Family legal protection against domestic violence – protective measures and some processual aspects of the procedure

Domestic violence is a harmful and dangerous social phenomenon and, as theory states, “the factor of weakening the family and society as a whole” (Ponjavić, 2012, p. 146). By the Family Law (2005) by the general provision of Art. 10 para.1, a ban on domestic violence was established, while para. 2 of this article stipulates that everyone has, in accordance with the law, the right to protection from domestic violence. The provision of Art. 197 of the Family Law (2005) domestic violence is defined as behavior by which one family member endangers the physical integrity, mental health or tranquility of another family member (para. 1).1 The Family Law also states exhaustively who is considered a family member and thus determines who can commit an act of domestic violence and according to whom that act can be committed.2 By the same method, numerus clausus, all measures that can be imposed in order to protect against domestic violence are listed (Family Law, 2005, Art. 198, para. 2).

In addition to the above substantive provisions in the part of the Family Law (2005) titled “Protection from Domestic Violence” (Art. 197-200), this law constitutes a special procedure – the procedure in a dispute for protection from domestic violence (Art. 283-289), i.e. prescribes procedural provisions. Their basic characteristic is the specifics of accepted procedural principles, that is deviations from the classical principles of general litigation procedure, but also the manner of their operationalization, and it represents a certain challenge for courts in conducting procedures in a dispute for protection from domestic violence.

2.    Procedure in a dispute for protection against domestic violence

Although we have decided that within this paper we would especially analyze lawsuits out of procedural instruments, and then the principle of special urgency of this procedure and deviations from the principle of disposition, the measures imposed by the court for protection against domestic violence and criteria that guides the court in the procedure of their sentencing require a somewhat broader comment.

• 2.1.    Measures of protection against domestic violence and criteria which the court is guided by

• 2.2.    Initiation of procedure in a dispute for protection against domestic violence

  The reason for initiating proceedings in a dispute for protection from domestic violence is a deviation from the standard of normal and civilized behavior of a family member, who by such behavior, violence, violates the physical integrity, mental health and tranquility of another family member, as already mentioned. The degree and form of the manifested violence are always important for the court when deciding on the qualification that the violence has occurred as well as when imposing one of the possible protection measures.¹⁵ As the Family Law also lists family members between whom violence is possible, in practice there are difficulties in proving the emotional or sexual relationship, that is, other personal relationship to which a person seeking protection from domestic violence refers, which is also indicated in theory (Ponjavić & Vlašković, 2019, p. 464).

The Family Law prescribes the following measures for protection against domestic violence: 1. issuing an eviction order from the family apartment or house, regardless of the right of ownership or lease of real estate; 2. issuing an order for moving into a family apartment or house, regardless of the right of ownership or lease of real estate; 3. ban on approaching a family member at a certain distance; 4. ban on access to the area around the place of residence or place of work of a family member; 5. prohibition of further harassment of a family member. Prescribed protection measures can also be imposed cumulative, but the court, when it finds that there is domestic violence, is not authorized to determine any other measure, which temporarily prohibits or restricts the maintaining of personal relations with another family member, except those from Art. 198 of the Family Law.3

Measures are imposed in concreto, depending on the circumstances of each individual case, and in proportion to the content, intensity and duration of the manifested violence, that is, when determining the measure of protection against domestic violence, the court will take into account the degree and form of manifested violence.4 The purpose of all measures listed by law, besides sanctioning the perpetrators of acts of violence, is to prevent future violence as a way to protect vulnerable family members and prevent the spread of conflict.5 According to our court practice, the goal of imposing measures is objective prevention of further manifestations of violent behavior and providing victims of domestic violence with peace and tranquility for a certain period of time,6 and for non-compliance with these measures, criminal liability is envisaged.7 The measure of protection against domestic violence may last for a maximum of one year (Family Law, 2005, Art. 198 para. 3), and may be extended until the reasons for which the measure was imposed cease to exist (Family Law, 2005, Art. 199). If the reasons for which the measure was imposed cease to exist, it may end before the duration has expired (Family Law, 2005, Art. 200). Therefore, the protection provided by the court in the procedure in the dispute for protection against domestic violence consists of imposing a measure for protection against domestic violence, extension of the duration of the imposed measure and termination of the imposed measure.

