Femicide prevention in the light of new legal solutions application in the criminal law of Republic of Serbia

1.    Introductory considerations

Violence against women is a widespread social phenomenon. Although violence against women and domestic violence has long been viewed as a private matter relyingto tradition and deep-rooted patriarchal conceptions, and that they are, as such, not dangerous to society and in which the state should not take part (O’Donovan, 1993, p. 107), the modern approach to this problem is based onthe view that they are not just an individual problem, but a problem of the whole society. Just like mentioned, traditional perceptions have been a major obstacle to recognizing violence against women and domestic violence as a way of violating human rights, the most important of which are the right to liberty, the righton the inviolability of physical integrity and the right to life (Nikolić Ristanović, 2006, p. 82).The need to sanction violence against women first arose internationally. Over the past few decades, several international documents have been passed that address violence againstwomenas a form of crime, pointing to its specifics, manifestations andmeasures that need to be taken in order to prevent and as a prevention. Among the documentsadopted at the level of the Council of Europe, and in addition to the recommendations, the most important is the Convention on Preventionand the fight against violence against women and domestic violence (Istanbul Convention), adopted in 2011 which was ratified by the Republic of Serbia in 2013.

Although victims of domestic violence can be female or male, as the most commonform of domestic violence is violence against women. Understanding the phenomenon of violence againstwomen, femicide, as its most severe form, and the reaction of the whole society to mentioned phenomenon are of great importance in order to find adequate preventive protection mechanisms. Femicide is a murder ofwoman done by man, motivated by hatred towards women,misogyny, contempt, as well as by feeling ofownership and supremacy. It is important to note that femicide, as a rule, is not an isolated phenomenon, somethingwhich happens suddenly, ad hoc, as a consequence of affect. Femicide is the last stage of acontinuous violence to which women are exposed by men, but indirectly, throughpassivity from the wider social community and society as a whole (Ignjatović, 2011. p. 25).

Due to the multidimensionality of the concept of violence against women, the consequences of the same do not have tobear only the victims of the violent act, but also family members who have been exposed to violence as witnesses. Although official, accurate and publicly available records of all forms of femicide are still not available, the data available to some NGOs shows that the total number of murders of women in the family-partner context in previous years has remained unchanged.The seriousness and complexity of this problem, the incalculable consequences that it has both for the victim, and to family members, as well to society as a whole, has pointed out the need for a comprehensiveperceiving and understanding of the problem of violence against women. By analyzing of legal regulations in The Republic of Serbia, we will try to determine whether, and to what extent, the legislative framework is readyto adequately respond to all forms of violence against women, and particularly to the prevention of femicideas the most severe form of gender-based violence.

2.    The concept of femicide, risk factors and the situation in the Republic of Serbia

In order to achieve the best possible prevention of intimate partner’s femicide, it is necessary to find out what are the risk factors for its occurrence. The primary factor is frequency andseverity of physical violence before the murder (79% of femicide victims had been abused beforedeath by her partner). In addition, stalking, possession and threats of weapons are important,as well as a coercion to sexual intercourse, abuse of psychoactive substances, unpleasant experiences during childhood, perpetrator suicidal tendencies and history of partner violence (Konstantinović Vilić, 2013, p. 45). Particularly at risk are those women who decide to end their relationship and get separated from a violent intimate partner. A special term is used for this pattern of violence

Research shows that in the past few years, there has been a noticeable increase in the number, in the world, of womenmurdersdone by a current or former partner or other family member.1 Nevertheless, most countries do not prescribe femicide as a separate crime, but assume that women and men are equal before the law and that it is unnecessary to separate victims by gender andcriminalize the murder of a woman as a special form of murder. The Republic of Serbia also belongs to this group of countries. Criminal legislation based on a different approach treats the female gender of the victim and the gendermotivated murder as an obligatory aggravating circumstance when sentencing (Argentina and Venezuela treat femicide as a special form of aggravated murder). In large numbersLatin American countries criminalize gender-based murder of women as independentcriminal offense, that is, as a femicide or feminicide (Batrićević, 2016, pp. 436–438).

