Epp Lumiste

 

On 10 December 2009 the non-profit organisation Tallinn Crisis Centre for Women and the non-profit organisation offering support for crime victims (Kuriteoohvrite Toetamise Ühing Ohvriabi) turned to the Estonian Government, Riigikogu and the general public, expressing the need for an efficient policy and a national plan of action for combating violence against women. The European Union has provided guidelines, where violence against women is defined as:

„any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life”.

Thereby the definition includes physical abuse (including rape) as well as violence occurring within the family (physical and psychological). The latter is less visible as a rule and also more difficult to detect.

The topic of violence against women did not attract as much attention in 2010 as it should have, nonetheless, a lot of work has been done. At its April 1st, 2010 session the Estonian Government issued the order no 117 that approved the “Development Plan for reducing violence for years 2010–2014”.

The development plan was the basis for forming the analysis of the application of restraining orders and the analysis of application of the conciliation procedure.

In addition to the aforementioned, the members of Riigikogu interpellated the Minister of Justice on June 17th, 2010 about the drawing up of the specific law. Riigikogu opened its autumn session of 2010 by discussing violence against women and the possibility of instigating the drawing up of the specific law. The Minister of Justice answered questions in front of Riigikogu and claimed that according to criminal statistics report of 2008 52% of victims of physical abuse are men and 48% women. The Minister of Justice also emphasised that there are more men among the victims of violence occurring within the family than there are women and that the acts in force in Estonia are sufficient to provide everyone equal rights. However, the statement that there are more men among the victims is not backed by the study on violence among couples carried out by the Statistics Estonia in 2009. According to the study of the Statistics Estonia the violence among couples is widespread among women as well as men, however, there are substantially more women suffering violence.

Violence against women in Estonia

There are ten shelters in Estonia. 80% of the people who end up there are women, 20% are men. A third of the 20% that men make up are under age. According to the development plan the majority of persons who turn to shelters go there together with children. According to the Crime Barometer of the Ministry of Justice there were 67 rapes and 3624 offences involving physical abuse within the first 10 months of 2010; 49 cases of torture also occurred.

In comparison to the previous year the number of all the aforementioned offences has fallen. The criminal statistics of Ministry of Justice include different forms of physical violence, but not the psychological violence. The violence occurring within the family is the covert side of violence against women. According to the study carried out by the European Commission Estonia is in the top three EU Member States, preceded by just Lithuania, Latvia and Finland (depending on the data). 39% of respondents reveal that they know a female victim of a domestic violence within their circle of friends and family and 32% know of somebody in their circle of friends and family who subjects a woman to violence.

It stems from the EU survey that 73% of respondents believe that violence against women is unacceptable and should be punishable by law.[1] According to the same survey the figures pertaining to perception of domestic violence in Estonia are surprisingly low.

The penal measures

According to § 18 of the Constitution of the Republic of Estonia[2] no one shall be subjected to torture or to cruel or degrading treatment or punishment. The principle of Article 3 of The European Convention on Human Rights (ECHR) is embodied in the Constitution. Paragraphs 121–122 of the Penal Code[3] cover physical abuse and torture. Both are punishable by a pecuniary punishment or imprisonment (up to three years in case of physical abuse and up to five years in case of torture). Punishment of imprisonment is prescribed for causing serious damage to health (§ 118 of the Penal Code) or negligent homicide (§ 117 of the Penal Code).

Presently, the Penal Code does not prescribe a considerable punishment for committing domestic violence. Since domestic abuse falls under the offence of physical abuse and since the prisons in Estonia are overcrowded, the pecuniary punishment is referred to as a rule of thumb. This, in turn means that the person causing violence will return home, where he is likely to continue with his previous habits.

