Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
REVIEW 2008 Snezana Cicevalieva Mirjana Dokmanovic
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
REVIEW 2008 Snezana Cicevalieva Mirjana Dokmanovic
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia REVIEW 2008 Authors: Snezana Chichevalieva Mirjana Dokmanovic Publishers:
Centre for Regional Policy Research and Cooperation “Studiorum�
Veritas & Virtus Anti Violence Alliance
Technical editing and cover design: Aleksandar Manchevski Printing: Media Connect, Skopje, Macedonia
CIP ISBN
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Content I
Introduction
II Terminology III Cross-cutting issues IV Executive summary V National constitutional and legislative framework regarding domestic violence (Overall legal context) 1. Legal protection against discrimination of women 2. Definition of domestic violence 3. Legal measures that are in place 3.1. Domestic violence in the national legislation 3.2. Domestic violence in the legislation of health sector 3.3. Penalization of domestic violence 3.4. Intervention procedural provisions and practice 3.5. Procedural provisions and practice with respect to the protection of the rights of the patient (DV initiated diseases, injuries and health conditions included) 3.6. Protection of victims during criminal proceedings 3.7. Protection orders 3.8. Protection orders relevant for health care 3.9. Access to justice 3.10. Liability of state officials 3.11. Compensation VI The policy framework in respect with domestic violence 1. Protective measures 1.1. Government services and shelters, hotlines, counseling and rehabilitation programs for victims 1.2. Rehabilitation programs for offenders 1.3. Education and training for professionals, including health professionals 1.4. Specialized units to respond cases of domestic violence 2. Preventive measures 2.1. National Action Plans and Strategies 2.2. Education of children and young persons 2.3. Media 2.4. Awareness raising 5
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
VII Monitoring 1. Statistics and data collecting data 2. Supporting research and monitoring VIII Small arms and domestic violence IX
Local-self-government and domestic violence
X
Conclusions
XI
Towards the Action Plan for Prevention and Control of Domestic Violence in the Health Sector
Bibliography
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List of Abbreviations: CAT
ID ISC LSA M&E MoI MLSP
Convention against Torture Convention on the Elimination of All Forms of Discrimination against Women Committee on Protection of Torture Convention on the Rights of the Child Center for Social Work Domestic Violence European Commission European Commission Health Indicators list European Union Gender Equality Human Immunodeficiency Virus/ Acquired immune deficiency syndrome Identification Institute for Sustainable Communities Labor and Social Affairs Monitoring and Evaluation Ministry of Interior Ministry for Labor and Social Policy
MoJ
Ministry of Justice
MoES
Ministry of Education and Science
MoH
Ministry of Health
NGO PHC RIHP SEE SFRY SRM TB UNDP
Non-Governmental Organization Primary Health Care Republic Institute for Health Protection South-East Europe Socialistic Federative Republic of Yugoslavia Socialist Republic of Macedonia Tuberculosis United Nation Development Program United States Agency for International Development World Health Organization /Europe WHO EURO Health Information System
CEDAW CPT CRC CSW DV EC ECHI list EU GE HIV/AIDS
USAID WHO/Euro WHO/EUROHIS
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I. Introduction Background Information Since 2004, the Republic of Macedonia has regulated domestic violence in the Family Law, the Law on Social Protection, and the Criminal Code. Although these are significant changes in the overall national response to domestic violence there has been discussion about if current legal provisions are adequate enough to address all aspects, particularly with regard to their efficiency and effectiveness in enforcing the laws and providing for adequate national response to the protection of the victims. As much as they are related to health, it is questionable to what extent they add to prevention and control of health harm that occurs in cases of DV. Especially, given the fact that “health“ legislation has stayed uninfluenced so far. The goals of this review are: • To analyze the current health and health related legal framework on domestic violence with a view of its efficiency and to identify the main gaps, shortcomings and needs for improvement; • To analyze and assess the overall national response system to domestic violence, as a wider context to the health sector response and in view of identifying its mayor flaws and problems and legal solutions for the improvement of its effectiveness and efficiency throughout increased (open method of) coordination and cooperation; • To provide recommendations for improvement of the legal framework on DV , such as health to be integrated as cross cutting issue in all other legal and policy sectoral measures • To provide basis for coercive and organized action in the health sector through Action Plan for Prevention and Control on DV in the Health Sector. 9
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
The review contains thorough analysis of the existing health and health related legal framework in Macedonia, including its main shortcomings and legal gaps; thorough analysis of the national response system to DV, including the main gaps and means for improvement through enacting certain legal provisions and an extensive list of legal recommendations to support meeting the goals as described in this review. The main leading question in preparing this review was: What should be done in order to improve national response to domestic violence throughout acknowledgment of the health as a cross cutting issue, as well as throughout health sector response to DV as a specific part of the overall national response? Methodology implemented was desk research and review of current international and national legislation and relevant policy documents, with the focus on achievements, gaps and needs for improvement and developing recommendations for improvements on basis of the conclusions, including fiduciary aspect.
