EuroPROFEM - The European Men Profeminist Network http://www.europrofem.org
WITH AN EMPHASIS ON SECTIONS WHICH IMPACT
ON THE CRIMINAL ISSUES OF VIOLENCE AGAINST WOMEN
Contact : Dianne Post [ diannepost(AT)glasnet.ru ]
The Draft Code of Criminal Procedure is included in (used as the basis of) this comparison (realizing that while it is still draft, many of the procedures will remain in the final code.) so that activists for victims of violence lobby for changes in the final version as it will impact on the victims. The comparison is made to the procedural code of the State of Arizona which is comparable to most states.
Article 9(l) Everyone shall be guaranteed judicial protection of his rights and freedoms. (4) The state shall provide a victim with access to justice ...
“Everyone” includes women whose rights are not being protected if home violence is not prosecuted as a crime. The victim cannot have access to justice if there is no prosecution and protection of the victim.
Article 12(4) No one may be deprived of his property otherwise than by a court decision.
This does not preclude an order forcing the offender from leaving the home where he has committed home violence so long as the order is made by a court decision. Under the Constitution 40(l), only “arbitrary” deprivations of the home are permitted and a court decision is not arbitrary. Under CrC Art. l36, it is a criminal act to discriminate based on gender or “place of residence”. Thus, the victim of violence, even if a woman and even if living with the offender, is entitled to equal protection under the law.
CC Art. 292-293 outline further rights to housing. CC Art. 292 says that a member of the family may not be denied access. However when the divorce is final, the spouse is no longer a member of the family. CC Art. 293 allows rights to be terminated when a person “violates the rights and interests of neighbors,...” Surely if the person is violating the rights and interests of the other people in the house, the law violator’s rights can be terminated.
Article 12(5) If a crime has caused material damage, the inquiry agency, the investigator, the procurator, and the court shall be obliged to take measures to ensure security for the civil claim that has been filed or one that may be filed in the future.
Often during home violence, the woman suffers harm that requires medical attentions. She may lose work time as well. Frequently, the offender also destroys joint property which belongs to the couple or to the child(ren). Security for such damage for a future civil claim should be ensured.
Article 12(6) If there is sufficient information that a victim, a witness or other persons participating in the proceedings or their family members ... are facing threats of murder, use of violence, or destruction of or damage to property ... the court, the judge, the procurator, the investigator, the inquiry agency, or the inquirer shall be obliged, within their powers, to take measures provided by law to protect the life, health, honor, dignity and property of such persons.
Continued intimidation by the abuser of the victim is very common in home violence cases. Often, children, family, friends, pets and property are threatened. This procedure mandates that action is taken to protect the victim and others.
Article 13(l) No one may enter a home against the will of the persons residing in it ...
“Persons” includes women and thus she has as much right to give permission for the militia to enter as does the husband. Thus the police may enter to protect her or in response to a threat to her. Police in New York had to be sued because they would refuse to go into a home after a call for help if the husband met them at the door and said everything was all right. In another state, the husband sued the police after they went in over his objection. The police won. The solution was to make it policy that the police must go in for a “welfare check” when there is a crisis call regardless of the desires of the person who answers the door.
Article l6. Justice shall be administered on the principles of equality of citizens before the law and court regardless of gender ...
The woman, 95% of the time the victim of home violence, has as much right to protection of the laws as does every other citizen. To refuse to intervene in home violence is to deny equality based on gender and a violation of the Criminal Law CrC Art. l36.
Article 25. Depending on the nature and gravity of the crime committed, criminal prosecution and prosecution in court may be conducted by way of public, private-public, or private prosecution.
No such provision exists. All prosecution is public. The rationale is that the law was passed by the State and the State is mandated to enforce its own laws or the “rule of law” is violated. All crimes that violate the law, harm the State since the State passed the law as a recognition that harm was being done to a citizen. Since it is the job of the State to protect citizens, it must apply all laws for the benefit of all citizens.
Article 25(2) Proceedings addressing the crimes specified in
Article 262(l) of this Code shall be private prosecution cases; they shall be initiated pursuant to a complaint from the victim only and shall be dismissed upon the victim’s conciliation with the defendant.
