROSTITUTION
In Greek legislation, prostitution per se is not a punishable offence. The laws in force do not prohibit it
but stipulate the conditions for practicing it.
a. Law 2734/1999 (“Persons prostituting themselves for a fee”) specifies the terms and conditions, the
limitations and prohibitions in practicing the activity concerned, regulates the measures of medical
control to which persons prostituting themselves for pay have to submit, and introduces criminal and
administrative sanctions to ensure effective control of these persons.
GREECE                                                                                                 141



b. The Criminal Law includes provisions for repressing the exploitation of women, both minors and
adults. The chapter “Crimes against sexual freedom and crimes of economic exploitation of sexual life”
provides for both imprisonment sentences and fines. Punishable acts under these provisions are:
Facilitation of promiscuity, Pimping, Exploitation of prostitutes, Body trafficking.
c. Law 2675/1999 provides for compulsory insurance coverage of women prostituting themselves for a
fee.
Moreover, Article 348 of the Penal Code punishes with imprisonment and a fine of ten thousand to one
hundred thousand euro the person who, by profession or for speculation, attempts to facilitate, be it
covered up, by means of publishing an announcement, picture, telephone number or by transmitting e-
messages or by any other way, lechery to a minor.

1.10      INTERNATIONAL CONVENTIONS
Among others, Greece has signed the following International Conventions:
      1. U.N. Convention concerning suppression of trafficking in human beings and exploitation of
          prostitution of third persons (1950).
      2. U.N. Convention for the Elimination of All Forms of Discrimination against Women (1982).
          Greece ratified the Convention through Law 1342/1983.
      3. Convention on Children’s Rights, (1989). Greece ratified the Convention through Law
          2101/1992.
      4. U.N. Optional Protocol of the International U.N. Convention “For Combating all Forms of
          Discrimination against Women” (1999). Greece ratified the Convention through Law
          2952/2001
      5. U.N. Convention against Transnational Organized Crime (2000).
      6. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
          Children, Supplementing the United Nations Convention against Transnational Organized
          Crime (2000).
      7. Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United
          Nations Convention against Transnational Organized Crime (2000).
      8. International Convention 182 on Labour, concerning prohibiting of the worst forms of children
          labour, and immediate action aiming at their elimination. Greece ratified the Convention
          through Law 2918/2001.
      9. Convention of the Council of Europe on crime in cyberspace (2001).

1.11      PROTECTION OF PREGNANCY / PREGNANT WOMEN
According to Article 6, paragraph 3 of the Law on «Combating domestic violence and other
provisions», when the victim of domestic violence is pregnant, the perpetrator member of the family is
punished with imprisonment of at least two years.


3.0        EFFECTIVENESS OF LEGISLATION
3.4       SPECIAL LEGISLATION ADDRESSING VIOLENCE AGAINST WOMEN (TREATMENT OF WOMEN AS A
          “SPECIAL CASE” OR AS PART OF ANTI-DISCRIMINATION LEGISLATION?)
The General Secretariat for Gender Equality participates in the Special Committee of Secretaries
General, which was established by initiative of the Ministry of Justice, aiming at politically coordinating
the works on the implementation of Law 3064/2002 «Combating Trafficking in Human Beings». In
the framework of this Committee, a National Integrated Action Plan has been elaborated to assist
and protect victims of trafficking (August 2004).
In the above mentioned Integrated Action Plan (assistance and protection of victims of trafficking), the
General Secretariat for Gender Equality has implemented the following policies and actions:
•     Its Consultation Centers on violence against women provide psychosocial support and legal
      advice to victims of trafficking.
•     Women victims of trafficking were included in Programmes         implemented by the General
      Secretariat for Gender Equality aiming at ensuring work to them.
142                                                                                             GREECE



•     In the framework of information and awareness raising campaign to combat trafficking in human
      beings, Mass Media broadcast a relative TV spot produced by the General Secretariat for Gender
      Equality. Moreover, information leaflets have been published in four languages (Greek, English,
      Albanian and Russian).
•     The Research Centre for Gender Equality (Κ.Ε.TH.Ι.) in cooperation with the Ministry of Education
      and Religious Affairs, implemented (2002-2008) the programme «Sensitisation of teachers and
      intervention programmes on promoting gender equality» of a total budget of 25 million euro.
      The programme aimed to sensitise teachers in gender equality issues. Combating trafficking in
      human beings constituted a fundamental thematic of the programme.
•     The General Secretariat for Gender Equality in cooperation with the Institute for Training of the
      National Centre of Public Administration organized seminars to train and sensitize judges,
      prosecutors, police officers, as well as health- and social workers, aiming at most effectively
      addressing cases of domestic violence and trafficking.
•     In the framework of participating in the campaign of the Council of Europe for combating illegal
      trafficking in persons, the General Secretariat for Gender Equality and the Council of Europe
      organised a Conference titled «Action against trafficking in persons - Prevention, Protection,
      Prosecution», in Athens, on 5th and 6th December 2006. The proceedings of this conference
      were published in 2007.
•     The General Secretariat for Gender Equality participates with a representative in the Task Group
      of the Hellenic Police Headquarters, to implement the Plan of cross-border and inter-regional
      cooperation and operational action of the police authorities in the S.E. European countries under
      the code name «ΙLΑΕΙRΑ».
•     The General Secretariat for Gender Equality, in cooperation with the Research Centre for
      Gender Equality (Κ.Ε.TH.Ι.), and the Ministry of Foreign Affairs implements programmes of
      Deνelopmental Aid and Cooperation in countries of origin of economic migrants and victims of
      trafficking. In this context, the following actions were implemented during the years 2005-2008:
a. The implementation of the programme «Education – social exclusion- prostitution- migration»
was implemented (2005-2006) in Albania, Moldova, Ukraine and Georgia, with a total budget of
150.000 euros, in partnership with the Hellenic Association for Family Planning. The programme
aimed at confronting the problems of social exclusion of women in those countries, unemployment,
sexual exploitation and (forced) prostitution related to migration.
b. The Research Centre for Gender Equality (K.E.TH.I.) has implemented (2006-2008) the
programme «Supporting regional policies against illegal trafficking in women» in Bosnia-
Herzegovina and in Serbia, of a total budget of 100.000 euros. The programme belongs to the actions
taking place in the social sector, and aims at confronting the phenomenon of transnational
procuration, through strengthening women victims, sensitising public opinion, and educating
competent bodies which deal with assistance and protection of women victims.
c. The Programme «Actions on Prevention and Support of Victims of Trafficking», of a total
budget of 220.000 euro, has been implemented (2007-2008) in Albania. The Programme aimed at
informing young people, especially women, and supporting victims of trafficking. General objectives of
the Programme were the prevention of trafficking in women in Albania, mainly through educational
actions in schools, as well as the psychosocial support of victims, through reinforcing existing
structures in the area.
d. In 2007 the Project «Training Greek Agencies on Addressing International Trafficking», with a
total budget of 166.786,2 €, was also implemented. It aimed at reinforcing the existing structures in
Greece, dealing with trafficking in women, by means of carrying out cohesive training activities for the
members of the competent bodies. In the framework of the Programme, three-day training seminars
were carried out throughout 2007 in Athens, Thessaloniki, Patras, Volos, Heracleion, Preveza,
Kalamata, Komotini, Ioannina, and Mytilini. A conference, in which the outcomes of the Programme
were presented, took place on 17th and 18th April 2008. The continuation of the Programme is already
been approved.
•     In 2005 the General Secretariat for Gender Equality and the UN High Commissioner’s Office
      signed a Memorandum of Cooperation on the promotion of the rights of women and under-
      age girls, who have been granted asylum or apply for asylum in our country, according to
      the Geneva Convention. The implementation of the Memorandum aims, inter alia, at ensuring
      procedures for identifying the most vulnerable cases of women seeking asylum, among which are
      victims of trafficking as well.
GREECE                                                                                                 143



•     The General Secretariat for Gender Equality also cooperates with N.G.Ο.s on combating the
      phenomenon of trafficking in human beings, and finances their relative actions as the case may
      be.

3.7       VIOLENCE AGAINST WOMEN – AN OBSTACLE TO EQUALITY:
According to the National Policy Priorities and the Axes for Action on Gender Equality (2004-
2008) adopted by the Governmental Committee, the prevention of and fighting violence against
women constitutes one of the axes needing direct special actions. In this framework, the General
Secretariat for Gender Equality of the Ministry of the Interior implements, on its own or in cooperation,
the following:
a. It has cooperated with the Ministry of Justice on the elaboration of Law 3500/2006 on combating
domestic violence, aiming at the protection of the fundamental rights of women and children.
b. The new Code on Municipalities and Communities (Law 3463/2006) provides, as a new
competency of the Local Government Organisations of first degree, advisory support of victims of
domestic violence and violence between cohabiting persons.
c. The assistance to victims of domestic violence through the two Consultation Centres (in Athens
and in Pireaus) of the General Secretariat for Gender Equality is going on providing advisory,
psychological and legal support.
d. Translation and publication of the leaflet on domestic violence in English, Arabian and Persian
has been realized. The publication of the leaflet on domestic violence in Arabian and Persian has
been considered as necessary in the framework of implementing the Memorandum of Cooperation
with the UN High Commissioner's Office for Refugees in Greece.
e. The Ministry of Justice in cooperation with the General Secretariat for Gender Equality has
produced an informational TV spot which is broadcast on the greek television.
f. The General Secretariat for Gender Equality participates in the 16 days of activism against gender
violence (25 November – 10 December). In this framework, information kiosks operate in Athens,
distributing leaflets on domestic violence, while relevant messages are advertised through posters in
public transports (buses, trams, metro etc).
g. In cooperation with the Institute of Training of the National Centre for Public Administration and
Local Government, training and sensitisation seminars addressing judges, public prosecutors,
police officers and health and social workers have been carried out, aiming at handling cases of
domestic violence and trafficking more effectively.
h. The General Secretariat for Gender Equality implemented (2004-2008), as final beneficiary, the
project: «Integrated interventions in favour of women» in the framework of the Operational Plan
«Employment and Vocational Training 2000-2006» of the 3rd European Community Support
Framework, by means of which not only unemployed women were actually supported in getting a job,
but also the reconciliation between professional and family life was facilitated. The project involved all
administrative regions of the country, and it was of an initial total budget of 53 million euros, increased
by 6.000.000 euros in 2006. This project benefited a total number of 9.018 women, mainly
unemployed of any age, in every region of the country.
It mainly addressed unemployed women and, also, women who belonged to socially vulnerable
groups and aimed at improving the access, the social support and the participation of women in the
labour market by means of providing them with information, advisory and social support services so as
to promote them in employment. The selection procedure contained a special provision for women
belonging to vulnerable groups. Women who were victims of domestic violence were given priority
according to the selection criteria.
i. The Research Centre for Gender Equality (Κ.Ε.TH.Ι.), supervised and financed by the General
Secretariat for Gender Equality, implemented (2007-2008) a Programme Providing Supplementary
Supporting Services, titled «Improving the conditions of the integration of vulnerable groups of
women in the labour market». The programme aimed at strengthening and preparing women to
integrate in the labour market, to support them in undertaking entrepreneurial initiatives and to
promote them to jobs.
The programmes of advisory and legal supporting services provided advisory and legal assistance in
regard to issues of employment and entrepreneurship as well as in regard to dealing with problems
144                                                                                             GREECE



of domestic violence to beneficiary women. They were realised in nine (9) Regions of the country
(East Macedonia - Thrace, Central Macedonia, Thessaly, Epirus, Central Greece, West Greece,
Attica, Peloponnese, and Crete).
In the same framework, the already operating advisory centres of K.E.TH.I. in Athens, Thessaloniki,
Volos, and Heracleion were reinforced. Moreover, five (5) new branches were established in
Kalamata, Amfissa, Preveza, Komotini and Alexandroupolis.
j. The Research Centre for Gender Equality (ΚΕTHΙ), which is supervised by the General Secretariat
for Gender Equality, implemented (2002-2008) a programme entitled: «Sensitisation of teachers
and interventional programmes promoting gender equality». The Programme had a total budget
of 25 million euro, belonged to the Operational Project of Education and Initial Vocational Training -
ΕPΕΑΕΚ ΙΙ - 3rd European Community Support Framework, and was implemented in cooperation with
the Ministry of Education and Religious Affairs (ΥP.Ε.P.TH.). It aimed at promoting gender equality in
secondary education and initial vocational training, introducing the relevant issues through the
implementation of Interventional Programmes by school units. During the school year 2006-2007 188
Cooperations of School Units were established, implementing Interventional Programmes, which gave
priority to issues of domestic violence.
k. In 2007, the General Secretariat for Gender Equality, in cooperation with the Research Centre for
Gender Equality (ΚΕTHΙ) and the Ministry of Foreign Affairs, implemented the programme «Training
of Greek Bodies on how to Confront International Trafficking» with a total budget of 166.786,2€.
The Programme aimed at reinforcing the existing support structures for women victims of violence, by
means of carrying out an integrated training action for the members of the competent authorities. The
basic goal of the project was the creation of appropriately trained staff, which would be able to handle
incidents of violence against women effectively and in compliance with the new international rules of
treatment. The whole training procedure referred to issues of domestic violence and trafficking.
3-days training seminars were carried out during 2007 in Athens, Thessaloniki, Patras, Volos,
Heracleion, Preveza, Kalamata, Komotini, Ioannina, and Mytilini. An outcome of the seminars also
was the networking among governmental and non-governmental agencies involved in assisting and
protecting victims as well as in treating the phenomenon.
In April 2008 a conference took place in Athens, during which the outcomes of the programme were
presented.
l. The General Secretariat for Gender Equality participated in the campaign of the Council of Europe
on combating domestic violence (2006-2008). To this end, representatives were appointed (High Level
Official και Focal Point), and an action plan was implemented.

3.9      WHAT GOOD IDEAS HAVE BEEN SUGGESTED BUT NOT YET IMPLEMENTED?
In the framework of the National Strategic Reference Framework (NSRF) and the Operational
Program “Administrative Reform 2007-2013”, the General Secretariat for Gender Equality (GSGE)
implements an Integrated Action Plan for Preventing and Combating Violence against Women at
national and local level.
The Integrated Action Plan includes the implementation of horizontal nation-wide actions as well as
Local Action Plans with the participation of the Local Government.
These horizontal nation-wide actions include:
1. The establishment of institutional bodies such as:
    − The National Steering Committee
    − The National Mechanism of Monitoring and Documentation (Observatory)
2. A Set of Integrated and Coordinated Interventions aiming at the Prevention of violence and the
Sensitization of public opinion. These interventions include in particular:
    − Awareness Raising Campaigns
    − Information Campaigns
    − Production, Publication and Distribution of printed, digital and audiovisual material
    − Creation of a website
3. Education and Training
GREECE                                                                                               145



    − Training of executives and civil servants
    − Training of consultants-executives
4. Provision of a 24-hour national emergency telephone line (SOS helpline)
5. Supplementary Supporting Actions:
    −    Provision of Direct Legal Aid to victims of violence in cooperation with Bar Associations

    −    Evaluation of the interventions as a whole

The budget provided for these horizontal nation-wide actions amounts to 1.700.000 Euros.
The Local Action Plans include the creation of infrastructure and provision of services at a nation-wide
level with the cooperation of the Local Government.
The General Secretariat for Gender Equality (GSGE), based on the analysis of the current situation
and the arising needs concerning the creation of infrastructure and provision of services, is going to
implement these Local Action Plans, in the framework of which 25 new Consultation Centers (at
different Municipalities and Prefectures) and 10 new shelters (at a same number of administrative
Regions of the country) will be established by the Local Government. The 5 Regions that lack such
services (Central Greece, Ionian Islands, Peloponnese, South Aegean, and Western Macedonia) as
well as the 2 Regions that include Metropolitan Centers (Attica and Central Macedonia) are
considered a priority. The upgrading and reinforcement of the existing shelters, consultation centers
and relevant services is also planned. Apart from the above, the Local Action Plans also include
actions aiming at the prevention of violence and the raising of awareness at local level.
The budget destined for the implementation of the Local Action Plans amounts to 15.700.000 Euros.
ICELAND                                                                                               147




                                              ICELAND

Information provided by the Center for Gender Equality in October 2009.


1.0        LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
1.1        LETTER OF LAW – DEFINITIONS
There is no specific legislation relating to violence against women in Iceland. It is regulated like other
forms of violence, with the same rules applying to both sexes. Most are found in the Icelandic General
Penal Code no.19/1940.