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II. Terminology Health1 is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. There is no definition of health in the national legislation. Health care2 is composed of measures, activities and procedures for maintenance and improvement of the health and living and working environment, rights and responsibilities that are exercised within the health insurance, as well as measures, activities and procedures that are exercised by the organizations in the area of health for maintenance and improvement of the health of the people, prevention of diseases, injuries and other misbalance of health, early detection of diseases and health conditions, timely and efficacy treatment and rehabilitation by implementing expert medical measures, activities and procedures. Patient3 is a person, ill or sick, who asks for or on whom medical intervention is performed aimed to maintain and improve health, prevent diseases and other health conditions, treat or (health) care or rehabilitation. Person with mental disease4 is a person who has been diagnosed mental illness by physician-specialist in psychiatry on the basis of diagnostic criteria based on evidence based medicine. Family violence (according to the Criminal Code) means maltreatment, rough offence, endangering of safety, physical harm, sexual or other psychological and physical violence by which a feeling of unsafety, endangering or fear is provoked against spouce, parents or children or other persons that live in merital or out of merital community or joint household, as well as against ex-spouce or persons who have child or are in close personal relationship.5 1
Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19-22 June, 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948 2 Law on Health Care (Official Gazette, no. 38/91,46/93,55/95,10/04,84/05,111 /05,65/06,5/07) 3 Law on Protection of Patient Rights (Official gazette, no.:82/08) 4 Law on Mental health (Official gazette, no.:71/06) 5 Criminal Code of the Republic of Macedonia (Official Gazette, no.:19/04). It
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Family violence (according to the Family Law) means maltreatment, rough offence, endangering of safety, physical harm, sexual or other psychological and physical violence by which a feeling of unsafety, endangering or fear is provoked against: • spouse, parents or children or other persons that live in marital or out of marital community or joint household, • against ex-spouse or persons who have child or are in close personal relationships, including the ones that emerge by adoption and custody, • brothers and sisters, half-brothers and half-sisters, • elder members in the family or joint household and • persons- members of the family or joint household whose legal capacity is partially or totally withdrawn. Under close relationships, according to this law, it is understood personal relationships between persons from different sex who are or were in partner relationship, and who don’t live in out of marital community.6 Child means every person until 18 years of life, as well as person with physical and psychological development difficulties, until 26 years of life.7 Discrimination means any differentiating, missusing or limitation based on sex that endangers or makes it impossible to realize or protect human rights and freedoms. Direct discrimination means creating unequal treatment with regulations or deeds of certain subjects depending on sex in same or similar situations in the exercising, respect and protection of the human rights and liberties. Indirect discrimination means creating unequal treatment of persons of different sex with regulations, standards or behavior, which formally provides equal opportunities or are neutral on the surface, but are implemented differently according to gender, except if it is of interest and it is necessary in securing special protection or if it is caused by objective conditions and circumstances not connected to sex8. uses term “family violence”. 6 Law on Family (Official Gazette,no.:80/92,9/96,38/20004,33/06 and 84/08). It uses term “family violence”. 7 Law on the Protection of Child(Official Gazette, no.:98/2000, 65/04) 8 Law on Equal Opportunities (Official Gazette, no.: 66/06)
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Definitions of direct and indirect discrimination in the Labour Law9 are in line with the respective definitions in the Law on Equal Opportunities. Labour law scopes under discrimination harassment and sexual harassment. Family10 means person or community of man and woman, parents and children and other relatives who live with them and are obliged under the Law on Family to support each other. Family (according to the Law on Family) is living community of parents and children and other relatives, if they live in joint household. Victim of family violence (according to the Law on Family) may be any member of the family, regardless the sex and age. Perpetrator of family violence (according to the Law on Family) may be: marital or unmarital spouse, ex marital or unmarital spouse, person who lives in community with the person who is victim of family violence, person who has a child or person who is next to keen up to forth degree of blood relationship and up to 2nd degree next to keen in law with these persons, or are with them in marital or non-marital community or other kind of living together community. Social protection (According to the Law on Social Protection) is organized activity by the Republic to prevent and overcome basic social risks which the citizen, the family and groups of population are exposed to in the course of life (users of social protection) Personal data11 is every information which refers to identified physical person or physical person who may be identified, and a person that may be identified is a person whose identity may be identified directly or indirectly, especially on the basis of unique evidence number of the citizen or on the basis of one or more descriptions specific for his/hers physical, mental, economic, cultural or social identity.
