Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.39 N° 70
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Recibido el 07/07/2021 Aceptado el 20/09/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
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Vol. 39, Nº 70 (2021), 282-302
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Legal regulation of prevention of
domestic violence in Ukraine
DOI: https://doi.org/10.46398/cuestpol.3970.18
Oleksii Humin *
Valentyna Merkulova **
Oksana Hrytenko ***
Svitlana Yuldasheva ****
Serhii Bratkov *****
Abstract
The aim of the article is to clarify the limits and content of
the normative regulation of the prevention of domestic violence
in Ukraine based on the values of natural law, the theory of
criminal, civil and administrative law, and current legislation.
In addition, an analysis of the legal support for the training and
implementation of State policy in the eld of protection of victims
of domestic violence is carried out. The legal nature and content
of the legal regulation of the prevention of domestic violence in Ukraine
are revealed. The dialectical method contributed to the consideration and
study of the problem in the unity of its social content and legal form and
to the implementation of a systematic analysis of the normative regulation
of the prevention of domestic violence in Ukraine. Everything allows
us to conclude that the norms of international, European, and national
law that regulate the relations of prevention and ght against domestic
violence in Ukraine are articulated. Finally, special attention is paid to the
organizational and legal aspects of the ght against domestic violence in
relation to changes in Ukrainian legislation.
* Doctor of Law, Professor, Head of the Department of Criminal Law and Procedure of the Educational
and Scientic Institute of Law, Psychology and Innovative Education, Lviv Polytechnic National
University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-8016-945X. Email: Gumin@ukr.
net
** Doctor of Law, Professor, Professor of the Chair of Criminal Law and Criminology, Odesa State
University of Internal Aairs, Odessa, Ukraine. ORСID ID: https://orcid.org/0000-0002-9977-8861.
Email: merkulova.53vm@gmail.com
*** Doctor of Law, Assistant Professor, Professor of the Chair of Criminal Law and Criminology, Odessa
State University of Internal Aairs, Odessa, Lviv Polytechnic National University, ORСID ID: https://
orcid.org/0000-0003-1376-6956. Email: oksanochka.oksi78@ukr.net
**** Candidate of philological sciences, Associate Professor at the Department of legal linguistics, National
Academy of Internal Aairs, Kyiv, Ukraine, ORСID ID: https://orcid.org/0000-0003-2614-2560.
Email: 0661149415s@gmail.com
***** Doctor of Law, Associate Professor, Associate Professor of Police Law, National Academy of Internal
Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-3296-9970. Email: sir3720@gmail.
com
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Keywords: domestic violence; international standards; gender equality;
Ukrainian legislation; prevention of domestic violence.
Regulación legal de la prevención de la violencia
doméstica en Ucrania
Resumen
El objetivo del artículo es aclarar los límites y el contenido de la
regulación normativa de la prevención de la violencia doméstica en Ucrania
sobre la base de los valores del derecho natural, la teoría del derecho penal,
civil y administrativo y la legislación vigente. Adicionalmente, se realiza un
análisis del soporte legal para la formación e implementación de la política
de Estado en el campo de la protección de víctimas de violencia intrafamiliar.
Se revelan la naturaleza jurídica y el contenido de la regulación legal de
la prevención de la violencia doméstica en Ucrania. El método dialéctico
contribuyó a la consideración y el estudio del problema en la unidad de su
contenido social y forma jurídica y a la aplicación de un análisis sistemático
de la regulación normativa de la prevención de la violencia doméstica
en Ucrania. Todo permite concluir que, están articuladas las normas de
derecho internacional, europeo y nacional que regulan las relaciones de
prevención y lucha contra la violencia doméstica en Ucrania. Por último,
se presta especial atención a los aspectos organizativos y legales de la lucha
contra la violencia doméstica en relación con los cambios en la legislación
de Ucrania.
Palabras clave: violencia intrafamiliar; estándares internacionales;
igualdad de género; legislación ucraniana; prevención
de violencia intrafamiliar.
Introduction
Domestic violence is a recognized global problem. If the victims of
domestic violence are distributed according to gender, the number of
women victims is 90–95%, and the number of men victims is 5–10%
(Bandurka, 2015). According to United Nations research, now every third
woman in the world has faced one of the types of domestic violence in her
life (Kaczynska, 2016). According to age, about 40% of victims of domestic
violence are children and 60% are adult family members. According to
various estimates, every year 2 million children in the world become victims
of violence. A total of 40 million children suer from disability, including
those who were injured in the family (Bandurka, 2015).