Code of Criminal Procedure prescribes a possible defence for the victim, which is the temporary restraining order (§ 141¹ subsection 1). This is a measure of ensuring criminal procedure and therefore the temporary restraining order can be applied until the entry into force of the court judgment. Subsection 2 of this paragraph may prove to be an obstacle as application of the restraining order requires the consent of the victim. The victim may oftentimes retract the consent because of compassion for the partner, after making up with the partner, for social and economic factors or for fear. The requirement of consent in criminal proceedings may lead to situations where the offender goes back to the victim and the victim later retracts his or her complaint and the offender goes unpunished.

The second major problem with temporary restraining orders is the lack of sanctions in case of violation.[4] This, on one hand, means that the victim lacks the motivation to notify of the offence and, on the other hand, that the person who is given a temporary restraining order is not afraid to breach it. § 331² of the Penal Code prescribes a punishment for violation of a restraining order,* but it is applicable only to a restriction order imposed by a court decision and not to a temporary restraining order. Therefore, it is not an effective measure of preventing a suspect from causing the victim new injuries.

In addition to applying a restraining order the development plan also foresees amending the conciliation proceedings. The consent of the victim as well as the suspect or the accused is necessary for application of conciliation proceedings (§ 2032 of Code of Criminal Procedure). Conciliation proceedings are applied if the lack of evidence does not allow for a solution in the course of criminal proceedings.[5] Criminal cases that were referred to conciliation proceedings were predominantly (above 90%) cases involving violence, and almost 60% of those cases involved domestic violence. The suspect had 6 months to comply with his obligations. If obligations are not complied with in time the criminal proceeding may be renewed.

Compliance with human rights

Article 3 of the ECHR contains the prohibition of torture, which states that no one shall be subjected to torture or to inhuman treatment or punishment.[6] States parties to the ECHR have taken on the obligation to ensure all people in their jurisdiction the fundamental rights and freedoms. This means that the Member States have a positive obligation to ensure the protection of all people from torture or inhuman treatment. This obligation extends to those cases where the perpetrator is a natural person.

European Court of Human Rights has repeatedly decided that abuse must be of a certain level of severity to classify as breach of Article 3.[7] Constant physical and psychological abuse committed in the course of domestic violence constitutes as inhuman treatment in the meaning of Article 3. If a ECHR Member State does not guarantee adequate protection of the victims, then it constitutes as a breach of Article 3 of the ECHR.[8] The ECtHR applied Article 3 to a case involving domestic violence in its decision that came into force in September of 2009 and decided that the Member State had not fulfilled its obligation to protect the rights of the victim.[9] As a result of this the Member State has a positive obligation to take steps to ensure the termination of violence as well as the abuse of the victim.

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[10] also includes the elimination of violence against women. Estonia signed CEDAW on November 20th, 1991. Points 11 and 23 of No 19 of general recommendations made by the Committee point out the fact that family violence is the most dangerous form of violence and women are often unable to leave the situation as they depend on the offender. In 1992 the Committee of CEDAW advised the Member States to establish legal means to ensure adequate legal protection for the victims of domestic abuse.

As of the end of 2010 there are no elements of an offence for domestic violence in the Penal Code and the elements of an offence of physical abuse are not sufficient to ensure the safety of the victims and the termination of the abuse. The paragraph on physical abuse (§ 121 of the Penal Code) is also applicable in domestic violence cases. According to § 9 subsection 1, a person may be detained for up to 48 hours without an arrest warrant issued by a court.

Therefore, if a person is detained on the suspicion of physical abuse, he is free to return to the victim within 48 hours. The victim has the option to apply for a temporary restraining order that would effective until the court order enters into force. This should ensure victim’s safety while the offender is at large.[11] Since the punishment for physical abuse is pecuniary punishment or up to three years’ imprisonment, it is rather likely that the offender is given a pecuniary punishment which he will then pay and return to the victim.

There are other shortcomings in the proceeding. According to § 71 of the Code of Criminal Procedure, a spouse or a person permanently living together with the suspect or the accused has the right to refuse to give testimony as witness. There are also usually few witnesses in domestic violence cases. It is evident from the survey of Ministry of Justice that in case of lack of evidence the case is referred to conciliation procedure.