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Labor Law (Official Gazette, no.: 62/05) Law on Social Care(Official gazette, no.:50/97,16/2000,17/03,65/04,62/05,1 11/05,40/07 ) 11 Law on Protection of Personal Data (Official Gazette, no.: 7/05) 10
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Conclusions and recommendations: The definitions are not aligned with the Law on Equal Opportunities, e.g. do not have gender sensitive language. Healthcare legislation also is not aligned with the Law on Equal Opportunities (Art.5 Basic Measures and Art. 6 Special measures). Domestic violence is framed as ‘family’ violence, instead ‘domestic’, as recommended by the international standards. Anti-discrimination clauses are different in national legislation/not consistent. The most productive and systematic approach is if Law on Equal Opportunities will be transposed accordingly to all other legislation, healthcare included.
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III. Cross-Cutting Issues Overall national legal response to domestic violence, i.e. response from/in different sectors needs to recognize, accept and address several issues of importance, as cross-cutting issues, thus complementing the response of/within health sector. Such an action contributes to acknowledgement of the need for better coordination and synergy among sectors, in addition to different sectors response to domestic violence.
Domestic violence and health “Public health is concerned with the health and well-being of populations as a whole. Violence imposes a major burden on that well-being. The objective of public health is to create sage and healthy communities around the world. A major priority today is to persuade all the various sectors-at the global, national and community levels-to commit themselves to this objective. Public health officials can do much to establish national plans and policies to prevent violence, building important partnerships between the sectors and ensuring a proper allocation of resources to prevention efforts.” (World Report on Violence and Health”, 2002). Since the World Report on Violence and Health was published, the relevance of the violence, including domestic violence to health was made obvious. There is no doubt that so much as health has been determined as cross-cutting issue nowadays (Health in All Policies-HiAP) by EC, violence should be seen as such too, also demanding a politically challenging strategy that requires deliberate efforts across different sectors to be promoted. Ministry of Health of Republic of Macedonia (MoH), in cooperation with WHO/Euro, Office in Skopje has published “the Report on Violence and Health in Macedonia and Guide for Prevention” 2006), fallowing The World Report and aiming to promote/trigger public health national response to violence, domestic violence included. At any point, violence has been seen as a public health problem in the country. 15
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
Public health character of violence derives from its characteristics: massive spread, dynamics, and numerous health, social and economic consequences, endangering vulnerable categories of people, prognosis and possibilities for prevention. Violence is serious public health problem with high mortality.12 Domestic violence is gender based violence13 and is recognized as such by the experts in the health sector that work against DV. Violence from the intimate partner is societal problem which must not be ignored, but by legal provisions and societal conviction, violators should be informed that violence is not permissive behavior and is punishable. (Report on Violence and Health in Macedonia and Guide for Prevention). Government of Republic of Macedonia has endorsed conclusion in 2008 by which European health in All Policies (HiAP) approach has been adopted and promulgated through horizontal political documents (Multi Indicative Programming Pre Accession Instrument). “Focusing on HiAP may shift the emphasis slightly from individual lifestyles and single diseases to societal factors and actions that shape our everyday living environments. It does not, however, imply that any other public health approaches, for example health education or disease prevention are undermined or treated as less important. Effective and systematic action for the improvement of population health, using genuinely all available measures in all policy fields, is an opening for a new phase of public health.�14 The Health in All Policies approach can provide substantial contribution to horizontal EU policies, such as the Lisbon and Sustainable Development strategies, and have positive repercussions for national economies through higher productivity, higher labour participation and containment of health care expenditure.15 12 Report on Violence and Health in Macedonia and Guide for Prevention, Tozija at All, 2006 13 Recommendation (2002)5 of the Council of Europe (www.coe.int) 14 Health in All Policies: Prospect and Potentials, Ministry of Social Affairs and Health, Finland, 2006 15 Background document of the Finish Presidency towards EU Conference on HiAP (2006)
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Gender equality and anti/discrimination Beijing Platform of Action (1995) recommends: “Governments and other factors should promote active and visible policy of mainstreaming gender equality in the policy and practice in all policies and programs, so as before any decision making, analyses has to be done on the effects on man and woman, respectively.” Domestic violence and gender equality should be seen as it is suggested by the above noted document, thus the impacts of domestic violence on men and women should be measured, and this specific data should inform policies and legal measures. Gender equality has become cross cutting issue in Macedonian policies and policy documents, main to be the National Plan of Action towards Gender Equality (2007-2012), based on international documents and national studies. Law on Equal Opportunities of Women and Men (2006) is one of the measures by which the Government has expressed the will to enforce gender equality in legal and practical terms and is further discussed in this paper as an issue of discrimination against women.