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Oleksii Humin, Valentyna Merkulova, Oksana Hrytenko, Svitlana Yuldasheva y Serhii Bratkov
Legal regulation of prevention of domestic violence in Ukraine
At the beginning of the 21st century, Ukraine became one of the rst
countries in Eastern Europe to recognize domestic violence as an important
social problem, depriving oenders of the opportunity to hide behind
the screen of non-interference in private life. At the same time, in some
segments of Ukrainian society, including, unfortunately, legal circles, there
is a generally accepted, erroneous and dangerous position, according to
which family relations are a family aair and even domestic violence is not
a crime. According to the Ukrainian Institute for Social Research, only 27%
of women consider oences as a manifestation of violence and only 32%
similarly assess humiliation. Victims tend to justify their tormentors for
many reasons: nancial dependence, lack of housing, lack of understanding
of how to avoid aggression, and disbelief that someone can help. Such
disbelief is not unfounded. After all, almost 40% of employees of the
criminal justice system - police, prosecutors, judges - consider domestic
violence a private matter, and about 60% believe that the victims are to
blame for what happened to them (Economic Consequences Of Violence
Against Women In Ukraine, 2017).
Modern legal doctrine, international law and the European Convention
Heritage oblige Ukraine to create an eective system for preventing and
combating domestic violence, accessible to victims of such violence, aimed
at protecting their security, and the state policy of protection of victims of
domestic violence and other illegal actions should put a strong barrier that
would provide protection of potential victims from violent encroachments
(Lesko, 2019). However, according to scientists, this system is far from
adequate to the current state of society, which is now widespread negative
phenomena and processes that directly and indirectly contribute to the
commission of crimes against children (increasing divorce, increasing
the number of disadvantaged families, alcoholism, drug addiction, drug
addiction, the dominance of legal nihilism, the growth of oenses in
general) (Levitska, 2003).
The rules of law permeate the entire legal matter of society. It is not
enough just the constitutional declarations proclaimed in Art. 3 of the
Constitution of Ukraine: “A person, his life and health, honor and dignity,
inviolability and security are recognized in Ukraine as the highest social
value. Human rights and freedoms and their guarantees determine the
content and direction of the state. The state is accountable to man for his
activities. The establishment and protection of human rights and freedoms
is the main duty of the state” (Constitution of Ukraine, 1996). Freedom and
human rights without a mechanism for their implementation and eective
protection, which takes into account the realities of modern life - ction.
The twenty-rst century is the age of informatization, the information
resources industry and, most importantly, the process of actively ensuring
the protection of human rights and freedoms. Fulllment of the task of
ensuring rights and freedoms as components of the process of formation and
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development of spirituality in society - this is the reality of human progress
towards a humanistic future (Bryzhko et al., 2006). Public relations that
arise in the eld of preventing and combating domestic violence cannot be
an exception to this rule (Manjos, 2019).
Based on the values of natural law, the theory of criminal, civil and
administrative law, and current legislation, we aim to clarify the boundaries
and content of regulations on the prevention of domestic violence in
Ukraine.
1. Methodology of the study
A system of methods of scientic knowledge is used to achieve the goal
and objectives of the scientic article, to ensure the reliability of the results
and conclusions. The dialectical method contributed to the consideration
and study of the problem in the unity of its social content and legal form and
the implementation of a systematic analysis of the normative regulation of
the prevention of domestic violence in Ukraine.
The system-structural method allowed to study the main international
and national regulations that regulate the relationship to prevent and
combat domestic violence as a holistic set of elements that interact with each
other. The use of the statistical method contributed to the generalization
of legal practice, analysis of empirical information related to the topic of
the scientic article. The historical and legal method was used to study the
stages of development of legislation on the state policy of Ukraine in the
eld of protection of victims of domestic violence and other illegal actions.
The comparative legal method was used during the review and study of legal
literature, the main scientic approaches to solving the tasks of research and
analysis of domestic legislation in the process of clarifying its relationship
with international standards for regulating this problem. The formal-legal
method was used in the study of normative sources of scientic work,
which allowed to identify shortcomings of current legislation of Ukraine,
which regulates the activities of entities in the eld of protection of victims
of domestic violence and other illegal actions and formulate proposals to
improve their activities.
These methods in conjunction with general logical methods and
techniques (analysis, synthesis, induction, deduction, analogy) allowed
a comprehensive and eective study of regulatory and legal support for
the formation and implementation of state policy in the eld of domestic
violence prevention in Ukraine, aimed at bringing national legislation
in a state that would lead to the possibility of ratication of the Istanbul
Convention.
