The approach of domestic violence by the Romanian Criminal Justice System

Transcription

1 The approach of domestic violence by the Romanian Criminal Justice System by Maria Stoleru* PhD Candidate at Babeş-Bolyai University Faculty of Sociology and Social Work Cluj-Napoca, Romania *This work was possible with the financial support of the Sectoral Operational Programme for Human Resources Development , co-financed by the European Social Fund, under the project number POSDRU/107/1.5/S/76841 with the title Modern Doctoral Studies: Internationalization and Interdisciplinarity.

2 Introduction. The role of the criminal justice system (CJS) in domestic violence(dv) cases The movement for gender equality and women rights emphasized thatdvproblemcannotbesolvedintheprivateareaofthefamily and needs to be approached by the state through legislative and policy reforms (Epstein, 1999). Because of the risk they are subjectedto,thevictimsofdvneedandmustbenefitfromformal responses(miller, 2006). Since the couple relationships and the family are associated with the private sphere of life, it is the role of the CJS to transform it in a matter of public interest(burton, 2008). Strauss and Gelles (1990) concluded that DV between partners occurs because the violent partners can, because they are allowed by the society. Informal support helps the victims at the beginning of their search for help, formal support being more necessary as the abuse becomes more serious(meyer, 2011).

3 The dualism regarding the perception of DV victims as either willing or unwilling to use the CJS must be avoided(barata, 2007). The results of research regarding the efficiency of the CJ intervention in the DV cases indicate dissatisfaction of victims and lack of coherence in approaching these cases. According to the results of a fieldwork research completed in 2001 the victims voices are not heard and their role and participation are minor in the hearings(cammis, 2006) A study based on semi-structured interviews victims of DV in Queensland, Australia proved dissatisfaction among DV victims because the violent partners are frequently acquitted or sentenced to minor punishment(douglas, 2012). The results of a study consisting in the analysis of in-depth interviews with the DV victims, described the court experience as traumatizing, the professionals manifesting a gender discriminating attitude towards the victims and lacking the domestic violence dynamics knowledge(meyer, 2011).

4 The legal framework of domestic violence in Romania Communism: the Romanian state expressed little interest if no political implications were involved(miroiu, 2004). Law no. 197/2000, amending and supplementing the Criminal Code, provided measures and penalties for DV cases. Law 217/2003 lists the types of offenses considered DV crimes: from crimes against life, physical integrity and health to crimes against relationships or social cohabitation. 2 categories of offenses : offenses requiring prior complaint of the victim and offenses requiring no complaint. Prior complaint: police, prosecutor. The complaint must be made personally by victim in 2 months from the crime. The injured party can withdraw the complaint, resulting in the removal of criminal liability. For those offences not requiring a criminal complaint the court is notified by the indictment prepared by the prosecutor in these cases(american Bar Association, 2007).

5 When criminal investigation is ready the criminal investigation body shall immediately forward the case file to the prosecutor The prosecutor has the following possibilities: sending the case to trial, ordering the removal from criminal prosecution, ordering cessation of the prosecution, ordering closure of the case. Criminal investigation: prosecutors (for the serious crimescrimes against life or freedom) or criminal investigation bodies. The trial: court or tribunal. Can result in conviction, acquittal, cessation of trial Criminal detention (24 h), preventive arrest (10 days) or arrest (30 days- extendable)(radu et al., 2013) In May 2012 the Law 25/2012 amending and supplementing Law no. 217/2003 was adopted. The new text of law stipulates the existence of the protection order.

6 The research data on DV and CJS existing in Romania The first national research on DV and the workplace- conducted by the Partnership for Equality Center (2003)- in 12 months prior to research: 800,000 women were victims of DV. 17.8% had been victimsofoneormoretypesofdomesticviolenceatsomepoint. National Agency for Family Protection: an increase of DV cases from8,104in2004to11,534in2008. The total number of DV criminal cases sent to Romanian courts between ranged from 128 (in 2006) to 242 (in 2002) (Superior Council of Magistracy, 2010). The national study regarding the implementation of the protection order (2013) introduced by Law 25/2012: 1009 requests for protection orders were submitted. The victimization risk : still high for the victims. The protection of the freedom of movement and property rights of the perpetrator is more likely to be achieved than security of the victims (Transcena Association, 2013).

