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2 February 2017

Domestic violence equated to illegal parking

Battery committed against family members has been decriminalized in Russia. What are the consequences for victims? How are they to get protection under the law?

Russia’s State Duma adopted a bill involving decriminalization of battery (Art. 116 of the Penal Code of the Russian Federation) at its third reading on January 27, 2017. Under the amended article, first-time offenders will be charged with an administrative offense. This new measure is exceptional for a variety of reasons, not least because it signals a departure from international legal norms. As of today, relevant legislation pertaining to domestic violence is only lacking in Russia, Armenia, and Uzbekistan amongst the CIS countries.

The bill was passed at unprecedented speed as the first reading took place on January 11, and the third - on January 27. This is the second time this particular article has been amended; battery was partially decriminalized in August. Battery against a connected person (i.e. a member of the household) was recategorized from private prosecution to private-public prosecution. The latter form of indictment was considered a small victory by campaigners against domestic abuse as it effectively made it easier to punish perpetrators since victims were no longer obliged to conduct an investigation into the crime independently. The latest amendment means that battery (repeated instances of assault) will be dealt with under private prosecution laws, according to which victims are responsible for gathering evidence and bringing cases before courts. The mode of private indictment assumes that the aggrieved party gathers all evidence (for example, images of injuries sustained along with a medical protocol from the medical center or hospital where initial treatment was sought), gathers affidavits, files a suit in a magistrate court and represents their own interests there. Since most people cannot do all this alone, they are left with no alternative than to appoint a lawyer at their own expense. It is noteworthy that the accused party is entitled to legal representation at zero cost.

According to official statistics from the Ministry of the Interior, more than 14,200 instances of battery were recorded in Russia in the first nine months of 2016 alone. In more than 9,000 of these cases, the victims were female. Nearly 5,000 women contacted the St. Petersburg Crisis Centre INGO in 2016, 2,500 of whom reported the use of violence against them. Nearly half of the women requested assistance with submitting a court application and as few as 20% reported the abuse they had suffered to the police. Therefore, one cannot say that the situation has greatly deteriorated from the point of view of victims of violence – it has never been anything other than intolerable. Numerous accounts of victims of violence published recently attest to the fact that Russian police officers often fail to respond appropriately to citizens’ complaints. Cases such as the November Oryol case, in which the police refused to respond to the call of a woman who was being beaten by her partner (police informed her as follows: “If you get killed, we will definitely show up and examine your body”), have become commonplace; numerous other victims have made similar complaints about police officers adopting such stances. Police remissness resulted in the death of the Oryol woman as she later died in hospital from the injuries she sustained.

On the other hand, the Russian penitentiary system is notorious for its brutality. Thus, many victims of violence do not wish to see their abusers behind bars. According to VTsIOM data, a little more than half of citizens trust law enforcement authorities in Russia. Hence, it comes as no surprise that crimes committed in the home – even those involving the sexual abuse of children – are dealt with privately. Two recent, striking examples of such cases involved School No.57 and the League of Schools in which victims of sexual assault chose not seek justice through the courts, instead merely demanding that the offending teachers be dismissed.

It is believed that the amended law will pave the way for a greater number of abusers to be prosecuted since it will be easier to bring them to justice under administrative, rather than criminal, law. Recent evidence, however, suggests the opposite is true in practice. Here is an example: a husband has beaten his wife, she calls the police who make a record of an administrative offense before ordering the abuser to pay a fine. Another form of punishment – administrative arrest – is applied only in exceptional cases and, in the majority of cases, results in a fine. In the case of repeated battery, police refuse to initiate a criminal case and the victim is left with no other opportunity than to go to the state court since private prosecution is the means by which the crime of battery is dealt with. The overwhelming majority of people – especially those who find themselves in difficult situations – are unlikely to find either the time or energy to see the complex procedure of gathering evidence and liaising with the court through.

Another argument used by those who support decriminalization is that Article 116 is the only article to have been reassigned to the Civil Code. Articles such as Art.115 (intentional infliction of light bodily harm) and Art.117 (torture) will continue to remain under criminal legislation. According to the Speaker of the Federation Council Valentina Matviyenko, “there are approximately 60 articles of Russian legislation which can be used to bring abusers to justice in domestic violence cases”. One would assume that victims of domestic violence could apply these articles. However, currently, Russian courts tend to treat most cases of domestic violence precisely as “battery” even if a victim sustains a concussion or numerous bruises, as was the case with the journalist Anna Zhavnerovich.

The bill was referred to in the Duma as “the law on spanking” and the decriminalization of battery was justified by the fact that, in this way, legislators could protect parents from arrest for “spanking” a child. Defense lawyer Mary Davtyan stated as follows during a private conversation with this article’s author:

“Supporters of this solution forget that child protection services in today’s Russia have the right to take a child away from his or her family whether criminal proceedings have been instigated or not; merely based on the suspicion that the child is being subjected to violence. Besides, the administrative procedure does not favor the defendant, as, in contrast to criminal proceedings during which the accused has the right to a lawyer and presumption of innocence applies, it is sufficient to have a written record, which in itself constitutes proof of guilt under administrative proceedings. Recorded administrative offenses are often considered sufficient to warrant the removal of a child from the family”.

Under the circumstances, victims of violence can only contact crisis centers, try not to hush up their problems and ask someone they trust for help as early as possible. Unfortunately, Russian police officers are unable to provide assistance to victims of domestic violence promptly due to their lack of training as well as resources. The very fact that the “Article on battery” belongs to the category of private prosecution rather than private-public prosecution greatly complicates the work of the police, whose work could be far more effective in deterring perpetrators of domestic abuse were they permitted to open a criminal case.

The only way to really change the situation surrounding domestic violence is to adopt relevant legislation aimed at making it easier to obtain restraining orders and to find shelter. Skilled police officers are also needed. The law on domestic violence should cover not only battery but also sexual abuse, threats, as well as harassment (Russian legislation does not currently recognize crimes such as stalking).

Laws on domestic violence around the world are preventative by nature; they prevent crimes such as murder, rape and grievous bodily harm. The connection between these crimes and domestic violence has been proven in countries where such legislation is in place; it is an established fact that men who ultimately kill their spouses often threaten them with murder first and 80% of victims of harassment have also experienced violence at the hands of their abusers. Moreover, according to some data, violence against family members may indicate a propensity to violence outside the home as illustrated by the terrorist atrocities carried out in Orlando and Sydney.

It is clear that there are too few crisis centers in Russia today. Consequently, victims of domestic violence who live in provincial towns often have nowhere to turn for help. The situation in large cities is slightly better, but even there, many shelters do not admit women who are not in possession of both a medical certificate issued by a physician and a local residence permit. Some women manage to access help remotely (online or via a helpline) but it is safe to assume that a large number of women are rendered entirely helpless, especially should they find themselves in the situation whereby they are forced to find emergency shelter.

Decriminalization of battery constitutes a kind of “coming out” for Russian legislators akin to public acknowledgment of their inability and/or unwillingness to protect citizens. This law delivers a clear message to society as a whole: violence against family members is acceptable. The removal of this article from the Penal Code means that the Russian legislature no longer considers domestic violence to be socially detrimental.

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