EuroPROFEM - The European Men Profeminist Network http://www.europrofem.org
Combating domestic violence
through research and education
Compiled by Jivka Marinova
In 1997 a group of women activists of the movement for women’s human rights was engaged in a pioneering research in order to make public the existence and the extent of domestic violence in Bulgaria. The group was composed mainly by lawyers trying to influence changes of the legislation in favor of victims of violence.
Domestic violence is a violation of human rights which has been hidden from the society because it is a result of private relations. The need for protection against violence in this area confronts us with the interesting issue regarding State intervention in regulation of relations that have appeared as a result of such violence, such as: imposing sanctions on the aggressor and taking measures to protect the victim.
Here are the findings of the legal research conducted by Genoveva Tisheva- one of the first lawyers engaged in women’s rights cause:
“International law for human rights is understood as a regulator of the relations between the “ruling” and the “ruled.” Moreover, the “ruled” by tradition are found in the public sphere of society, in political, legal, social and economic institutions…The doctrines for the protection of private life and the family in international law as well as domestic law increase the distinction between the public and the private spheres of life.” - an excerpt from a publication by Amnesty International: “The UN, Governments and the Human Rights of Women” January 1998, page 3.
The traditional understanding of human rights still prevails in Bulgaria and our legislation, and is based on the principle of non-intervention by the state in the cases of violence within the family, except for extremely serious cases representing general crimes under the Criminal Code.
The need for specialized protection of women against violence exists because of their greater vulnerability as a result of their biological characteristics and the different social roles which a given society assigns to men and women, the traditional status of women within the family, and the cultural stereotypes. International research as well as studies done in Bulgaria on domestic violence point to the fact that more than 80% of the victims of violence between spouses and between unmarried partners are women. The fact that domestic violence is the most widespread form of violence against women in Bulgaria is confirmed by data compiled by the centers providing counseling and support to women who are survivors of violence. These centers are run by “Nadya” Foundation (more than 90% of the cases) and at “Animus’’ Association (more than 50% of the cases).
Having examined the international regulations, it is of interest to see whether resolutions adopted by the Bulgarian legislation correspond with the international standards.
No effective mechanism for the protection of domestic violence victims exists at present. A look at the provisions of the Family Code, the Criminal Code and the Criminal Procedure Code shows that in principle our government does not intervene to prevent and protect against such violence regardless of whether the victim is a child, a woman or another family member.
To estimate whether the provided protection is effective it is sufficient to consider some examples from criminal cases. When physical injury has been caused by violence as per Articles 128, 129 and 130 of the Criminal Code, the state will punish it accordingly. Under the adopted criteria there is a difference in the prosecution and punishment for a severe, medium and minor physical injury. These criteria represent a prior distinction among the types of physical injuries as a result of the violent act. The degree of danger to society and the punishment respectively are determined according to this result. The formulation “... if caused...” is highly indicative of the method used by our legislators. Without commenting on whether this decision is fair in principle, I would like to emphasize how improper this approach is in the cases of domestic violence. Often this kind of approach is expressed as repeated acts of violence, as constant physical or psychological torture, threats to the health and the life of the victim, in constant violation of the victim's human rights, all of which determine the social danger of these acts. According to the adopted principle in the section on physical injury, this increased social danger cannot be accounted for if by chance some of these acts of domestic violence reach the judicial authorities.
Violation of the right to physical inviolability of the individual within the family in most cases remain unpunished. Moreover, the legislator has a different approach to crimes committed in the closed family circle. Article 161 of the Criminal Code has a provision that criminal prosecution for intermediate physical injury caused by an ascending or descending relative, a husband, a brother or a sister, is initiated only by lawsuit filed by the victim. In addition to the above arguments, I will only add that domestic violence is most often characterized by frequent minor and medium physical injuries (in the sense of the Criminal Code terminology) and is almost always a crime of private nature. One of the aggressor’s basic approaches is to incessantly keep the victim under stress and fear and not to inflict upon her very serious physical injuries (cases of violence again according to the Criminal Code terminology) so that she could be “suitable” for further torment. But let us use the Criminal Code language, the entire text of Article 129, paragraph 2 contains very severe injuries such as “...a permanent weakening of eyesight or hearing...’’, “...a permanent health disturbance’’, ’’...a disturbance of health temporarily life-threatening’’, ’...penetrating injuries of the skull, thorax or abdominal cavity...’’. All these severe injuries, which according to the Criminal Code are classified as medium physical injuries, in most cases do not reach the court when suffered by a family member. According to our Criminal Procedure Code, victims have the right to initiate a private suit. But they seldom decide to exercise these rights and in addition to this they come across more difficulties, connected with the statute of limitation (according to Article 57, paragraph 4 of the Criminal Procedure Code), with the ability to prove her case, because the entire burden of proof is on the victim, with getting legal counsel, which is very expensive; it is a clumsy and almost hopeless process. In most of the cases, during the proceedings the victim continues to be exposed to be tormented and threatened by the aggressor because there is no legal mechanism to remove him from the home, the place which is to be mentioned again further on. That’s why victims hesitate to sue and when they do decide to do it, in most cases the procedure is terminated by the court by reason of some provision from those indicated in Article 21, paragraph 3 of the Criminal Procedure Code: the victim and the aggressor have reconciled or the plaintiff has withdrawn the suit.