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Legal regulation of prevention of domestic violence in Ukraine
2. Analysis of recent research
We consider it expedient to give a general description of normative-
legal documents aimed at preventing domestic violence in Ukraine.
Legal theorists inextricably link regulation with legal regulation as the
regulation of people’s behavior through regulations designed to be reused
in the circumstances. That is, the scope of public relations, which is subject
to regulatory legal regulation, is quantitatively uncertain (Kurakin, 2013).
In general, such a construction is suitable for public relations of
normative regulation of prevention and counteraction to domestic violence
in Ukraine, which involve numerous norms of international, European and
domestic law. Moreover, the latter consist of the norms of the Constitution
and other laws of Ukraine, in particular codes and bylaws. Among the
international legal acts it is worth mentioning the Universal Declaration of
Human Rights, the preamble of which emphasizes the belief in fundamental
human rights, the dignity and worth of the human person, equality of men
and women (Universal Declaration Of Human Rights, 1948).
International and European regulations, such as the United Nations
Declaration on the Elimination of Violence against Women (UN Declaration
On The Elimination Of Violence Against Women, 1993), the UN Convention,
are literally permeated with positive principles for preventing and combating
domestic violence against women and children. on the Rights of the Child
(UN Convention On The Rights Of The Child, 1989), the UN Convention
on the Elimination of All Forms of Discrimination against Women (UN
Convention On The Elimination Of All Forms Of Discrimination Against
Women, 1999), Council of Europe Convention for the Protection of Human
Rights and Fundamental Freedoms (Council Of Europe Convention For The
Protection Of Human Rights And Fundamental Freedoms, 1997), Council
of Europe Convention on Preventing and Combating Violence against
Women and Domestic Violence (hereinafter referred to as the Istanbul
Convention) prevention of and ght against violence against women and
domestic violence), the Council of Europe Convention on the Protection of
Children against Sexual Exploitation and Sexual Abuse (Council Of Europe
Convention On The Protection Of Children Against Sexual Exploitation
And Sexual Abuse, 2012).
European Convention on the Exercise of Children’s Rights (European
Convention On The Exercise Of Children’s Rights, 2006). Thus, according
to the UN Declaration on the Elimination of Violence against Women, States
must condemn violence against women and must not invoke any customs,
traditions or religious motives to evade their obligations to eradicate it.
States must immediately implement policies to eradicate violence against
women by all appropriate means (UN Declaration On The Elimination
Of Violence Against Women, 1993). The Council of Europe Convention
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on Preventing and Combating Violence against Women and Domestic
Violence (Istanbul Convention, 2013) is the rst legal instrument on this
issue at European level, as well as one of the most promising international
treaties in this eld. The Convention enshrines the absolute inadmissibility
of violence against women and domestic violence. It also sets out a number
of responsibilities of participating countries to protect refugees and asylum
seekers from domestic and gender-based violence and establishes a
number of safeguards for this category of persons. In particular, Art. 60 of
the Convention obliges countries to take measures to ensure that gender-
based violence against women can be recognized as a form of persecution.
Parties should take the necessary legislative or other measures to develop
gender-sensitive reception and support procedures for asylum seekers, as
well as gender-based gender guidelines and asylum procedures, including
refugee status determination and applications for international protection
(Convention Council Of Europe On The Protection Of Human Rights And
Fundamental Freedoms, 1997).
Despite positive developments in public policy and practice, various
forms of domestic violence remain a common problem at all levels of
society in all Council of Europe member states, including Ukraine. So
far, there are virtually no comprehensive international legal acts that
would systematically establish international standards for the prevention
of domestic violence. Most international acts are aimed at promoting
gender equality and preventing violence against children and women
(UN Convention On The Rights Of The Child, 1989; Declaration On The
Elimination Of Violence Against Women, 1993) (Lomakina, 2020).
The Constitution of Ukraine clearly states that citizens have equal
constitutional rights and freedoms and are equal before the law. There
may be no privileges or restrictions based on race, color, political, religious
or other beliefs, gender, ethnic or social origin, property status, place of
residence, language or other characteristics. Equality of rights of women
and men is ensured by: providing women with equal opportunities with
men in socio-political and cultural activities, in education and training,
in work and remuneration for it; special measures for the protection of
labor and health of women, the establishment of pension benets; creating
conditions that enable women to combine work with motherhood; legal
protection, material and moral support of motherhood and childhood,
including the provision of paid leave and other benets to pregnant women
and mothers.
The use of women and minors for work that is hazardous to their health
is prohibited. Marriage is based on the free consent of a woman and a man.
Each spouse has equal rights and responsibilities in marriage and family.