7 The WOSAFEJUS Research The European international project WOSAFEJUS - Why Doesn t She Press Charges? Understanding and Improving Women's Right to Safety and Justice, Daphne III( ) Romanian counties(cluj and Iaşi) The Methodology of the Research DV criminal files analysis(quantitative analysis) Aim: evaluating the process of the complaints withdrawal by the victimsandtheapproachof thesecrimesbycjs. Prosecution offices and courts from the 2 counties The criminal files corresponding to all DV crimes The research tool: a questionnaire developed by the Research Institute of Carlo Cattaneo from Italy Excepting one institution we have analyzed all the criminal files concerning the DV crimes existing in the archives of the institutions. We identified domestic violence on the basis of the reports of the criminal investigation authorities or from the sentence map

8 Results of the criminal files analysis From the total amount of 339 files, 125 files (36.87%) come from IaşiCounty prosecution office and court and 214 (63.13%) from ClujCounty prosecution offices and courts. Figure 1: Source of criminal files by county Regarding the provenience of the criminal files according to the judicial body 25.37% of them (86 files) came from the courts, 73.75% (250 files) came from the prosecution offices and 0.88% (3 files) came from the tribunal Figure 2: Source of the files by judicial body

9 Demographic data of the victims and perpetrators Age Victims Aggressors Over (5.83%) 29 (8.90%) (10.74%) 53 (16.26%) (23.62%) 92 (28.22%) The average age of the victims is years old and that of the perpetrators is years old, the difference being significant (37.73%) 120 (36.81%) Under (22.09%) 32 (9.82%) Total 326 (100%) 326 (100%) Mean age 37.98% 41.89% Table 1: The victim s and offender s age Most of the victims have one (38.94%) or two children (20.65%), being also high school graduates (31.72%). Most of perpetrators are vocational school graduates (31.95%). Number of children Frequency and valid percent No children 6 (1.77%) 1 child 132 (38.94%) 2 children 70 (20.65%) 3 children 28 (8.26%) 4 or more children 26 (7.65%) Unavailable information 77 (22.71%) Total 339 (100%) Table 2: Number of children

10 The person/ institution which reported the crimes(242 files): the victim (83.47%), police (8.68%), children (1.66%), other family members (1.66%), private persons (1.24%), neighbors (1.24%), public authorities representatives (1.23%) and medical staff (0.82%). The civil action was initiated in 10.41% of the cases. In 38 cases the victims have been previously filed complaints against their (ex-) partners, in 13 cases the complaint being retracted. The type of offence: 65.38% hitting or other forms of violence, 19.82% family desertion, 7.99% threatening or insult, 5.92% bodily harm and 0.89% murder attempt. Figure 3: Type of analyzed crimes

11 Withdrawal of the complaints DV cases, excepting the desertion of family cases Total amount: 117 cases (100%) Unknown information: 4 cases (3.41%) Dismissal of charge: 110 cases (94.01%) Sent to trial: 3 cases (2.56%) Withdrawal of the complaint: 93 cases (79.48%) Other reasons: 17 cases (15.42%) Figure 4: Prosecution Office attached to IaşiCourthouse criminal cases route Total amount: 11 cases (100%) Unknown information: 0 cases Dismissal of charge: 8 cases (72.73%) Sent to trial: 3 cases (27.27%) Withdrawal of the complaint: 3 cases (27.27%%) Other reasons: 5 cases (45.45%) Figure 5: Prosecution Office attached to Turda Courthouse and Turda Courthouse criminal cases route