A big obstacle in understanding the scale of this problem in Serbia represents the non-existence of clear records of all cases of femicide, whether it is or is not a consequence of violence towards women in family, partnership and / or non-partnership relations (Pavlović, 2019, p. 97). Under the auspices of the Autonomous Women’s Center from Belgrade, monitoring the number of people killed in terms of femicidehas been done/followed by the Women against Violence Network since 2010. According to the Report on Femicide in 2019, there were 26 cases of murder of women, (Femicide: murders of women in Serbia: Report for 2019), while in 2020, the media reported 26 cases of femicide, and the murder of 5 women was suspected as a femicide. In previous reporting years, every third woman applied for theassistance to one of the competent institutions before she was killed (police, center for social work,prosecution or several institutions at the same time), while this is now the case with every seventh. The constant downward trend in the number of reports of violence that preceded femicide suggests that it ispossible that trust in the work of institutions is declining, that violence is not recognized and reported, or on the other hand the violence is recognized, but it is kept silent

(Femicide: murders of women in Serbia: Quantitative-Narrative Report for 2020).

An additional problem in our country represents the media, which in cases of femicide mostlyreports sensationally and often violate moral and professional codes in reporting,while a complete interpretation of this problem, which society is still silent about, does not exist.Focus is put mostly on the perpetrator and his reasons for the murder, not mentioning the perennials of the violence to which the victim was mostly exposed. Femicide is thus presented as an incident, not as a predictable sequel and a tragic finale to a long-running male violence overwomen, which as such exists as part of traditional gender roles and relationships (Mršević, 2015, p. 18).

In addition to recognizing risk factors, for the prevention of femicide, it is necessary to determine and to analyze the gender, social and economic marginalization of women, the existence of the formerdomestic violence and its sanctioning. However, the most significant is the intervention of the stateauthorities, adequate application of the law, as well as urgency in the response of all entities that need toprovide assistance to victims of violence. One of the most important measures that the Republic of Serbia has taken as the aim of reducing domestic violence is to enact the Law on Prevention of Domestic Violence.

Therefore, in further work, along with the analysis of criminal and family law protection against domestic violence, an analysis of the application of the mentioned law in the context of femicide prevention will be performed.

3.    Femicide prevention in the Republic of Serbia - legislative framework

In addition to criminal law, family law protection from violence is also very important, within which a special place is occupied by the Family Law (hereinafter: FL), passed in 2005. Prohibition of domestic violence and the right to protection from domestic violence are regulated by Art. 10 of the said FL, while the concept and characteristics of domestic violence and its perpetrators are regulated by Art. 197 of the said FL. The connection between family law and criminal law protection against domestic violence was achieved by the provision of paragraph 5, Art. 194 of the said CC, where by violating some of the protection measuresfrom domestic violence, prescribed by Art. 198, paragraph 2 of the said FL, the perpetrator is responsible fora special form of domestic violence. However, in terms of the term “family member”, there is a visible difference between thecriminal and the family law. The interpretation of criminal law is much narrower (Art. 112, para. 28 of the said CC) from the family law interpretation (Article 197, paragraph 3 of the said FL). Therefore, if there is a violation of a certain measure of protection against domestic violence, which is according tospecified FL determined for the protection of a person who according to the mentioned CC is not considered as afamily member, persons who are not family members according to Art. 112, para. 28 will nevertheless become so (Jovanović, 2014, p. 251). The provisions of the said FL assigned the public prosecutor’s office a preventive role, whilethe police has not been assigned any role in protecting against domestic violence.