According to the manner of standardization of Art. 197 of the Family Law, listing the characteristic types of domestic violence actually enables a comprehensive approach, that is, coverage of all possible types of violence, i.e. any insolent, reckless and malicious behavior that endangers the basic values of the human being – his physical integrity, mental health and tranquility. Such a broad definition of the concept of domestic violence, according to court practice, is necessary in order to enable a timely reaction of the system’s institutions to domestic violence, i.e. determining the measure of protection against domestic violence while it has not yet taken more severe forms, because this may interrupt the process of escalation of violence.8 Insolence, recklessness and malice are components of domestic violence, its essential features, which clearly distinguish it from permissible behavior. These terms represent typical legal standards, the content of which the court should fill with its own judgment. In order for the criteria for concretization of these legal standards to lead to an adequate and timely response to violence in order to prevent it, it is necessary for the court to show a “zero tolerance policy” for violence, which means that any behavior that deviates from the standard of

“normal” treatment and communication with family members can be qualified as domestic violence.9

The subjective feeling of the victim about the endangerment is also important for initiating the procedure for protection from domestic violence, and in the light of the assessment of the existence of domestic violence and the existence of the need to determine the protection measure.¹⁰ Therefore, the court evaluates the assessment of the risk and threat of domestic violence in concreto, so the reasoning of one decision states that there is no basis for imposing the measure of protection against domestic violence in a situation where the defendant has taken action against a family member which by nature and by legal definition has the characteristics of domestic violence, but it is situational and represents an incidental event, if such behavior did not occur or recur, neither before nor after the act of violence, and the family member does not feel anxious, uneasy or afraid or threatened in any way.¹¹ When, by the court’s assessment, it is a matter of subjective experience of violence by the victim, which is not objectified by other acts, e.g. “only” the addressing of abusive words by the defendant to the plaintiff at the moment when the defendant suspected that the plaintiff had an emotional partner, which is an isolated event which was not preceded, nor did such inappropriate behavior by the defendant continue, with no acts of physical violence between the parties, the court considers that the claim should be rejected, i.e. that there is no place for imposing measures for protection against domestic violence.¹² However, in the absence of an act that could be considered domestic violence by law, there are no conditions for imposing proposed protection measures, despite the existence of dysfunctional family relations and isolated incidents among family members.¹³

The procedure for imposing a measure in a dispute for protection against domestic violence is initiated by a lawsuit. The actively legitimized are family member/members against whom the violence was committed, but a lawsuit can certainly be filed on their behalf by a legal representative in case of lack of legal capacity, but the public prosecutor and the guardianship authority also have legitimacy under the Family Law (Family Law, 2005, Art. 284, para. 2). This solution is certainly a consequence of the generally accepted attitude that domestic violence is a serious social problem, and not a private matter of individuals, that is, that public interests are protected through the protection of individuals and families. In theory, it is emphasized that the extreme sensitivity of this procedure, which should provide protection to victims of domestic violence even without her initiative, conditioned the extension of the right to a lawsuit for protection from domestic violence to some state authorities, because a family member could find themselves in a situation where, due to fear of the perpetrator, they do not initiate court proceedings at all or reluctantly give up under the pressure of the perpetrator of domestic violence (Draškić, 2016, p. 629). The procedure for extending the measure of protection against domestic violence is also initiated by a lawsuit, and all the aforementioned entities are actively legitimized. The Family Law prescribes, as stated, the procedure for termination of the imposed measure, which is also initiated by a lawsuit, which can be filed only by a family member against whom the measure is determined if the reasons cease to exist (Family Law, 2005, Art. 284, para. 3).

A lawsuit for protection against domestic violence is, according to the position expressed in our theory, both constitutive and condemnatory in its legal nature (Stanković & Boranijašević, 2020, p. 568;

• 2.3.    Special urgency of the procedure

  A special rule prescribed for the procedure in family relations, which refers to urgency, is certainly applied in this procedure as well, with the aim of preventing further escalation of violence. In principle, the rule of urgency in family disputes is realized by not submitting the lawsuit to the defendant for response and the procedure is conducted at a maximum of two hearings if it refers to a child or parent exercising parental rights (Family Law, 2005, Art. 204, para. 1 and 3). However, the Family Law additionally operationalizes the procedure in the dispute for protection against domestic violence with a special rule and prescribes special urgency (Family Law, 2005, Art. 285) and due to the need for urgent protection of the victim of domestic violence. The first hearing is scheduled to take place within eight days from the day when the lawsuit was received in court, and the second instance court is obliged to make a decision within 15 days from the day when the appeal was submitted to it (Family Law, 2005, Art. 285 para. 2 and 3), that is, files of legal matters by the first instance

  court. Prescribed short deadlines should lead to court efficiency and immediate protection of victims of violence. However, the Family Law does not prescribe how much time should elapse between hearings, nor the total period in which this procedure should be completed, but the general rules from Art. 10 para. 2 of the Law on Civil Procedure (2011) on the time frame of litigation apply, which presupposes that the court implements the special urgency through the decision on the time frame of the litigation. In addition, the problem is the postponement of the hearing for various reasons (e.g. impediment or absence of a judge, absence of witnesses, expert witness or experts from the Center for Social Work, failure of this body to deliver an opinion on the appropriateness of protection against domestic violence, failure to submit findings and expert opinions, elimination of assessed deficiencies, etc.), followed by a new decision on the time frame, which all points to insufficient guarantees of the special urgency of the court’s actions. In other words, although the legislator’s diction regarding the special urgency of this procedure is clear, the victim of violence is not provided with any special certainty regarding the length of this procedure after the initiated procedure before the court. In addition, the fact that the court in this procedure walks a thin line should not be neglected, because on the one hand it is required to be diligent in preparing procedural materials in order to conduct the procedure in the smallest possible time frame, while on the other hand, the duty to act with special urgency regarding the request for protection from domestic violence does not authorize the court to refuse presenting of some evidence due to urgency.