1.2        DOMESTIC VIOLENCE

          LEGISLATION
On 3 April 2006 the Icelandic parliament passed an amendment to the General Penal Code with
regard to domestic violence. A new paragraph was added to Article 70 of the Code, relating to severity
of punishment, as follows:
In the event that an infraction was directed against a man, woman or child closely related to the
perpetrator and their family connection is believed to have aggravated the violence of the act, this
should generally be taken into account to increase the severity of the punishment.
Furthermore, the following provision is added to Article 233.
A person who offends or humiliates his/her spouse or former spouse, child or another individual
closely related to the perpetrator in such a way that may be regarded as constituting gross dishonour
shall be subject to a prison sentence of up to two years.
According to art. 211, murder can lead to 5-16 years of imprisonment or a life sentence. According to
art. 217, physical assault can lead to fine, custody or imprisonment of up to 1 year. Art. 217 deals with
so-called lesser physical assault. This article is probably the most commonly used in cases concerning
domestic violence against women. This article provides that a prosecution should not take place
unless it is necessary from the point of view of the public interest.
According to art. 218 a serious physical assault can lead to imprisonment of up to 16 years.
In addition, article 218a provides that consent to physical assault decreases the punishment under art.
218 and that offences under art. 217 are not punishable if the assaulted person consented to the act.
Art. 218a further provides that if the assault takes place during a physical fight or struggle, it is
permissible to decrease or omit the punishment under Section 217. The same section applies if the
one who suffers harm is the one who started the fight by assault or provocation.
According to art. 220 it can lead to up to 8 years of imprisonment to put someone in such a situation
that she/he is unable to help himself and leaving her/him without helping her/him in this helpless state.
Under the Marriage Act 31/1993 a wife/husband can divorce her/his spouse if he/she is guilty of
physical assault or sexual violence (Art.40).
ACTION PLAN with regard to domestic and sexual violence
At a cabinet meeting 26 September 2006, an action plan was agreed upon with regard to domestic
and sexual violence during the period 2006-2011. The composition of the action plan was based on a
proposal by the Minister of Social Affairs and the Minister of Justice and Ecclesiastical Affairs, dating
from October 2005, to the effect that work should begin on the compilation of an action plan regarding
domestic violence and sexual abuse directed against women and children.
The chief objective of the action plan is to counteract domestic and sexual violence directed towards
women and children and to improve services for those who have been the victims of violence or are at
risk in this respect.
148                                                                                               ICELAND




The action plan is divided into two parts:
      1. Actions regarding domestic violence and sexual abuse of children
      2. Actions regarding domestic violence and sexual violence against women
Each part, respectively, is guided by the following aims:
    - Strengthen preventive measures which stimulate open discussion regarding the abuse of
         children and sexually oriented violence and encourage altered social attitudes.
    - Train the staff of relevant institutions in diagnosing the characteristics of sexual violence and the
         abuse of children, as well as how to assist victims.
    - Ensure that appropriate assistance is made available to individuals who are subjected to
         domestic or sexual violence.
    - Break the vicious cycle of violence by improving methods of treatment available to perpetrators.
This is an elaborate action plan comprising of 37 separate tasks. Each task is described in particulars,
together with its objective. Individual ministries have been made responsible for the implementation of
each task within a certain time frame.

         SURVEY ON VIOLENCE AGAINST WOMEN
In April 2009 the Minister of Social Affairs and Social Security launched a research on violence against
women. The questionnaire was consistent with The International Violence against Women Survey
(IVAWS) to insure international comparison. 3000 Icelandic women (Iceland has a population of
around 270.000), were in the sample. The survey was carried out in telephone interviews in
September to December 2008.
The survey showed that 22% of women had experienced violence at the hands of their partner or
former partner at some point in their life. Around 26% of women who where subjected to violence from
their partner felt their life threatened and 41% experienced physical harm.

1.3       RAPE/SEXUAL ASSAULT
Rape and sexual assault are regulated in the General Penal Code no. 19/1940, mainly as crime
against the person. The rules concerning sexual crimes were revised in 1992 and 2003. The main
changes in 1992 were that the rules could now be applied to both sexes, while the former rules were
only applicable to women. In the 2003 revision the main changes where to make the punishment
harder and to race the (protected) age of the victim.
According to article 194, anyone who by force or threat of force compels a person to have sexual
intercourse or other sexual congress with him/her shall be imprisoned for at least one year and up to
sixteen years. The deprivation of freedom by confinement, drugging or other comparable means,
counts as force.
Article 196 states that whoever makes use of the insanity or other mental deficiency of a person in
order to have intercourse or other sexual congress with him/her, or if he/she is in any way in such a
state that he/she is unable to prevent the act or understand its meaning, is sentenced to up to six
years of imprisonment.
According to article 197 it can lead to 4 years of imprisonment for someone working in a prison,
mental hospital or other such institute to have sexual intercourse with a client.
According to article 198, it can lead to 3 years of imprisonment to have sexual intercourse by abusing
a person's dependency.
Article 205 provides that if the man and the woman in the situation ruled by article 194-198 are
married and reconcile, or marry after the event, the punishment may be dropped.

         CRIMINAL PROCEDURE
Rape in marriage is outlawed, prosecuted and sanctioned in the same way as other forms of rape.
In Icelandic law, indictments are not to be brought in cases where the investigation reveals that it is
unlikely that a conviction will be obtained. This is expressed in Article 112 of the Code of Criminal
ICELAND                                                                                              149



Procedure no. 19/1991, which states that when the prosecutor has received the materials relating to a
case, and has established that the investigation is complete, he is to consider whether or not to
prosecute. If he considers that what has been revealed is insufficient, or unlikely, to lead to a
conviction, he is to take no action; otherwise, he is to send the case to court.
Proof is difficult in rape cases, in addition to which human rights principles may make it difficult to
introduce amendments in this area. It is a fundamental principle of Icelandic law, and one of the basic
legal principles of the state as a legal body, and in accordance with the human rights conventions to
which Iceland is a party, that an individual who is accused of a criminal act is ensured the right to be
regarded as innocent until proven guilty. The burden of proof regarding the guilt of an accused person
lies with the prosecution, and the judge is to assess in each individual case whether the commission of
a criminal act has been adequately proved. Furthermore, as is stated above, it is laid down in law that
cases are to be dropped, or their investigation closed, if there appear to be insufficient grounds for a
conviction. As the burden of proof in rape cases is difficult, and all reasonable doubt is to be
interpreted to the benefit of the accused, the question has been asked whether the burden of proof
should be reversed, which means that the accused person would have to take the consequences of
being unable to prove his innocence. However, the rule that a person is innocent until his guilt has
been proved is so fundamental to the legal system that interfering with it has not been considered
likely to produce good results.
It is necessary to ensure high quality procedure regarding sexual offences and for this purpose the
Director of Public Prosecutions appointed a task committee to examine the investigation and handling
of rape cases and procedure in their prosecution. The committee worked from mid year 2006 to mid
year 2007. They examined all rape cases occurring in 2002 to 2006 and trace their outcomes in order
to assess the quality of investigations and procedure by the prosecution. The committee gave
particular attention to the correlation between the number of cases that are dropped and the
procedure adopted during their investigation and prosecution. It also re-examine the working rules on
the investigation of rape cases.
The usual sentence applied to rapists appears to be imprisonment for 2 years to 4 years. The
sentence has been increasing over the last few years.
According to article 8 in the Criminal Procedure Law the Court may order a closed trial to protect the
witness or the victim.
According to article 59(2) the judge has to make sure that the questions being asked of a witness are
not insulting or hurting and irrelevant to the case in question. Nevertheless, it is not forbidden to ask
questions about the witness's previous sexual experience.
If, in an open courtroom, a question is put to a witness about its personal matters, the judge can write
down the question and the witness is allowed to answer in writing art.59 (5). According to art. 59(6) the
judge can order the accused to leave the courtroom while testimony is given, if it is feared that a
witness will not be truthful if the accused is present.

1.4       CHILD SEXUAL ABUSE/INCEST
Child sexual abuse/Incest is ruled in the General Penal Code. It was revised in 2003.
According to article 202 it can lead to 12 years of imprisonment to have sexual intercourse with a child
younger than 14 years old. Other sexual harassment can lead to up to 4 years of imprisonment.
Anyone who by means of deception, gifts or in another manner allures a person younger than 18
years, to have carnal intercourse or other sexual intimacy shall be subject to imprisonment for up to 4
years.
According to article 205 the punishment may be cancelled if the parties concerned get married or start
living together.
According to article 200 and 201 it can lead to 12 years’ imprisonment to have sexual intercourse with
one's child under the age of 18, as well as one's adopted child, stepchild, foster child or a child one
has been entrusted with. Other sexual harassment can lead to 4 years of imprisonment.
In November 1998, the Government Agency for Child Protection opened the Children’s House, a
concept adapted from the Children’s Advocacy Centre in the United States to Icelandic conditions.
The Children’s House is a partnership between the child protection services, the health services, the
law enforcement and the prosecution. They agree to work together under one roof to investigate child
150                                                                                                 ICELAND



sex abuse and provide assistance and treatment for the victim and the victim’s family. Their aim is to
prevent the re-victimisation of the child by providing a child friendly environment for investigation, as
well as empowering the child to overcome traumatic consequences.

1.5      SEXUAL HARASSMENT
The Act on the Equal Status and Equal Rights of Women and Men from number 10/2008 defines
sexual harassment. Article 2 states: “Sexual harassment: Any type of unfair and/or insulting sexual
behaviour which is unwelcome and impairs the self-respect of the person affected by it, and which is
continued in spite of a clear indication is given that it is unwelcome. This harassment may be physical,
verbal or symbolic. A single instance may be considered sexual harassment if it is serious”. Article 22
also states that: “Employers and the directors of institutions and non-governmental organisations shall
take special measures to protect employees, students and clients from gender-based or sexual
harassment in the workplace, in institutions, in their work for, or the functions of, their societies, or in
schools. If a superior is charged with alleged gender-based or sexual harassment, he or she shall be
non-competent to take decisions regarding the working conditions of the plaintiff during the
examination of the case, and the next superior shall take such decisions”.
The provision of article 199 of the Penal Code stipulates that: „Anyone who has carnal intercourse or
other sexual intimacy with a person who incorrectly believes that the intercourse be occurring in
wedlock or informal co-habitation or if he/she is erroneously thinking that he/she shall be intimate with
somebody else shall be subject to imprisonment for up to 6 years. It is subject to the same penalty if
carnal intercourse or other sexual intimacy occurs because of the deception that there be a case of
medical or other scientific treatment.” From 2007 to day, only 3 cases have been taken to supreme
court, with the outcome of acquittal in two and conviction in one.
Article 1 of Act 46/1980 on Working Conditions and Human Health at Workplaces stipulates that
through this law an effort is to be made to “ensure a safe and healthy working environment, which
shall always be in accordance with the social and technological development in the society”. Article 65
of the Act states that the phrase “health care for employees” refers to a service established to
“…promote the employees’ mental and physical well-being”. As it is clear that sexual harassment
results in indisposition and is out of tune with social development in society, the Occupational Safety
and Health Administration has felt such harassment is in breach of the objectives of the law on
occupational safety and health. Hence it has issued certain guidelines, focusing on education
regarding sexual harassment at the workplace.

1.6      PORNOGRAPHY
Article 210 of the Penal Code stats that: If pornography is published in print the person responsible for
the publication thereof under the Printing Act shall be subject to fines or imprisonment for up to 6
months. It is subject to the same penalty to make or import for distribution purposes, sell, hand out or
distribute in another manner pornographic publications, pornographic illustrations or other such
articles or to have these officially on view and also to hold a public lecture or play which is similarly
immoral. When such material shows children in a sexual or pornographic manner the penalty may,
however, be imprisonment for up to 2 years. It is furthermore subject to the selfsame penalty to deliver
to youths less than 18 years of age pornographic publications, pornographic illustrations or other such
articles.
Anyone importing or keeping in his/her custody photographs, films or comparable articles showing
children in a sexual or pornographic manner shall be subject to fines [or imprisonment for up to 2
years if the violation is of a major character. It is subject to the same penalty to import or have in one’;s
custody photographs, films or comparable articles showing children in sexual activities with animals or
using articles in a pornographic manner.
This article has very rarely been used and in practice most forms of pornography can be obtained
relatively easy.

1.7      PROSTITUTION
In 2009 a bill was introduced to change the section of the General Penal Code No. 19/1940, dealing
with prostitution, article 206. In April the Icelandic Parliament passed a legislation which makes buying
sex illegal. Those caught paying for prostitution could face a fine or up to one year in prison, two years
if the prostitute is less than 18 years old. Before this change in legislation, selling and buying sexual
services was legal in Iceland. Selling sex was illegal in the country until 2007, when a change in the
ICELAND                                                                                                151



General Penal Code decriminalized prostitutes. Profiting from prostitution of others continues to be
illegal.

1.8        OBSCENE PHONE CALLS/TELEPHONE SEX
Obscene phone calls are not mentioned specifically but are seen as sexual harassment as defined in
the 2. article of the Act on the Equal Status and Equal Rights of Women and Men 10/2008 as
mentioned above. Telephone sex is not mentioned in Icelandic law.

1.9        FEMALE GENITAL MUTILATION
In 2005 new legislation was passed with regard to the circumcision of women or girls in childhood. It is
placed in the General Penal Code No. 19/1940. Article 218, paragraph a) states that anyone who
through physical assault injures the body or health of a girl in childhood, or a woman, by removing her
genitals, in part or wholly, shall be subjected to imprisonment for a maximum of 6 years. In the event
of an assault resulting in grievous bodily harm or damage to health or fatal consequences, or where
the assault is regarded as particularly reprehensible with regard to its method, the perpetration will
result in a prison sentence for up to 16 years. Article 218, paragraph b) stipulates that in the event of a
person found guilty of violation of article 218, paragraph a), who has previously been punished for
offences against those Articles of Law or has been subjected to punishment for an offence otherwise
connected with premeditated violence, the punishment may be increased. The victim’s consent to
participation in physical assault results in permission to decrease the punishment that would otherwise
have been earned.

1.10       INTERNATIONAL CONVENTIONS
Iceland has ratified the main International Conventions regarding women’s rights. Among them the
ILO Convention No. 100 concerning Equal Remuneration for Men and Women Workers for Work of
Equal Value, ratified in 1958 and No. 111 concerning Discrimination in respect of Employment and
Occupation, ratified in 1963.
In 1985, Iceland ratified the UN Convention on the Elimination of All Forms of Discrimination against
Women. The European Convention on Human Rights was ratified in 1953 and Iceland became a
member of the European Social Charter in 1976.
Iceland has signed UN Protocol to prevent, suppress and punish trafficking in women and children
(Palermo Agreement) but has not ratified it.

1.11       PROTECTION OF PREGNANCY/PREGNANT WOMEN
According to the Act on Maternity/Paternity Leave and Parental Leave, No. 95/2000 a pregnant
woman has the right to be transferred within her place of work if her health or the health of the fetus is
jeopardised. Such a transfer shall not result in lower wages. There are also provisions in the act that
protect the right of a pregnant woman against unfair dismissal on behalf of the employer. This
provision also applies to a parent on parental leave.


2.0 SENTENCING
2.1        SENTENCING DOMESTIC VIOLENCE
There’s no statistical analysis of the incidence of domestic violence. Those issues, however, are linked
to a variety of cases, such as homicides and sexual breaches which are regularly dealt with by the
courts.


3.0 EFFECTIVENESS OF LEGISLATION
3.1        SUPPORT/PROTECTION

          WOMEN’S SHELTER
The women’s shelter in Reykjavik, serving the whole country, was established in 1982. The shelter is
an emergency shelter for women suffering from domestic violence. The shelter is based on a feminist
152                                                                                              ICELAND



ideology that violence against women, domestic and other sorts of violence, is a social problem not a
private one. The shelter is run by the NGO Women’s Shelter Alliance, and financially supported by the
government, various municipal authorities and private donors. The spokeswomen of the Alliance have
criticised the justice system for not being effective enough and pointed out that victims do not obtain
redress in the existing system.
Website: www.kvennaathvarf.is

       ORGANISATION OF WOMEN AGAINST SEXUAL VIOLENCE-“STIGAMOT"
In 1990, the Organisation of Women Against Sexual Violence “Stigamot” established in Reykjavik a
centre for survivors of sexual violence. A collective of women who are themselves survivors of
different forms of sexual violence run the centre. All the services are free for its users. The centre is
financed by grants from the government as well as local authorities and its own fund-raising. The
centre offers individual and group counselling and support to women subjected to violence. If the
victims want to report, Stigamot support them through the police hearing and the court proceeding that
might follow. One of the main efforts has been to distribute information about sexual violence and its
consequences to the public and professionals. The organisation has criticised the judicial system for
its responses (or the lack of it) in cases concerning sexual violence; the demand of the burden of proof
is too strong and that the punishment is too soft.
Website: www.stigamot.is

       EMERGENCY RECEPTION
An emergency reception for rape victims was opened at the Emergency Ward of the Reykjavik
Municipal Hospital in March 1993. The emergency reception combines medical, psychological, legal
and social assistance for victims of rape or attempted rape. The Emergency reception has made
recommendations regarding how investigations of rape and other sexual crimes should be conducted.
The recommendations are available in a manual for policemen.

       WOMEN’S SHELTER
The Women’s Shelter is an overnight refuge for homeless women – a cooperative venture between
the Reykjavík branch of the Icelandic Red Cross and Reykjavík Municipality which has been operated
since 2004. The Women’s Shelter is intended for women who have no other recourse and are looking
for a place to sleep. Most of them are addicted to drugs and have mental problems.



       MEN TAKE RESPNSIBILITY
Men take responsibility is a therapy program for men who resort to domestic violence against women.
The program started in 1998 as a four year trial program and was modelled after the Norwegian
Alternative to violence program. In 2006 it was decided to restart the program, with financing from the
Ministry of Social Affairs. The therapy is based on individual and group psychological therapy
sessions. This program is open only for men.