Parents are obliged to support their children until they reach the age of
majority. Adult children are obliged to take care of their disabled parents.
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Legal regulation of prevention of domestic violence in Ukraine
The family, childhood, motherhood and fatherhood are protected by the
state. Children are equal in their rights regardless of their origin, as well
as whether they are born in or out of wedlock. Any violence against and
exploitation of a child is prosecuted under the law (European Convention
On The Exercise Of Children’s Rights, 2016).
Ukraine’s adoption of the latest legislative changes in this direction is
aimed, among other things, at bringing national legislation into a state that
would lead to the possibility of ratication of the Istanbul Convention. In
particular, the relevant Law of Ukraine “On Prevention and Counteraction
to Domestic Violence” denes the organizational and legal framework for
preventing and combating domestic violence, the main directions of state
policy in this area, aimed at protecting the rights and interests of victims
of such violence (On Prevention And Counteraction To Domestic Violence,
2017).
In addition, some provisions relating to the analyzed issues are
concentrated in other laws of Ukraine, namely: “On Child Protection” (On
Child Protection, 2002), “On Social Services” (On Social Services, 2019),
“On Free Legal Aid” (On Free Legal Aid, 2011), the Code of Ukraine on
Administrative Oenses (Code Of Ukraine On Administrative Oenses,
1984), the Civil (Civil Code Of Ukraine, 2003), the Criminal (Criminal Code
Of Ukraine, 2001) and the Family (Family Code Of Ukraine, 2002) codes.
In particular, according to Art. 173 2 Code of Ukraine on Administrative
Oenses, provides for administrative liability for domestic violence, on
the grounds of sex, i.e. intentional commission of any acts (actions or
omissions) of a physical, psychological or economic nature (use of violence
that did not Cause bodily harm, threats, insults or harassment, deprivation
of housing, food, clothing, other property or funds to which the victim is
entitled by law, etc.), as a result of which the physical or mental health of
the victim may or has not been harmed. Such acts are punishable by a ne
of ten to twenty non-taxable minimum incomes or public works for a period
of thirty to forty hours, or administrative arrest for up to seven days (Code
Of Ukraine On Administrative Oenses, 1984).
The legislative act, which contains norms aimed at protecting the
rights of the child, is the Civil Code of Ukraine of 16.01.2003, which states:
“Personal intangible goods protected by civil law are: health, life; honor,
dignity “(Article 201) (Civil Code Of Ukraine, 2003). The Code provides
for the right to “restoration of the violated right, as well as compensation
for non-pecuniary damage caused by its violation” (Article 276), “refutation
of inaccurate information” about an individual (Article 277). In Art. 288
of the Civil Code of Ukraine states that “any form of physical or mental
pressure on an individual, his involvement in the use of alcohol, drugs
and psychotropic substances, other acts that violate the right to liberty”
(Civil Code). In paragraphs 1, 2 of Art. 289 of the Civil Code of Ukraine
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stipulates that an individual has the right to personal inviolability, that he
may not be subjected to torture, cruel, inhuman, or degrading treatment or
punishment. Paragraph 3 of this article states the inadmissibility of corporal
punishment by parents (adoptive parents), guardians, trustees, educators
of minors, minors, and wards. In Art. 293 of the Civil Code of Ukraine states
that an individual has the right to appropriate, safe, and healthy learning
conditions, etc. (Civil Code Of Ukraine, 2003). Thus, the norms of the Civil
Code of Ukraine provide the idea of the inadmissibility of any violence
against a person, and therefore against a child, as legal capacity is acquired
from birth, as well as the right to safe learning conditions. It should be
emphasized that in the Civil Code of Ukraine violence is identied with
pressure. Thus, Article 231 “Legal consequences of a transaction committed
under the inuence of violence” stipulates that “a transaction committed by
a person against his true will as a result of physical or mental pressure from
another party or another person is declared invalid by a court (Civil Code
Of Ukraine, 2003).
In Art. 173-2 of the Code of Ukraine on Administrative Oenses, the
term “violence” is used only to establish liability for domestic violence,
violence on the grounds of sex (Article 173-2 of the Code of Ukraine on
Administrative Oenses) (Code Of Ukraine On Administrative Oenses,
1984).
