17 Dec, 2024
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Strengthening Accountability for Domestic and Other Forms of Violence: Implementation of the Convention or Yet Another Populist Move?
Event
On December 9, the Draft Law “On Amendments to the Criminal and Criminal Procedure Codes of Ukraine to ensure comprehensive implementation of international law provisions on countering domestic violence and other forms of violence, including against children” (№12297, hereinafter referred to as the Draft Law) was registered in the parliament. In particular, it provides for the following:
1) Part 6 of Article 49 of the Criminal Code of Ukraine (CC) is amended to specify that the statute of limitations begins on the day the victim reaches the age of 18 or, in the case of their death, would have reached the age of 18; Article 67 is supplemented with a new aggravating circumstance (Clause 12-1); part 1 of Article 69 and Part 1 of Article 75 of the CC are updated to include restrictions on the application of certain leniency provisions in cases where an adult commits sexual offenses, particularly against children; in Article 91-1, the minimum age at which offenders can be directed to undergo corrective programs is reduced to 16 years; the duration of restrictive measures is increased, and sanctions under Article 154 are revised; the CC is further supplemented with new Articles 121-1 and 129-1, establishing liability for inducing or forcing genital mutilation and for illegal harassment (stalking); terminological clarifications are introduced in Part 2 of Article 76, Article 91-1, Part 1 of Article 126-1, and Part 1 of Article 152 of the CC.
2) terminological and substantive amendments to Articles 469 and 477 of the Criminal Procedure Code of Ukraine (CPC).
Position of the CPLR
According to the explanatory note accompanying the Draft Law, the proposed amendments are justified by the fact that the provisions of the Criminal Code (CC) and the Criminal Procedure Code (CPC) of Ukraine do not fully align with the requirements of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (the Istanbul Convention), which Ukraine ratified on June 20, 2022. Furthermore, on May 14, 2024, the Council of the European Union adopted the Directive on Combating Violence Against Women and Domestic Violence (the Directive). This Directive requires member states to criminalize acts such as female genital mutilation, forced marriage, the distribution or processing of intimate images without consent, cyberstalking, cyberharassment, and cyberincitement to violence or hatred.
The issues addressed in the Draft Law are of critical importance. Since 2018, legal scholars have consistently highlighted the terminological gaps and inconsistencies between Article 152 of the Criminal Code (CC) and Article 36 of the Istanbul Convention. Specifically, Article 152 does not adequately provide for prosecution in cases of rape involving any part of the body or objects. The exclusion of certain criminal offenses from the list of those that can only be initiated upon a victim’s complaint, as outlined in Article 477 of the CPC, aligns with the implementation of Article 55 of the Istanbul Convention in terms of ensuring the possibility of continuing relevant proceedings even if the victim withdraws his or her statement or complaint.
The Draft Law, however, has significant shortcomings, including the following:
1. The explanatory note states that the strengthening of sanctions under Article 154 of the Criminal Code (CC) is intended to align with Articles 36 and 45 of the Istanbul Convention. However, Part 3 of Article 154 proposes reducing the maximum term of imprisonment to “up to 2 years” (instead of “up to 3 years”), which contradicts the stated objective. Moreover, it is worth considering whether restrictions of liberty (Part 1 of Article 154 – 1 year, Part 2 of Article 154 – up to 2 years, Part 3 of Article 154 – from 2 to 4 years) and fines (even increased) can truly be considered as “effective, proportionate, and dissuasive” penalties under Article 154 of the CC.
2. There is a lack of consistency in addressing aggravating circumstances related to offenses committed against minors and children. Part 2 of Article 121 of the CC introduces a qualifying circumstance that applies only to offenses committed against a “child under the age of 14”. However, Article 11, p. “(c)”, “(d)”, of the Directive require member states to ensure as aggravating circumstances both (c) offenses committed against a child and (d) offenses committed in the presence of a child. Furthermore, the Directive does not specify a child’s, meaning the provisions should apply to all minors.
3. The note to Article 126-1 of the Criminal Code (CC), which seeks to clarify the concept of “systematicity” by including “the issuance of an emergency restraining or restrictive order against the offender or the preparation of a protocol on an administrative offense under Article 173-2 of the Code of Ukraine on Administrative Offenses (CUAO)…”, does not align with the fundamental principles of criminal law. Administrative measures should not influence criminal liability, as stipulated by part 3 of Article 3 of the CC, according to which criminal liability, the punishability of an act, and other criminal-law consequences are solely determined by this Code.
4. The Draft Law fails to propose the criminalization of sexual harassment against adults (as required by Article 40 of the Istanbul Convention) or cyberharassment (Article 7 of the Directive).
5. There is inconsistency regarding restrictions on the application of leniency provisions. Part 1 of Article 69 of the CC is amended to restrict the application of lighter sentences than those prescribed by law for criminal offenses under Articles 152, 153, 154, 156, 301-1, and 301-2 of the CC when committed by an adult, as well as offenses under Articles 155, 156-1, and Parts 3 and 4 of Article 303 of the CC when committed by an adult against a child or minor. Part 1 of Article 75 of the CC is amended to impose similar restrictions for comparable offenses, except for those under Articles 152, 301-1, and 301-2 of the CC. However, the explanatory note does not provide any justification for these amendments.
The supposed importance of these amendments is based on the argument that, in cases involving serious and particularly serious crimes, the application of Article 69 of the Criminal Code (CC) allows for the subsequent application of Article 75 of the CC, which may enable the offender to avoid actual liability. However, this approach does not align with the requirements of Articles 45 and 49 of the CC, as well as other provisions of the Istanbul Convention, which call for the imposition of effective, proportionate, and dissuasive sanctions, along with the guarantee of effective criminal prosecution.
This argument is not acceptable, as almost every convention and EU directive addressing specific types of criminal offenses includes similar requirements for sanctions. However, their wording does not suggest that leniency rules cannot be applied when relevant circumstances exist.
Overall, this “trend” of restricting the application of leniency rules regarding certain criminal offenses, which the legislator deems necessary to “intensify the fight” against in a particular time (such as corruption, military offenses, etc.), contradicts fundamental principles of criminal law, including equality before the law and the court, proportionality, and could be recognized unconstitutional. This is also emphasized in the Opinion of the Directorate General for Human Rights and the Rule of Law of the Council of Europe on Draft Law № 2897 of December 6, 2016
The Draft Law once again highlights the need for comprehensive amendments to the Criminal Code (CC). In particular, the general approaches to considering aggravating and mitigating circumstances are clearly outlined in the proposed draft of a new version of the CCU.
Thus, the Draft Law requires further refinement. Its provisions need to be harmonized with each other, current legislation, and international agreements, particularly regarding the restrictions on the application of leniency provisions to specific articles and the consideration of aggravating circumstances in cases involving crimes against minors. The proposed amendments to sanctions (particularly in Article 154 of the CC) require a more balanced approach to ensure their effectiveness, proportionality, and deterrence.
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