12 Total amount: 80 cases (100%) Unknown information: 0 cases Dismissal of charge: 72 cases (90%) Sent to trial: 8 cases (10%) Withdrawal of the complaint: 61 cases (76.25%) Other reasons: 11 cases (13.75%) Figure 6: Prosecution Office attached to GherlaCourthouse and GherlaCourthouse criminal cases route Total amount of the cases (100%) from courts: 37 cases (100%) Withdrawal of the complaints: 11 cases (29.72%) Conviction: 23 cases (62.16%) Acquittal: 1 case (2.70%) Unknown information: 2 cases (5.40%) Imprisonment: 15 cases (40.54%) Fine: 8 cases (21.62%) Suspended sentence: 9 cases (24.32%) Sentences with execution: 6 cases (16.22%) Sentences with execution: 8 cases (100%) Suspended sentence: 0 cases Figure 7: Domestic violence cases in Courts and Tribunal

13 Withdrawal of the complaint Victim s age Under Over 60 Total Yes 46 (63.01%) 69 (58.47%) 51 (68.91%) 24 (72.72%) 12 (63.15%) 202 (63.72%) No 27 (36.99%) 49 (41.53%) 23 (31.09%) 9 (27.28%) 7 (36.85%) 115 (36.28%) Total 73 (100%) 118 (100%) 74 (100%) 33 (100%) 19 (100%) 317 (100%) Table 3: Withdrawal of the complaint, compared to the victim s age According to our data the highest withdrawal rate of the complaints can be found in the age group years (72.72%), preceded by the age group years old (68.91%). Withdrawal of the complaint Marital status Unmarried Married Married in other country Divorced Unavailable information Number and percent of the withdrawals 22 (53.65%) 153 (73.91%) 3 (42.85%) 22 (33.84%) 4 (80%) Total 41 (100%) 207 (100%) 7 (100%) 65 (100%) 5 (100%) Table 4: The percentage of complaint withdrawal classified by the marital status of the victims

14 Imprisonment was ordered in 80% of cases (25 from 31 cases) of desertion of family. In over half (57.14%- 8 cases from 14) of the cases of hitting or other forms of violence, the defendant was sentenced to pay a criminal fine. The total value of the fines in Euros varies from 50 (in 3 cases of bodily harm) to 875 (a case of bodily harm/severe bodily harm). In two cases, both of them of family desertion, the fine was suspended(a fine of 425 and 500 Euros respectively). Analyzing the sentences depending on the type of the offence: 22 from30prisonsentencesgivenincasesofdesertionoffamilyand 9 from 13 of the prison sentence given in cases of hitting and other forms of violence involved suspension of the execution of the punishment.

15 The ethnographic observation of the DV trials We observed 49 trial hearings, 30 in the county of Cluj, and 19 in thecountyofiaşi 12 DV cases (1= threatening, 1= deprivation of personal freedom, 1= grievous bodily harm, 1= bodily harm, 2= aggravated attempted murder, 6= hitting and other forms of violence) and 17 hearings. Sentences: 4 suspended sentences (2 months, 4 months, 6 months and 1 year), criminal fines (500, 1000 and 2000 lei), 1 case of acquittal and 2 cases concluded with a reconciliation. Results Court buildings are characterized by an imposing architectural style, creating a sensation of "impersonal", "cold. The corridors of the building have been perceived by the members of the research team as resembling to a big labyrinth. There is equally a map of the courtroom, but in order to be able to useit,oneneedstoknowthenumberofthecourtroom.thisnumber isknownonlybythepartiesinvolvedinthetrial.

16 Most of the courtrooms were opened around 8.30 a.m. but there have also been situations in which the audience wasn t allowed to enter the courtroom earlier than 9.00 a.m. When the courtrooms weren t open, the audience waited in front of them which led to crowds and noise. The acoustics of most of the courtrooms is not too good, sometimes being difficult to hear what the representatives of the CJS said. During the same day and in the same courtroom the domestic violence cases are trialed together with different other cases. The number of the cases trialed in the same day by the same judge(atthecourtlevel)ishigh,reachingoutto30cases. The DV cases are judged in public sessions, with the participation of the public. This can subject the victim to adding some extrastress to that of sending its partner to jail, their stories being exposed in front of unknown people.