There is also no denition of violence in the Criminal Code of Ukraine,
although the term and its derivatives are used in both the General and
Special Parts (Criminal Code Of Ukraine, 2001). Thus in the General part
they are used at construction of norms about the circumstances excluding
criminality of act (item 36 “Necessary defense” and item 43 “Execution
of a special task on the prevention or disclosure of criminal activity of the
organized group or the criminal organization”). Such types of violence
are not negative and have no antisocial character. In the Special Part, the
term “violence” is used more than 100 times. In addition to the above, the
Criminal Code provides for a number of socially dangerous acts, which
are inherently violent, but in their construction were used other means of
describing the crime without the use of the term “violence” (Blaga, 2014).
Although the Criminal Code of Ukraine does not contain a special rule
that would provide for liability for domestic violence, it contains a number
of sections that provide punishment for the actions of a person who has
committed a domestic oense, which is a crime, namely: crimes against
life and health of a person; crimes against the will, honor and dignity of the
person; crimes against electoral, labor and other human and civil rights
and freedoms; crimes against property; crimes against public order and
morality; crimes in the eld of tracking in narcotic drugs, psychotropic
substances, their analogues or precursors and other crimes against public
health, etc.
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Special attention of criminal law is focused on violations of children’s
rights and violence against them by parents. Criminal liability is provided
for the involvement of parents of minors in criminal activities, drunkenness,
begging, gambling (Article 304 of the Criminal Code of Ukraine). For
inicting light bodily injuries in the event of domestic violence, criminal
liability arises under Art. 125 of the Criminal Code of Ukraine (Criminal
Code Of Ukraine, 2001).
Part 2 of Article 155 of the Criminal Code of Ukraine provides for liability
for sexual intercourse with a person under the age of sixteen, committed
by a father, mother or a person replacing them. Also the sanction of Art.
156 of the Criminal Code of Ukraine determines the responsibility for
committing lewd acts against a minor by a father, mother or a person who
replaces them. Other crimes committed during domestic violence are also
prosecuted (Criminal Code Of Ukraine, 2001).
Law of Ukraine “On Amendments to the Criminal and Criminal
Procedure Codes of Ukraine in order to implement the provisions of the
Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence” of 06.12.2017 № 2227-VIII
(On Amendments To The Criminal And Criminal Procedure Codes Of
Ukraine In Order To Implement The Provisions Of The Council Of Europe
Convention On Preventing And Combating Violence Against Women
And Domestic Violence, 2017) amended the Criminal Code of Ukraine to
determine liability for any form of intentional systematic domestic violence
(psychological, physical, sexual or economic) (Article 126-1 of the Criminal
Code of Ukraine). Persons who force another person to marry will also be
prosecuted. An amendment was made to Art. 154 of the Criminal Code of
Ukraine. It provides for the onset of criminal liability for forcing sexual
intercourse with another person.
Although the Criminal Procedure Code of Ukraine does not provide a
denition of the term “violence”, it does use it several times: rstly, when
explaining the procedure for establishing the voluntary conclusion of an
agreement by the parties (Article 474), and secondly, to specify the scope
of certain criminal oenses in respect of which certain specics of criminal
proceedings are provided (Articles 224 and 477) (Criminal Procedure Code
Of Ukraine, 2012). In Part 3 of Art. 477 of this Code species the procedure
for instituting a criminal case in the form of private prosecution in case of
crimes under this article, if they are committed by the victim’s husband
(wife), another close relative or family member of the victim (Criminal
Procedure Code Of Ukraine, 2012).
These laws are aimed at introducing an integrated approach to preventing
and combating domestic and gender-based violence, expanding the list of
tools and instruments to combat domestic and gender-based violence, and
creating a legal basis for ratication of the Council of Europe Convention on
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Preventing Violence against Women and Domestic Violence. violence and
combating these phenomena. The most numerous among the normative
legal acts in the researched sphere are by-laws of general action. Among
them are: Decree of the President of Ukraine № 501/2015 of August 25,
2015 “On approval of the National Strategy in the eld of human rights”
(On Approval Of The National Strategy In The Field Of Human Rights,
2015), Resolution of the Cabinet of Ministers of Ukraine of August 22, 2018
№ 658 “On Approval of the Procedure for Interaction of Entities Carrying
Out Measures in the Sphere of Prevention and Counteraction to Domestic
Violence and Gender-Based Violence” (On Approval Of The Procedure For
Interaction Of Entities Implementing Measures In The Field Of Prevention
And Counteraction To Domestic And Gender-Based Violence, 2018),