3.2      PROPOSED REFORMS
The Minister of Justice appointed a committee to study whether it is necessary to amend Icelandic law
in order to strengthen the fight against gender based violence. Some of the factors being studied
include whether a police decree is sufficient in respect of ordering an injunction against perpetrator’s
approach to the home of his partner, and whether or not to provide the victims with legal counsel. If
these proposals are agreed upon, amendments to the law will be needed. It is also being discussed
weather it should bet the rule that the police take the perpetrator out of the home instead of taking the
woman and in case her children to a women’s shelter. This is the so-called Austrian model.


4.0 DOMESTIC VIOLENCE
See Section 1.2 above.
ICELAND                                   153




5.0 RAPE AND SEXUAL ASSAULT IN MARRIAGE
See Section 1.3 above.


6.0 RAPE AND SEXUAL ASSAULT
See Section 1.3 above.


7.0 SEXUAL HARASSMENT
See Section 1.5 above.


8.0 INCEST/SEXUAL ABUSE OF GIRLS
See Section 1.4 above.
ITALY                                                                                                        155




                                                  ITALY

Information provided by the Department for Equal Opportunities of the Presidency of the Council of
Ministers in September 2009.


1.0         LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
1.1         LETTER OF LAW – DEFINITIONS:
In the past fifteen years, many amendments have been made to Italian laws to protect women and
minors from sexual or domestic violence, making Italian legislation one of the world’s strictest –
persecutors can be punished up to 14 years of detention for the basic crime. Greater attention by the
media and public opinion to the most heinous episodes has led to a greater awareness of the
seriousness of this phenomenon and the Italian Government’s commitment to contrast it.
The following are the most relevant articles of Italian Criminal Code that can be referred to the
prosecution of violence against women, trafficking in human beings, prostitution:
        •    art. 600 (Reduction and continued in slavery or servitude)
        •    art. 601 (Trafficking in persons)
        •    art. 602 (Acquisition and alienation of slaves)
        •    art. 604 (Crime perpetrated abroad)
        •    art. 609-bis (Sexual assault)
        •    art. 609-ter (Worsen circumstances)
        •    art. 609-quater (Statutory rape)
        •    art. 609-quinquies (Corruption of a minor)
        •    art. 609-sexies (ignorance of the age of the offended person)
        •    art. 609-septies (Legal action)
        •    art. 609-octies (Gang sexual assault)
        •    art. 609-nonies (other punishments)
        •    art. 609-decies (Communication to the Court of Minors)
        •    art. 612 bis - (Stalking)

1.2         DOMESTIC VIOLENCE
Especially in the past, violence against women in domestic life has created a problem of big
proportions to be regulated by national legislation.
The Law n. 154 of April 5, 2001: “Measures against violence in familiar relations”, deals with the
protection of the victims from the violent relative from the family, through civil or penal action. which
introduced some of the judicial measures that already exist in other countries’ legislation. “Barring
orders”, one of the measures introduced, ensure the separation of the perpetrator of violence from the
family house: a change of perspective in facing violence against women, because it allows victims to
stay in their own homes and not to leave their own habits of lives.
Before this measure there was not specific legislation to avoid the persistence of violent behaviour of
the aggressive relative in the family, previous to the penal process.
Law n. 154/2001 has established that the judge can order the immediate separation of the violent
relative from the places frequented by the family (for example the work place, the school of the
children), if his behaviour causes serious prejudice to the physical or moral integrity or to the personal
freedom of the family, when the fact is not liable of persecution.
The court may also, where necessary, ask for the intervention of social services or of a centre of family
mediation, as well as of associations that support women victims of violence and their children, that
are involved in order to ensure the safety of the abused.
156                                                                                                     ITALY



The length of orders of protection/barring orders, to be decided by the court, may not exceed one year
and may be extended, at the request of the offended, unless serious reasons to use as long as
needed.
The judge can also impose the periodic payment of a check in favour of the member of the family
victims of violence who, by reason of barring orders, remain without adequate means, setting terms
and terms of payment and prescribing, where appropriate, that the sum is paid directly by the
offender’s employer with a deduction from his/her wage.

1.3       RAPE/SEXUAL ASSAULT
The first outcome of the World Conference of Women in Beijing was the approval on 15 February
1996 of a new law against sexual violence, that is Law n.66. Twenty years after the introduction of the
first draft legislation, based on a citizens' initiative for which 300,000 signatures had been collected,
the Italian female members of Parliament decided to start working together. They overcame their party
differences, and pooled their efforts. Offence against the physical and psychological integrity of
women, through sexual abuse, was in the new law taken out of the category of offences against public
morality, and was instead placed in the category of crimes violating personal rights and freedom. The
other big changes introduced by the new law included the unification of rape and sexual abuse in the
single act of sexual assault. According to the law, this crime can be prosecuted based on the woman
simple accusation, or with no need to report the case to the police if violence is associated to other
crimes including, in particular, armed robbery and if the victim is a disabled, a minor child or is under
legal guardianship. Conversely, the assault cannot be punished if it is perpetrated by a minor under
thirteen and the age difference of the two children is less than three years.
The approval of law n. 66 has represented a significant innovation against sexual violence and a
legislative means of women protection.
The newly approved Law n. 38 of 2009, introduces more severe provisions for sexual
offenders/rapists, such as:
      −  mandatory pre-trial detention in prison for crimes of: child prostitution, child pornography,
         tourism initiatives for the exploitation of child prostitution, sexual assault, sexual acts with
         minors, gang sexual assault;
     − mandatory arrest in fragrance for rape and sexual violence group, resulting in the possibility of
         proceeding with Direct rite;
     − limiting the benefits provided by law, prison Gozzini to those convicted of crimes of sexual
         violence, sexual acts with minors, sexual assault group.
It also provides for free legal aid extension to all victims of sexual assault.

1.4       CHILD SEXUAL ABUSE/INCEST
In 1998, Law n. 269/98 ““Provisions against the exploitation of minors’ prostitution, pornography and
sexual tourism, as new forms of “reduction into slavery” was promulgated.
Law 269/1998, in accordance to the New York Convention on the Rights of the Child of 1989, aims to
protect the physical and psychic integrity of children.
It aims to realize the following purposes:
      −  To reinforce penal repression through the introduction in the code of new crimes
      −  Provide the judicial police with more effective process tools
      −  Assign new means to combat the specific type of crime to the judicial police
      −  Protect the minors from physical and psychic harm related to the crimes suffered by them
      −  Assign important coordination tasks to the Presidency of the Council and to the Interior
         Minister
The Law 269/1998, has been substituted with Law 38/2006, “Provisions regarding the fight against
child sexual exploitation and child pornography, also through internet” and included modify to the
criminal code and its procedures, including the redefinition of the previous types of crimes and the
introduction of new ones - namely the crime of “virtual paedophilia-pornography”, occurring when the
illegal pornographic material represents images involving minors and realized with graphic elaboration
techniques detached from reality, but making those images appear real (virtual images). The law
38/2006 provides for more severe sentences against sexual abusers and against minors’ prostitution,
ITALY                                                                                                         157



detention of pornographic materials and sexual tourism involving minors. It settles also the National
Centre to contrast web pornography involving minors within the Ministry of Interior.
In February 2009 the Council of Ministers approved unanimously the Draft Law presented by the
Minister for Equal Opportunity, for the ratification of the Convention of the Council of Europe. The
measure amending parts of the Criminal Code and Criminal Procedure. Among the innovations: the
doubling of the period of limitation for sexual offenses against children under 14 years and the
introduction of a form of criminal association related to children’s prostitution, possession of child
pornography, sexual abuse and child sex tourism. It incorporates the crime of child prostitution,
including the conduct of the recruitment. It introduces the crime of enticement of children for sexual
purposes via the Internet (penalty from 1 to 3 years). Finally it established the confiscation of assets
from criminal organizations, whose resources could be devoted to initiatives addressed to children
abused.

1.5      SEXUAL HARASSMENT
The Decree n. 145 /2005 (putting into effects the EU directive 73/2002/EC, which deals with the
principle of equality of treatment between men and women as far as access and working conditions
concerned), compares sexual harassments in the workplace to other forms of discrimination,
extending all the protection measures of the Italian legislation also to this field.
In particular, article 2 updates the existing definition of direct and indirect discrimination with new
communitarian definitions, according to the decree law n. 215 and 216 of 2003. It has been also
introduced a definition of sexual harassment and several provisions to qualify as discriminations all
treatments of the employer which don’t respect the principle of equality of treatment between men and
women. This legislative overview seems to offer suitable legal protection to prevent and repress
discriminative behaviours and to guarantee the rights of the victims during the civil process.
On July 31st, 2009, the Council of Ministers approved the implementation of European Directive
2006/54, that in order to broaden existing form of protection of women, aims to include harassment
and sexual harassment among the forms of discrimination which they are forced, sometimes, workers.
Will be therefore considered as discriminatory even less favorable treatment suffered by a worker, as
well as a worker's rejection consequent the opposition to harasses, or even sexual harassment.

1.6      PORNOGRAPHY
Legally speaking, the spreading of pornographic works in Italy could be related to in Articles 528
(Pubblicazioni e spettacoli osceni), 529 (Atti e oggetti osceni: nozione) and 725 (Commercio di scritti,
disegni o altri oggetti contrari alla pubblica decenza) of the Criminal Code. Moreover, the possession,
distribution and production of child pornography shall be punished in accordance with Articles 600 and
following of the Criminal Code. It should be noted in this connection that, both in Italy and in other
nations, it is also punished the production and detention of material not intended for diffusion (see, for
example, cases of children who voluntarily film their own sexual experiences).

1.7      PROSTITUTION
Law No 75, 1958 ( "Abolition of regulation of prostitution and the fight against the exploitation of
prostitution") at Art. 3, imposed heavy penalties (up to 6 years in prison and heavy fines) for:
- recruiting and induce a person to prostitution;
- Inducing to prostitution elder women or exploit women in order to take advantage from their
prostitution;
- Actively organizing of prostitution, or recruitment of prostitutes, including trafficking in women;
- Promoting or exploit the prostitution.
The Italian Parliament is recently considering amendments to the law.

1.8      OBSCENE PHONE CALLS/TELEPHONE SEX
The Law 23 April 2009, n. 38 make amendments and additions to the Criminal Code (Articles 576 and
612-bis), the Criminal Procedure (Articles 275, 282-ter, 282-quater, 380, 392, 398 and 498), the Civil
Code (Article 342 - ter), given the extraordinary need and urgency to improve measures to contrast
violence against women and the increase of cases of stalking against them.
Article. 612 bis, introduced the new category of crime of "atti persecutori" (stalking), which provides for
imprisonment from six months to four years for those that repeatedly threat or harass a person, in
158                                                                                                          ITALY



such a way to cause lasting and serious state of anxiety or fear for her/his own safety or to lead to a
well founded fear for relative’s and partner’s life, to such an extend to force the person to alter her/his
lifestyle.
The offender can be only persecuted when a legal action is taken against her/him; in the meanwhile,
the offended person can expose the fact to the local police commissioner, asking to warn the offender
to correct her/his misconduct.
The request is sent without delay to the Police, who collects more information, if necessary, and then,
if considers the application based, verbally warns the person.
In case the warned person would not correct her/his misconduct and does not end the persecution,
the Police can open a procedure against the offender in the terms provided by the Law.
The Law establishes more severe sentences in case the offender is a partner/ex-partner or in case the
victim is a minor, a disabled person or a pregnant woman.

1.9      FEMALE GENITAL MUTILATION
Over the last few years, in Italy, especially after the Beijing Conference and the UN Conference on
Development, the focus of attention has shifted on the issue of Female Genital Mutilation, due to the
increasing presence of sub-Saharan African immigrant women and political refugees.
In order to face this problem, the Government’s first initiative consisted in a scientific action, dating
back to 1997. That year, an international workshop was organised, envisaging the participation of
health professionals and aiming at increasing awareness with respect to the gravity of such
phenomenon, at understanding its global magnitude (in terms of women and countries affected), its
extremely serious human and health implications, as well as its impact on new generations of children
and young girls.
The self-determination and health of women, including immigrants, have since been among the
Government’s objectives. In fact, the above-mentioned Directive of March 7, 1997 denounces both
public and private violence against women as human right violations.
During the international workshop, which was jointly organised with the Istituto Superiore di Sanità
(National health Institute) and open to the participation of medical doctors, advisory office workers,
associations and universities, the themes of the origin of such practice, its spreading and health
(gynaecological, obstetrical and psychiatric) implications were tackled, also identifying its various
forms and effects, which are still insufficiently analysed.
Italy has been dealing for a long time with the issue of the international defence of the rights of women
and children, and their protection against genital mutilation practices. The Italian delegation played a
major role during the 56th session of the United Nations General Assembly, when it was one of the
promoters of the resolution on “traditional or customary practises affecting the health of women and
girls”, which condemns such practices since they are a serious form of violence against women and
girls, as well as a violation of their basic human rights.
The above-mentioned Resolution aims at eradicating any customary practice hurting and physically
handicapping women and girls, and female genital mutilations in particular, by forbidding such
practices and seriously punishing their perpetrators.
It also obliges all nations to introduce concrete measures aiming at guaranteeing due respect for
women and girls’ human rights and fundamental freedoms, with a view to improving the status of
women, and favouring their economic independence, thus enabling all women and girls to reject such
practices and protect themselves against the risk of unhealthy genital mutilation.
Italy proved to be very sensitive towards the extremely delicate issue of genital mutilations. In fact, on
February 12, 2003, the Senate’s Justice Committee passed a bill entitled “Amendments to the
Criminal Code on the subject of mutilations”, considering such mutilations as being relevant, from a
criminal viewpoint, as such; it also envisages the application of the principle of extra-territoriality in the
prosecution of this crime, even if it is perpetrated abroad by Italian citizens or by foreign nationals
residing in Italy.
The new law n.7 on 9th January 2006 concerning the prevention and the prohibition of female genital
mutilation considers such practices a crime.
ITALY                                                                                                       159



This law represents a tool which on the one hand bans and punishes a custom not much known, on
the other hand it carries out a information and sensibilization campaign addressed to health workers
(article 4 concerns the “Training of health workers”), to immigrants living in our country, considering
that victims usually are 45000 foreign young girls every year.
From a juridical point of view, this new law foresees a period of imprisonment from 4 to 12 years for
everyone practicing infibulations; even to 16 years if the victim is under 18. It has been established a
period of 10 years of cancellation from the profession category book for all the doctors practicing
infibulations.
The law foresees information campaigns and initiatives and training courses (article 3): the Italian
Government has indeed realized an information and dissemination campaign on the practice of female
genital mutilation. For this reason it has been created an informative pamphlet translated in nine
languages delivered in the whole national territory.
In order to organize the sub-mentioned informative initiatives, it has been foreseen an annual amount
of 2 million euro.

1.10     INTERNATIONAL CONVENTIONS
The Italian Parliament has committed in contrasting the trafficking of human beings and other criminal
activities connected to this phenomenon, in particular through the work of the Parliamentary
Commission against-mafia.
Italy has been chosen by the United Nations as the place to present the Convention against
transnational organized crime and the two Protocols, one related to repression of migrant smuggling
and the other related to trafficking in human beings.
The Convention and the two attached protocols became effective between September 2003 and
January 2004, thanks to the ratification by the signatory states: 60 countries for the Convention, 46 for
the protocol against trafficking in human beings and 41 for the protocol against migrant smuggling.
Furthermore, Italy signed the Convention on the fight against the trafficking in human beings of the
Council of Europe on June 8 2005. In this regard, on October 19-20 2006 the Department for Rights
and Equal Opportunities organized a seminar against the trafficking, connected to the information
Campaign of the Council of Europe.
In November 2007, Italy has signed the Council of Europe Convention on the protection of children
against exploitation and sexual abuse (signed in Lanzarote in 2007). The Italian delegation, together
with the Belgian and French delegations, played an effective role in the discussion, both in order to
improve the quality of existing articles and in drawing up new articles’ proposals.
In February 2009 the Council of Ministers unanimously approved the draft law for ratification of the
Convention of the Council of Europe, presented by the Minister for Equal Opportunity, Mara Carfagna
(see answer to question 1.4).