Vulnerable groups Domestic violence, as a gender-based violence has particularly emphasized negative consequences when vulnerable groups are victims, in particular children and elderly. Having regard special treatment of children in both international and national legislation, both policy and legal documents and practice in the area of domestic violence have to contain specific measures to protect children’s health and welfare first and with utmost responsibility .These documents and practice have to be developed and shaped to address children’s health and welfare as a prerequisite for human development. 17
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Elderly people scope into another vulnerable group that needs special attention too when it comes to domestic violence that derive from specific vulnerability /non-ability to respond, seek protection and care.
Recommendations Overall national legal response to domestic violence, i.e. response from/in different sectors needs to recognize, accept and address several issues of importance, as cross-cutting issues, thus complementing the response of/within health sector. Such an action contributes to acknowledgement of the need for better coordination and synergy among sectors, in addition to different sectors response to domestic violence. Health is and should be seen as a cross-cutting issue in the area of domestic violence, according to the international policies and recommendations, especially HiAP and newly endorsed conclusion of the Government of Republic of Macedonia. Therefore, health impact of DV needs to be properly taken into account in all other sectoral policies. On the other hand, DV has to be especially addressed in policy, strategic, legal and other documents in the health sector. Gender equality should be seen as a cross cutting issue also. Since DV needs a multisectorial approach both in legislative and implementation aspects, gender equality should be properly addressed across the different sectors documents. The impacts of domestic violence on men and women should be measured and this specific data should inform policies and legal measures continuously. Children and elderly should be given specific treatment in policy and legal documents, as well as in practice of prevention and protection from DV.
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IV. Executive Summary In the past few years, the Republic of Macedonia has made evident progress in complying with the international standards in penalizing domestic violence and protecting victims. In the policy documents, domestic violence is declared a matter of public concern. Since 2004, domestic violence is prosecuted ex officio as a criminal offence punishable by imprisonment. It is incriminated within the existing criminal acts prescribing more severe sentences if committed against a family member. The definitions in the Family Law and the Criminal Code include physical, psychological, and sexual violence, and are related to a broad scope of members of a family and interpersonal relationships. Temporary protection measures are placed in the focus of the civil legislation. The Family Law obliges centres for social works to undertake measures for protection of victims from domestic violence. Centres have also mandate to propose civil courts to order a protection measure. The recently amended Family Law gives right for apply for protection to the victim, too. The State provides institutional response to victims of domestic violence as sheltering and legal aid. There are six governmental shelters, and the Rules of Standards of their establishment and functioning are developed. The National SOS line is supported by the Government. Following the adoption of the new domestic violence regulation, the Government has started to introduce this issue in advanced training of professionals in almost all relevant fields (social protection, judiciary, police, etc.), and to develop collaboration with the civil sector. The National Strategy on Protection against Domestic Violence 2008-20011 has been adopted recently. The Strategy contains systematic measures to be implemented in the areas/domains of prevention, intervention, education, follow-up and inter sector coordination. 19
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Despite these achievements, there are still certain shortages to address in future. The weak implementation of the existing legislation is just one side of the coin. On the other side, there is a shortage of regulation with respect to clear definition of duties, responsibilities and cooperation of all relevant authorities; clear instructions for all officials who perform activities against DV on the spot; immediate effective protection of victims, children and other persons exposed to violence; interagency cooperation at local level; inter active response of the health care system with other systems, and strengthening activities within the health sector ; unified system of record keeping and data collecting; and obligations related to regular monitoring and evaluating the legislation and policy in this field across all the sectors. The legislation does not oblige authorities to undertake effective preventive programs and measures to address causes of violence and discrimination in the society. Namely, the national overall response , as well as health and health related legal response to domestic violence is based on acting after violence happened (retribution), neglecting importance of acting beforehand (prevention). Whole approach of the State to legislation and policy in this field is gender neutral. Domestic violence is not addressed as a form of discrimination against women and a gender-based violence, which undermines human rights of women, despite that research and existing data unanimously point that majority of victims are female, while majority of perpetrators are men. Health is not seen as a cross cutting issue that needs specific enforcement, both in policy and legal documents and in practice. Specific measures for vulnerable groups, children and elderly especially, are not addressed adequately and to the utmost extent. The implementation of the criminal provisions is still weak, and the sanctions are mild. There is a low level of reporting to the police. Centres for social work are overburden in providing their basic services, and do not have sufficient human, financial, technical, and other resources to respond their commitments regarding domestic violence. Protection measures of rehabilitation and counselling for perpetrators are not available. Health professionals 20