Resolution of the Cabinet of Ministers of Ukraine of August 22, 2018 №
655 “On approval of the Standard Regulations on Asylum for Victims
from domestic and / or gender-based violence ” (Standard Regulations On
Asylum For Victims Of Domestic Violence And / Or Gender-Based Violence,
2018), Resolution of the Cabinet of Ministers of Ukraine of January 23,
2019 № 43 “On Approval of the Standard Regulations on Mobile Brigade
of Social and Psychological Assistance to Victims from domestic and / or
gender-based violence ” (Standard Regulation On The Mobile Brigade Of
Social And Psychological Assistance To Victims Of Domestic Violence And
/ Or Gender-Based Violence, 2019), Resolution of the Cabinet of Ministers
of Ukraine of March 20, 2019 № 234 “On Approval of the Procedure
for Forming, Maintaining and Accessing the Unied State Register of
Domestic Violence and Gender-Based Violence “ (On Approval Of The
Procedure For Formation, Maintenance And Access To The Unied State
Register Of Domestic Violence And Gender-Based Violence, 2019), Order
of the Ministry of Internal Aairs of Ukraine of August 1, 2018 № 654 “On
approval of the Procedure for issuing urgent prohibitions by authorized
units of the National Police of Ukraine regarding the oender “ (On Approval
Of The Procedure For Issuing Urgent Prohibitive Instructions Against The
Oender By Authorized Units Of The National Police Of Ukraine, 2018),
Order of the Ministry of Education and Science of Ukraine of May 22, 2018
№ 509 “On approval of the Regulations on psychological services in the
education system of Ukraine” service in the education system of Ukraine),
the order of the Ministry of Education and Science of Ukraine dated
October 2, 2018 №1047 “On approval of Guidelines for detection, response
to cases of domestic violence and interaction of teachers with other bodies
and services” (On approval of Guidelines for detection, response to cases
of domestic violence and interaction of teachers with other bodies and
services), order of the Ministry of Social Policy of October 1, 2018 № 1434
“On approval of the Standard program for abusers” (On Approval Of The
Standard Program For Abusers) Oenders, 2018), order of the Ministry
of Social Policy of Ukraine № 564/836/945/577 of August 19, 2014.
“On approval of the Procedure for consideration of appeals and reports
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regarding child abuse or threat of its commission (Ministry of Social Policy
of Ukraine, Ministry of Internal Aairs of Ukraine, Ministry of Education
and Science of Ukraine, Ministry of Health of Ukraine)” (On approval of
the Procedure for consideration of appeals and reports on child abuse or
threats of child abuse), Order of the Ministry of Social Policy of Ukraine
№ 281 of May 8, 2014 “On approval of Guidelines for the organization of
correctional programs for perpetrators of domestic violence” (On Approval
Of Methodical Recommendations On The Organization Of Correctional
Programs For Persons Who Commit Domestic Violence, 2014), Order of the
Ministry of Social Policy of Ukraine № 1852 of December 11, 2018 “On the
establishment of the State Institution” Call Center of the Ministry of Social
Policy of Ukraine tracking in human beings, prevention and counteraction
to domestic violence, gender-based violence and violence against children”
(On the establishment of the State Institution“ Call Center of the Ministry
of Social Policy of Ukraine for Combating Tracking in Human Beings,
Prevention and Counteraction to Domestic Violence children).
For example, according to the latest legal act, the Call Center is a non-
prot state budget institution established to ensure the implementation
of tasks related to the proper response to citizens’ complaints about
human tracking, domestic violence, gender-based violence and violence
against children. The main tasks of the Call Center are: to ensure a proper
response within the competence to citizens’ complaints about the facts
of human tracking, domestic violence, gender-based violence, violence
against children; informing and advising on combating tracking in
human beings, preventing and combating domestic violence, gender-based
violence, violence against children; interaction with actors implementing
measures in the eld of preventing and combating domestic and gender-
based violence; ensuring response within the competence to citizens’
appeals on the facts of human tracking through interaction with entities
that implement measures in the eld of combating human tracking;
maintaining, lling and updating the database for consultations on issues
and exchange of information with entities implementing measures in the
eld of prevention and counteraction to domestic violence and gender-
based violence (On The Establishment Of The State Institution “Call Center
Of The Ministry Of Social Policy Of Ukraine Combating Tracking In
Human Beings, Preventing And Combating Domestic Violence, Gender-
Based Violence And Violence Against Children, 2018).
The state policy of protection of victims of domestic violence and
other illegal actions is a direction of the internal legal policy of the state,
which forms the main tasks, principles of legal inuence on violence and
other illegal actions against children, as well as providing comprehensive
assistance to victims and expressed in law, the practice of their application.