1.11     PROTECTION OF PREGNANCY/PREGNANT WOMEN
Italian Criminal Code (Codice Penale) provide for some specific articles (from 545 to 555) concerning
“Crimes against integrity and safety of the progeny”.
More specifically, the law May 22th, 1978, No 194, at the Art 1. states that "the State guarantees the
right to conscientious and responsible procreation, recognizes the social value of motherhood and
protects human life from its beginning", and art. 18 "Whoever causes the interruption of pregnancy
without the consent of the woman is punished by imprisonment from four to eight years.”. The same
penalty applies to anyone who causes the interruption of pregnancy with actions designed to cause
injury to the woman. This penalty is reduced to half if only determines the premature end of
pregnancy.
If the conduct of the offender determines the death of the woman, the law provides for a sentence
from eight to sixteen years, while if it causes a serious personal injury, it provides imprisonment from
six to twelve years.
The penalties set out in the preceding paragraphs shall be increased if the woman is a minor.
Moreover the recent Law n. 38/2009, introducing the crime of stalking, provides an increase of
sentence for the offender if the victim is a pregnant woman.
160                                                                                                        ITALY



2.0      SENTENCING
2.1      SENTENCING DOMESTIC VIOLENCE
The following are some key judgments of the Court of Cassation, which relate to cases of domestic
violence.
            -     Sentence No. 984/2003: no contrast is configurable in case of concurrence of the
                  two crimes of abuse in the family and sexual violence, because they are referred to
                  the violation of distinct rights - in the first case, the mental and physical integrity or
                  the personality of the person, in the second case, the individual freedom regarding
                  sexual behaviour in the private sphere.
             -    Sentence No. 29262/2007: the crime of abuse in the family in art. 572 criminal code
                  does not necessarily presuppose the existence of a relationship of kinship or of a
                  civil nature, but can also involve live-in partners, because they constitute a form of
                  stable family unit that the law aims to protect.
             -    Sentence No. No 37352/2007: reduction of sentence referred to the concept of
                  “honour” are not applicable in case of husband killing his wife for jealousy, because
                  that concept is to be considered a reflection of a narrow and archaic conception of
                  the relationship between spouses and marriage, that openly conflicts with the current
                  system of values well-established in the civil society.
             -    Sentence No. 11263/2008: in case of formal conflict between the crime of continued
                  sexual violence and abuse in the family it should be proceeded for both even in case
                  of acquittal for the offense more serious. The crime of sexual violence could coexist
                  with that of domestic violence, established in a previous sentence of the Court (see
                  above Sentence No. 984/2003).
             -    Sentence No. 12129/2008: to evoke the principle of criminal liability in cases of
                  suicide following domestic violence and abuse, it is necessary that the event is the
                  foreseeable result of conduct put in place from the offender and is not instead the
                  result of a free capacity of the victim's self, unpredictable and not knowable by the
                  offender, who, in this circumstance, is not liable for this.
             -    Sentence No. 20647/2008: live-in partners victims of domestic violence should be
                  considered as such as legitimate wives, therefore, since they live permanently with
                  the offender, they shall enjoy the same protections provided by the Law 154/2001.
             -    Sentence No. 22400/2008: abuse in the family occurs also in cases where one
                  spouse, after the separation, commits abuses against the partner, for example
                  refusing to conceive the allowance for the maintenance of children.
             -    Sentence No.26571/2008: humiliations towards ex-wife is to be considered a form of
                  domestic violence, that has to be persecuted according the provisions of the Law
                  154/2001, because the duties of reciprocal respect and assistance do not cease at
                  the end of the marriage.
             -    Sentence No. 35862/2008: the crime of abuse may occur even in a family context
                  characterized by high tensions, due to both the partners, creating a climate of mutual
                  intolerance and intolerability; even such a situation, in fact, should be still handled
                  respecting the rules of civil coexistence and the physical and moral dignity of the
                  person and does not legitimate aggressive reactions, humiliations and mortifications
                  to the partner and other family members.
             -    Sentence No. 6490/2009: the crime of domestic violence only occurs when there is
                  an explicit willingness to habitually and continuously subject a person to a series of
                  physical or moral sufferings.
             -    Sentence No. 9531/2009: the crime of abuse in the family can only exists as the
                  expression of conduct that requires the offender to have a position of supremacy
                  usual to which the victim subject. In case there is no such a leadership, the
                  aforementioned offense is not punishable as domestic violence.
             -    Sentence No. 22700/2009: The traditions governing family relations in culturally
                  different societies can not justify sentence’s reductions.
Furthermore, with regard to domestic violence against children, according the Court of Cassation, the
offense is also configurable where the conduct has negatively affected the psychological development
of the abused person. In this regard it is useful tom mention the following sentences:
ITALY                                                                                                      161



            -    Sentence No. 34460/2007 on the abuse of the means of correction and maltreatment
                 in the family: the case of children victim of constant abuse and violence, at the point
                 to cause intolerable living conditions, are to be considered the most serious crime of
                 abuse in the family.
            -    Sentence No. 22850/2007: the crime of sexual abuse can occur together with that of
                 abuse in the family, because they affect different legal right. The worse case occurs
                 when the offender is the person that is supposed to be legal foster of the children.
            -    Sentence No. 1090/2007: on the crime of maltreatment in the family in conjunction
                 with the crime of slavery.


3.0      EFFECTIVENESS OF LEGISLATION
3.1      ROLE OF NGOS IN JUDICIAL PROCEEDINGS
A recent bill on sexual violence provides that NGOs (for example the antiviolence centre that assists
the victim) could be part in judicial proceedings according to provisions contained in the art. 91 of
Criminal procedure code, for crimes of sexual violence.
The Italian Government recognizes the relevant contribution of NGOs in the contrast of domestic
violence and women violence; for this reason it has provided for their involvement in:
1. the National Committee for the Coordination of the actions against mistreatment, abuse and sexual
exploitation of minor children, settled up to coordinate of the activities carried out by all Public
Administrations, concerning prevention, assistance and legal services, as well as the protection of
minors against sexual abuse under article 17 of the aforesaid law. Besides the representatives of
governmental institutions, the Committee also included some representatives of the NGOs operating
in this sector (such as ECPAT, Terres des Hommes, Telefono azzurro, Telefono Arcobaleno, CISMAI).
2. the Permanent Forum against harassment, gender based violence and sexual violence: the Forum
aims to promote the dialogue between institutions and civil society in preventing and combating
harassment, gender based violence and sexual violence, as well as support the inclusion of victims. It
also should advise and support the Minister for Equal Opportunities giving opinions and presenting
proposals to improve policies in this field.

3.2      ARE SPECIAL PROVISIONS MADE TO SUPPORT WOMEN AND GIRLS GIVING EVIDENCE?
In Italy there are been undertaken some interesting experiences, in order minimize the weight of the
evidence collection procedures, which can be extremely distressing for the victims. In Milan, for
example, there is on the first emergency service for the victims of violence organized by the
“Mangiagalli Clinic”, where it is possible to receive the first medical, legal and social assistance, to
avoid further trauma to victims and to provide an answer as complete as possible and immediate to
their needs.
Were also taken actions to improve training of police forces; in particular, the Memorandum of
Understanding between the Minister for Equal Opportunities and Minister of Defence and the
Memorandum of Understanding between the Minister for Equal Opportunities and Minister of Interior,
provide for specific training for, in order raise awareness among Carabinieri Army’s and Police’s
operators so to avoid "secondary victimization” - especially when listening testimony of victims.
From the perspective of the criminal proceedings, in the case of investigations concerning offenses
under Articles 609-bis, 609 - b, 609-c and 609octies Criminal Code (see above answer to question
n.1), the Court, in case of witnesses that are less than sixteen years old, can decide the place, time
and the particular circumstances for hearing evidence when the minor's needs make it necessary or
appropriate. The witness thus convenes in a place other than the court, where his/her statements will
be fully documented by means of phonographic or audiovisual supports. The transcript of the playback
is only at the request of the parties.

3.3      MAIN PROBLEMS AND NEW SOLUTIONS
The phenomenon of violence against women is very complex and must be fought with an integrated
multi-sectoral approach. In order to coordinate and reinforce actions to contrast violence against
women, Equal Opportunities Minister Mara Carfagna has confirmed during his speech to the UN in
March 2009 the intention to define a National Plan against violence. For this reason on last April 23rd,
162                                                                                                          ITALY



2009, the Minister convened anti-violence centres to collect their suggestions and contribution to the
definition of the Plan.
The plan will be financed with resources already allocated for this purpose.
The Plan will contain actions aimed at prevention (through public awareness campaigns aimed at a
wider and more targeted interventions implemented in schools of all levels), protection of victims
(improving the training of those working with victims, like Police, Social and Health services’ operators,
etc.) but will also support the work of anti-violence centres offering psychological support and legal
protection to victims.
The Plan will be developed in line with the contents of the Council of Europe Recommendation Rec
(2002) 5.
Beside to the Plan, will be also given continuity to the 1522, the public helpline established to provide
listening and support to women victims of violence and to the development of the National Network
Against Violence, that aims to increase the diffusion and to improve the the level of integration among
services for victims of violence.

3.4      SPECIAL LEGISLATION ADDRESSING VIOLENCE AGAINST WOMEN (TREATMENT OF WOMEN AS A
         "SPECIAL CASE" OR AS PART OF ANTI-DISCRIMINATION LEGISLATION"?)
For the complete framework of legal instruments applicable to prosecute violence against women,
please see above (see above answers to question n. 1.)

3.5      CRIMINAL LAW/CIVIL LAW
See above (answers to question n. 1.).

3.4      SPECIALIST POLICE UNITS - COUNTRY WIDE OR PATCHY
In 2009 the Italian Minister for Equal Opportunities signed a Memorandum of Understanding with the
Ministry of Defence and the Carabinieri Army to form an expert group to study and monitor the crime
of stalking and to provide training on the measures and methodology to face this problem.
The Memorandum aims to develop studies and research on the phenomenon of gender violence (with
particular reference to stalking) and the enforcement and updating of strategies for prevention. Beside
to this, a specific training will provided to the Carabinieri to improve their capability to prevent violence,
protect victims and prosecute the offenders.
Moreover, the Ministry for Equal Opportunities has recently signed (July 3rd, 2009) a special protocol
– with the Minister of the Interior, regarding both the definition of a specific program of training
addressed to the National Police Force and the procedure designed for emergency calls coming from
the National Emergency Line 1522 for victims of violence. This action will be an important component
of the future National Plan against Violence.
Finally, to avoid secondary victimization of the women who denounce sexual violence, in many police
stations throughout Italy have been organised special investigation services, beside to special training
course addressed to those who have to strictly interact with victims. Although those initiatives are still
not widespread on the entire national territory, they’re becoming more and more diffused as a
consequence even of some initiatives of Italian Minister and Department for Equal Opportunities (as
the National Network Against Violence and specific call for proposal aimed to support the constitution
of local network of integrated services for women victims of violence).

3.7      VIOLENCE AGAINST WOMEN – AN OBSTACLE TO EQUALITY?
Violence against women is the manifestation of an unbalanced relation between genders, with directly
and indirectly affects the condition of women victims. Violence, indeed, has immediate consequences
on the mental and physical health of victims, but also long-term consequences (fear, uncertainty, post-
traumatic stress symptoms, hopelessness, etc.) that affect their choices in life and work.

3.8      GENDER PERSECUTION AS GROUNDS FOR GRANTING REFUGEE STATUS?
At the moment there are no specific law provisions in this sense, but, since the draft of Council of
Europe’s Convention to prevent and combat domestic violence and other forms of violence against
ITALY                                                                                                        163



women will probably deal with this question, it cannot be excluded that Italian Government will
consider the introduction of some specific measures.
On a general basis, the recognition of the refugee status can be requested by every foreign citizen
who is persecuted in his country - for reasons of race, religion, nationality, membership of a social
group or because of his ideas policies - or if he has reasonable grounds to fear that in case of return,
could be exposed to serious risk of persecution or breach of human rights (Law 189/2002 on
immigration and asylum).
Moreover, Italian law provides that in case of proved situation of serious violence or exploitation or
threats to his safety resulting from attempts to escape this situation, it can be issued a special permit,
which lasts six months (renewable for another year and further prolonged if the person proves to have
an ongoing employment relationship) to allow the person to escape the violence and the conditioning
of the criminal organization and participate in a program of assistance and social integration (Act 11
August 2003, No.228, "Measures against trafficking in persons" artt.12 and 13; Legislative Decree 25
July 1998, n. 286, art. 18, "Consolidated text of provisions governing immigration and rules on the
status of aliens ", as amended by Law of 30 July 2002, No. 189 (Act called" Bossi-Fini ").

3.9      WHAT GOOD IDEAS HAVE BEEN SUGGESTED BUT NOT YET IMPLEMENTED?
See above answer to question 3.3.


4.0      DOMESTIC VIOLENCE
4.1      ARE THERE SPECIFIC LAWS TO COMBAT DOMESTIC VIOLENCE?
See above, answer to question 1.2.

4.2      ARE CURRENT DEFENCES ADEQUATE WHEN WOMEN KILL ABUSIVE HUSBANDS/PARTNERS?
There are not specific defences for women killing abusive husbands/partners; when the omicide is the
consequence of an aggression, the woman can invoke the right to protect herself; in this case the
omicide can be considered as an involuntary consequence of the victim’s reaction to violence.
Nevertheless, in case the homicide is premeditated by the woman, even in case of recurring violent
conduct of the husband/partner, it is up to the Court to decide whether to consider or not the fact that
she suffered for domestic violence as an extenuating circumstance.

4.3      IS PRIVATE VIOLENCE PUNISHED IN THE SAME WAY AS PUBLIC VIOLENCE?
No, they are persecuted differently.


5.0      RAPE AND SEXUAL ASSAULT IN MARRIAGE
5.1      IS RAPE IN MARRIAGE OUTLAWED AND PROSECUTED IN THE SAME WAY AS OTHER FORMS OF
         RAPE?

5.2      ARE THE SANCTIONS FOR RAPE AND RAPE IN MARRIAGE THE SAME?
For the Italian Law those are not different kind of crime, so they are persecuted according the
provisions of Law 66/1996 (see above answer to question n. 1; see also answer to question n.2
referred to sentencing).

5.3      HAVE ANY SPECIFIC SOLUTIONS BEEN SUGGESTED FOR RAPE IN MARRIAGE (RESTRICTIONS AND
         BANNING ORDERS)?
The Law 154/01 and Law 38/09 introduce some measures for removal from the family home (Article
282-bis of Criminal Procedure Code) and prohibition of attending places frequented by the victim
(Article 282-ter of Criminal Procedure Code).
In case of domestic violence the Court may order the accused to immediately leave the family home
and not access it without permission of the court itself.
164                                                                                                        ITALY



If there is need to protect the life of the person injured or his close relatives, the Court may require the
accused not to approach certain places usually frequented by the offended person, particularly the
workplace, the house of the family of origin or close relatives, unless attendance is necessary for
work. In the latter case, the Court shall prescribe the detailed rules and may impose limitations.
In case of stalking, the Court may require the accused not to approach certain places usually
frequented by the person injured or to maintain a certain distance from such sites or by the person
injured or even consider extending this ban to places frequented by close relatives of the offended
person or to maintain a certain distance from such sites or by such persons. The Court may also
prohibit the offender from communicating through any medium, either with the person offended or
his/her close relatives.
When the attendance of those places is necessary for business or for housing needs, the Court shall
prescribe the detailed rules and may impose limitations.

5.4       ARE THERE CIVIL LAW REMEDIES - INCLUDING MEASURES RELATING TO THE FINANCIAL
          SITUATIONS OF WIVES/COHABITERS AFTER SEPARATION AND DIVORCE?
As provided by Law 154/2001, the Court may in fact require to the offender the periodic payment of an
allowance for victims and cohabitants. The Court shall determine the extent to check according to the
circumstances and income of the offender and establishes the procedures and terms of payment. The
Court may also order, if necessary, that the check is paid directly to the payee by the offenders’
employer, as a reduction of the wage due to him/her. The measure loses effectiveness if the protective
order is subsequently revoked.

5.5       IS THERE SPECIAL LEGISLATION TO DEAL WITH RAPE IN MARRIAGE?
Rape in marriage is persecuted in the same way as rape and sexual violence (see above answer to
question n. 1; see also answer to question n.2 referred to sentencing).


6.0       RAPE AND SEXUAL ASSAULT
6.1       HOW IS SEXUAL CRIME DEFINED?
          CRIME AGAINST THE PERSON;
          CRIME AGAINST INDIVIDUAL FREEDOM;
          CRIME AGAINST MORALITY/HONOUR/SOCIETY.
The Italian Criminal Code classifies forms of violence against women as follows:
      −   Sexual violence: crimes against individual freedom;
      −   Private violence and stalking: crimes against the moral freedom;
      −   Domestic violence: crimes−against the family support.

6.2       DOES THE DEFINITION OF RAPE INCLUDE ALL ASPECTS OF SEXUAL VIOLENCE (INCLUDING
          SODOMY FOR EXAMPLE)?
In the '90s, the Court of Cassation stated that sexual acts involve violence when they violate, in any
way, the free self-determination of a person in relation to his/her sexuality. This definition therefore
includes all aspects of sexual violence.

6.3       ARE THERE DIFFERING DEGREES OF RAPE/SEXUAL HARASSMENT?
See above, answer to the question 6.2.

6.4       HOW IS CONSENT DEFINED?
Although consent it is not specifically designed a recent sentence by Supreme Court of Appeal, III
Section (Sentence N. 4532 / 2008) states that consent to sexual intercourse should be peaceful and
uninterrupted and must be ongoing throughout the act without interruption; on the contrary, the dissent
of the victim may also be expressed at every point and the offense is configured in the same moment
in which the victim has expressed his opposition to sexual intercourse. This applies even in cases
where consent is first given and then denied.
ITALY                                                                                                        165



It must also be given "freely", i.e. independently from any form of coercion, since sexuality is part of a
subjective sphere where personal dignity and freedom have to be protected in the widest sense.