The sections covered include CrC Art. ll5 or mild injury and CrC Art. ll6 beatings. This is a very serious impediment to prosecuting violence against women. Most victims will not or cannot make a complaint due to threat of further harm or loss of income. After a beating many offenders are, at least at the beginning of the systemic violence, very sorry and promise never to do it again. She then forgives him and reconciles. This only encourages him to continue the behavior and usually the beatings become worse. This provision increases the cycle of violence. Prosecutors in the U.S. have instituted “no drop” policies which state that even if the victim wants to drop the charges, they will not be dropped because the offender has committed a crime against society and must be held accountable. In the U.S., a new concept of “Victim Offender Mediation” has recently begun. While the idea is similar to CrC
Article 76, there are some important differences. Before such mediation occurs, the offender must admit his guilt. That is often lacking in home violence cases. Secondly, the victim must agree to the mediation i.e. it cannot be done against her will. Third, and most important, the mediation follows accountability for the law which was broken and harm that was done. While the concept of forgiveness and recontiliation is important for both sides, it is meaningless for the victim, and even dangerous, unless the offender is held accountable and in fact changes his behavior. Because of the unique problems of home violence, victim offender mediation is not done in such cases. Such mediation has already taken place repeatedly as the victim attempted to stop the violence. It did not work. For the court to require it again only puts the victim in serious danger. Other
Articles that can be used to charge the abuser instead of CrC Art. ll5 and ll6 are CrC Art. lll, ll2, ll3, ll7, ll9, 127 and l67 so long as the underlying facts exist. Since home violence is so prevalent and the victims are female 95% of the time, this provision violates CrPC
Article 9 and l6 as well as the Constitution (
Articles l7,(2) (3), l9 (l-3), 32(4), 38(l), 46(l) and 52) and the CrC
Articles 4, l6, and l36.
Article 25(3) Proceedings addressing the crimes specified in
Article 59(l) of this Code shall be private-public prosecution cases; they shall be initiated pursuant to a complaint from the victim only, but shall not be subject to dismissal in view of the victim’s conciliation with the defendant.
This section applies to section CrC Art. l3l(l) which is rape with force or threat. Rape victims are 95% female and to refuse to prosecute these cases except by victim initiation is discrimination based on gender. It simply encourages rapists to threaten their victim with worse if they go to the police. It also encourages rapists to bribe the victim to avoid criminal responsibility. That is a violation of CrC 294 and 309. The victim, knowing of the reluctance of the law enforcement system to vigorously prosecute rape, is caught in a very difficult situation. It encourages rapists instead of holding them accountable. It is particularly difficult for a married woman to bring such charges especially if she is still living with the offender and dependent on his income. This provision violates
Article 9 and l6 as well as the Constitution and the CrC (see
Article 25(2) above). Alternative sections to charge with are CrC Art. l3l(2) or (3), l32-l35 so long as the underlying facts exist.
Article 25(4) A procurator shall have the right to initiate proceedings against any crime referred to in (3) .. even in the absence of the victim’s complaint, if the crime affects substantial interests of the state and society or has been committed against a person who is dependent or for other reasons is unable to exercise his rights independently.
Any crime of force, any sexual assault of a person which so destroys a persons honor and dignity, is a crime which affects substantial interests of the state and society. Society is 53% female and females are overwhelmingly the victims of rape. Thus a crime that primarily affects them affects society. A procurator can use this section to bring a charge for a spouse who is raped when, because of the presence of minor children or the need of the income or housing, she may be dependent on him and not able to make a complaint. This provision would also apply to the cases where rohypnol is used to incapacitate the woman before assaulting her.
Article 27 (l) A victim or his legal successor shall have the right to drop charges at any moment of the proceedings.
This section is very dangerous for the victims of home violence. She is often pressured either by more violence or by false promises to stop abusing her to drop the charges. The cycle of violence ensures that this will, in the long run, increase the violence which increases the cost to society in police, medical, lost property, lost work time, harm to the children and ultimately death of one or the other party. This also encourages criminals to bribe or threaten the victim in violation of CrC 294 and 309.
Article 27(3) If the procurator withdraws charges, this shall not deprive the victim of the right to prosecute.
Often the victim wants to prosecute and the police and procurator will not do so as is extensively documented in Human Rights Watch Report, “Too Little, Too late, December , l997”. This provisions allows her to go ahead. However, given the psychological dynamics of home violence, this may effectively preclude her unless she can find a qualified attorney.
Article 30(l) allows cases “against a person who has committed a crime of minor severity for the first time”... to be dismissed with active repentance. Active repentence is defined in the CrC Art. 75 as “...after committing the crime, he voluntarily acknowledges guilt, facilitates exposure of the crime, compensates the inflicted loss or by some other manner makes amends for the harm inflicted.” According to Burnham, the repentence provisions were put in to foster defections from criminal groups not to allow offenders of home violence to evade responsibility.
