On June 20, 2022, the Verkhovna Rada of Ukraine ratified the Istanbul Convention with 259 votes in favor.
Ukrainian human rights organizations had been waiting for this ratification for 11 years without a month.
To summarize its significance, Ukraine will be able to strengthen its legislation on combating violence against women and domestic violence.
Andriy Yakovlev, managing partner of Umbrella Law Firm and lawyer of the Regional Center for Human Rights, told the Foundation more about how the Istanbul Convention will affect Ukraine.
Declarations and reservations of Ukraine on ratification
The Law of Ukraine “On Ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence” ratified the Istanbul Convention.
The ratification came with declarations and reservations.
In particular, Ukraine stated that it would not consider any of the provisions of the Convention as:
- binding it to change the Constitution of Ukraine and the Family Code of Ukraine, other laws of Ukraine on the institutions of marriage, family and adoption;
- interfering with the right of parents to raise their children in accordance with their own beliefs.
As for the reservations, Ukraine reserves the right not to apply the provisions of Article 30(2) of the Convention until the national legislation is brought into line with the said provisions of the Convention.
Article 30(2) of the Convention refers to state compensation, in particular, according to this provision, appropriate state compensation shall be awarded to those who have suffered serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources, such as the offender, insurance or state medical and social security. This does not preclude the Parties from demanding the return of the compensation provided from the offender, provided that the victim’s safety is properly ensured.
It is worth noting that not only Ukraine made such reservations, but also other countries.
Ukraine also noted that the fulfillment of the Convention’s obligations is not guaranteed in the temporarily occupied territories.
How the Convention can influence the legal framework for combating violence against women
The Istanbul Convention is primarily intended to ensure de jure and de facto equality between women and men as a key element in the prevention of violence against women. The authors of the Convention recognize that violence against women is a manifestation of the historically unequal power relations between women and men, which has led to the domination of women and discrimination against women by men and to the prevention of women’s full emancipation.
The Convention contains 81 articles on 50 pages of text, so here we will focus on those provisions that can most affect our lives.
First of all, it is the unification of terminology and criminalization of violence against women, namely:
Article 33 Psychological violence
The Parties shall take the necessary legislative or other measures to ensure that intentional conduct resulting in grievous harm to mental integrity by coercion or threats is criminalized.
Article 34 Prosecution
The Parties shall take the necessary legislative or other measures to ensure that intentional conduct consisting of repeated threatening behavior directed at another person that causes him or her to fear for his or her safety is criminalized.
Article 35 Physical violence
The Parties shall take the necessary legislative or other measures to ensure that intentional conduct consisting of acts of physical violence against another person is criminalized.
Article 36 Sexual violence, including rape
1. The Parties shall take the necessary legislative or other measures to ensure that the following forms of intentional conduct are criminalized
(a) Committing, without consent, vaginal, anal or oral penetration of a sexual nature into the body of another person using any part of the body or object;
b) performing, without consent, other acts of a sexual nature with a person;
c) coercion of another person to perform, without consent, acts of a sexual nature with a third person.
2. Consent must be given voluntarily as a result of a person’s free will, obtained in the context of the accompanying circumstances.
3. The Parties shall take the necessary legislative or other measures to ensure that the provisions of paragraph 1 also apply to acts committed against former or current spouses or partners, as recognized by national law.
Article 37 Forced marriage
- The Parties shall take the necessary legislative or other measures to ensure that intentional conduct constituting the coercion of an adult or child into marriage is criminalized.
- The Parties shall take the necessary legislative or other measures to ensure that intentional conduct consisting of luring an adult or child into the territory of a Party or a State other than the one in which he or she is domiciled for the purpose of forcing that adult or child to enter into marriage shall be criminalized.
Article 38 Female genital mutilation
Parties shall take the necessary legislative or other measures to ensure that the following forms of intentional conduct are criminalized
(a) Removing, infibulating or otherwise mutilating in whole or in part the labia majora, labia minora or clitoris;
b) forcing or inducing a woman to undergo the acts listed in subparagraph (a);
c) incitement, coercion or inducement of a girl to undergo the acts listed in subparagraph (a).