In the Republic of Serbia, in 2016, the Law on Prevention of Domestic Violence was passed (hereinafter: LPDV), and entered into force on June 1^st, 2017. The ratification of the Istanbul Convention preceded it. The Istanbul Convention overarching goal was to protect the rights of victims of violence, primarily women, but also other victims of domestic violence. LPDV represents a lex specialis in relation to the regulations that regulated this matter so far. The new LPDV regulates the organization and actions of state bodies for the purpose of better prevention and urgent, timely andeffective protection and support for victims of domestic violence. In order to prevent femicide, the most significant novelties envisaged by the LPDV are urgent measures (a measure of temporary removal of the perpetratorfrom the apartment and the measure of temporary prohibition to the perpetrator to contact the victim of violence and approach her) which are being pronounced by the competent police officer; mandatory risk assessment of recurrence of violence; mandatorycoordination and cooperation between competent services and records of cases of violence. Also,the disciplinary responsibility of judges, public prosecutors and deputy public prosecutors has been establishedfor failure to act within the deadlines specified in this law.

Another novelty introduced by the LPDV is cooperation in preventing domestic violence (Articles 24-27), by introducing the following two institutes: Liaison Officers and Coordination and Cooperation Groups. The persons designated for the connection, exchange information and data that are important for the prevention of domestic violence, detection, prosecution and trial for certain crimes determined by this law,on a daily basis, as well as data important for providing protection and support to victims of domestic violence and victims of criminal offenses determined by this law. The Coordination and Cooperation Group considers eachcase of domestic violence that has not ended with a final court decision, also cases whenpro-tection and support for victims of domestic violence and victims of crime determined by this law should be provided with, develops an individual plan for protection and support of victims and proposes to the competent publicprosecution measures to end court proceedings. The LPDV also envisages that records regarding the cases of domestic violence should be kept (Art. 32), while the Council for the Suppression of Domestic Violence, formed by the Government, monitors the implementation of this law, improves coordination andeffectiveness of prevention of domestic violence and protection from domestic violence.

Although it seems that the powers of the competent police officers to impose urgent measuresincreased the effectiveness of protection against domestic violence, the analysis of the same speaks differently. Just a monthsince the entry into force of the LPDV, two cases of femicide have been reported in Serbia, in which two women and one minor child were killed. The first case took place in front of the social work center’s premises, and other in the premises of the center for social work. Both cases of violence werereported to the competent institutions, and their non-response is justified by the poor position within the system. After the control carried out by the competent Ministry of

Although from official statistics it can be seen that the number of reported cases of violence inSerbia is growing, that number is just the tip of the iceberg. In most cases, the victim still does notreport violence, which makes it impossible to react preventively and provide adequate protection. That is why it is necessary to educate the public about the importance of reacting to all types of violence, and especially togender-based violence against women (Lubura, 2017, p. 127).

Council of Europe Expert Group on Violence against Women and Domestic Violence (GREVIO) published in January 2020 its first evaluation report onimplementation of the Istanbul Convention in Serbia. The Report highlights the positive impact of the LPDV had onprocessing the cases of domestic violence in Serbia, as well as the fact that the LPDV and addition-aldocuments and policies have led to an increase in the scope of training and specialization in all legalprofessions and competent bodies of internal affairs. The CC is also amendedin recent years to be more in line with the requirements of the Istanbul Convention, and forms of violence such as-persecution/stalking (138a), forced marriage (art. 187a) and female genital mutilation (art. 121a) noware also incriminated. However, there are still difficulties in ensuring their implementation inpractice, largely due to a lack of understanding of the seriousness of these forms of violence, their trivializa-tion inmedia and public discourse. According to the report, condemnation rates for most forms of violence againstwomen are extremely low, and the reasons for this range from a low level of reporting tolack of instructions on how to prepare a case for court and insufficient training for recentlyintro-duced crimes (Ibid.).