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are not adequately trained to diagnose DV, and are reluctant to report it. Mortality statistics is not used as a source of information on DV, as well as the coroners’ office findings. Citizens are not sufficiently informed about the incrimination of domestic violence, while victims are not well informed about the legal remedies. Access to justice is not safe and prompt as demand by international standards, so victims are usually discouraged to report the abuser. There are no measures applicable that would enable immediately physically separation of the victim and family members from the abuser. There are no regular and systematic monitoring of legislation and policy, no official statistics, data collecting is poor, and research is not supported. There is also a lack of governmental awareness raising campaign. Traditional patriarchal values, gender stereotypes, and prejudices are still present in the society, as well as in the media. This contributes to perpetuating gender inequalities and to persistence of subordinating position of women and violence against women. National programs and policies do not directly engage men in the process and programs aimed at combating male violence against women, and discrimination against women. A number of above-mentioned gaps are addressed in the newly adopted National Strategy for Protection against Domestic Violence, as preventing measures through education and establishing regular monitoring and reporting. However, being a policy act, the Strategy does not provide solid legal framework for establishing and defining clear mandates for all responsible authorities for long-term policy. The implementing framework of the Strategy is based on a collective national coordinative body with a rotating presidency, instead of clearly defining a leading responsible authority. Well-trained and educated staff in the state administration in all relevant departments with clear duties and responsibilities in this area is a basic requirement for the implementation of the foreseen activities and measures. Clear protocols and guidelines for all responsible authorities and the personnel in their respective fields should be provided. These include rules of procedure and record keeping of all relevant 21
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institutions in responding domestic violence, as well as protocols specifying the manner of implementation of protection measures, as rehabilitation programs for perpetrators and victims. Summing up, the main gaps in the national response to domestic violence are related to the gender neutral approach, protection of victims, preventive policy, health care system awareness, systematic interagency cooperation with clearly defined mandates, guidelines, duties and responsibilities, record keeping, data collecting, inclusion of men and monitoring. Majority of these gaps may be addressed by applying victimcentred legal reform approach, so that protection and prevention would be placed in the centre of legislation, instead of penalization and sanctioning. Legislation has to clearly define domestic violence as a form of gender based violence; mandates and duties of all responsible authorities, including special intervention units at local level, and set up systematic interagency cooperation; introduce emergency protection measures at the spot, police eviction and barring orders; free legal aid; safety measures for children, minors, disabled and elderly; judicial process for protection orders; the proceeding of the hearings for protection orders and emergency protection orders that have to be prompt and safe for victims, witnesses and children; the police procedure for eviction and barring orders; sanctions for violation of protection orders and other court orders, and for violation of duties of professionals; the protection services for victims as temporary sheltering, support and assistance with special emphasises on vulnerable population; guidelines to keep record and compile statistics. The legislation should protect anybody from the violent behaviour of the perpetrator, as other residents, witnesses, relatives, health and social workers, etc., and not only the victim. The legislation would clearly define the role of the state authorities in developing and implementing comprehensive and continuous preventive policy in this field, as education of children and young, special protection of elderly, national awareness raising campaign and dissemination of information to citizens, including 22
