(iv) Support –Victim Protection Directive, articles 8 and 9 Research results
5. Make it happen!
With regard to protecting victims of intimate partner violence and making sure their needs are respected, Austria is in a strong position, not least because of psychosocial and legal court support, which has been set down in law in 2006: several minimum standards for crime victims required by the Victim Protection Directive 2012/29/EU are guaranteed by the tool of court support. Besides, other essential guidelines of the Directive have already been implemented in Austrian criminal law for some time, or will be shortly.11
The research project12 in the framework of which this brochure was developed offers some interesting insights into the way the judiciary handles intimate partner violence against women.13 The file analysis conducted in Austria covers 70 diaries of the public prosecutor’s office in Vienna, which answer to the following criteria: All files were classified as cases of domestic violence (FAM), the accused were male, (former) partners of the victim, and at least 18 years old at the time of the offence; the charges were (serious) bodily harm, dangerous threat, coercion, continued use of violence, rape and/or sexual assault.14 As all files date from the period of 1 to 28 January 2014 in continuous order, this full survey provides representative data for the Vienna prosecutor’s office.
51 out of 70 analysed proceedings, i.e. 73 per cent, were dismissed by the prosecution.
In addition, there were three cases of deferment of charges after diversion,15 and two cases of partial dismissal regarding the suspicion of dangerous threat, while the suspicion of bodily harm was heard at the District Court.
Only 16 proceedings (23 per cent) went to court, in particular regarding the suspicion of bodily harm and/or dangerous threat.16 Nine cases were in the jurisdiction of the District Court, seven were heard at the Regional Court. In detail there were five diversions,17 three acquittals,18 and six sentences;19 two proceedings at the District Court were pending at the time of data collection.
One remarkable result from the perspective of victim protection is that only six women had access to psychosocial (and legal) court support, i.e. nine per cent – starting, however, with preliminary investigation. Prosecution dismissed three cases (bodily
11 The Member States were obliged to implement the Victim Protection Directive until 15 November 2015; in December 2015, the Austrian Federal Ministry of the Interior submitted a bill which, amongst others, provides for an amendment of the Code of Criminal Procedure taking into account the requirements of EU Directive 2012/29. The amendments have not been passed yet.
12 INASC – Improving Needs Assessment and Victim’s Support in Domestic Violence-related Criminal Proceedings JUST/2013/JPEN/AG/4591, www.inasc.org
13 For more detailed information, see project report on the website.
14 Occasionally, the charges included other offences, for instance criminal damage.
15 Two cases of offence resolution (because of mutual violence) and one fine.
16 Criminal complaints/ charges were brought three times for coercion, and once each for continued use of violence and criminal damage.
17 Three of them defining a probationary period (twice without any duties, once with mandatory anti-violence training) and two fines.
18 One accused was sentenced to a five months conditional prison term for aggressive behaviour and dangerous threat towards police officers, the charges of bodily harm and dangerous threat against his wife were dropped (the victim refused to testify). The other acquittals were in cases of suspicion of dangerous threat and continued use of violence.
19 At the Regional Court, four accused were sentenced to conditional prison terms: two of three months, one of two and one of five months (all of them with a probationary period of three years). At the District Court, one perpetrator was sentenced to six weeks of prison, another to a fine of 40 daily rates.
41
harm and/or dangerous threat), the others went to court (two after partial dismissals).
In one of the proceedings at the Regional Court, the accused was sentenced to a conditional prison term for bodily harm, dangerous threat and coercion, the other was acquitted of the suspicion of dangerous threat (the suspicion of bodily harm and continued use of violence had been dismissed earlier). The third proceedings, this time for bodily harm at the District Court, also ended in a diversion after a partial dismissal (dangerous threat).
Apart from that, 60 of 70 accused had received a barring order along with the police charges. 44 connected criminal proceedings were dismissed by prosecution (73 per cent); this result reflects the attitude of most interviewed state prosecutors that the existence of a barring order did not have a role in their decision.20
Finally, we would like to emphasise that only twelve per cent of the victims (eight women) made use of their right to refuse to give evidence before the police; at court, however, it was 50 per cent. Experts point out that the majority of forfeits result from fear, from stress, or because the victim does not want to confront herself with the act again. Only a few are based on the motive of maintaining the relationship;
however, this wrong interpretation is common amongst prosecutors and judges, and is used as an argument for dismissal.
As the project plan is focused on the EU Directive, and therefore on criminal proceedings, this research lacks the aspect of the protection of victims from further violence, as well as protection measures that are not based in criminal law, i.e. interim injunctions that are meant to offer longer-term protection, and which are relatively important in Austria.21
The goal of this brochure is to support the implementation of the Victim Protection Directive and relevant regulations in the Austrian Code of Criminal Procedure. It emphasises the necessity of improvements by means of the interviews conducted during the research, which confirm in particular the importance of some knowledge of the characteristics and dynamics of domestic and interim partner violence for victim protection and dealing with victims. This is true for all concerned stakeholders, including police and judiciary. One “side effect” of strengthening victims by respecting their needs and conveying a feeling of security may also be more precise statements and thus an improvement in the quality of criminal prosecution.
The annex includes a checklist to support risk assessment by prosecutors and judges.
20 In the 16 court proceedings, 13 of the accused were subject to a barring order.
21 Experts estimate that one in three barring orders is extended by an interim injunction. In our file analysis, however, this ratio was only 1:14. One of the main problems in protection by interim injunction in Germany, and according to Austrian experts here, too, is that it is weakened by existing parental visiting rights.
42
Annex: Checklist22 HISTORY OF VIOLENCE
yes no unknown comments
* Other individuals sharing the household Former charges for
Domestic violence: dismissal (incl. diversion) conviction
acquittal
Other violent offences: dismissal (incl. diversion) conviction
* repeated violation of barring order
* repeated violation of preliminary injunction Specifics of violence
* Choking, strangulation, suffocation
* Violence during pregnancy
* Gun possession
Increased risk of violence because of
* Perpetrator’s alcohol or drug abuse
* Perpetrator’s claims of ownership, extreme jealousy, control behaviour
* Perpetrator’s mental instability, depression, threats or attempts of suicide
* Unemployment
* Separation (actual, planned)
* Violence in the presence of children
* Stepchildren in shared household
22 Partly taken from: WAVE (2012). Protect II - Stärkung der Handlungskompetenz bei Gefährdungseinschätzung und Sicherheitsmanagement zum Schutz hochgefährdeter Gewaltbetroffener. Schulungsmaterial, pp 89-95.
43
GERMANY
1. Introduction
The EU Directive on Victims’ Rights 2012/29/EU of the European Union dated 25.
October 2012 establishes minimum standards for the rights, the support and the protection of victims of criminal offences to a new extent. Special regulations apply for victims who are particularly at risk due to their relationship with and dependence on the offender. Thus, they apply for a large number of women, men and children who become victims of domestic violence every year.
The guideline is valid since November 2015. Corresponding adjustments on Federal Legislation level particularly concern the incorporation of psycho-social accompaniment during the process. Further adaptations - such as the regulation regarding access to victim assistance facilities - are within the powers of the federal states. The implementation of the EU Directive on Victims’ Rights furthermore depends on whether those responsible for criminal prosecution on site implement the spirit of the Directive in their everyday work to support victims in criminal proceedings and enforce their rights.
The project INASC took the opportunity of the new efforts being made for the empowerment of victims in criminal proceedings to examine the experiences of victims of domestic violence within the police and the justice system and their needs in this context.
This brochure introduces the EU Directive on Victims’ Rights and the legal adaptations at the federal level, describes important findings from the study and provides information regarding the implementation.