Article 26 of the Istanbul Convention (2011) obliges the parties to take the necessary legislative or other measures and ensure that while protection and support services are provided for the victims one should take into account the rights and needs of child witnesses of all forms of violence involved and stated in the mentioned convention, with due respect for the principle of the best interests of the child.And despite the fact that thechildren are often witness to the violence that their mothers survive, even femicide, in Serbia stillthere is no systemic protection and support for children witnessing all forms of violence silent (Femicide: murders of women in Serbia: Quantitative-Narrative Report for 2020). This indicatesthe need to always treat child witnesses of femicide as victims of violence and therefore their need to be provided with specialized support services. GREVIO appeals to the urgent need to provide-that all cases of violence committed by a violent parent be taken into account in determining rightson guardianship and visits.

Although femicide, as such, is not recognized in the legislation of the Republic of Serbia, for the first time, concrete prevention measures that can prevent its occurrence are prescribed by the LPDV, and time will tell whether and to what extent they will be applied and give the desired effects (Lubura, 2017, p. 128).

4.    Concluding remarks

Based on all the above, we can conclude that the phenomenon of femicide is a very complex social problem, the solution of which requires a comprehensive approach. With the aim of its prevention and resolution, it is necessary to take into account the wider social context in whichit occurs, with special reference to the causes. By analyzing the legislative framework of Serbia in the field of prevention of violence against women and femicide as its most severe form, as well as the research results in this area, it can be concluded that in previous years, efforts have been made in order to prevent this phenomenon. Numerous amendments to the laws governing the state have been passedtried to harmonize its regulations with the provisions of the Istanbul Convention. Still, data on the numberof women killed on an annual basis shows that gender-based violence is still present ina large percentage and that there is still no adequate response from the state in terms of femicide prevention.

The starting point for monitoring femicide in Serbia is the establishing of an official, precise andpublicly available records of all forms of femicide

(with data collection and comparisonfrom all existing sources) in order to adequately shape the legislative framework as wellbased on locating the scale of this problem. In order to prevent femicide, but also all other forms of genderbased violence, more work is needed aiming to empower victims to report any form of violence and educating the whole society on this topic, both children through the education system and employees who encounter this issue within their work (police officers,health workers, workers of social work centers, judges, prosecutors, media, etc.). Onlytimely response to all types of violence enables preventive action and provision of the adequate protection. In order to oblige state and other bodies, organizations and institutions toimmediately report any knowledge of violence, as well as to prevent the inaction of judges, publicprosecutors and deputy public prosecutors within the deadlines set by law, the LPDV listed the foresaw omissions as the misdemeanors, i.e. the disciplinary offenses.

Existing criminal and civil law norms have sanctioned the act of domestic violence after its execution, while the adoption of the LPDV in the Republic of Serbia enabledpreventive action of state bodies in cases when an act of violence has not been committed yet, but the imminent danger that it will be carried out exists.

The LPDV of the Republic of Serbia does not mention children who witness violence in the context of indirect victims of violence. Recognizing a child who witnesses domestic violence as an indirect victim of violenceis very important, because that is the only way to adequately react to psychological violence child suffers, to help him/her overcome the trauma, but also to see the true dimensions of domestic violence.

The influence of strong, deeply-rooted customs and cultural models that justifydifferent types of violence, and even the murder of women, is one more of a reason to criminalize femicide as well as a separate criminal offense in the legislation of the Republic of Serbia. Femicide incrimination asseparate criminal offense in the criminal law of the Republic of Serbia is particularly important as the aim of sending a message about the social unacceptability of this behaviour. Data on the decline in the number of violence that preceded femicide registration, to the competent institutions certainly indicate that it is necessary to determine the causes for non-reporting of violence and strengthen trust in institutions besides the improving of the legislative framework and education at all levels.

Tahirović Mirela

Master pravnik, doktorantkinja na Pravnom fakultetu za privredu i pravosuđe, Univerziteta

Privredna akademija u Novom Sadu, Srbija

Radulović Glamočak Jelena

Master pravnik, doktorantkinja na Pravnom fakultetu za privredu i pravosuđe, Univerziteta

Privredna akademija u Novom Sadu, Srbija