This is a dangerous provision for victims of home violence. Since the militia are reluctant to prosecute, the first time the abuser is caught is unlikely to be the first time he has abused her. In many instances, he will put on a very good act of being sorry and promising never to do it again. But we know from years of research into the psychology of offenders, that it is just play acting and they will begin beating again when threat of criminal action no longer exists. Therefore, the advocate should insist on strict adherence to the requirements of CrC Art. 75 which, in most instances, will not be able to be met by the offender. Thus this section in the procedural code will not apply.
Article 30(4) allows the victim to protest the dismissal.
Victims of home violence need to know about this provision so that they can protest the dismissal.
Article 3l allows crimes of minor severity for the first time to be dismissed upon conciliation.
This is very dangerous to the victim. See previous sections
Article 32(l) allows a crime of minor or moderate severity for the first time to be dismissed if that person or the act has ceased to be socially dangerous. (3) allows the victim to complain against such a dismissal and (4) states that the victims objection shall preclude dismissal.
Victims of home violence need to know about this provision to stop the cases from being dismissed. The danger to them is very high.
Article 35 Powers of Court (4) “A court shall also have the power to render a presentment (decree) in other instances, if it finds it necessary.”
This provision should give the court sufficient power to order the offender to vacate the common dwelling so as not to present an ongoing threat to the health and safety of the victim and the children and also to prevent the victim from being threatened to force her to dismiss the prosecution. See CrC Art. l36 and CC Art. 293 discussed in previous and subsequent sections.
Article 49 Victim (4) A victim shall be compensated for property damage caused by a crime, as well as costs incurred in connection with his participation in the preliminary investigation and the trial, including representative -related costs, in accordance with the rules set forth by this Code. See also this Code 9(4).
Victims should be aware of this provision so they can get compensation for property he has damaged, lost wages from work, cost of day care to come to court, and the cost of her representative.
Article 49(5) As regards the victim’s suit for moral damage to be compensated in cash, the compensation amount shall be determined by the court in the course of examining the criminal case or in civil proceedings.
The victim should be aware that she may bring her claim for damages during the criminal action.
Article 49 (6) A victim shall have the right to ... dismiss the case, ...to prosecute, even if the state prosecutor drops the charges, ...to lodge complaints against actions and decisions of the inquirer, the investigator, the procurator, and the court; to complain against the court’s judgment and rulings and decrees of a judge; ...
All of these rights are very favorable to the victim except the right to drop the charges. See previous sections. A properly prepared prosecutor can go forward with the charges without the victims testimony if she finds it too dangerous to testify or appear in court.
Article 49 (8) If a victim fails to appear when summoned without a valid reason ...
ARS l3-4074 grants a good cause exception for failure of the victim to appear. Courts must realize that fear of the offender is a valid reason for the victim not to testify. Often he controls the income and may also harm the children or other family members.
Article 49(9) If a victim refuses to testify or gives testimony known to be false, he shall be liable under
Articles 307 and 308 of the Penal Code of the Russian Federation.
Under CrC Art. 308, a person is not criminally responsible for refusing to give testimony against himself or his close relatives. Thus if she, due to fear, refuses to testify she should not be subject to any penalty. If she gives false testimony, the court must first investigate if the reason is fear of further abuse by the accused and if so, no penalty should be assessed. ARS l3-4062 which prohibits spousal testimony without the consent of the other spouse does not apply when the criminal act done was to the spouse or child.
Article 5l A individual ... shall be considered a civil plaintiff, if there are reasons to believe that property damages has been inflicted upon him/it by a crime proper, and a claim to recover damages has been filed by him/it. A civil plaintiff may also file a suit for reimbursement for moral damage. One shall be declared a civil plaintiff by decree of an inquirer, an investigator, a procurator, or a judge, or by a court ruling.
Victims of home violence should be told of this provision so that they can recover for the injuries and also hold the abuser accountable. The requirement that someone else declare her a civil plaintiff is problematic. Given the reluctance of the State to intervene in home violence, they might be also reluctant to declare her a civil plaintiff. If so, she can sue using civil procedure.
Article 56 (l) Any person neutral to the case who has special expertise in sciences, technology, arts, or a trade may be invited as an expert.(4) An expert shall have no right: to conduct discussions with participants in the proceedings on issues related to the expert examination without the investigator; to gather materials for examination independently...
Article 68(3) allows for a challenge to an expert who has conducted an inspection of the case outside of the court proceedings.