6.5      WHAT KIND OF TECHNICAL EVIDENCE IS NECESSARY IN A RAPE TRIAL?
The main evidences are the trails on the victim’s body.
Regarding the first relief, if the victim is targeted to the ER, will be sent to the observation of a
gynaecologist that will ascertain any marks of violence on his body; after the police may be involved.
Since some signs such as bruises, may better reflect the hours following, the victims are suggested to
return to the hospital to prepare a new report.
If the victim goes directly to the police, she may be accompanied by an hospital.
The medical report will be an important support to her declarations, where once the violence has taken
place before the complaint often have the word of the victim against that of the offender.

6.6      IS CROSS-EXAMINATION ON THE VICTIM'S SEXUAL HISTORY AUTHORISED IN RAPE TRIALS AND IN
         WHAT CONTEXT?
Victims will ask the questions that are strictly necessary for the purposes of the proceedings, namely
the formation of the evidence, with specific reference to the facts to be proved. The victim therefore
can not legitimately be questioned on the facts concerning his private life and sexual, unless those
questions are necessary to establish the facts. In fact, it is sometimes a subtle way of embarrassing
the victim, reminding the social stigma associated with any past conduct, and to discredit her as a
witness.
The principle is an important application in our code of criminal procedure, where art. 498 establishes
that in hearing the presiding member of the care that the examination be conducted without witnesses
undermine respect for the person. Two important qualifications to the principle of protection of human
dignity, for examination by witnesses, are contained in Articles. 472 paragraph 3-bis and 498
paragraph 4-ter Art. 472 paragraph 3-bis provides, in addition to the possibility of wholly or partly in
camera, the prohibition on engaging the person offended questions about privacy or sexuality, if not
needed for the reconstruction of the incident.
The “accident proof” (incidente probatorio) can be a primary means for preventing one of the most
important aspects of secondary victimization, i.e. the repetition of statements in various stages of the
proceedings. The role of the judge in this case, it is essential in the prevention of secondary
victimization, taking an active role in guiding the examination, especially in view of avoiding the
questions are prohibited by law, in particular those relating to privacy and sexuality of the victim. To
avoid any physical contact between the offender and the victim, the victim is convoked in a place other
than the courtroom with the use of audiovisual means that the allowed to remain in a separate room,
so they can be examined with the forms of ritual without seeing the accused.

6.7      WHICH COURT RULES ON CASES OF RAPE?
The Court located in the place where the crime is happened.

6.8      DOES MEMBERSHIP OF THIS COURT REFLECT THE PRINCIPLE OF EQUAL OPPORTUNITIES?
There are not specific provisions about this issue.

6.9      WHAT SENTENCES ARE USUALLY APPLIED TO RAPISTS?
For the crime of rape the prison sentence provided is from five to ten years; the sentence is increased
from six to twelve years in the following case: if violence occurs against a child under 14 years; in case
the offence is perpetrated with the use of weapons or alcohol, narcotic or narcotic drugs or other
substances or seriously damaging the health of the person offended; when the crime is perpetrated by
a person misrepresented or pretending to be a public official or responsible for public services; if the
offence is committed on a person subject to restrictions on personal freedom, against someone who
has birthday sixteen of which the culprit is rising, also the adoptive parent, the guardian.
The sentence provided is imprisonment from seven to fourteen years if the crime is committed against
a person who has not completed the teens. The ascendant, parent or cohabitant with the child or
166                                                                                                      ITALY



his/her guardian, who, with abuse of power related to its location, performs sexual acts with a person
who is under sixteen years, shall be punished by imprisonment three to six years.
Anyone who commits acts of gang sexual assault is punished with imprisonment from six to twelve
years.
If violence results in the death of the victim, the offender is sentenced to life imprisonment.

6.10     ARE FEMALE POLICE OFFICERS PRESENT IN ALL BODIES CHARGED WITH EXAMINING AND
         PROSECUTING RAPE?
There are not specific measures on this issue.

6.11     HAVE PROVISIONS BEEN MADE FOR FEMALE FORENSIC EXAMINERS?
There are not specific measures on this issue.


7.0      SEXUAL HARASSMENT
7.1      DOES YOUR COUNTRY HAVE LEGISLATION TO PROTECT THE DIGNITY OF WOMEN AT WORK
         (VIOLENCE AGAINST WOMEN)?
See above – answer to question 1.5.

7.2      ARE OTHER FORMS OF SEXUAL VIOLENCE LEGISLATED AGAINST?
See above – answers to question from 1.1. to 1.11


8.0      INCEST/SEXUAL ABUSE OF GIRLS
8.1      WHAT IS THE AGE OF SEXUAL MAJORITY?
Eighteen years.

8.2      DOES THIS CORRESPOND TO THE AGE OF CONSENT?
Yes.

8.3      IS THERE SPECIFIC LEGISLATION AGAINST CHILD PROSTITUTION?
Law n. 269/98 ““Provisions against the exploitation of minors’ prostitution, pornography and sexual
tourism, as new forms of “reduction into slavery” (see above, answer to question 1.4).

8.4      WHAT OTHER FORMS OF SEXUAL ABUSE ARE LEGISLATED AGAINST? -SEXUAL HARASSMENT,
         FEMALE GENITAL MUTILATION?
See above answers to questions 1.5 and 1.9.

8.5      ARE THERE PROVISIONS FOR THE REMOVAL OF ABUSERS FROM HOUSEHOLDS?
See above answers to questions 1.2 and 2 (“Sentencing”)

8.6      ARE THERE DIFFICULTIES REGARDING THE CREDIBILITY OF CHILDREN AS WITNESSES?
Although research and victimology’s studies have demonstrated the difficulty of assuming evidences
from children, there are some techniques recommended in these cases, such as the cognitive
interview, the "Step Wise Interview", etc.. It is also possible to request the support of psychologists in
order to assist the young witnesses and mediate the requests from investigators and prosecutors, so
to avoid any constraints.

8.7      ARE THERE ANY SPECIAL PROVISIONS FOR EVIDENCE GIVEN BY CHILDREN?
In the case of investigations concerning offenses under Articles 572, 609-bis, 609-ter, 609-quater,
609-quinquies, 609-octies, 612-bis, 600, 600-bis, 600-ter, 600-quater, 600-quinquies, 601 e 602
Criminal Code (see above answer to question n.1), the Court, in case of witnesses that are less than
ITALY                                                                                                   167



sixteen years old, can decide the place, time and the particular circumstances for hearing evidence -
when the minor's needs make it necessary or appropriate. The witness thus convene in a place other
than the court, where his/her statements will be fully documented by means of phonographic or
audiovisual supports. The transcript of the playback is only at the request of the parties.

8.8      ARE CHILDREN ALLOWED TO RECEIVE THERAPEUTIC SUPPORT BETWEEN THE TIME OF REPORTING
         AND THE COURT CASE?
Yes, there is the possibility to be assisted by professionals such as psychologists.

8.9      ARE ANY SPECIFIC MEASURES TAKEN TO COMBAT ORGANISED/NETWORKED RITUAL ABUSE
         RINGS?
See above answer to question 1.4.
LIECHTENSTEIN                                                                                              169




                                            LIECHTENSTEIN

Information provided by the Office of Equal Opportunity, Vaduz, in November 2000, March 2003 and
September 2006 and October 2009.


1.0       LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
1.1       LETTER OF LAW – DEFINITIONS
The Violence Protection Act took effect on 1 February 2001. As a central innovation of this Act, it contains
a provision providing for protection against domestic violence, which includes the right to expel potential
perpetrators from the home as a precautionary measure. Where a grievous attack on the life, health or
liberty of a person is anticipated, the police may, as a precautionary measure, expel the potential
perpetrator and issue a temporary restraining order, thereby providing adequate protection for the
potential victim of domestic violence. This provision is meant to counter previous practice, whereby the
victims of domestic violence (mainly women and children) were forced to abandon the home.
The revised laws on sexual offences took effect in February 2001. They place emphasis on the principle
on empowering women to decide freely on matters relating to their sexuality (sexual self-determination).
The main innovations as regards gender equality issues and protection of women against violence are
the extension of the statute of limitations for sexual offences, the establishment of marital rape as a
criminal offence and inclusion of sexual harassment in the workplace as a sexual offence.
On 1 January 2005, a partial revision of the Code of Penal Procedure, referred to as the "Victims
Protection Act", entered into force. The goal of this legislative amendment is to improve the legal standing
of victims in criminal proceedings by establishing a procedural right to respectful treatment and the
greatest possible protection. In particular, the interests of young victims and victims of sexual offenses will
be taken into account more strongly.
The Victims Assistance Act took effect in April 2009. The goal, namely the best possible support for
victims, is achieved on the basis of the two pillars of "counseling" and "financial assistance".
The appropriate care of victims and their families is the most important objective of victims' assistance.
For this purpose, a Victims Counseling Office is being created. Its goal is to provide the necessary
assistance in individual cases with respect to medical, psychological, social, material, and legal needs.
These provisions are intended to enable victims to receive compensation from the State for material and
non-material injury suffered, to the extent that no or only insufficient compensation is given by third
parties. The compensation of non-material injuries is intended to express society's recognition of the
difficult situation of the victim as part of comprehensive victims protection, and especially to take into
account the situation of victims of sexual offenses, who as a rule suffer hardly any material injuries, but
usually grave non-material injuries.
In its June 2007 session, Parliament adopted a new explicit criminal provision against stalking (§ 107a of
the Criminal Code)4. Parliament thus sent a clear signal that this form ofpsychological pressure will not be
tolerated. The new provisions entered into force on 30 August 2007. Stalking is defined as harassment of
a person lasting for an extended period that unreasonably interferes with that person’s life. According to
article 107a of the Criminal Code, stalking occurs when someone harasses another person by:
•      seeking out the person’s physical proximity;
•      entering into contact with the person by way of electronic communication or other means of
        communication or via a third party;
170                                                                                               LIECHTENSTEIN



•     using the person’s personal data, orders goods or services for the person; or using the person’s
       personal data, induces a third party to enter into contact with the
       person.
The perpetrator may be sentenced with imprisonment of up to one year.

1.2      DOMESTIC VIOLENCE

        PENAL LAW
There is a specific legislation concerning sexual domestic violence (the victim has to make an
application):
•    To compel, by force or threat of force, a person to have sexual intercourse (rape);
•    Sexual offence by force or threat of force against a person;
Sexual domestic violence is regulated in § 202 of the Penal Code LGBl. 16/2001.
There is no specific legislation concerning other forms of domestic violence, it is regulated as any other
form of violence. There are various articles that concern violence in the Penal Code. The maximum and
minimum sentences vary with the grossness of the crime.

        CIVIL LAW
The new Protection against Violence Act took effect on 1 February 2001 (LGBl. 25/2001; 26/2001;
27/2001). See Section 1.1. Since entry into force of the Violence Protection Act4 on 1 February 2001, the
most important innovation of which is the right to expel the perpetrator as a preventive measure.
In 2008 (2007) there were 23 (49) interventions by the police in cases of domestic violence.In 7 cases (7
men), the police expelled the perpetrator from the home, and in 2 cases (2 men), the perpetrator was
prohibited from entering the abode. In 2007, there were 10 expulsions (9 men, 1 woman) and 7 (7 men)
prohibitions of entry. In 3 (4) cases in 2008 (2007), a restraining order was obtained by the victim from the
Court of Justice. In 2008, one charge of stalking was filed with the Office of the Public Prosecutor. The
proceedings were suspended by the Office of the Public Prosecutor. In 2009, a man sought for stalking
by Switzerland was arrested in Liechtenstein and extradited to Switzerland.
Under the Marriage Law from 1999, it is possible to file for divorce if the continuation of the marriage is
not reasonable for a spouse. Extrajudicial compensation (§ 22g of the Code of Criminal Procedure;
StPO11) is carried out under the instruction and supervision of the Liechtenstein Probation Service. After
receipt of criminal charges and decision by the Office of the Public Prosecutor or the court, social workers
offer conflict settlement in cases of petty to medium crime. The goal of extrajudicial compensation is to
achieve compensation agreed by both sides by way of neutral mediation between the injured party and
the accused. With the help of a neutral conflict mediator, the aim is to find a fair solution for all parties
outside of court. For various reasons, conflicts within partnerships play a special role in this regard,
especially since relationship conflicts often escalate, and special attention must be paid to the situation of
the victim. The advantage is that the needs of the victim can be addressed, who often is suffering from
some sort of coercive situation. For this reason, the probation team generally works in pairs, with one
woman and one man. In 2007 and 2008, a total of 33 cases of domestic violence in relationships were
mediated. 27 accused persons (24 men and 3 women) and 27 injured parties (4 men and 23 women) as
well 12 persons (6 women and 6 men) who were both accused and injured were contacted by the
Probation Service. 40% of the offenses were assaults, 33% dangerous threats, and 13% damage to
property. 76% of the relationship conflicts were brought to a positive conclusion.

1.3      RAPE/ SEXUAL ASSAULT
Rape and Sexual Assault are regulated in the Penal Code LGBl. 16//2001. Victims of sexual domestic
violence have to make an application.


4 Law of 14 December 2000 amending the National Police Act, LGBl. 2001 No. 27.
LIECHTENSTEIN                                                                                              171



Liechtenstein Penal Code criminalises:
•     • To compel, by force or threat of force, a woman to have sexual intercourse (rape) (§ 200 Penal
      Code);
•     • Sexual offence by force or threat of force against a woman or a man (§ 201 Penal Code);
•     • Rape or other sexual offence against a woman who suffers from insanity or other mental deficiency
      of a woman or who is unable to prevent the act or understand its meaning (§ 204 Penal Code)

1.4         CHILD SEXUAL ABUSE/INCEST
Child Sexual Abuse/Incest is ruled in the Penal Code LGBl. 16/2001.
•     •   Heavy Sexual abuse of persons under the age of 14 (§ 205 Penal Code);
•     •   Sexual abuse of persons under the age of 14 (§ 206 Penal Code);
•     •   Moral endangering of persons under the age of 14 and under the age of 18 (§ 207 Penal Code);
•     •   Sexual Abuse of Persons under the age of 16 (§ 208 Penal Code);
•     •   Incest (§ 211 Penal Code)
•     •   Abuse of an authority relationship (§ 212 Penal Code)

1.5         SEXUAL HARASSMENT
The revised Penal Code now covers sexual harassment in § 203. Sexual harassment, whether verbal or
by deed, is subject to fines or a term of imprisonment of up to six months LGBl. 16/2001.
The Equality Act, which is in force since 5 May 1999, covers sexual harassment. Parliament approved the
revision of the Equality Act on 17 May 2006. This included incorporation of the definitions of harassment,
sexual harassment, and direct and indirect discrimination. Employers and employees were briefed on the
legislative revision in the autumn of 2006. Newsletters were sent to businesses, and employees made
aware of the amendments through an information and sensitization campaign. In November 2006, the
brochure entitled "Not With Me! - Sexual Harassment in the Workplace" was revised and published for the
second time. Its primary objective is to draw attention to the fact that sexual harassment in the workplace
continues to exist, and thereby to support the prevention of sexual harassment. The brochure contains a
definition of sexual harassment, lists examples, and explains effects and consequences of harassment as
well as successful response measures. The brochure refers to the legal possibilities of defending oneself
against sexual harassment in accordance with sexual criminal law and the responsibility of employers laid
down in the Gender Equality Act to ensure a working environment free from harassment.
The Labour Act, which came into force the 1 January 1998, stipulates that the employer has to ensure
that an effort is made to establish a safe and healthy working environment, and to prevent sexual
harassment.
The Public Employees Act came into force the 24 April 2008 and emphasises the importance of
taking care for the personality and health as well as the security of employees on their working places.

1.6         PORNOGRAPHY
The Liechtenstein Penal Code LGBl. 16/2001 criminalises: Pornography (§ 218a Penal code), Prostitution
(§ 210 and 215 Penal Code) and Trafficking in Human beings (§ 217 Penal Code).

1.7         PROSTITUTION
The prostituted person is only subject to criminal sanction if her conduct constitutes a public nuisance (§
210 Penal Code, LGBl. 16/2001).

1.8         OBSCENE PHONE CALLS/TELEPHONE SEX
No information available.
172                                                                                             LIECHTENSTEIN



1.9      FEMALE GENITAL MUTILATION
No information available.

1.10     INTERNATIONAL CONVENTIONS
As a member of the United Nations and the Council of Europe, Liechtenstein has ratified a number of
European and international conventions relating to the protection of human rights. In 1996, Liechtenstein
ratified the UN Convention on the Elimination of all Forms of Discrimination against Women. The
European Convention on Human Rights was ratified in 1982. On 10 December 1999, Liechtenstein
signed the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against
Women of 6 October 1999, which entered into force on 22 December 2000 and provides for the
submission of communications by individuals. Liechtenstein deposited its ratification at the UN of the
Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women in
October 2001. Liechtenstein signed the UN Convention against Transnational Organized Crime (Palermo
Convention) on 12 December 2000, and it signed the Protocol against the Smuggling of Migrants by
Land, Sea and Air and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, on 14 March 2001.