These are the results of an inquiry about the legal practice, connected with domestic violence, carried out in Sofia, Plovdiv and Varna. This inquiry also shows that no use is made of the provision under Article 45 of the Criminal Procedure Code where the prosecutor steps into the criminal proceedings initiated by the victim, if the latter “...because of their helpless state or dependence on the aggressor cannot defend their rights and legal interests...”. Even slighter is the chance that the prosecution would exercise their legal right ( under Article 46 of the Criminal Procedure Code) to initiate such proceedings “...in the extreme cases...” of the former hypothesis.
The civil legislation has been studied profoundly by another lawyer - Daniela Eldarova, who recently opened the first free counseling center for women-victims of domestic violence in Plovdiv.
The basic regulatory acts on family relations and procedures for the protection of the rights and interests of family members are found in the Family Code effective as of July 1, 1985 and the Civil Procedure Code of the Republic of Bulgaria. In both acts the term “family violence” does not exist, either as a definition or fact in the family situation subject to specific regulation. The ignoring of this problem by legislators is directly related to the lack of basic court statistics on divorce cases which mention the reasons for dissolving a marriage. It is hardly possible to assume that legislators are not informed about the common existence of cases of violence within families or between unmarried individuals living together as spouses. The more probable explanation is that the problem of family violence is being underestimated by not taking into account the exceptionally harmful consequences for the victims of violence and for the upbringing of children within the family. And if in 1985, when the presently effective Family Code was passed, the issue was not presented, the dissemination of information about it now is imperative, so that human rights protection may be placed within the basis of every public and private activity.
The review of civil legislation on protection of the rights of victims of relations between a man and a woman within or outside a marriage leads to the categorical conclusion that there is a lack of adequate regulations and protection of the individual rights of women and children within the family in spite of declared constitutional principals regarding equality of the sexes and universal protection for children. Studies conducted by volunteers of criminal and civil court cases point precisely to women and children as the subject of violence within the family, while the aggressors are men. Of the 66 divorce cases decided by the Plovdiv regional court in 1996, where the court based its decision to dissolve the marriage on reasons of violence, only one case was initiated by a husband who brought the suit because of psychological violence by the wife. All remaining 65 cases were brought by women, of which 15 specifically mention violence by the husband directed to minor children in the family. It is clear that the violence problem has been “feminized” which makes its solution even more difficult at the present time.
There is no regulatory act where the protection of the individual rights of family members is declared as a fundamental principal of marriage and family relations.
There is no regulatory act which establishes a procedure for quick removal of the agressor from the home. The Family Code regulates in an extremely limited way the personal relations between spouses and the regulations in this respect, Articles 14-18 inclusive, are merely a statement of principles since violation of these Articles is not related to any kind of legal penalty with regard to initiating a procedure to accomplish a positive change in the relationship in cases of violation. At the same time, the legislation has regulated in detail the property relations between the spouses for which there are 11 articles (compared with 5 dealing personal relations) providing for specific procedures for the protection of property or the property interests of the affected spouse. There is no logical or moral reason for the universal protection for the property of the family and its members, and lack of any kind of mechanism for the protection of family members’ rights and freedoms. It is true that according to Article 5 of the Constitution, the provisions of international legal acts are directly applicable to domestic legislation, however, not a single one of these acts contains nationally unified compulsory procedures for the protection of family members’ rights, leaving this up to will of the national legislature. Unlike other countries, where adequate mechanisms exist for the removal of the aggressor from the home and for limiting his contacts with the wife and children who are subjected to violence, in Bulgaria there is no such arrangement. The victims of violence are left to deal with the situation by themselves which is beyond their psychological and financial capability.