Supporters of victims of violence must be very careful regarding who will testify in the case as an expert. A court expert must be neutral and have no outside communication with either party and not gather information alone. Thus the supporter from the crisis center or hot line is likely not going to be qualified as an expert but should be able to testify as a regular witness. If the victim wants to introduce expert testimony about the dynamics of home violence, that person should not talk to the victim outside of the legal requirements. Similarly, in the U.S. we have a “treating” psychologist and a “forensic” psychologist. The treating psychologist is presumed to have a positive bias toward their client. The forensic psychologist is a neutral person asked by the court to obtain certain information.
Article 57 Specialist (l) Any person neutral to the case who has special expertise needed to provide assistance ...
Article 69 allows for a challenge to an specialist who has conducted an inspection of the case outside of the court proceedings
A person working in the field of home violence has special knowledge that is necessary for the court and the jury to understand the dynamics of home violence. Thus such a person should testify at the trial. However, again that person will have to be neutral and so not someone the victim has met with.
Article 93 If there are sufficient reasons to believe that the accused will flee from inquiry, ... or will obstruct objective investigation or examination ... or will continue to engage in criminal activities ...
an inquirer, an investigator, or a procurator, acting within their powers, or a court shall have the right to apply to such person one of the measures of restraint provided by
Article 94 of this Code.
One thing that we know from years of study is that persons who commit home violence will continue and it will get worse. Also they will use their violence to intimidate the victim into not testifying and to dismiss the case. This section, concerning obstruction of investigation, gives the power to restrain such a person.
Article 94 Types of Measures of Restraint: a recognizance not to leave and to show proper conduct, a personal surety;... bail; house arrest; taking into custody.
A personal surety and bail are not effective methods of preventing future criminal acts or protecting the victim. Certainly house arrest would only make things worse because what is needed is that he be out of the house. Taking into custody is one method of ensuring that future criminal acts do not take place. However, the subsequent loss of income may also penalize the victim and children. Research has shown that a brief custodial stay e.g. 24 hours is most effective in convincing the suspect that violence is not going to be tolerated. The best deterrence has been shown to be swift and certain punishment. However the use of a personal recognizance to show proper conduct could be used like a civil protection order commanding that he not commit further threats or violence against her, the children, her family and friends; that he not go to or call her place of work; and that he not go to the home where she and the children should be able to live free from violence.
Article 98 A cognizance ... to show proper conduct shall consist in obtaining from a suspect or an accused a written commitment not to leave his permanent or temporary residence ... not to obstruct objective investigation and examination of the case...
Under this section, he can be ordered to a temporary residence, perhaps a family or friends residence, where he will not be able to obstruct the objective investigation and examination of the case by threatening or promising the victim. If a personal surety is given, that person could agree to house the suspect temporarily and to prevent him from further criminal acts against his spouse.
Article l03 House Arrest allows that “For a person put under arrest, it may be forbidden to have contacts with certain persons, to receive and send correspondence, to communicate using any means of communications; and certain restrictions may be imposed on the opportunities to leave the dwelling.”
All of these conditions are also present in the orders of protection issued by courts in the U.S. e.g. to prohibit contact, correspondence or telephone calls. The only difference is that the person is not at home since that is the locus of the crime. Since he has committed a criminal offense, he has forfeited his right to be in the home and the court has a right to remove him from the home. Such removal is not arbitrary and therefore not in violation of the constitution (Constitution 40(l), CrC Art. l36, CC Art. 292)
Article ll6 allows participants in criminal proceedings to file a petition with any state actor requesting an action be done such as restrictions be put on the accused to protect the victim.
The victim should be aware of this provision and file a petition immediately asking for protection from the accused similar to a civil protection order.
Article ll8 The court has 3 days to rule on the petition.
Such a petition in the U.S. is considered an emergency petition because of the danger to the victim and must be ruled on immediately. In Arizona, most such petitions are ruled on within 2 hours.
Article 120 gives a right to complain about actions and decisions to participants, “as well as by individuals, enterprises, institutions and organizations, if procedural actions being performed affect their interests.”
The shelters and crisis centers may be able to use this provision to complain about refusing to bring charges or not putting restraints on the accused. Failure to do so impacts their interests because they serve the victims of the violence which is not being addressed; thus their services become overloaded and their clients remain in danger. Further the centers themselves may be in danger as the accused often vent their anger at the persons who try to help the victim. We have had many instances in the U.S. where offenders attacked shelters sometimes trying to burn them down, blow them up or shoot the workers. Failing to hold the offenders accountable only encourages his violent behavior.