1.11     PROTECTION OF PREGNANCY/PREGNANT WOMEN
The Employment Act was amended in 1998. In general, an employer is required to take all measures that
are technically practicable, and that are compatible with conditions in the workplace, to protect the health
of the employees. Regulations dictate what measures a company must take to protect the employees’
health. There are special provisions in the Employment Act for pregnant women and nursing mothers.
The employer is required to provide working conditions for, and assign duties to, pregnant women and
nursing mothers that do not have a negative impact on their health or the health of the child. Under
Liechtenstein’s current legislation, a mother may be dismissed neither during pregnancy nor the 16 weeks
after delivery.


2.0      SENTENCING
2.1      SENTENCING DOMESTIC VIOLENCE
See Section 1.2 above.


3.0      EFFECTIVENESS OF LEGISLATION
3.1      SUPPORT/ PROTECTION

       WOMEN’S SHELTER
The Women’s Home, run by the Association for the Protection of Abused Women and Their Children, was
established in 1991 and offers a place to stay for victims of violence. The Government supports the
Liechtenstein Women’s Home as part of a service agreement with an annual contribution of
CHF320,000.
Year
LIECHTENSTEIN                                                                                          173



Admissions to the Women’s Home of which women from FL
2001                    27                       2005                             9
                        8                                                         8

2002                       17                         2006                        15
                           9                                                      11

2003                       13                         2007                        17
                           6                                                      13

2004                      12                     2008                             13
                          9                                                       6
Source: Annual Reports of the Women’s Home, 2001 to 2008
Since implementation of the Violence Protection Act places high demands on the National Police, all new
police trainees at the Police Academy are trained in the subject of domestic violence. This subject is also
an examination subject for the police qualification exam.

         NETWORK
Many non-governmental organisations, but also the women's organizations of Liechtenstein's political
parties, have joined together into the Liechtenstein Women's Network, under the aegis of the Office of
Equal Opportunity, which acts as an administration and coordination office. The Women's Network is
open to all organizations engaged on behalf of the equal opportunity of girls and women. The joint events
and projects attract more public attention and thereby have a greater impact than individual campaigns,
and the activities of the individual organizations become better known. The Liechtenstein Women's
Network currently encompasses 18 organizations (including Office of Equal Opportunity):
   • - Rhine Valley Business and Professional Club (BPW),
   • - Parent-Child Forum,
   • - Bureau for Sexual Matters and HIV Prevention,
   • - Women in the Progressive Citizens' Party,
   • - Women's Expert Group of the Patriotic Union,
   • - Free List,
   • - infra – the Information and Contact Office for Women,
   • - Gender Equality Commission,
   • - Gender and Diversity Commission of Hochschule Liechtenstein,
   • - Women's Section of the Liechtenstein Employees Association,
   • - Soroptimist International Club Liechtenstein,
   • - Soroptimist International Club Vaduz,
   • - Turkish Women's Association,
   • - Day-Care Association of Liechtenstein,
   • - Association for the Protection of Abused Women and their Children,
   • - Association of Women with a Good Constitution
   • - Zonta International Club Vaduz.
Furthermore the Office of Equal Opportunity has established a wide range of contacts with organizations
working on gender equality in Switzerland and the neighboring Austrian province of Vorarlberg.

         VIOLENCE AGAINST WOMEN
In Liechtenstein there is still a taboo with respect to violence against women, whether in public or in
private. From September to December 1997, an anti-violence campaign was launched in Liechtenstein
(through the Equality Bureau in cooperation with non-governmental organisations) in order to create and
enhance awareness of this multi-faceted problem. After an invitation from the Government of
Liechtenstein, the United Nations Special Rapporteur on violence against women, Radhika
174                                                                                              LIECHTENSTEIN



Coomaraswamy, visited the country in April 1998. She met with members of the Government, of the
administration, of the Public Prosecutor’s Office, as well as with representatives of non-governmental
organisations. During her visit to the Women’s House, she also met with three victims of domestic
violence. Her report was submitted to the Commission on Human Rights at its 55th session for
consideration.
In February 2001 was launched a three-year interregional project with the aim of compiling transnational
data on domestic violence, building awareness and sensitizing the public on a transnational basis through
the provision of information and providing efficient and competent intervention against violence.(through
communication, cooperation, prevention, social awareness-building and adequate assistance). The
objective of the project entitled "Crossing boundaries – Setting boundaries" was to compile cross-border
data on violence in marriages and partnerships and to educate and raise awareness by providing
information. The project was jointly run by the Liechtenstein Office of Equal Opportunity, the Austrian
province of Vorarlberg, and the Swiss canton of Graubünden and was concluded in July 2004. The
planned measures – a campaign for general awareness-raising of the public, a survey and study on forms
of violence and perceptions of violence in the domestic environment, and an information campaign to
specifically raise the awareness of multipliers – were successfully implemented.
Other initiatives have been undertaken in Liechtenstein by the Office of Equal Opportunity in cooperation
with the Liechtenstein Women's Home, such as a training event for nursing staff at the National Hospital.
In cooperation with the Women's Home, infra – the Information and Contact Office for Women, the
Violence Protection Commission, the Theater am Kirchplatz, the Office of Social Affairs, and the Office of
Equal Opportunity, a study entitled "Because walls cannot speak…...they protect perpetrators",
undertaken as part of the Interreg project, was presented in conjunction with a forum theater
performance. Another performance preceded by an introduction to the topic was organized for students in
continuing schools. The Office of Equal Opportunity and the Office of Social Affairs published an
information brochure for victims of violence entitled "Violence Protection Act – Concrete Implementation
of the New Law for Protection from Violence" in February 2002. The brochure provides information on
implementation of the right to expel the perpetrator, the prohibition of reentry, and temporary injunctions.
Work with perpetrators plays an important role, since it helps better protect the victims. For this reason, a
working group of the Office of Social Affairs is drafting a concept for work with perpetrators in
Liechtenstein. In January 2008, an event was held on this topic with the goal of optimizing cooperation on
work with perpetrators among the competent organizations. In October 2008, the Office of Social Affairs
organized an expert workshop on "Psychosocial Violence: Dealing with Acute Situations of Violence."
In August 2007, two Members of Parliament who were also members of the Parliamentary Assembly of
the Council of Europe submitted an interpellation in Parliament concerning domestic violence against
women. With this interpellation, the parliamentary questioners wanted to support the Council of Europe
campaign "Stop Domestic Violence against Women". The questioners requested information from the
Government on the legal rules for cooperation with third parties, statistical data, and police reports and
judicial decisions in connection with domestic violence against women. The goal of the questioners
included sensitization of the public for this important social policy concern. In its meeting of 18 March
2008, the Government responded to the interpellation and forwarded the response to Parliament. The
Government’s report explained the legal provisions directly relating to the topic and the general situation
with respect to domestic violence in Liechtenstein, allowing conclusions to be drawn for legislative or
organizational measures.
As part of the Council of Europe campaign "Stop Domestic Violence against Women" (2006 to 2008), the
Office of Equal Opportunity drafted a National Action Plan against Domestic Violence. The Action Plan
covers the following areas: regulation; fundamental decision of the Government concerning residency
after dissolution of a marital union; violence protection; networking and cooperation; compilation of data
and information; prevention; work with perpetrators; and health. The current situation was described in
each area and potential for improvement formulated. The Government took note of the Action Plan in
April 2008 and mandated the Office of Equal Opportunity to discuss it with the Violence Protection
Commission and the Court of Justice and to present concrete measures to the Ministry of Family and
Equal Opportunity.
LIECHTENSTEIN                                                                                          175



Two priority topics arose from the discussions with the two institutions: improvement of networking and
cooperation among the various support offices, and improvement of victim protection. On 3 February
2009, the Government approved the transnational project entitled "S.I.G.N.A.L., an intervention program
against domestic violence." The goal of the project is to inform physicians and nurses about the health
impact of violence, to draw the attention of doctors to the S.I.G.N.A.L guidelines, and to network system
partners transnationally. The exhibition "Behind the Façade" is part of the project and is being shown in
Vorarlberg and Liechtenstein. The project runs from April 2009 to November 2010.

         SEXUAL EXPLOITATION
Concerning sexual exploitation of children and adolescents, the Government appointed the Expert Group
against Sexual Abuse of Children and Young People in 1999. The members of the Expert Group
constitute a multiprofessional team from the fields of psychology, psychotherapy, medicine, and law. The
mandate of the Expert Group is to provide support and services for institutions and persons dealing with
cases of sexual abuse. It also serves as a contact office for those affected. As part of a coaching model,
the Expert Group develops appropriate responses on a case-by-case basis, together with specialists and
victims and/or their families. The interdisciplinary composition of the Expert Group is intended to ensure
that the complexity of the cases is taken into account. Thanks to the establishment of this central office,
experiences can be gathered with respect to child abuse, and the competence of counselors and
professional assistance can be optimized. In December 2004, the Expert Group published guidelines in
the form of a brochure. These guidelines are intended to be binding on all participants, so that the
assistance rendered is predictable, understandable, transparent, and controllable. Through activities such
as public outreach, the organization of continuing training for a wide circle of specialists, prevention
projects, and lectures, the Expert Group is making further contributions in the fight against the sexual
abuse of children and young people.


4.0       DOMESTIC VIOLENCE
See Section 1.2 above.


5.0       RAPE AND SEXUAL ASSAULT IN MARRIAGE
No information provided.


6.0       RAPE AND SEXUAL ASSAULT
See Section 1.3 above.


7.0       SEXUAL HARASSMENT
See Section 1.5 above.


8.0       INCEST/SEXUAL ABUSE OF GIRLS
See Section 1.4 above.
LITHUANIA                                                                                                 177




                                               LITHUANIA

Information updated by the Ministry of Justice, Ministry of the Interior and Equal Opportunities Division of
the Ministry of Social Security and Labour in September 2006 and updated by the Ministry of Sociel
Security and Labour in October 2009.


1.0         LEGISLATION AND SANCTIONS RELATING TO VIOLENCE AGAINST WOMEN
Legal acts of the Republic of Lithuania provide for strict sanctions for violence. Criminal Code of the
Republic of Lithuania and Code of Criminal Procedure of the Republic of Lithuania, which have been
harmonised with the EU law, provide legal measures to protect by penal law measures human and civil
rights and freedoms, public and state interests from criminal acts; when protecting human and civil rights
and freedoms as well as public and state interest, to detect criminal acts without delay and to identify and
apply the relevant law to ensure that the person guilty of the commission of the criminal act be justly
punished and no innocent person be punished. Various types of violence – murder, bodily injury, rape,
other physical violence is punishable under the appropriate Articles of the Criminal Code of the Republic
of Lithuania.
Criminal Code, chapters XVII-XXXIII establish the corpus delicti of crimes and misdemeanours, defining
the attempts at human life, health, liberty, freedom and inviolability of sexual self-determination, honour
and dignity prohibited under law as well as crimes and misdemeanours against children and family, and
prescribe penalties for non-compliance with the said prohibitions. Here the following crimes and
misdemeanours should be mentioned: murder (Article 129), serious health impairment (Article 135), minor
health impairment (Article 138), causing physical pain or minor health impairment (Article 140), threat to
murder or a person serious health impairment or terrorising of a person (Article 145), rape (Article 149),
sexual harassment (Article 152), sexual abuse of a minor (Article 153), insult (Article 155), etc.
Circumstances aggravating the liability of the offender are listed in Article 60 of the Criminal Code of the
Republic of Lithuania. In this relation mention should be made of commission of the act as a result of
disorderly conduct or for personal gain or out of other base motives, commission of the act by torturing
the victim or subjecting the victim to degrading treatment, commission of the acts against a young child
(under 14 years of age), against a pregnant woman, against a person in a helpless state owing to an
illness, disability or old age or for other reasons, commission of the act by a person in the state of
alcoholic intoxication or under the influence of narcotic, psychotropic or toxic substances, etc. When
determining the penalty, the court shall take account both of the culprit’s personality, criminal record,
goals and motives of the committed acts, other circumstances. (Responds to question 2.1)
Article 135 of the Criminal Code of the Republic of Lithuania “Serious Impairment of Health” determines
criminal liability of persons who intentionally cause injury or disease resulting in the victim’s loss of his
sight, hearing, ability to speak or ability to reproduce, pregnancy; or otherwise incapacitate him or cause
him to become ill with a serious incurable disease or a long-lasting and life-threatening illness or a serious
mental illness, or to lose considerable capacity for work in a profession or in general employment, or to
become permanently disfigured in body. The scope of health impairment is established by forensic
medicine experts in compliance with the Regulations for the Establishment of the Scope of Health
Impairment approved by the Health Minister, Minister of Justice and Minister of Social Security and
Labour by Order No V-298/158/A1-86 of 23 May 2003. Serious health impairment is punishable by a term
of imprisonment for up to 10 years. Penalty for the commission of the crime the body of which is qualified
in paragraph 2 of this Article as serious health impairment is punishable for a term of imprisonment from 2
to 12 years if the crime has been committed with respect to a young child (under 14 years of age), against
178                                                                                                   LITHUANIA



a pregnant woman, against his close relative or family member, against a person in a helpless state by
torturing or subjecting the person to cruel treatment, etc. (Responds to question 2.1)
Article 138 “Minor Health Impairment” of the Criminal Code of the Republic of Lithuania establishes
criminal liability for intentionally causing injury or illness to a human being by reason of which the victim
lost an insignificant part of his capacity for work in a profession or in general employment or was ill for a
long time but without developing the after effects specified in paragraph 1 of Article 135 of this Code. The
Regulations for the Establishment of the Scope of Health Impairment specify that causing injury or illness
is deemed as a minor health impairment if it causes illness to a human being for a not longer than 10-day
period or where the victim loses only a minor part - over 5 % but not more than 30% - of his capacity for
work in a profession or a general employment. Minor health impairment is punishable by restriction of
liberty, or detention, or imprisonment for a period of up to three years shall be punished by detention or
imprisonment for a term of up to three years. Penalty for the commission of the crime the body of which is
qualified in paragraph 2 of this Article as minor health impairment is punishable for a term of
imprisonment for up to five years if the crime has been committed with respect to a young child, against a
pregnant woman, against his close relative or family member, against a person in a helpless state by
torturing or subjecting the person to cruel treatment, etc (analogous to Article 135(2)).
Article 140 “Causing Physical Pain or Minor Health Impairment” of the Criminal Code of the Republic of
Lithuania establishes criminal liability of persons who by intentional battery or other acts of violence cause
physical pain or light injury, or a short disease to a human being. The conclusion on the causing of pain to
a human being is made by the forensic experts on the basis of the case material data confirming the fact
of battering or any other violence causing injury or illness is deemed as a minor health impairment if it
causes illness to a human being for a not longer than 10-day period or where the victim loses 5 % of his
capacity for work in a profession or a general employment. For the above acts the culprit may be
punished by public works or a fine, restraint of liberty, detention, or by imprisonment for a term of up to
one year. As it has already been mentioned the person who committed the above act may be held
criminally liable only subject to a complaint filed by the victim if his legal representative has made a
statement or the prosecutor has voiced his demand.
Article 143 of the Criminal Code of the Republic of Lithuania establishes that a person who, using
physical or psychological violence, compels a pregnant woman to have an illegal abortion shall be
punished by public works or detention, or by imprisonment for a term of up to two years.
Article 143 “Threatening to Murder or Cause Serious Health Impairment or Terrorising the Person” of the
Criminal Code of the Republic of Lithuania establishes that criminal proceeding will be instituted against
any person who threatens to kill a human being or cause serious health impairment to him if there are
sufficient grounds to believe that the threat may be carried out. The commission of the act shall be
punishable by public works or a fine, or by restriction of liberty, or detention, or imprisonment for a term of
up to three years. It should be noted that criminal liability under the Article arises in cases where only a
threat is made. If a person really starts preparing for the crime – is looking for means and instruments,
gathers accomplices, works out the action plan or makes an attempt at the person’s life or at causing him
health impairment, he is held criminally liable for preparing to murder the person or to make an attempt at
the person’s life or for attempting to cause him grave impairment of health. The act is punishable by a
term of imprisonment of liberty for a term of up to four years. The offender may be held criminally liable
only subject to a complaint filed by the victim if his legal representative has made a statement or the
prosecutor has voiced his demand.
Paragraph 1 of Article 149 of the Criminal Code of the Republic of Lithuania, regulating liability for rape
establishes that any person who, through physical violence or threats of imminent violence or otherwise
depriving the person of the possibility to resist or by exploiting the helpless state of the victim, has sexual
intercourse with the person against the person’s will, shall be punished by imprisonment for a term of up
to seven years. It is established in paragraph 2 of the Article that any person who commits rape with a
group of accomplices shall be punished by imprisonment for a term of up to 10 years, whereas paragraph
3 establishes that any person who rapes a minor shall be punished by imprisonment from three to ten
years, while as established in paragraph 4 that any person who rapes a child shall be punished by
imprisonment for a term of 5 to 15 years. It is established in paragraph 1 of Article 150, which regulated
criminal liability for rape, that any person who, against the will of the victim, satisfies his sexual desires
LITHUANIA                                                                                                179