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An important normative legal act in the eld of protection of victims
of domestic violence and other illegal actions is the Concept of the State
Social Program “National Action Plan for the Implementation of the UN
Convention on the Rights of the Child” until 2021 from April 5, 2017 №230-
r. The State Social Program “National Action Plan for the Implementation
of the UN Convention on the Rights of the Child” until 2021 is a logical
continuation of the National Program “National Action Plan for the
Implementation of the UN Convention on the Rights of the Child” until
2016, which should promote an updated model public authorities and local
governments at all levels in the direction of ensuring the best interests
of children (On The National Program “National Action Plan For The
Implementation Of The Un Convention On The Rights Of The Child” Until
2016, 2009). Understanding the relevance of these issues is reected in the
Council of Europe Strategy on the Rights of the Child (2016-2021), adopted
on March 2, 2016 by the Committee of Ministers of the Council of Europe.
The Council of Europe will help to eradicate violence in all areas, including
education, the media, justice, equality, the family, migration, alternative
care, and violence against children with disabilities. The Council of Europe
will act as a focal point for ensuring access to national strategies in this area
at national, regional and local levels (Council Of Europe Strategy On The
Rights Of The Child (2016-2021, 2016)).
Summing up this block of research, we note that the problem of
protection of victims of violence and other illegal actions is extremely
serious, and its solution requires the joint eorts of not only government
agencies, public and international organizations, but also scientists and
practitioners. In this process, the most important role is given to the state,
which should formulate an appropriate state policy to protect victims of
violence and other illegal actions, and purposefully implement it. Ukraine
takes the problem of domestic violence seriously. Important steps have
been taken to combat gender-based violence and domestic violence,
namely, Ukraine has joined the Biarritz Partnership, and the President of
Ukraine has signed Decree № 398/2020 “On Urgent Measures to Prevent
and Combat Domestic Violence, Gender-Based Violence, and Protection of
Rights victims of such violence” (Protecting Human Rights And Combating
Violence Is A Priority For The Ministry Of The Interior, 2020).
It would be logical to proceed to the analysis of the relevant law on the
prevention and combating of domestic violence.
Since the entry into force of the Law of Ukraine “On Prevention and
Counteraction to Domestic Violence” on December 7, 2017, the Law of
Ukraine “On Prevention of Domestic Violence”, which applied only to
family members, has expired. This act also regulates the relationship not
only between the spouses and their children, but also between the former
spouses, the bride and groom; persons who are in a civil marriage; persons
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with common children; grandparents, grandchildren, adopted children,
guardians, trustees, stepsons, stepdaughters, stepfathers, stepmothers,
brothers, sisters. The law applies to such persons regardless of the fact of
cohabitation. The legislator also provided for an open list on the possibility
of applying the provisions of the Law to other relatives or persons who have
a common life and have mutual rights and obligations. However, subject to
cohabitation.
The Law of Ukraine “On Prevention and Counteraction to Domestic
Violence” denes the concept of domestic violence as acts (acts or omissions)
of physical, sexual, psychological or economic violence committed in the
family or within the place of residence or between relatives, or between past
or present spouses, or between other persons who live (lived) together with
one family, but are not (were not) in a family relationship or marriage with
each other, regardless of whether the person who committed (lived) lives
(lived), in the same place as the injured person, as well as threats to commit
such acts. The term “domestic violence” has replaced the term “domestic
violence” used in the repealed Law of Ukraine “On Prevention of Domestic
Violence”.
In our view, the denition of threats to commit acts as a form of domestic
violence does not seem entirely justied given that psychological violence
includes threats and intimidation. Article 1 of the Law stipulates that a
person who has suered from domestic violence (victim) is a person who has
suered domestic violence in any form (On Prevention and Counteraction
To Domestic Violence, 2017).
Progressive is the provision of the Law that a child victim of domestic
violence (victim child) is not only a person who has not reached 18 years
of age and has experienced domestic violence in any form, but also who
has witnessed (eyewitness) such domestic violence. In addition, the rights
of the injured child are dened separately, and it is emphasized that the
exercise of such rights should be in the best interests of the child, his or her
age, gender, health, intellectual and physical development (On Preventing
And Combating Domestic Violence, 2017). This provision of the Law is in
line with the provisions of the Istanbul Convention, the preamble of which
recognizes that children are victims of domestic violence, including as
witnesses of domestic violence. Article 26 of the Convention imposes an
obligation on States parties to aid children who witness domestic violence.
The term “child witnesses” refers not only to those children who were
present during the violence and became active witnesses to what was
happening, but also to those who heard howls and other noise from their
hiding places, or those who became hostages of long-term consequences of
such violence proceedings (On Prevention And Counteraction To Domestic
Violence, 2017).
