Saturday, March 23, 2019

kd silovanje strucni skupThe Autonomous Women's Center started organizing expert meetings dedicated to the need to change the definition of the criminal offense of rape and its compliance with the standards of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence.

The first meeting was organized in Belgrade, in cooperation with the Ministry of Justice, with the support of the Council of Europe Mission in Belgrade and the Swedish organization Kvinna till Kvinna, as well as the Judicial Academy, which provided place for the meeting.

The Autonomous Women's Center started organizing expert meetings dedicated to the need to change the definition of the criminal offense of rape and its compliance with the standards of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence.

The first meeting was organized in Belgrade, in cooperation with the Ministry of Justice, with the support of the Council of Europe Mission in Belgrade and the Swedish organization Kvinna till Kvinna, as well as the Judicial Academy, which provided place for the meeting.

Participants were addressed by Tanja Ignjatovic, on behalf of the Autonomous Women's Center, Tobias Flessenkemper, Head of the Council of Europe Mission in Belgrade, and Gorjana Mirčić Čalukovic from the Ministry of Justice. In his introductory speech, Mr Flessenkemper emphasized the importance of the Convention and the important role of civil society organizations. Ms. Mirčić Čaluković highlighted all the dilemmas that exist in finding a legal solution and the readiness of the Ministry of Justice to participate and support expert discussions on this topic in order to implement the best solution in line with the Convention.

The meeting was attended by judges, prosecutors and legal experts.

Ksenija Turkovic, judge of the European Court of Human Rights (ECHR), pointed out that the state has a number of positive and negative obligations to protect against rape and sexual violence (with Article 1 - Obligations to respect human rights, there is Article 3 - Prohibition of Torture, and Article 8 - Right to respect for the private and family life of the European Convention on Human Rights), as well as that all elements of the case-law of the ECHR were incorporated in the Council of Europe Convention against Violence against Women and Domestic Violence.

The ECHR case law on rape and sexual violence was established in the case of M.C. v. Bulgaria, when the notion of a involuntary intercourse is defined, for which no force or physical resistance of the victim is required. Therefore, one must take into account the context, how the victim experiences the situation (when he/she does not react with resistance), equality in the freedom of sexual decision making, victim vulnerability.

Positive obligations of the state also include legal provisions and their implementation, victim representation and effective punishment. The state is obliged to prevent the commission of criminal acts when they knew or could have known about the danger. This includes a number of measures that must be prescribed and enforced, which relates to procedural safeguards, effective investigations, court proceedings, proportional sanctions, and enforcement of sanctions.

Tanja Drobnjak presented the proposal of the Autonomous Women's Center for changes of the criminal offenses of rape and harmonization of provisions in other parts of the Chapter on criminal offenses against sexual freedom, highlighting all the dilemmas that existed in that process, as well as examples from previous proposals and comparative practices.

The conference’s participants discussed local solutions in the light of the ECHR's views. The importance of transforming public awareness was emphasized, due to the domination of the supporters of conservative attitudes including among legal professionals. It was stressed the importance of harmonizing the Code of Criminal Procedure with the amendments of the Criminal Code and the law that will regulate the rights of victims, since a small number of reports of rape and sexual acts, and even fewer convictions, indicate that in Serbia, there must be an order in effective investigation and effective procedural protection of the victim.

Judge Turkovic reiterated that sexual intercourse without consent changes the paradigm - that it refers to the question of the autonomy of a person, which means that no use of force is needed. The Convention is making a distinction between acts, not (only) aggravating circumstances - in this sense, sexual violence without consent could not be "an easier form of rape".

AWC will continue to conduct expert meetings on this topic in 2019.

Activities on the harmonization of the criminal offense of rape with the standards of the Council of Europe Convention on the Prevention of Violence against Women and Domestic Violence are accompanied by the campaign "Look for consent".