through anal, oral or any other type of intercourse using physical violence or threats of imminent violence
or in any other way depriving the victim of the possibility to show resistance or by exploiting the helpless
state of the victim, shall be punished by detention or imprisonment for a term of up to six years;
paragraph 2 of this Article establishes that any person who commits the acts specified in paragraph 1 of
this Article aided by a group of accomplices, shall be punished by imprisonment for a term of up to eight
years; as established in paragraph 3 of this Article, any person who commits the acts specified in
paragraph 1 of this Article in relation to a minor shall be punished for a term of imprisonment from 2 to 10
years; as established in paragraph 4 any person who commits the actions provided for in paragraph 1 of
this Article with respect to a child shall be punished by imprisonment from 3 to 13 years. (Responds to
question 2.1)
Pre-trial investigation in respect of criminal acts under the Criminal Code of the Republic of Lithuania may
be commenced both where there is a complaint filed by the victim or his lawful representative or on the
initiative of law enforcement institutions or where there is a statement by any other person. In the cases
provided for by the Code of Criminal Procedure of the Republic of Lithuania law enforcement institutions
must commence investigation if it establishes elements of a criminal act even though the victim has not
filed any complaints. On the other hand, in respect of certain less dangerous criminal acts (paragraph 1 of
Article 139, paragraph 1 of Article 140, Article 145, paragraph 1 of Article 149, paragraph 1 of Article 150,
Article 152, Article 155, etc.) criminal proceedings may be instituted only provided there is the victim’s
complaint or a statement of the victim’s lawful representative or the prosecutor’s demand. This provision
protects the person’s right to privacy and provides conditions facilitating reconciliation of the victim and
the offender; whether or not the culprit will be punished for the committed criminal act will depend on the
will of the victim. In the cases where the victim for serious reasons is unable to defend his legitimate
interests or the case is of public concern, the prosecutor takes up the defence of the victim’s rights having
submitted a demand to commence pre-trial investigation.
It has been mentioned that should elements of criminal act be discovered the law enforcement institutions
commence pre-trial investigation, question the suspect, the victim, the witnesses, collect evidence and,
upon completion of pre-trial investigation, refer the case for hearing before the court. However, with
respect to certain cases (paragraph 1 of Article 140, Articles 152, 154, 155, etc of the Code of Criminal
Procedure of the Republic of Lithuania) pre-trial investigation is not conducted, the cases are heard as
private prosecution cases in accordance with Articles 407-417 of the Code of Criminal Procedure of the
Republic of Lithuania. Exceptions will be made in the cases where the prosecutor, being convinced that
the committed criminal act is of public (not only private) concern or that damage has been inflicted
thereby to a person unable for serious reasons to defend his interests, files a written application to the
court stating that he will prefer public charges. In such event the private prosecution proceedings are
terminated, the material of the case is transferred to the prosecutor and the investigation and trial proceed
according to the regular procedure. Cases where the person suspected of having committed the criminal
act is unknown are also treated as exceptions– in such cases pre-trial investigation proceeds according to
the regular procedure.
In private prosecution cases pre-trial investigation is not carried out and the victim files the application
directly in court. Having received the victim’s application the examining judge holds a reconciliation
hearing at which the accused and the victim are urged to seek reconciliation. In case of failure to reach
reconciliation the court makes a ruling to consider the victim’s application at the trial. During the private
prosecution proceedings the victim acquires the status of the private prosecutor, i.e. he himself prefers
the charges – collects the evidence and submits the collected evidence to the court, reads out the bill of
indictment, etc. At the same time the court may charge the pre-trial investigations institutions to determine
within the set time period the circumstance of the case which the court is not in the position to determine.
Having heard the case the court will render the judgement.
In order to protect the life, health, property, constitutional rights and freedoms of the participants in
operational activities, witnesses, victims or other persons connected with the criminal case as well as to
ensure comprehensive and objective investigation of the circumstances of the case, measures aimed at
protecting the victims of misdemeanours, witnesses and their family members from criminal influence
provided for in the Code of Criminal Procedure of the Republic of Lithuania as well as by the Law of the
Republic of Lithuania on the Protection from Criminal Influence of Participants in the Operational
Activities, Officers of Justice and Law Enforcement Institutions (13 February 1996, No I-1202), i.e.
180                                                                                                   LITHUANIA



physical protection of the person and his property, temporary relocation of the person to a safe place,
change of place of residence, work or study, etc.
Measures of protection from criminal influence may be applied to the persons listed in paragraph 1 of
Article 3 of the above-mentioned law – participants in the operational activities; persons taking part in the
criminal proceedings: witnesses, victims, experts, defence counsels, the suspects, the accused, the
convicted, the acquitted; officers of justice and law enforcement institutions: judges, prosecutors, pre-trial
investigation officers, court bailiffs; family members of the above-listed persons: parents, adoptive
parents, children, adopted children, brothers and sisters, grand-parents, grandchildren and spouses,
where, when carrying out pre-trial investigation or hearing criminal cases relating to grave or very grave
crimes there are grounds to believe that the life or health of the persons is in danger or the persons’
property may be destroyed or the persons’ constitutional rights and freedoms are in danger. Measures of
protection from criminal influence are applied to victims, witnesses and their family members provided the
above persons actively co-operated with the officers of justice and law enforcement institutions, helped to
detect a criminal act or were a source of other valuable information for the officers of justice and law
enforcement institutions. Measures of protection from criminal influence may be assigned and applied
when carrying out operational activities, during pre-trial investigation, during the court hearing of a
criminal case, also after the completion of operational activities or court hearing of a criminal case.
In criminal proceedings arrest is restricted, under international and constitutional human rights
requirements, by the necessary grounds, conditions, time limits and the established procedure. An arrest
may be ordered only by the court or the pre-trial judge and only when there is probable cause to believe
that a suspect might obstruct the course of proceedings or will go into hiding from the pre-trial
investigation officers or the prosecutor or the court or obstruct the course of the proceedings or commit
serious or very serious crimes or medium-gravity crimes listed in the law. An arrest may be employed only
in the investigated and considered cases involving crimes which, under criminal law, provide for a stricter
penalty than deprivation of liberty for a term of over a year, i.e. imposition of arrest is not allowed in the
investigation of misdemeanours and certain crimes, e.g., provided for in paragraph 1 of Article 140 of the
Criminal Code of the Republic of Lithuania (causing physical pain or minor health impairment).
Taking into account the fact that in cases of family violence arrest may often not be applied for the above-
mentioned reasons, the culprit residing with the victim even after the commencement of the criminal
proceedings, may exert upon the victim unlawful influence or even continue resorting to violence..
Amendments to the Criminal Code of the Republic of Lithuania have been enact by the Parliament in
2004, amending articles 120, 121, 126 of the Criminal Code of the Republic of Lithuania and
supplementing the Code with Article 132 (1). These amendments provide for a new preventive measure -
obligating the suspect to reside separately from the victim if there is justified cause to believe that suspect
residing together with the victim will attempt to exert upon the victim an unlawful influence or commit new
criminal acts against the victim or the persons residing together with him. The measure may be imposed
by the pre-trial judge or upon the court ruling whereby the judge/the court will also be able to obligate the
suspect to refrain from communicating or seeking communication with the victim or the persons residing
together with him, also refrain from visiting certain places visited by the victim or persons residing
together with the victim. It should be noted that enactment of the above legal provisions will immensely
aid the victims of domestic (family) violence, in most cases women and children. Also amendments in
2008 of the Civil Code article 3.65 provide for a new preventive measure when the court having regard to
the interests of the children of the spouses as well as the interests of one of the spouses may make order
prohibit one of the spouses from having contact with his or her minor children or appearing in certain
places.
Amendment to the Criminal Code articles 42 and 722 in 2008 provides new type of penalties -
participation in the programmes addressing violent behaviour. A court can place under the obligation to
participate in violence correction programmes the persons who have committed criminal acts in respect of
a close relative or family member. (Responds to question 2.1)
Special law “Protection against domestic violence” will be prepared and submitted to the Government in
2009. The structure of the law is based in particular on the "three Ps" which are the priorities: Prevention,
Protection of victims and Prosecution of offenders.
LITHUANIA                                                                                                181




1.1         LETTER OF LAW - DEFINITIONS
The Law on Equal Opportunities for Women and Men, forbids both direct and indirect discrimination
sexual harassment and harassment on the grounds of sex.

Violation of equal rights for women and men:
Violation of equal rights for women and men shall mean discrimination on grounds of sex. The fact that a
person disapproves of the behavior that violates equal rights for women and men or conforms to it cannot
influence the decisions related to this person.

Direct discrimination on the grounds of sex:
Where one person is treated less favourably on grounds of sex than another is, has been or would be
treated in a comparable situation, except when relating to:
1) special protection of women during pregnancy, childbirth and nursing;
2) compulsory military service prescribed exclusively for men;
3) different pensionable age for women and men, except for occupational pension schemes;
4) requirements for safety at work applicable to women aimed at protecting the women’s health owing to
their physiological properties;
5) a certain job that can be performed only by a person of a particular sex, where, due to the nature of a
specific professional activity or the conditions of its fulfilment, the sex is an essential (unavoidable) and
determinant professional requirement, this treatment is legitimate and the requirement is appropriate
(proportionate);
6) specific temporary measures set forth by laws, aimed at accelerating the guaranteeing of factual equal
rights for women and men and which must be repealed upon implementation of equal rights and equal
opportunities for women and men;
7) procedure and conditions of implementation of certain penalties;
8) where the sale of goods or the provision of services solely to, or in particular to, persons of one sex is
justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

Indirect discrimination on the grounds of sex:
An act or omission, legal provision, assessment criterion or practice that formally are the same for women
and men, but their implementation or application would put persons of one sex at a particular
disadvantage compared with persons of the other sex, unless such act or omission, legal provision,
assessment criterion or practice is objectively justified by a legitimate aim, and the means of achieving
that aim are appropriate and necessary.

Sexual harassment:
Any form of unwanted and insulting verbal, written or physical conduct of a sexual nature with a person
with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating
hostile, humiliating or offensive environment.

Harassment:
An unwanted conduct related to the sex of a person that occurs with the purpose or effect of violating the
dignity of a person, and of creating an intimidating, hostile, humiliating or offensive environment.
182                                                                                                  LITHUANIA



1.2      DOMESTIC VIOLENCE
Special law “Protection against domestic violence” will be prepared and submitted to the Government in
2009. The structure of the law is based in particular on the "three Ps" which are the priorities: Prevention,
Protection of victims and Prosecution of offenders.
The Criminal Code, Section 3 includes “crime against a person’s life, health, freedom and dignity”.
Section XXIII of the Criminal Code “Crimes against family and children” partially cover punitive measures
for domestic violence.
Amendments of the Criminal Code and Code of Criminal Procedure in 2004 created legal conditions for
isolating the perpetrator from the victim. It is worth while noting that the problem is especially acute when
the person resorts to domestic (family) violence thereby in most cases causing damage to women and
children. Both during the pre-trial investigation and during the court hearing the prosecutor, the pre-trial
judge or the court, seeking to ensure the participation of the suspect, the accused or the convicted person
in the judicial proceedings, unhindered pre-trial investigation, court hearing and execution of the judgment
and to prevent commission of any new criminal acts preventive measurers may be imposed on the
suspect according to the procedure established by the Code of Criminal Procedure of the Republic of
Lithuania – detention, obligating to reside separately from the victim, home arrest, bail, seizure of
documents, etc.
In criminal proceedings arrest is restricted, under international and constitutional human rights
requirements, by the necessary grounds, conditions, time limits and the established procedure. An arrest
may be ordered only by the court or the pre-trial judge and only when there is probable cause to believe
that a suspect might obstruct the course of proceedings or will go into hiding from the pre-trial
investigation officers or the prosecutor or the court or obstruct the course of the proceedings or commit
serious or very serious crimes or medium-gravity crimes listed in the law. An arrest may be employed only
in the investigated and considered cases involving crimes which, under criminal law, provide for a stricter
penalty than deprivation of liberty for a term of over a year, i.e. imposition of arrest is not allowed in the
investigation of misdemeanours and certain crimes, e.g., provided for in paragraph 1 of Article 140 of the
Criminal Code of the Republic of Lithuania (causing physical pain or minor health impairment).
Taking into account the fact that in cases of family violence arrest may often not be applied for the above-
mentioned reasons, the culprit residing with the victim even after the commencement of the criminal
proceedings, may exert upon the victim unlawful influence or even continue resorting to violence, the
Ministry of Justice of the Republic of Lithuania has drawn up a draft law amending and enact by the
Parliament in 2004, Articles 120, 121, 126 of the Criminal Code of the Republic of Lithuania and
supplementing the Code with Article 132(1). The law provides for a new preventive measure - obligating
the suspect to reside separately from the victim if there is justified cause to believe that suspect residing
together with the victim will attempt to exert upon the victim an unlawful influence or commit new criminal
acts against the victim or the persons residing together with him. The measure may be imposed by the
pre-trial judge or upon the court ruling whereby the judge/the court will also be able to obligate the
suspect to refrain from communicating or seeking communication with the victim or the persons residing
together with him, also refrain from visiting certain places visited by the victim or persons residing
together with the victim. It should be noted that enactment of the above legal provisions will immensely
aid the victims of domestic (family) violence, in most cases women and children. Also amendments in
2008 of the Civil Code article 3.65 provide for a new preventive measure when the court having regard to
the interests of the children of the spouses as well as the interests of one of the spouses may make order
prohibit one of the spouses from having contact with his or her minor children or appearing in certain
places.
Amendment to the Criminal Code articles 42 and 722 in 2008 provides new type of penalties -
participation in the programmes addressing violent behaviour. A court can place under the obligation to
participate in violence correction programmes the persons who have committed criminal acts in respect of
a close relative or family member.
Law on Compensation of Damage of Violent Crimes determines cases, when the state compensates
material or non- material damage, which arise of violent crimes, as f.i., murder, rape, sexual assault,
physical violence etc.
LITHUANIA                                                                                                  183



Law on Legal Aid guaranteed by State establishes the order of getting Legal Aid and natural persons who
can use this opportunity. Of them, persons, who due to the objective reasons are not able to dispose their
money are provided with legal aid, including legal advice, consultations, representation of their interests
before the courts. (f.i. women, victim of domestic violence living in the crisis centre).
In 2009 Action Plan for 2009-20012 of Strategy “Combating violence against women” is enacted by the
Government. The Strategy and actions cover three mains areas: prevention of domestic violence,
protection of and support to victims of domestic violence and prosecution of perpetrators. Goals and
activities of the
The main directions of the Strategy are prevention of domestic violence, assistance to the victim of
domestic violence, work with perpetrators, improvement of legislation and it’s implementation processes,
awareness raising, information and education of the public, trainings for relevant officials: police, judges,
pedagogues, social workers etc., promotion of cooperation with the women’s NGOs. Funds for the
implementation actions will be allocated from the State Budget of the Republic of Lithuania.
Different Ministries are responsible for implementation of appropriate activities. Interministerial
Commission on Equal Opportunities for Women and Men monitors implementation of the Strategy
“Combating violence against women” . The Commission t reports to the Government on implementation
of the Program every year.
Implementation of the strategy leads to ensuring of protection of women’s human rights, including
protection of violence, especially domestic violence and implementation of equal opportunities for men
and women.
Besides, law enforcement and police institutions carry out measures for prevention and control of
domestic violence, investigate cases of violent crimes, participate in the programmes, related to
prevention and control of violence, carry out preventive measures targeted to risk groups in cooperation
of state institutions, municipalities and non-governmental organisations, also organising trainings for
police officers.
In the Republic of Lithuania the official statistics of offences registers only a minor portion of all domestic
violent misdemeanours, as in most cases the victims of domestic (family) violence do not apply to law
enforcement institutions or other public organisations.
The Government of the Republic of Lithuania supports the development of assistance centres for women
victims of violence. About 25 women’s crisis centres, run by the Women’s NGOs’mostly, provide
assistance (including shelter, psychological, legal assistance and consultation, “hot line” telephone
services) to victims of violence. Implementing the Strategy, in 2009 support has been given to 49 projects
(20 from it to NGOs), intended for provision of social assistance to victims of domestic violence, including
their temporary accommodation, provision with food, legal, psychological consultations, other assistance,
Especially successful in its activities is the Vilnius Shelter for Battered Women and Children providing all-
round assistance to battered women and children is financed by the Vilnius city municipality. Successful
functioning of the said Shelter is an example for emulation for the crisis centres opened in the territories
of other municipalities. No less important activities of Kaunas Women’s Crisis centres, ensuring complex
support to victims of domestic violence from the entire Kaunas region.
The first Men’s Crisis and Information Centre was set up in Vilnius in 2002. In 2009 support has been
given to 9 projects, intended to create man’s crisis centres or self-helping groups for perpetrators, which
aimed to provide consultation and therapy services to perpetrators of violence who try to eliminate violent
behaviour in the family.
Society, especially women’s organisations, besides organising information campaigns, has provided
substantial assistance to battered women. Recommendations are being worked out with a view to
including the gender issue in the study programmes of lawyers, social pedagogues, social workers, police
officers, physicians. Implementing National Programme on Equal Opportunities for Women and Men, the
Manual of Legal and Practical Advice for Women Subjected to Domestic Violence has been prepared and
presented to municipal institutions, wards, NGOs, women’s crisis centres, police officers.
184                                                                                                     LITHUANIA



1.3       RAPE/SEXUAL ASSAULT

        CRIMINAL CODE

Article 149 – Rape:
1. A person who has sexual intercourse with a person against his will by using physical violence or
threatening the immediate use thereof or by otherwise depriving of a possibility of resistance or by taking
advantage of the helpless state of the victim shall be punished by imprisonment for a term of up to seven
years.
2. A person who rapes another person with a group of accomplices shall be punished by imprisonment for
a term of up to ten years.
3. A person who rapes a minor shall be punished by imprisonment for a term of three up to ten years.
4. A person who raped a young child shall be punished by imprisonment for a term of three up to fifteen
years.
5. A person shall be held liable for an act provided for in paragraph 1 of this Article only subject to a
complaint filed by the victim or a statement by his authorised representative or at the prosecutor’s
request.
6. A legal entity shall also be held liable for an act provided for in paragraphs 3 and 4 of this Article.