Article l32 allows for civil suits to be filed in the criminal case.
This could have positive and negative ramifications for victims of home violence. On the positive side, it could eliminate the need for a second proceeding for damages which is often an additional trauma that the victim does not want to endure. On the negative side, often victims are not ready to seek civil remedies until the trauma of the criminal violence and the criminal proceeding has abated. ARS l3-l02(c) allows civil actions but only in civil court, not criminal.
Article l33(4) A person who has not filed a civil suit in a criminal case and a person whose suit has been left by the court without consideration shall have the right to file one in accordance with civil procedure.
This provision allows those victims who are not yet ready to file in the criminal action to file later.
An additional problem is that the victim may find herself bringing two suits; one in the criminal case that was left without consideration because the accused was acquitted under the criminal standard and then a requirement to bring another one in the civil court because the one in the criminal court was left without consideration.
Article l33(5) allows a procurator to being a civil suit “if this is required by the need to protect the rights of individuals and /or the interests of the state or society.”
A prosecutor who is educated to the dynamics of home violence would see that such suits are necessary to protect the rights of everyone.
Article l40 If information exists that the crime has caused moral or property damage, the inquiry agency, the investigator, and the procurator shall be obliged to take measures to obtain security for the civil claim. The court may also obtain such security.
The victim may need to remind the state agencies that this provision exists to ensure that proper measures are taken to secure monies or property for a civil claim.
Article 150 (l) The following shall constitute reasons for initiating a criminal case: l) complaints made by citizens; 3) information from officials of organizations or associations thereof; 4) news media reports; ...
Given this provision, not only can the victim of violence begin a criminal case, a crisis center could as well based on the information given by the victim or based on a news media report of a home violence incident. Care must be taken however to not report the incident against the wishes of the victim. To do so could jeopardise her safety.
Article 153 Information provided by officials of organizations or associations thereof about a crime shall be in writing. Documents or other materials to support the information may be attached.
This is where both a medical check sheet listing the location and types of injuries on the victim would be useful. This should be in the file of every victim. Also Polaroid photographs of the injuries would be especially helpful here. Photos should be taken on the third day after the injury for maximum effect.
Article 156 A decision regarding a crime complaint must be made within 24 hours unless the procurator extends the time to l0 days for more investigation.
Article l56(2) The person who submitted the complaint must be notified of the decision whether to proceed.
Article 159 (2) allows a procurator to bring charges in the absence of a complaint from the victim in a rape case under CrC Art. 131 if due to helpless conditions, dependence on the accused or due to other reasons, the victim is unable to defend her rights and legitimate interests.
This provision could be used to argue that in spousal rape cases when the victim may be financially dependent on or forced to live with the offender or in date rape cases where drugs or alcohol are used to incapacite the victim or she is gotten alone and overpowered, the procurator should bring charges even without a complaint from the victim.
Article l61 The decision to refuse to initiate a criminal case must be sent to the person who submitted the complaint within three days with an explanation about the victims rights and procedures to complain about the decision.
Article l65 defines who should investigate which crimes. See also
The more minor crimes are investigated by the militia and the more serious crimes by the prosecutor.
Article l69 The preliminary investigation must be completed within two months but it may be extended.
Article 170 The procurator has the power to file petitions with the Court to impose measures of restraint on the accused. (13)
The victim should ask the procurator to file a petition asking for restraint to be ordered.
Article l73 (2) requires that decisions made to dismiss the criminal case, to file petitions to extend the investigation period, or to impose restraints may be made by the head of the investigation group only.
The victim or her representative should ask for restraint to be ordered.
Article l75 (8) provides if there is reason to believe that a witness and/or their relatives need protection, the investigator shall have the right not to identify them in the record of an investigation in which they participated. If a witness is threatened, the court can take security measures to protect the victim and witness. In re Komarov et al (BVS, l997, No. 4, p. 9).
Frequently the offender has made threats against not only the victim of home violence, but her family, friends, children, co-workers, and anyone who helps her escape the violence. This provision should be used to protect those people from harm. Such security measures could include no contact orders as outlined in
Article 178 The victim and civil plaintiff shall be given a list of their rights.
While Arizona law also requires this, often it is ignored and thus the victim’s advocate need to ensure the victim knows her rights.
Article l79 An investigator shall be obliged to consider all petitions made in a case. He shall not deny a petition if it may be of significance to the case. (2) A person filing a petition e.g. for restraint shall be notified within 5 days of the results.