The only possibility to obtain protection for the victim is found in the provision under Article 261 of the Civil Procedure Code, which comes into play only when there is a pending divorce proceeding. Under this article, the domestic violence victim may ask for temporary measures during the divorce proceedings which allow her to use the family home during the proceedings with the possibility to remove the other party from the home, even if it is that party’s own property or the property of other relatives.
The absolute deficiency in the legislation is the absence of possibility to remove the perpetrator from the home and to prevent his contacts with the victim during the marriage and without a pending divorce proceeding. This way the victims are forced to decide to obtain a divorce which additionally burdens them psychologically and financially.
The issue of damages for victims of domestic violence is raised with special urgency. The legislation does not contain specific provisions for the issue similar, for example, to the damages provided in the Labor Code for [victims] of a work accident. According to the Labor Code, in cases of work accidents, the legal action for damages for property and other injury is free of charge for the worker, while the burden of proof is on the defendant. The Family Code contains no such rules. Violence victims are left only with the procedure under Article 45 of the Law on Obilgations and Contracts providing for general civil liability for personal and/or property damages.
Its use in the case is complicated by the following:
-- a state fee equal to the costs of the lawsuit must be paid to initiate legal action; in addition to this, the party is required to pay for the services of expert witnesses and other specialized help;
-- it is impossible to expect that such action would be initiated during the marriage taking into account the above mentioned problems with expenses and burden of proof. In practice, this also favors the aggressor, because a lawsuit initiated after the divorce is usually accompanied by problems of proof because of the elapsed time.
-- the result of the studies of divorce cases has led to the conclusion that the most serious cases of violence are found in divorce proceedings initiated under Article 33, section 3 of the Family Code, that is cases where an agreement is reached to dissolve the marriage without the court’s ruling on fault, and in cases where the parties settle with regard to their personal and property issues. These cases show that the woman who is victim of violence is willing to accept all kinds of compromises only to free herself from the marriage. The signing of such settlement, however, is a procedural deterrent to initiating action for damages later.
The legislation does not provide at all for relations between unmarried individuals living together. In practice this leads society and the legislature to completely overlook the existing problems of such living arrangements, where cases of violence and abuse are not rare. A legal regulation is imperatively needed to deal with the problems and to guarantee similar protection of the individual rights of unmarried individuals living together and the children born thereof.
The Case law concerning domestic violence had been studied as well by the former prosecutor Roza Boteva.
She analysed the procedural stages and mostly the steps linked to the formation of the complaint. This is the first stage (most often it is the only one) of state intervention in this category of cases. As a rule, the wife (partner) who is affected by violence files a motion with the prosecutor’s office. In some rare cases the motion is filed by a third party, most often a relative of the victim. In principle, the motion does not contain data regarding a single occurrence of violence, but regarding a number of violent activities. Analysis of various cases points out that motions as a rule contain complaints of rude and aggressive behavior, for domineering attitude by the partner which more than once has developed into serious beatings and cruel physical violence. Insults and acts of aggression are mentioned which pertain equally to children living with the partners.
The filing of the motion is the initial step toward filing a complaint with the prosecutor’s office. From here onward the procedure is as follows: the Article 36 of the Law on the National Police (LNP) is applied.
This text of the LNP, according to which the police may issue a warning to the domestic violence perpetrator, is used exceptionally often by the prosecutor. From the data collected by the study of complaints which have passed through this stage (in practice it is not part of the legal proceedings, because such have not been initiated, but is part of the pre-investigation stages) Article 36 has been used as means of prevention of further violence. We can judge to what degree this approach is successful by the fact that this method has been used repeatedly against some individuals, obviously without visible results. Sometimes the prosecutor does not even order a preliminary investigation (this is required according to the regulation under Article 191 of the Criminal Procedure Code if there is insufficient data regarding the crime and such data must be collected) in cases of domestic violence, because it is assumed that one way or another, even if data is collected, the data will contribute nothing and will not help with the future pre-trial procedure. Then without ordering the investigation, the prosecutor sends the complaint directly to the police authorities with instructions to apply the regulation under Article 26 of the Law on the National Police. This automatically leads to termination of the prosecutor’s work on the complaint. The complaint is terminated and the prosecutor’s intervention has ended at this stage. In most cases the complaint is nevertheless sent so that preliminary investigation may be carried out. Actually, within the framework of this investigation, information regarding the victim, the aggressor, and possible witnesses of the incidents is added. Sometimes medical documents are attached which describe the physical injuries of the victim: hematomas, lacerations, abrasions. In part of the cases such documents are attached even to the initial complaint. It is precisely during this preliminary investigation that the regulation under Article 26 is used again. After a statement is obtained from the aggressor, the police officer writes a report which contains a warning to the aggressor to refrain from similar activities in the future. The complaint put together in this manner is then again sent to the prosecutor’s office.