The aforementioned measures of procedure illustrate the situation where the accused or the suspect can often escape punishment and return to the victim.

As a result of the case Opuz v Turkey[12] it seems that Estonia has not fulfilled its obligation in the meaning of Article 3 and the Penal Code should be amended with the elements of an offence for domestic violence. The measure of procedure (restraining order) should be made efficient so that the victims of domestic violence could get effective help.

Conclusion

Violence against women is a problem that is not discussed much in Estonia. This topic may arise now and then in connection with a case that gained public attention or due to a campaign, but mostly the topic remains hidden from the public. And yet it influences the entire society. The development plan reveals the fact that domestic violence is not usually a singular occurrence, but that it becomes a daily part of family life. There is also the possibility that the children who are victims of abuse may become offenders themselves.[13] Domestic violence should be dealt with on all stages: preventative, punitive and the protection of victims.

Estonian Women’s Association Round Table gave its suggestions at the drawing up of the development plan, but not all of them were included in the development plan itself. One of the most important suggestions may be giving the police the authority to remove the offender from home and to keep him away from home.

International human rights conventions (ECHR and CEDAW) place the obligation on the Member States to take positive steps towards protection of rights of women. The legal framework in place in Estonia at the moment does not ensure a woman adequate protection from the offender.

Women have the opportunity to turn to crisis centres and shelters, which generally operate as non-profit associations and have project-based funding. The state should be the organ to provide the victims such help and a constant funding for respective organisations.

In order to make sure Estonian laws are in accordance with the decision of the ECtHR that came into force at the end of 2009 the Penal Code should be amended with the elements of an offence for domestic violence. Considering the particularities of the elements of an offence of domestic violence the procedural law should also be made more efficient. The concern expressed at the opening session of Riigikogu that the specific law would contradict human rights, would be easily dispelled if the elements of an offence of domestic violence were not based on the gender of the victim, but provide protection for victims of domestic abuse irrespective of their gender.

Recommendations

–          Consider increasing authority of the police to enable removal of a violent person from home and to keep him away from home.

–          Increase state’s participation in funding of the organisations offering support services.

–          Ensure the victim more efficient and more easily available support services and protection from the offender.

–          Amend the Penal Code with the elements of an offence for domestic violence.

 


[1] Special Eurobarometer 344, p 46.

[2] The Constitution of the Republic of Estonia, RT [State Gazette] 1992, 26, 349…RT I 2003, 64, 429.

[3] The Penal Code. RT I 2001, 61, 364 … RT I, 11.03.2011, 1.

[4] Lähenemiskeelu kasutamine kriminaalmenetluses [Use of restraining orders in criminal proceedings], p 24.

* Translator’s note: some English translations of the Penal Code of Estonia use the term ’restriction’.

[5] Lähenemiskeelu kasutamine kriminaalmenetluses [Use of restraining orders in criminal proceedings].

[6] The European Convention on Human Rights. Signed in Rome 4 November 1950. Estonia signed 14 May 1993. Ratified 16 April 1996. Article 3.

[7] European Court of Human Rights. 25 March 1993 judgment Costello-Roberts v United Kingdom . Application no. 13134/87, §  30; ECtHR. 29 April 1997 judgment H.L.R. v. France . application no. 24573/94, § 40; ECtHR. 19 February 2009 judgment A. v. United Kingdom . application no. 3455/05, §  20.

[8] A. v. United Kingdom, § 24.

[9] ECtHR. 9 June 2009 judgment Opuz .v Turkey. Application no. 33401/02.

[10] Adopted in New York 18 December 1979. Estonia joined 21 October 1991. Published: RT II 1995, 5/6 /31.

[11] The effectiveness of restraining orders requires an analysis, as several people working with abuse victims at shelters have expressed their doubt about it.

[12] ECtHR. 9 June 2009 judgment Opuz v. Turkey. Application no. 33401/02.

[13] Development plan for reducing violence for years 2010–2014, p 11.

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