17 The victim and the perpetrator are present in the same courtroom, sometimes at a small distance to each other, making their lack of contact almost impossible. TheattitudeoftheCJStowardsDVcases 1. Domestic violence crimes are not considered as belonging to the CJS. Moreover, cases involving domestic violence offenses are considered of secondary importance: Judge: "The court rejects the sample detector simulated behavior since conviction court may be formed only on the basis of existing evidence. For family strife will not use this sample. 2. Domestic violence cases can be solved somewhere else, some judges suggesting the withdrawal of the complaint: Judge: "By the end, the complaint may be withdrawn." The victim responds: "I do not withdraw." ( ) Judge: "There is time till the end." 3. If the perpetrator provides for the family, the violence can be overlooked. The family institution and discourse seems to prevail in such cases.

18 4. The provocation of the abuser may be a mitigating factor in judging the case, the suffered violence becoming a natural and deserved consequence. From observation of the trials results that the witnesses are also facing the consequences of the fear of aggressor s revenge. In Romania there is no witness protection program. The hearings focus exclusively on one violent episode (the object of the criminal trial), ignoring the repetitiveness and the dynamics of the domestic violence. In the absence of a lawyer, as is the case of persons with a reduced income, the confusion and the disorientation of the victims is highly present together with the misunderstanding of the procedures. The trials are carried out over a long period of time, so that the parties involved (victim, witness or defendant) must strive to remember that they declared. Also, this long period of time can endanger the victims and escalate the violence.

19 Conclusions According to our findings, more than three-quarters of women withdrew their complaints. Information concerning the consequences of violence against the victim, the intervention of the different services in charge with the assistance of thedvvictimsisfoundinasmallpercentageinthecriminalfiles(stoleru etal.,2012). In cases which are sent to trial, courts tend to minimize the seriousness of domestic violence-related crimes and apply reduced penalties even when the crime is serious. The high level of withdrawal of the criminal complaints in the domestic violence cases is also specific to the other partner countries in the research project. The ethnographic observations show us the professional overload of the criminal justice representatives. Due to the high level of confusion and lack of legal knowledge of the victims and the witnesses their preparation for the trial is highly recommended. Realistic scheduling of the cases, the transparent rules and their dissemination within the public would conduct to a more efficient intervention. All these are important signals for the introduction of the family courts in Romania (László and Stoleru, 2013).

20 THANK YOU FOR YOUR ATTENTION!

21 REFERENCES 1. Agenţia Naţională pentru Protecţia Familiei (National Agency for Family Protection), Date statistice înregistrate de agenţie în perioada (Statistics recorded by the Agency in ), 2. Asociaţia Baroului American- Iniţiativa Juridică pentru Europa Centrală şi Eurasia (American Bar Association- Juridical Association for Central Europe and Eurasia) (2007), Violenţa în familie în România: legislaţia şi sistemul judiciar-raport final (Family Violence in Romania: law and the judicial system- Final report), accessed 15 January, 2013, 3. Asociaţia Transcena (2013), Studiu la nivel naţional cu privire la implementarea ordinului de protecţie Legea 25 din 2012 (The National Study concerning the Implementation of Law 25/2012), accessed 9 March, 2013, available online at: 4. Barata, P.(2007), Abused Women's Perspectives on the Criminal Justice System's Response to Domestic Violence in Psychology of Women Quarterly 31: 202, DOI: /j x, available online at:

22 1. Burton, M., (2008), Legal responses to domestic violence, Taylor & Francis e- Library. 2. Cammis, S. (2006), The management of domestic violence cases in the mode of trial hearing- Prosecutorial Control and Marginalizing Victims in British Journal of Criminology, 46 (4): , DOI: doi: /bjc/azl Centrul Parteneriat pentru Egalitate (Partnership for EqualityCenter), (2003), Cercetarea naţională privindviolenţa în familie şi la locul de muncă (The National Research on Domestic Violence and Violence in the Workplace), available online at: 7&Itemid=48, accessed on Consiliul Superior al Magistraturii (Superior Council of Magistracy) (2010), Statistică privind violenţa în familie (L. 217/2003)- condamnaţi definitiv (Statistics concerning family violence -L. 217/2003)- definitively convicted), internal document.