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on minority languages. The law would not influence the criminal liability of the abuser, nor inhibit criminal proceedings with regard to acts or omissions that are classified as criminal offences. Addressing detected gaps in the national response to domestic violence needs improvements of, and/or harmonisation of the laws, as Criminal Code, Law on Criminal Procedure, Law on Equal Opportunities between Women and Men, Law on Police, Law on Arms, etc. The suggestions for improvements are related to protection against discrimination, protection of victims during criminal proceedings, protection from armed violence, and intervention procedural provisions. In addition, the health legislation also needs improvements. Namely, health is, and should be seen, as a cross-cutting issue in the area of domestic violence. Therefore, health impact of domestic violence needs to be properly taken into account in all other sectoral policies. On the other hand, domestic violence has to be especially addressed in policy, strategic, legal and other documents in the health sector. Suggested legal changes should be supported by adequate comprehensive and sustainable policy responses, programs, and measures, targeted at eliminating discrimination and violence of any kind, and strengthening culture of non-violence, and respect for human rights and gender equality, having regards vulnerable population. These policy recommendations are related, but not limited to, education of boys and girls, economic empowerment of women and vulnerable groups, and awareness raising of men and women, media professionals, state officials, community leaders, political parties, civil society, private sector and the public in general. Awareness raising campaign on male violence against women should be targeted at men, raising that men are responsible for their acts of violence, and encouraging them for non-violent behaviour and to examine cultural attitudes that legitimate domestic violence. Men should be engaged in the process of combating domestic violence. The State should develop budget lines to support commitments in this field. Enhancing partnership with NGOs, and supporting their 23
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activities would contribute to improving services and assistance for victims of domestic violence. Permanent and periodical revision of legislation and policies, and evaluation of practices would contribute to constant improvement of the national response to this kind of violence and enhancing security of girls and boys, women and men. This task requires developing indicators for measuring success at national and local level. In revising and evaluating the national legislation, it should be kept in mind that the content is more important than the frame (the form of the legislation). The most important is that the provisions are simple, clear, strong and interconnected, that relevant professionals and officials are well trained and educated, and that the State is committed to implement legislation and policy with due diligence.
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V. National Constitutional and Legislation Framework Regarding Domestic Violence (Overall Legal Context) 1. Legal protection against discrimination against women
Constitutional provisions As a supreme law, the Constitution of the Republic of Macedonia (1991) provides and legally guarantees the human rights and freedoms of citizens. The Constitution proclaims equality of all citizens in their freedoms and rights “regardless of sex, race, colour of skin, national and social origin, political and religious beliefs, property, and social status“(Art. 9.1). The right to life and the right to physical and moral dignity are irrevocable. Every form of torture, inhuman and degrading treatment and punishment is forbidden, as well as forced labour (Art.11). Safety and privacy of personal data are guaranteed. (Art. 18). Health protection to every citizen is guaranteed. Citizens have the right and duty to protect and improve his/hers health and the health of others (Art. 39). The State especially protects motherhood, children, and minors (Art.42). Despite provided anti-discrimination clauses, the Constitution uses term “sex” instead of “gender”, does not have clear reference to gender equality, and does not use gender sensitive language. The clear constitutional reference to gender equality would reinforce the State’s general commitment to equality. The existing 25
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gaps related to gender issues narrow the scope of interpretation by constitutional courts, which may interpret discrimination and equality provisions strictly according to the letter of the Constitution, and dismiss cases that argue discrimination based on categories not explicitly included. The usage of term “gender” in an appropriate way, accordingly to the international standards, would help lawmakers in developing protective legislation for men and women, which would focus on their societal roles, and not on the biological differences.
Recommendations: 1. Use gender sensitive language. 2. Add “gender” among grounds of discrimination. 3. Add reference to “gender equality”.
Status of international law within the national legal system As the fundamental values of the constitutional order, the Constitution of Macedonia stipulates, amongst other, the basic freedoms and rights of the individual and citizen, recognized in international law and set down in the Constitution, and respect for the generally accepted norms of international law (Article 8). Macedonia has ratified a considerable part of the international instruments relating to the protection of human rights, including women’s human rights. In Macedonia, ratified international treaties are one of the direct sources of law. Accordingly to the Article 118 of the Constitution, “the international agreements ratified in accordance with the Constitution are part of the internal legal order and cannot be changed by law”. The Constitution allows direct implementation of international agreements. Article 98.2 provides that “courts judge on the basis of the Constitution and laws and international agreements ratified in accordance with the Constitution”. This means that the courts are free to apply directly the provisions of any ratified international treaty without previous enactment of special laws or by-laws. The State Prosecutor’s Office performs 26
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its functions “on the basis of the Constitution, the laws and the International Treaties ratified in accordance with the Constitution� (Article 106.2).