Analysis of the data lead to the conclusion that in 95 percent of the cases the complaint is withdrawn at this stage on the victim’s initiative. The data in this respect are unchanged with regard to subject for both periods of study: 1996 and 1997.
In practice the orders according to which the prosecutor’s office refuses to initiate pre-trial proceedings in cases of domestic violence are the basis most often used to terminate the prosecutor’s complaint in cases of domestic violence.
As we can see the domestic violence in Bulgaria is a real problem, over which, unfortunately, a public discussion has not been provoked yet and due to the tendencies, the relationships and the existing prejudices, it is difficult for women to take the decision to call for help for themselves or for their children.
When dealing with the institutions women come across the lack of understanding, lack of confidence, accusations as well as lack of humanity. Agencies which will take into consideration women' s individuality are necessary. When contacts them a woman is not to feel accused for being a victim, there she should find security and comfort in order to take a decision which suits her best.
The results of the research I conducted indicated that in almost all Bulgarian big cities there are organizations, dealing with the problems of women as well as with the issue of domestic violence against women and children. Almost all of these organizations, and especially those in the country, were working exclusively on the terms of volunteering. Their problems were similar - high rent taxes; difficulty in finding suitable places for the offices; difficulty in finding suitable experts (jurists, psychologist, doctors), willing to work voluntarily, without being paid; misunderstanding by the municipality, unawareness of the problem on the part of the local authority and the police and what is the saddest part of all - misunderstanding by the women holding high posts in different state institutions.
People who were trying to help in any way usually were women - psychiatrists, psychologists or jurists, who in their professional work came upon the victims of violence. The other category of persons involved in these problems were the social workers, and because this is a fairly new profession for Bulgaria, most of them were young people, who have passed special training courses (some of them abroad) and are trying to apply in the practice what they have already learned. The third category of participants in these associations were women, who are close to the problem for personal reasons and that’s why it is their firm belief that the existence of such groups is necessary. All the people mentioned above are enthusiastic, and extremely generous, because they have devoted to a difficult cause, taking into consideration the economic situation in Bulgaria as well as the lack of a relevant legislation in the field.
We linked our research to a special pilot education program in two secondary schools in order to involve young people, study their existing concepts concerning the family violence and analyse the attitude of the future generation towards family relations.
The purposes of the program were: dissemination of information, acquaintance with the work of governmental and non-governmental organizations on the gender problems, rationalisation of the fundamental public adjustments and public attitude towards the gender roles of men and women in the contemporary society.
The basic effect of the program will appear in the future. People who have discussed and gave significance to the problems of violence and especially domestic violence, the gender roles in society etc. will for certain change their attitude towards the traditional gender stereotypes and prejudices.
This program has been shared and accepted enthusiastically by many teachers in the country. We consider this is a real success, as the education of the new generation of adults in the principles of equality and non violent living together gives more chances to eliminate violence in the family than the slow and controversial process of changing penal legislation.
Bulgarian Gender Research Foundation
Sofia 1000, P.O.B. 938
12 Luben Karavelov str., ap.11
Sofia 1142, Bulgaria
Contact: Jivka Marinova ; Genoveva Tisheva
Mission, goals, activities: BGRF was formed in June 1998 in Sofia by women committed to work in the field of women’ s rights and all of them with previous experience in advocacy, education, monitoring violations of human rights, lobbying for legislative changes, preparing publications, networking. The group consists of lawyers, academics and women’ s rights activists. BGRF is an independent non-governmental organization that promotes social equality and women’s human rights in Bulgaria through research, education and advocacy programs. The main goals are promoting and facilitating the achievement of a gender balanced society in Bulgaria based on equal representation of women and men; dissemination of information and raising the awareness about women’ s rights and gender issues in Bulgaria; advocacy aimed achieving compliance with the Universal and European standards in the field of Human Rights and the universally recognized values of democracy.Projects:
Elimination of Violence Against Women through Research and Education
Women’s Empowerment in the Privatization ProcessPromoting the Women’s Participation as Candidates and Voters in the Forthcoming Local Elections (1998)