23 1. Douglas, H. (2012), Battered Women s Experiences of the Criminal Justice System: Decentring the Law in Feminist Legal Studies 20: , DOI /s Epstein, D. (1999), Effective Intervention in Domestic Violence Cases: Rethinking the Roles of Prosecutors, Judges, and the Court System in Yale Journal of Law and Feminism, 11, László, É., Stoleru, M., (2013), Observaţiile etnografice ale proceselor penale implicând infracţiuni de violenţă domestică ( Ethnographic observations of criminal trials involving domestic violence crimes ) in Antal I., Roth, M.(eds.) În spatele uşilor- Violenţa domestică şi sistemul de justiţie (Behind the doors- Domestic violence and justice system), Cluj- Napoca, Romania: Presa Universitară Clujeană. 4. Meyer, S. (2011), Seeking Help for Intimate Partner Violence: Victims' Experiences When Approaching the Criminal Justice System for IPV- Related Support and Protection in an Australian Jurisdiction in Feminist Criminology 6: 268, DOI: / , available online at:

24 1. Miller, J. (2006), A Specification of the Types of Intimate Partner Violence Experienced by Women in the General Population in Violence Against Women, 12; 1105, DOI: / , available online at: 2. Miroiu, M. (2004), Drumul către autonomie (The way to autonomy), (Iaşi, Polirom. 3. Radu, M. N., Adorjáni, J., Morar, T.(2013), Prevederi legislative cu privire la violenţa domestică ( Legislative provisions on domestic violence ) in Antal I., Roth, M.(eds.) În spatele uşilor- Violenţa domestică şi sistemul de justiţie (Behind the doors- Domestic violence and justice system), Cluj- Napoca, Romania: Presa Universitară Clujeană. 4. Stoleru, M., Dávid-Kacsó, A., Antal, I. (2012), The Approach of Domestic Violence by the Criminal Justice System in Romania in Social Work Review, no. 4/ 2012, abstract available at: by_the_criminal_justice_system_in_romania. 5. Strauss, M. A., Gelles, R. J.,(1990), Physical violence in American families, New Brunswick(NJ): Transaction Books.

25 Legal resources *** (2010) Codul Penal (Penal Code), publicat în Monitorul Oficial nr. 714 din (published in The Official Gazette of Romania no.714 on ). *** (2010) Codul de Procedură Civilă (Civil Procedure Code), publicat în Monitorul Oficial nr. 714 din (published in The Official Gazette of Romania no. 714 on ). ***(2010) Codul de Procedură Penală (Criminal Procedure Code), publicat în Monitorul Oficial nr. 486 din (published in The Official Gazette of Romania no. 486 on ). ***(2011) Codul Penal. Codul de procedură penală (Romanian Criminal Law Code. Criminal Procedure Code), Bucureşti: Editura Hamangiu. Legea 217/2003pentru prevenirea şi combaterea violenţei înfamilie, publicată în Monitorul Oficial nr. 367 din (Law 217/2003on preventing and fighting against domestic violence, published in The Official Gazette of Romania no. 367 on ). Legea 25/2012 privind modificarea şi completarea Legii 217/2003 privind prevenirea şi combaterea violenţei domestice, publicată în Monitorul Oficial nr. 165 din (Law 25/2012 on amending and supplementing Law no. 217/2003 on preventing and combating domestic violence), published in the Official Gazette, PartIno.165of13March2012).