International obligations The Macedonia is the State Party to all the major international human rights documents, so that they have become integral parts of domestic legal order, accordingly to the above-mentioned constitutional provisions. This is also related to the CEDAW, which has been ratified on 18 January 1994. The Optional protocol to the CEDAW was ratified on 17 October 2003. Macedonia has submitted a combined initial, second and third periodical report to the CEDAW Committee in 2006 that was examined at its 34th session. In its concluding comments16, the CEDAW Committee urged the State to give priority to putting in place comprehensive measures to address all forms of violence against women, including domestic violence, recognizing that such violence is a form of discrimination and constitutes a violation of women’s human rights under the Convention. The Committee also called to further elaborate and effectively implement legislation on violence against women, to ensure that perpetrators are effectively prosecuted and punished, and that victims receive adequate protection and assistance, including sheltering. The Committee recommended that the State party also implement educational and awareness-raising measures that highlight the unacceptability of all forms of violence against women and that it aim such efforts at law enforcement officials, the judiciary, health providers, social workers, community leaders and the general public17. The Macedonia has also ratified the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment on 12 December 1994. The first initial report18 under Article 19 of the Convention has been submitted in 1999, and considered by the Committee against Torture on its 22nd session in April 1999, while the second period report19 was considered at its 40th session 16
CEDAW/C/MKD/CO/3 Paragraph 24. 18 CAT/C/28/Add.4; HRI?CORE/1/Add.83 19 CAT/C/MKD/2 2 June 2006 17
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in April-May 2008. In the report, the Government has stressed the criminalization of family violence as an important segment of the criminal legislation reform20. The issue of domestic violence as a matter of human freedom against inhuman treatment and torture has been analyzed in the Shadow Report21 on the implementation of the UN Convention against Torture and submitted to the Committee against Torture. In its Concluding Remarks22, the Committee against Torture welcomed the amendments in the Criminal Code and implementation of the Strategy against Domestic Violence23. However, it expressed concerns about the persistence of violence against women and children, including domestic violence. While appreciating the State party’s intention to amend the elements of crimes of rape by abolishing the requirements of both penetration and active resistance by the victim, it is concerned at the low numbers of investigation and prosecutions in cases of domestic violence24. Therefore, it is recommended to increase the efforts to prevent, combat, and punish domestic violence, and to ensure adequate implementation. In addition, The State is encouraged to conduct broader awareness raising campaigns and training for officials (law enforcement agencies, judges, lawyers and social workers) who are in direct contact with the victims as well as for the public at large. Courts and judges do not use to directly apply the CEDAW. There has been no one case so far of the direct application of this international treaty.
Anti-discrimination legislation and provisions The Government has made a certain progress in providing the policy of equal opportunities and eliminating discrimination 20
Paragraphs 7 and 8. OMCT & ESE. Implementation of the UN Convention against Torture: The Former Yugoslav Republic of Macedonia - Shadow Report, UN Committee against Torture, 40th Session. Skopje: OMCT & ESE, 2008. 22 CAT/C/MKD/CO/2 23 Paragraph 3. 24 Paragraph 19. 21
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against women. The general Anti-discrimination Law has been drafted, while anti-discriminatory clauses are present in the Law on Equal Opportunities of Women and Men and a number of other laws related to labour relations, education, health, and social protection25. The Law on Equal Opportunities of Women and Men was adopted in May 200626. It determines the basic and special measures for the establishment of equal opportunities between women and men, the authorities, tasks, and obligations of parties responsible for the obtaining of equal opportunities (health institutions included), the procedure for determining unequal treatment between women and men, the rights and responsibilities of the Representative for Equal Opportunities between Women and Men. The Law establishes and guarantees legal protection of discriminated persons. The Law (Article 13) requires that the ministers name an official-Coordinator, which will coordinate the activities in the jurisdiction of the Ministry for the implementation of the equal opportunities. Health legislation also contains anti-discriminatory clauses. Law on Health Care (1991) proscribes for non-discrimination (“Everybody has the right to health care” (Art.3), not specifically addressing gender based discrimination. Law on the Protection of the Rights of Patients (2008) moves forward, proscribing: - “by protection of the rights of the patient it is provided for continuous and quality health care according to the current achievements in the health and medicine, within the framework of the health care and health insurance system, according to the individual needs of the patient, with absence of any physical and psychological abuse, with full respect of the dignity of her/his personality and in her/his best interest” (Art. 2) - “patient has the right to realize the rights proscribed by (this) law, without discrimination based on sex, race, colour of skin, 25 Law on Labour (articles 6 and 7); Law on Higher Education (article 7); Law on Secondary education (article 3); Law for amendments and addendum on the Law for social protection (article 7-v); Law on Equal Opportunities (article 3). 26 Official Gazette. No. 66/06