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The understanding of sexual violence has changed signicantly. Thus,
if earlier sexual violence was considered an unlawful encroachment on the
sexual integrity of another family member, now it is any act of a sexual
nature, the key is the concept of “consent”. In the note to Art. 152 of the
Criminal code of Ukraine the consent is recognized as voluntary as a
result of free will to enter into sexual intercourse or carrying out actions of
sexual character (Criminal Code Of Ukraine, 2001). The issue of consent
must be considered in conjunction with the accompanying circumstances
and in accordance with the rules of criminal procedure. Also, according to
Ukrainian law, sexual violence diers from rape in that it is not related to
penetration into the partner’s body. It does not matter whether such an act
was committed with the help of genitals or any other objects.
The Law also denes the list of rights of victims of domestic violence, as
well as establishes the types of assistance and protection provided to such
persons. The age, health, gender, religious beliefs, ethnic origin, and special
needs of such persons are taken into account when providing assistance
and protection to victims. Assistance to victims is provided at the place of
application and does not depend on the application to law enforcement
agencies or the court, on their participation in criminal or civil proceedings
(On The Prevention And Combating Of Domestic Violence).
It is important from the point of view of the researched problem that the
Law of Ukraine “On Prevention and Counteraction to Domestic Violence”
expands, in comparison with the previous legislation, the system of measures
to counteract domestic violence. Special measures to combat domestic
violence include: an urgent injunction against the perpetrator; restrictive
injunction against the oender; taking on preventive maintenance of
the oender and carrying out preventive work with him; referral of the
oender to the program for oenders (On Prevention And Counteraction
To Domestic Violence, 2017). It is seen that the most prompt and eective
measures to combat domestic violence will be an urgent injunction and
a restraining order against the perpetrator. The other two measures are
aimed both at combating violence and at re-educating and correcting the
oender.
It should be noted that with the help of the Law of Ukraine “On Prevention
and Counteraction to Domestic Violence” Ukraine, declaring zero tolerance
for domestic violence and recognizing its social danger, introduced new
approaches to combating this social phenomenon and introduced such a
new legal instrument - a restrictive prescription. In deciding whether there
are grounds for issuing a restraining order, courts should establish what
forms of domestic violence the applicant has been subjected to and assess
the risks of future domestic violence in any form.
Thus, the analysis of the provisions of the Law of Ukraine “On Prevention
and Counteraction to Domestic Violence”, as well as the practice of its law
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enforcement, that the adoption of this legal act will undoubtedly contribute
to: combating discrimination on the basis of gender; prevention of all forms
of domestic violence against women; introduction of additional measures
aimed at creating preventive and protective mechanisms to combat all
forms of domestic violence, in particular gender-based violence, violence
against children; providing additional guarantees for the protection of the
right to equality between men and women, parents and children, removal
of legal provisions that cause discrimination; improving legal remedies for
victims of domestic violence.
Conclusions
Thus, the eectiveness of state policy to protect victims of domestic
violence and other illegal actions is primarily based on the eectiveness
of the law, depends on the operation of the entire mechanism of legal
regulation and is determined by the level of achievement, adequacy between
planned and achieved.
The similarity of the laws governing the prevention and combating
of domestic violence in Europe is not only a desire to implement the
provisions of the Istanbul Convention, but also common social values
that are protected - health and life, peace and well-being of the family
and more. Undoubtedly, the European experience should be studied and
analyzed in our country in order to avoid possible mistakes and implement
useful developments in overcoming domestic violence in Ukraine. The
introduction of modern forms and methods of combating domestic violence,
based on international best practices, requires the development of an
appropriate system for monitoring not only the eectiveness of legislation,
but also monitoring the eectiveness of actors implementing measures to
prevent and combat domestic violence. The criterion for the eectiveness
of these actors may be an increase in the total number of complaints about
domestic violence, which will increase condence in the system of actors
implementing measures to prevent and combat domestic violence, increase
their awareness of the possibility of assistance and reduce the overall
tolerance of violence in society.
Despite the deep doctrinal development of the basics of prevention policy,
it has not been consolidated in Ukraine at the conceptual level. Today, at the
conceptual level, there is an urgent need to develop and approve at the state
level the concept of crime prevention, the adoption of the Law of Ukraine
“On Crime Prevention”, theoretical substantiation and consolidation at
the normative level of the system and types of crime prevention measures,
procedures for their implementation. Ukraine should take all possible
measures to ratify the Council of Europe Convention on Preventing and
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Combating Violence against Women and Domestic Violence. By ratifying
the Istanbul Convention, Ukraine will be able to receive specialized support
from the Council of Europe and the international community on these
issues.
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