Article 150 - Sexual Assault:
1. A person who, against a person’s will, satisfies his sexual desires through anal, oral or interfemoral
intercourse by using physical violence or by threatening the immediate use thereof or by otherwise
depriving the victim of a possibility of resistance or by taking advantage of the helpless state of the victim
shall be punished by arrest or by imprisonment for a term of up to seven years.
2. A person who carries out the actions provided for in paragraph 1 of this Article together with a group of
accomplices shall be punished by imprisonment for a term of up to eight years.
3. A person who carries out the actions provided for in paragraph 1 of this Article in respect of a minor
shall be punished by imprisonment for a term of two up to ten years.
4. A person who carries out the actions provided for in paragraph 1 of this Article in respect of a young
child shall be punished with imprisonment for a term of three up to thirteen years.
5. A person shall be held liable for an act provided for in paragraph 1 of this Article only subject to a
complaint filed by the victim or a statement by his authorised representative or at the prosecutor’s
request.
6. A legal entity shall also be held liable for an act provided for in paragraphs 3 and 4 of this Article.

Article 151 - Sexual Abuse :
1. A person who, by threatening to resort to violence, using other mental coercion or by taking advantage
of a person's dependency, compels the person to have sexual intercourse with or otherwise satisfy sexual
desires of the offender or a third person shall be punished by arrest or by imprisonment for a term of up to
three years.
2. A person who carries out the actions provided for in paragraph 1 of this Article in respect of a minor
shall be punished by imprisonment for a term of up to five years.
3. A person shall be held liable for an act provided for in paragraph 1 of this Article only subject to a
complaint filed by the victim or a statement by his authorised representative or at the prosecutor’s
request.
4. A legal entity shall also be held liable for an act provided for in paragraph 2 of this Article.
LITHUANIA                                                                                                   185



Article 151(1) - Satisfaction of Sexual Desires by Violating a Minor’s Freedom of Sexual Self-
Determination and/or Inviolability
1. A person who has sexual intercourse or otherwise satisfied his sexual desires with a minor upon
offering, promising to provide or upon providing to him in consideration money or a consideration of
another form, in the absence of characteristics of a rape, sexual assault or sexual abuse, shall be
punished by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for a
term of up to three years.
2. A father, mother, guardian, custodian or another lawful representative of a child or another person
holding statutory powers in respect of a minor who has sexual intercourse or otherwise satisfied his
sexual desires with that minor, in the absence of characteristics of a rape, sexual assault or sexual abuse,
shall be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to
four years.
3. A legal entity shall also be held liable for the acts provided for in this Article.

1.4         CHILD SEXUAL ABUSE/INCEST

        CRIMINAL CODE

Article 153 - Molesting of a young child:
l. Any person who carries out molesting acts in respect of a young child, shall be punished by a fine or
restriction of liberty or detention, or imprisonment for a term of up to 2 years.
Criminal Code articles 149 – 151 criminalises actions against young children. In addition:

Article 149 – Rape:
3. Any person who rapes a minor, shall be punished by imprisonment for a term from 3 to 10 years.
4. Any person who rapes a young child, shall be punished by imprisonment for a term from 5 to 15 years.

Article 150 – Sexual Assault:
3. Any person who commits the acts specified in paragraph 1 of this Article in relation to a minor, shall be
punished by imprisonment for a term from 2 to 10 years.
4. Any person who commits the actions specified in paragraph 1 of this Article in relation to a young child,
shall be punished by imprisonment for a term from 3 to 13 years.

Article 151 - Sexual Abuse:
2. Any person who commits the acts specified in paragraph 1 of this Article in relation to a minor, shall be
punished by imprisonment for a term of up to 5 years.

        SEXUAL ABUSE OF GIRLS
The age of maturity is 18. Sexual intercourse with a girl under the age of 14 years is rape. If a 14 –16
year-old girl gives her consent to have sexual intercourse, a physician shall examine the questions about
her sexual maturity.

1.5         SEXUAL HARASSMENT
Women’s dignity is protected by the Constitution (art. 21), and the Law on Equal Opportunities of Women
and Men protects women’s dignity at work. Article 2 part 5 of the Law defines sexual harassment as any
form of unwanted and insulting verbal, written or physical conduct of a sexual nature with a person with
the purpose or effect of violating the dignity of a person, in particular when creating an intimidating hostile,
humiliating or offensive environment..
186                                                                                                 LITHUANIA



Article 5 of the law lays down the employer’s responsibility to prevent sexual harassment and to take
appropriate measures prevent persecution of an employee who has lodged a complaint on grounds of
discrimination.
Article 416 of the Administrative Offences Code stipulates a fine of 100 to 2 000 litas for public officials,
employers and persons authorised by the latter, for the violation of equal rights of women and men (i.e.
for sexual harassment).
Criminal Code introduced penalties for sexual harassment.

Article 152 - Sexual Harassment:
1. Any person who, in seeking sexual contact or satisfaction harasses a human being, who is dependent
due to the relations in service or in any other way, by the use of vulgar or other comparable acts or by
making suggestions or intimations, commits a misdemeanour, and shall be punished by a fine or
restriction of liberty, or detention.
2. Prosecution for the act specified in paragraph l of this Article may be instituted subject to a complaint
being filed by the victim or by the victim’s legitimate representative, or where so required by the
prosecutor.

1.6      PORNOGRAPHY
No information available.

1.7      PROSTITUTION
Administrative Offences Code

182(1) - Engaging prostitution and purchase of sexual services
Engaging of prostitution or purchase of sexual services damning a fine of 300 to 500 litas. Same action
committed by the same person damning a fine of 500 to 1000 litas or administrative arrest.

        CRIMINAL CODE

Article 157. Purchase or Sale of a Child
1. A person who offers to purchase or otherwise acquire a child or sells, purchases or otherwise conveys
or acquires a child, or recruits, transports or holds in captivity a child, while being aware or seeking his
involvement in prostitution or gaining profit from his prostitution or his use for pornography purposes or
forced labour, shall be punished by imprisonment for a term of three up to twelve years.
2. A person who commits the act provided for in paragraph 1 of this Article in respect of two or more
children or young children or by participating in an organised group or seeking to acquire the victim’s
organ, tissue or cells shall be punished by imprisonment for a term of five up to fifteen years.
3. A legal entity shall also be held liable for the acts provided for in this Article.

Article 307. Gaining Profit from Another Person’s Prostitution
1. A person who gained profit from another person’s prostitution or from procuration for prostitution shall
be punished by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to four
years.
2. A person who organises or is in charge of prostitution or transports a person with his consent for
prostitution to the Republic of Lithuania or from the Republic of Lithuania shall be punished by
imprisonment for a term of up to six years.
LITHUANIA                                                                                                 187



3. A person who gains profit from the prostitution of a minor or organises or is in charge of the prostitution
of the minor or transports the minor with his consent for prostitution to the Republic of Lithuania or from
the Republic of Lithuania shall be punished by imprisonment for a term of two up to eight years.
4. A legal entity shall also be held liable for the acts provided for in this Article.

Article 308. Involvement in Prostitution
1. A person who involves a person in prostitution shall be punished by a fine or by restriction of liberty or
by arrest or by imprisonment for a term of up to three years.
2. A person who involves in prostitution a person dependent on him financially, subordinate in office or
otherwise or involves a person in prostitution by using physical or mental coercion or by deceit or who, in
any manner, involves in prostitution a minor shall be punished by imprisonment for a term of two up to
seven years.
3. A legal entity shall also be held liable for the acts provided for in this Article.

1.8         OBSCENE PHONE CALLS/TELEPHONE SEX
No information available.

1.9         FEMALE GENITAL MUTILATION
No information available.

1.10        INTERNATIONAL CONVENTIONS
The Parliament ratified the Convention on the Elimination of all Forms of the Discrimination of Women in
1995, and ratified it’s Optional Protocol in 2004 Lithuania has ratified United Nations Convention against
Transnational Organised Crime in April 2002 and ratified its Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children in 2003. Lithuania has signed but not ratified
Council of Europe Convention on Action against Trafficking in Human Beings.

1.11        PROTECTION OF PREGNANCY/PREGNANT WOMEN
Labour laws regulate the protection of pregnant and breast-feeding women.
New Labour Code approved on 4 June 2002 came into force on January 1 2003.

Article 132 – Guarantees to Pregnant Women and Employees Raising Children:
1. An employment contract may not be terminated with a pregnant woman from the day on which her
employer receives a medical certificate confirming pregnancy, and for another month after maternity
leave, except for the cases specified in Articles 136 (1) and (2) of this Code, also under temporary
employment contract when it is terminated.
2.Employment contracts with employees raising a child (children) under three years of age may not be
terminated without any fault on the part of the employee concerned (Article 129 of the Code).

Article 155 – Duty at the Enterprise or at Home:
4.Persons under 18 years of age may not be appointed to be on duty at the undertaking or at home.
Pregnant women, women who have recently given birth and breast-feeding women, employees raising a
child under three years of age, employees solely raising a child under fourteen years of age or a disabled
child under sixteen years of age, persons taking care of a disabled person, the disabled , if not restricted
by a commission stating the disability, may be appointed to be on duty at the enterprise or at home only
upon their consent.
188                                                                                              LITHUANIA



Article 162 – Holidays:
It shall be prohibited to work during holidays, with the exception of work which cannot be interrupted on
technical grounds (enterprises and organisations of uninterrupted operation), work involving the need to
provide services to the population as well as work involving urgent repair and loading. Pregnant women,
women who have recently given birth to a child, breast-feeding women, the employees raising, as single
parents, a child under three years of age and employees raising a child before he has reached the age of
fourteen or a disabled child before he has reached the age of sixteen, and persons under eighteen may
be assigned work during holidays only subject to their consent.

Article 179 – Maternity Leave:
1. Women shall be entitled to maternity leave: 70 calendar days before the childbirth and 56 calendar
days after the child birth (in the event of complicated confinement or birth of two or more children – 70
calendar days). This leave shall be added up and granted to the woman as a single period, regardless of
the days used prior to the confinement.
2. The employees who have adopted newly born babies or who have been appointed as their guardians
shall be granted leave for the period from the date of adoption or guardianship before the baby is 70 days
old.
3. An allowance provided for in the Law on Social Insurance of Sickness and Maternity shall be paid for
the period of leave specified in paragraphs 1 and 2 of this Article.
4. The employer have to make sure, that after the end of maternity leave employees could return to the
job or to an equivalent post on terms and conditions which are no less favourable to them and to benefit
from any improvement in working conditions to which they would have been entitled during the absence.

Article 278 - Maternity protection:
1. Pregnant women or women who have recently given birth or breast-feeding women may not be
assigned to perform work in the conditions that may be hazardous and affect the health of the woman or
the child. The list of hazardous conditions and dangerous factors prohibited for pregnant women, women
who have recently given birth or breast-feeding women (hereinafter – list of hazardous conditions of work)
shall be approved by the Government.
2. In compliance with the list of hazardous conditions of work and working environment risk assessment
results, the employer must establish the nature and duration of potential effect to safety and health of
woman who has recently given birth and breast-feeding woman. Upon assessment of the potential effect,
the employer must take necessary measures to ensure that the above risk is eliminated.
3. Where the elimination of dangerous factors is impossible, the employer shall implement measures to
adjust the working conditions so that exposure of a woman who has recently given birth or a breast-
feeding woman to risks is avoided. If the adjustment of her working conditions does not result in
avoidance of her exposure to risks, the employer must transfer the woman (upon her consent) to another
job (working place) in the enterprise, agency or organisation.
4. Having been transferred to another job (working place) in the enterprise, agency or organisation, the
pregnant woman, the woman who has recently given birth or the breast-feeding woman shall be paid not
less than her average pay she received before being transferred to another job (working place).
5. If transferring a pregnant woman to another job (working place) where her and her expected child’s
exposure to risks could be avoided is not technically feasible, the pregnant woman shall, upon her
consent, be granted a leave until she goes on her maternity leave and shall be paid during the period of
extra leave her average monthly pay.
6. If it is not technically feasible to transfer a woman who has recently given birth or a breast-feeding
woman after her maternity leave to another job (working place), where her or her child's exposure to risks
could be avoided the woman shall, upon her consent, be granted an unpaid leave until her child is 1 year
of age and shall be paid for the period maternity insurance contributions prescribed by law.
LITHUANIA                                                                                               189



7. Where a pregnant woman, a woman who has recently given birth or a breast-feeding woman has to
attend medical examinations, she must be released from work for such examinations without loss in her
average pay, if such examinations have to take place during working hours.
8. In addition to the general break to rest and to eat, a breast-feeding woman shall be at least every three
hours given at least 30-minute breaks to breast-feed. At the mother’s request the breaks for breast-
feeding may be joined or added to the break to rest and eat or given at the end of the working day,
shortening the working day accordingly. Payment for these breaks to breast-feed shall be calculated
according to the average daily pay of the employer.
9. Pregnant women, women who have recently given birth or breast-feeding women may not be assigned
to work overtime without their consent.
10. Pregnant women, women who have recently given birth or breast-feeding women may be assigned to
work at night, on days off or on holidays, or be sent on business trips only with their consent. If such
employees refuse to work at night and submit a certificate that such work would affect their safety and
health, they shall be transferred to day-time work. Where it is not possible to transfer such employees to
day-time work due to objective reasons, they shall be granted a leave until they go on maternity leave or
child-care leave until the child is 1 year of age. During the period of leave granted before the employee
goes on maternity leave she shall be paid her average monthly pay.

        LAW ON SOCIAL INSURANCE OF ILLNESS AND MATERNITY

Article 18. Amount of Maternity Benefit Paid during Maternity Leave Period
1. The amount of maternity benefit during the maternity leave period shall make 100 per cent of the
benefit recipient’s compensatory salary. The amount of maternity benefit per month though shall not be
lower than one-forth of the current year’s insured income valid for the month the maternity leave had been
granted.
2. Maternity benefit shall be calculated and paid in accordance with procedures established by the
Regulations of Sickness and Maternity Social Insurance Benefits approved by the Government.\

Article 16. Entitlement to Maternity Benefit over the Duration of Maternity Leave
1. Persons insured in accordance with procedures established in paragraph 1 of Article 4 of Law on
Sickness and Maternity Social Insurance who were granted maternity leave shall be granted maternity
benefit for the duration of maternity leave if before the first day of maternity leave they had sickness and
maternity social insurance record for no less 12 months over the last 24 months.


2.0         SENTENCING
No information provided.


3.0         EFFECTIVENESS OF LEGISLATION
3.6         SPECIALIST POLICE UNITS – COUNTRY WIDE OR PATCHY
Lithuanian police do not have specialized units specifically dealing with violence against women. But in
every territorial Police Commissariat there are the persons appointed to be in charge of coordination of
activities related to violence against women: assistance, information and consultation. Every territorial
Police Commissariat and their structural units also have specialized units or persons, dealing with minor‘s
affairs. Furthermore Lithuanian Criminal Police Bureau has established specialized Trafficking in Human
Beings Investigation Division and in every of 10 Lithuanian regions the persons in charge of these matters
appointed.
190                                                                                                 LITHUANIA



3.9      WHAT GOOD IDEAS HAVE BEEN SUGGESTED BUT NOT YET IMPLEMENTED?
On September 9, 2009 by the resolution 1104, the Government of the Repuublic of Lithuania has adopted
new Programme of the prevention and control of trafficking in human beings 2009-2012. This programme
contains number of measures aimed at prevention of traffickimg in human beings, protection of victims of
trafficking, trainings for relevant specialists, strengthening of interinstitutional, regional, international
cooperation. All measures are to be implemented by law enforcement institutions in cooperation with
other relevent institutions, and organisations, concrete neadlines of implementation established,
including monitoring and reporting system. It should be noted, that mosto f victims of trafficking are
women, including minors.


4.0      DOMESTIC VIOLENCE
See Section 1.2 above.


5.0      RAPE AND SEXUAL ASSAULT IN MARRIAGE
No information provided.


6.0      RAPE AND SEXUAL ASSAULT
See Section 1.3 above.

6.10.    ARE FEMALE POLICE OFFICERS PRESENT IN ALL BODIES CHARGED WITH EXAMINING AND
         PROSECUTING RAPE?
According to the data of the Police department at the Ministry of Interior on July 1, 2009, women comprise
25,84 percent of a total number of police officers. In many police units, dealing with the rape/sexual
assault there are women officers.


7.0      SEXUAL HARASSMENT
No information provided.


8.0      INCEST/SEXUAL ABUSE OF GIRLS
No information provided.

				
DOCUMENT INFO