If an investigator refuses to consider a request of the victim e.g. for a medical exam, a forensic exam, restraint of the accused etc., she should complain to the court about the refusal.
Article l83 An investigator shall have the right to summon a specialist to assist in the investigation. Generally the specialist does not submit conclusions to the court but there is no prohibition.
The victim or her advocate should request the investigator to summon a specialist in the dynamics of home violence. Such a person would be helpful for the police to understand the dynamics. Also, findings could be submitted to court.
Article 190(3)(4) If a physical exam is needed and it involves disrobing, a person of the same gender must be present in the room and an investigator of the opposite sex shall not be present.
Thus in a rape or battery case, a woman should not be required to disrobe in front of a male officer but with a doctor and another female present.
Article 200(2) If a victim, a witness, or members of their families are facing threats of violence ... or other criminal actions, communications from their telephones may be monitored.
Victims of violence should request the court or investigator for this protection if necessary.
Article 208 When there is a contradiction in testimony, two persons may be simultaneously questioned.
This procedure should only be done with victims of home violence if they are willing. The victim, if unwilling because of fear of the accused, will not be able to tell the truth of the incidents because she must continue living or having contact with the accused. She knows far better than the investigator, the price she will pay for telling the truth. We had an incident in Arizona where the man literally drug the woman out by her hair when she started to talk about the violence. To be safe, she must lie even risking a perjury charge from the court. Such “recantation” or taking back her earlier statement is common in home violence because of fear of the perpetrator, dependence on him for financial needs, and failure of the legal system to protect the victim or her children. It is not an attempt to defraud the court; but an attempt to save her life. Thus no perjury charge should attach. Such confrontation could increase the danger to her.
Article 212 The investigator is responsible for requesting an expert be appointed.
The victim should request the investigator to do this if desired. It could be dangerous however if the expert is not educated in the dynamics of home violence.
Article 214. The investigator has the right to be present at an expert exam.
This could present a problem, even though the investigator will be of the same sex, in a sexual assault case or even home violence when the victim is not comfortable divulging the extent of the criminal activities to strangers. This should be discussed with her prior to the expert exam.
Article 215(l)(2) The appointed expert can be challenged if they lack expertise or show bias. (1)(3) allows the victim to suggest a particular expert or a particular institution from which to obtain an expert, to ask questions (4), to be present during the exam (5) and to see the report (6).
The victim should challenge the expert if they have had no education in the dynamics of home violence or if they are biased toward the accused. The victim should make a suggestion of an expert from those familiar with the problems of home violence. Here is where a psychologist can be very valuable if educated or very danger if not. Their skills can be very useful but the skills of the lawyer are needed to ensure proper use.
The suspect, with the permission of the investigator, also has the right to be present during the expert exam. (5)
The suspect being present during the exam presents a major problem as the victim may not feel safe enough to tell the entire truth of what has happened. See commentary to
Article 208. If the suspect requests to be present, the victim should petition to the investigator not to give permission.
Article 224 requires that the experts opinion be presented to the victim, among others, who shall have the right to give her own explanations regarding the conclusions.
If the expert is one who is not experienced with home violence and makes a report that does not take into account the peculiar situation, the victim should make her own explanation.
Article 225 allows a repeat of the exam with a different examiner if there are doubts regarding the correctness.
If the victim disagrees with the expert report, she should request a new expert to be appointed.
Article 244 allows the victim and civil plaintiff to become familiar with the criminal file.
Article 247(6) allows a victim or civil plaintiff to petition the investigator to do additional investigation. If the investigator refuses, a complaint to the procurator may be made.
The victim of home violence may have to use this procedure often if the militia or investigator refuses to do a proper investigation.
Article 268 When a judge receives a case, s/he has l4 days to take action in some form.
Article 281 The judge may have a closed trial in cases of crimes of a sexual nature or “to prevent the divulgence of information concerning the intimate aspects of the life of the person participating in the case or of information degrading their dignity, and in instances when it is necessary in order to secure the safety of persons participating in the process”...
The victim may want to request a closed trial because a desire not to share intimate details of her home and family life with the public. Others such as witnesses or an organization such as the crisis center may want to request it for their own safety.
Article 287 The prosecutor need not participate in cases in which the Justice of the Peace has jurisidiction.
The cases in which the Justice of the Peace has jurisdiction are CrC Art. ll5 Intentional Infliction of Mild Injury to Health and CrC Art. ll6 Beatings.
Article 287 (7) If the prosecutor dismisses the case but the victim does not, the prosecutor will be relieved and the victim can proceed with the case alone or with a representative. Upon petition by the victim, the court must provide the victim with time to invite a representative.