Article 39 Forced abortion and forced sterilization
Parties shall take the necessary legislative or other measures to ensure that the following forms of intentional conduct are criminalized
(a) The performance of an abortion on a woman without her prior and informed consent;
b) performing a surgical intervention that has the purpose or effect of terminating a woman’s ability to reproduce naturally without her prior and informed consent or understanding of the procedure.
Article 40 Sexual harassment
The Parties shall take the necessary legislative or other measures to ensure that any form of unwelcome verbal, non-verbal or physical conduct of a sexual nature, the purpose or effect of which is to violate a person’s dignity, including by creating an intimidating, hostile, humiliating or offensive environment, is subject to criminal or other legal sanctions.
To prosecute offenses established by the Istanbul Convention, the Parties shall take the necessary legislative or other measures.
Investigation or prosecution of offenses not only at the initiative of the victim
It is also important that the Istanbul Convention introduces the principle of ex parte and ex officio proceedings in crimes of violence against women.
That is, the state has an obligation to conduct an investigation not only at the initiative of the victim, but also on its own initiative and to bring it to an end despite the victim’s desire to withdraw her claims against the perpetrator.
Ukraine should ensure that investigations or prosecutions of offenses established in accordance with Articles 35 to 39 of this Convention do not depend entirely on a report or complaint filed by the victim if the offense was committed in whole or in part on its territory, and those proceedings can continue even if the victim withdraws his or her report or complaint.
Thus, the Istanbul Convention stipulates that liability for criminal offenses established by it occurs regardless of the nature of the relationship between the victim and the offender.
International monitoring and work on new statutes of limitations for sexual violence offenses
Ukraine should ensure that the statute of limitations for investigations into sexual violence offenses, including rape (Article 36), forced marriage (Article 37), female genital mutilation (Article 38), and forced abortion and forced sterilization (Article 39), not only allow a victim who was minor to initiate an investigation after reaching the age of majority but also ensure the effectiveness of such investigations.
The Convention provides for the introduction of a mechanism for monitoring actions against violence against women and domestic violence.
Such a mechanism is the (international) Group of Experts on Action against Violence against Women and Domestic Violence (hereinafter referred to as GREVIO), which monitors the implementation of this Convention. Members of GREVIO are elected from candidates nominated by the Parties for a four-year term.
In addition, the Istanbul Convention also provides for parliamentary monitoring by both the national parliament and the Parliamentary Assembly of the Council of Europe.
Ukraine already has its own legislation aimed at preventing violence and domestic violence, so why do we need the Istanbul Convention?
It cannot be argued that current Ukrainian legislation does not generally protect women from violence, but the ratification of the Istanbul Convention harmonizes our legislation with international law and international practices to overcome violence against women and domestic violence, including by criminalizing it.
The Convention addresses broader aspects of protection and is the result of the universalization of the world’s experience in combating violence.
The Convention itself does not criminalize acts of violence, it only identifies them and is a programmatic commitment to harmonize national legislation with the Convention’s requirements.
The Convention also introduces universal terminology, which is important when introducing new legislation or applying it.
Therefore, we cannot agree with the statement that the ratification of the Istanbul Convention was unnecessary.
What are Ukraine’s next steps after the ratification of the Convention?
First and foremost, we need to conduct up-to-date monitoring of national legislation on violence against women and domestic violence for its compliance with conventional obligations and determine where changes need to be initiated, and where it is sufficient to change administrative and investigative practices, so to speak, using soft skills.
In the latter case, it will be necessary to change or define standards for investigating crimes of violence against women and domestic violence.
One of the next steps is to nominate candidates for election to the GREVIO, the International Group of Experts on Action against Violence against Women and Domestic Violence.
Photo: amnesty.org.ua