• 2.4.    Deviation from the principle of disposition

  As a rule, subjects of family law relations do not have the freedom to dispose of rights and obligations due to their legal nature. For that reason, the disposition of litigants in the procedure for protection against domestic violence is limited (its initiation, holding within the deadline and termination do not depend only on the will of the parties). That is, in this procedure, the principle of court proceedings prevails over the principle of disposition, and consequently over the investigative principle. That is, in theory, it is more about the limitations in the application of the dispositive maxim and the investigative powers of the court (Draškić, 2016, p. 631).

3.    Conclusion 4.    Acknowledgments

One of the important deviations from the principle of disposition, which has already been discussed in this paper, is the expansion of the circle of actively legitimized entities, i.e. those who have the right to sue. Apart from the explicitly determined subjects of family law relations in which violence was manifested, the right to sue is also recognized to certain entities. Furthermore, the deviation from the principle of disposition is clearly manifested in the court’s authority to initiate proceedings for protection against domestic violence ex officio as an adhesion procedure, so this procedure can be conducted as an independent, separate procedure or as an associated procedure, when the court identifies acts that can be characterized as domestic violence and that there is a need for protection.

The Family Law establishes a system of family law protection against domestic violence. In order to prevent further manifestations of violence, measures for protection against domestic violence are envisaged, but a special procedure in the dispute for protection against domestic violence has been standardized. The paper analyzes some procedural aspects of this procedure (legal nature of the lawsuit, procedural legitimacy for its filing, particular urgency of the procedure, deviation from the principle of disposition, and in that sense (non)binding of the court to the limits of the claim and the authority of the court to impose a measure/measures for protection against domestic violence even without the request of a party, etc.) and the challenges that courts face in the application of special procedural institutes provided for this procedure in practice.

The analyzed theory and the formed sufficient quantum of court practice give the possibility to conclude about the unison position that the court has “zero tolerance” for violence, about the built criteria that the court is guided by in assessing whether an action is an act of domestic violence, about the need to determine adequate protection measures from domestic violence in each specific case and about the clearly emphasized temporary and preventive protection (which aims to stop further escalation of violence) provided by the court by imposing these measures. In practice, there are no inequalities, that is, uneven interpretation of procedural norms prescribed in the procedure for protection against domestic violence. Still, as stated in the paper, some provisions regulating this procedure have not been fully operationalized, so there is a need for precise standardization of the total duration of this procedure and in that sense elimination of uncertainty for the victim of violence. In addition, the adoption of further individual solutions, apart from the already existing ones, should specify the rules on collecting and presenting evidence of conducted violence, with the idea of preventing delays of the procedure (e.g. unlimited hearing of witnesses), but also rules on a more active role of the court in that sense. That provides an opportunity for consideration of possible directions of development de lege ferenda that would lead to improved protection of this right, through the improvement of existing and implementation of new solutions.

The paper is the result of research on the project of the Faculty of Law of the University of Kragujevac: “Harmonization of the legal system of Serbia with the standards of the European Union”, which is funded by the Faculty.

Ćorac Sanda

Docent na Pravnom fakultetu Univerziteta u Kragujevcu, Srbija

PORODIČNOPRAVNA ZAŠTITA OD NASILJA U PORODICI – MERE ZAŠTITEI NEKI PROCESNI ASPEKTI POSTUPKA

REZIME : Nasilje u porodici je rasprostranjen i duboko ukorenjen društveni problem. Sa ciljem zaustavljanja nasilja i sprečavanja daljeg ispolja-vanja nasilja u porodici Porodični zakon propisuje mere zaštite, ali i poseban postupak za zaštitu od nasilja u porodici. Cilj rada je analiziranje nekih procesnih aspekata ovog postupka i izazova sa kojima se susreću sudovi, posebno u odnosu na pokretanje postupka, odnosno pravnoj prirodi tužbi za zaštitu od nasilja u porodici, naročitoj hitnosti postupka i odstupanjima od načela dispozicije, kao i merama za zaštitu od nasilja u porodici i krite-rijumima kojima se rukovodi sud u postupku njihovog izricanja.

Ključne reči : mere zaštite od nasilja u porodici, postupak za zaštitu od nasilja u porodici, sudska praksa.