The victim should keep this provision in mind if the prosecutor refuses to continue the case.
Article 290 (2) If the victim fails to appear, the court should make the decision of whether to continue or postpone the case. The court will take into consideration the opinion of the victim’s representative. (4) In the case of a private prosecution, the failure of the victim to appear shall result in dismissal of the case. See also In re Komarov et al (BVS, l997, No. 4, p. 9).
A victim’s representative needs to educate the court about why the victim may fail to appear, her fear, and her safety needs.See Comments to Art. l75(8).
This is a very serious problem for the victim since many of the cases will be private prosecutions. Often the victim does not appear out of fear or because of the cycle of violence. The offender has convinced her the violence will end. But in fact, it will only get worse after the threat of prosecution passes. The victim must have a representative at this point and the representative must educate the court on this dynamic so that the case is not dismissed and can be postponed under
Article 295 or proceed without the victim.
Article 291 (2) If the civil plaintiff does not appear in court, the civil suit could be left without consideration. The civil plaintiff shall reserve the right to file a suit by way of civil proceedings. The civil suit can be considered without the plaintiff if s/he so requests. The procurator and judge shall have the right to go ahead with the civil suit without the presence of the civil plaintiff.
Article 293 allows participation by NGO’s in a court ruling. The NGO can introduce evidence, participate in the questioning, file petitions and challenges, participate in oral arguments, tell the court its opinion of the defendant, tell about aggravating circumstances and other issues.
Crisis centers and shelters along with experts working with a victim through an NGO may use this provision to get in evidence otherwise excluded. They may also ask questions that the victim is too intimidated or fearful to do herself. If the court appointed expert is not educated on home violence, the NGO can do the educating. The NGO may be more comfortable telling the court about the behavior of the defendant and the aggravating circumstances than the victim is.
Article 298 During trial, the court shall have the right to determine the measure of restraint with respect to the defendant.
The victim may want to ask the court to determine certain measures of restraint for her protection. Also during trial, the advokate should be aware of whether the court secretary is paying attention and writing at crucial times during witness and expert testimony. If an appeal is necessary regarding the admissibility of the dynamics of home violence, it is important the testimony be in the record.
Article 304 Within 5 days after the signing of the record of the court session, the parties shall have the right to file their comments on the record.
The plaintiff or her representative may wish to do this to protect the record and ensure its accuracy and to continue the educational effort for procurators and judges.
Article 318 If any of the participants does not show up for the trial, the court shall hear the opinions of the parties regarding proceeding with the case or postponing it.
If the victim does not show up for trial due to safety reasons, fear, or because of pressure from the accused, the representative should be knowledgeable about the dynamics of home violence in order to make an argument about the failure of the victim to appear and why the case should be postponed or proceed without the victim. .
Article 337 allows for physical examination during trial by a physician or other specialist in a separate room.
This provision does not specifically allow for a person of the same gender to be present during the exam but see
Article 214 which does require a same sex person.
Article 339 allows the victim or her representative and the civil plaintiff to make closing oral arguments.
Article 358 states that the resolutory part of a judgment of conviction or acquittal must contain a decision concerning the civil suit filed.
Article 36l Upon request of the victim or civil plaintiff, a copy of the final judgment shall be delivered to them within 5 days of the decision.
Article 363 (2) outlines what is required in a case of private prosecution in the Justice of the Peace court. Enough copies should be submitted for each defendant.
Since many of the cases of home violence will be private prosecutions, the victim should be made aware of this provision.
Article 364(l) A Justice of the Peace can refuse the complaint for improper form but must tell the complainant the reason and give her time to fix the defect. (2) The judge shall render assistance in collecting evidence. (3) The judge shall summon the defendant within 7 days to inform him of the case. (4) The judge must tell the parties of the possibility of conciliation.
The conciliation provision presents serious difficulty. Many states in the U.S. do not allow conciliation or mediation in cases of home violence because of the impossibility of fairness. Conciliation is not an option when violence is present. The violence must stop first. The previous violence creates an atmosphere where the victim can never feel safe with the offender. Because of fear, she will often feel she must acquiesce to the offender and go back with him. His promises of no more violence are likely to be false and the violence will only increase.
Article 366 Trial shall start no more than l4 days from delivery of complaint to the court. (3) A cross complaint may be made by the accused. (4) The victim or her representative is the prosecutor. (6) If the victim or representative fail to show up, without good cause, the case may be dismissed.
