On 4 March 2016, there was much EU fanfare and self-congratulation that the EU was proposing that it should accede to the Istanbul Convention on domestic violence. Beyond the press releases, what does this mean? Where does it fit in to what is already existing international law? What might it mean in practice?
I am certainly not a domestic violence law specialist. But a couple of years ago, as editor of Jordans 'International Family Law Practice' book, I decided we needed a chapter on domestic violence given the international developments, and then found myself being a co-author. So there was a steep learning curve. This article seeks to explain the background. It is much more fully set out in chapter 20 of the book.
The European problemStatistics can be unreliable. EU statistics are notoriously unreliable. But the EU asserts on statistical data that about a third of all women in the European Union have experienced either physical or sexual violence since the age of 15, that domestic violence is the main cause of death in women aged between 16 and 44 and accounts for more deaths and ill-health than cancer or road traffic accidents. Domestic violence also affects men badly and there is English statistics showing 40% of domestic violence victims are men who also need protection. EU statistics say 90% of victims of domestic violence in the EU are women. Whatever the statistics, it is a major problem nationally and internationally.
In an increasingly mobile global society, localised domestic protection orders, ineffective across national boundaries, are of little use. Whilst the UK may be more moderately cocooned with our sea borders, it is a real problem where a protection order cannot protect when the perpetrator simply moves to an adjoining town across a land national border.
European actionThe EU has ranked domestic violence as a priority on its agenda eg Declaration 19 of Art 8 of TFEU. Protection of victims is a key family law priority for the next five years as decided by the EU in June 2014.
Both the Council and Parliament of the European Union have passed resolutions calling for specific action. The EU has funded many projects and made grants to support victims of crime including the Daphne programs over recent years.
The EU Victims Directive
This Directive, 2012/29/EU, encouraged cooperation between Member States and steps to be taken to strengthen the rights of victims. Directives are not automatically law in Member States and invariably set a three-year timetable for introduction of law. This required implementation by November 2015.
The 2011 Criminal European Protection OrdersThis Directive (2011/99) has its core object in respect of criminal law and cross-border recognition of protection orders and implementation in the criminal law context.
The EU Protection Orders Regulation This EU Regulation (606/2013), binding on Member States, provides for the mutual and automatic recognition of protection measures across the EU. A protection order made in one Member State will be treated as if ordered in the Member State where recognition is sought. No special procedure or declaration of enforceability is required.
A protection order imposes obligations on the person causing the risk with a view to protecting another person where that latter person's physical or psychological integrity may be at risk. It can include a prohibition or regulation on entering the place where a protected person resides, works or regular visits or stays, a prohibition or regulation of contact in any form and a prohibition or regulation on approaching the protected person closer than a prescribed distance. It is fair widely drafted.
Enforcement measures are left to the Member State where it is occurring, which may be more than where the protection order was granted. There are limited grounds for refusal of recognition or enforcement, as with other EU family law legislation. There is provision for legal aid to improve access to justice. The protection order is often limited to 12 months but can be extended.
It came into force in January 2015.