The cross complaint is a very serious problem. One of the indicators that the offender is very dangerous is that he claims that he himself was the victim of violence rather than the offender. If he makes a cross complaint, the representative must be prepared with strong evidence. The failure of the victim to show up has been addressed previously but its possibility and reasons must be made clear to the judge.
Article 368 A decision by the Justice of the Peace may be complained about within l0 days from the date of its pronouncement.
Article 375 (6) allows the parties to ask potential jurors questions related to exposing circumstances precluding them from serving on the jury.
The victim or her representative must ask the jurors whether they have been victims of home violence. Jury research in the U.S. has shown that previous victims of home violence often do not make good jurors, contrary to common belief, because if they have escaped from such violence, they wish to distance themselves from the current victim. Of course the court or lawyers should also ask if the jurors have been accused of home violence and exclude those persons for cause as well. By the way these questions are asked, the representative can begin educating the jury about the dynamics of home violence which is especially important since the jury can make sentencing recommendations or nullify the law by the decision. Research has shown the most favorable juror to be someone who knows of someone who has been the victim of home violence, but who has not themselves been the victim.
Article 395 If the defendant is pronounced guilty, the parties including victim or civil plaintiff shall have an opportunity to tell the judge what s/he thinks is appropriate punishment.
The advokate or representative will need to work with the victim regarding her statements on punishment. Often the victim will recommend too lenient a sentence, or just counseling or drug or alcohol treatment, out of a false belief that now his violence will stop. It will not. Research has shown that counseling is of very little use. A harsh sentence is often not necessary, but he must be held accountable to learn that home violence is not acceptable to society.
Article 402 (2) Appellate procedures apply to cases that have not taken legal effect which have been decreed by justices of the peace. (4) Cassational procedure shall apply to other cases.
Article 403(l) Appeals from the Justice of Peace are to the district court. (2) Appeals from the district court are to the Judicial Collegium for Criminal Cases or a variety of other courts.
Article 404 The appeal must be lodged with the court that made the order.
Article 405 The appeal must be made within l0 days of the judgment.
Article 406 A request can be made to extend the time line.
Article 413 An appeal shall be considered within l4 days of the application.
Article 416 and 4l7 outline the procedure for appeal from the Justice Court. Basically there is a new trial.
Article 421 and 425 outlines the circumstances which shall constitute grounds for vacating a judgment rendered by a first instance court. Those circumstances include that the sentence imposed is inconsistent with the gravity of the crime and the defendant’s personality (4)
This provision could bode ill or well for the victim of home violence depending on the judge. Some judges could find any punishment for home violence too much and others could understand the need for such punishment. Some judges will be fooled by the defendant’s pleas for mercy and promises not to repeat the violence and others will be aware of the false nature of such promises.
Article 43l A cassational complaint shall be examined within 30 days after receipt.
Article 434 The victim can be asked to testify again and further forensic evidence can be requested.
Article 435 (4) The victim or her representative shall be allowed to address the court.
Article 438 An inquiry shall be deemed incomplete if 3) information about the defendant’s personality has not been established with sufficient completeness.
This may be an opportunity for the victim or her representative to introduce expert evidence about the personality characteristics of an offender. It is very important to educate the judiciary about this so that they are not misled by his claim of redemption or reconciliation.
Article 439 (2) says a judgment shall be deemed inconsistent with the facts if the court disregarded circumstances that might substantially influence the court’s findings.
Refusal to consider evidence of home violence or expert testimony about home violence should be a fact that would substantially influence the court’s findings.
Article 440 says that a substantial violation of criminal procedure has occurred “by denying or restriction law-guaranteed rights of persons involved in the case” which includes victims constitutional rights to equal treatment under the law. (2) says that the judgement shall be vacated if it is “one-sided or incomplete due to erroneous exclusion of acceptable evidence or unjustified denial of a party’s request to examine evidence”
If the court refuses to consider home violence, expert testimony on the dynamics of violence, refuses to allow an expert or specialist to be called, or refuses to allow a support person from a crisis center or shelter testify, an appeal should be filed on that basis.
Article 442 says a sentence may be inconsistent if too mild or severe for the gravity of the crime and personality of the defendant.
This provision could bode ill or well for the victim of home violence depending on the judge. Some judges could find any punishment for home violence too much and others could understand the need for such punishment. Some judges will be fooled by the defendant’s pleas for mercy and promises not to repeat the violence and others will be aware of the false nature of such promises.
Article 445 allows excessive leniency to be a reason for a trial denovo if an application is filed by the victim or her representative.