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language, religion, political or other opinion, national or social background, ethnicity, material status, origin of birth, sexual orientation or any other status” (Art.5.2). Other health legislation does not include anti-discrimination clauses, main reason to be that Law on Health Care and Law on the Protection of the Rights of Patients are horizontal laws in the health sector and have legal power over specific legislation in other areas of health. Law on the Protection of the Rights of Patients is the only one piece of act that makes some specification according to the individual needs of the patient, at the same time forbidding discrimination based on sex. Since it has over arching legal power in the health sector legislation, the wide accepted argument is that health legislation is gender sensitive and does not discriminate against women. Recent analyses of the cases of patient’s rights infringement reported through the National Consumers Organization and the Helsinki Committee for Human Rights27, does not show any discrimination on the grounds of gender, although there are patient rights breached and procedures are being taking before Ministry of Health and courts. There is no single case reported based on sex-based discrimination and gender-based discrimination. Example of good practice is introducing in the Law on protection of Patient Rights of the Counsellor for Patient Rights (Art. 50), who is employee of the MoH and his/hers duties will be proscribed by individual act of the Minister of Health. In case of violation of the provisions prohibiting discrimination, including on basis of sex, the substantive legislation in the FYR Macedonia envisages two types of liability: offense and criminal liability. Article 137 of the Criminal Code refers to violation of equality between citizens. It prescribes imprisonment for those who will deprive of or restrict the rights of people and citizens defined in the Constitution, in laws or in a ratified international 27 OSI and Faculty of Medicine Project“ Patient’s Right-Practitioner’s Guide“(2008)
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convention on the basis of their sex, race, complexion, etc., as well as for those who, on the basis of such differences, will entitle citizens to privileges contrary to the Constitution, laws or a ratified international convention28. Accordingly to the amendments to the Criminal Code in 2004, legal entities are also subject to fines for such acts The Law on Protection against Discrimination is expected to be enacted until the end of 2008. The Draft law prohibits both direct and indirect discrimination, introduces affirmative measures, and judiciary protection against discrimination. It recognises harassment, including sexual harassment, as a form of discrimination. However, the Draft law has also failed to make distinction between sex and gender, prohibiting discrimination on basis of sex only (Article 3). Besides, the Draft law does not foreseen detailed protection in the exercise of the right to work and of the right to education and training, that is of crucial importance for economic empowerment of women and equal access to a job, education and other resources. If a woman is economically dependent on a violent husband or other male member of a family, she is not able to leave him and go out from the circle of violence. In the transition period to market economy, discrimination at work and during employment is widespread, particularly due to lack of protection mechanisms and weak trade unions. The Draft Law on Protection against Discrimination foresees that the different treatment of persons in the areas of education and training, aimed at achieving equal participation of men and women will not be deemed as discrimination. However, the Draft Law misses more measures related to protection of the exercise of the right to education and training, and measures for eliminating genderbased stereotypes in the curricula and textbooks, and training on gender equality. To conclude, the Draft Law is focused on protection against discrimination, while prevention is neglected.
28 From 3 months to 5 years; in case such an act is committed by officials in the course of their service, they shall be punished by imprisonment from 6 months to 5 years..
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Recommendations Combating discrimination and achievement of gender equality need more comprehensive response in the anti-discrimination law that would include, but not be limited to: -
-
- -
- -
prescribing more precise duties and responsibilities of employers for preventing and sanctioning discriminatory acts, as for example: prohibiting refusal of employing a candidate on the grounds of pregnancy, maternity or childbearing, ensuring equal remuneration for equal and equivalent work, prescribing the right and the duty to an employer to investigate a complaint of harassment and of sexual harassment in the workplace and to carry out measures to stop the harassment, encouraging employment of persons belonging to an underrepresented gender, and ensuring equal opportunities for professional development and promotion in the career by applying equal criteria and indicators of performance. prescribing the duty of institutions and persons who provide training or education and the authors of the textbooks to give information and apply methods of education which is directed at overcoming gender stereotypes in all spheres of public and family life, prescribing obligations for schools and higher education to include training on equality between women and men in their curricula and plans, prescribing obligations for national and local government institutions and public bodies to encourage balanced participation of women and men, including the selection of board members, governing or other bodies, prescribing gender quota for employing candidates in the governmental and other administrative bodies, ensuring equal opportunities for professional development and promotion in the career by applying equal criteria and indicators of performance in the central and local administrative units and bodies.
The laws establish legal protection of discriminated persons in all spheres, including access to health care, but despite evident discrimination against women, victims do not use legal remedies, and there was no one case brought to court. Judges 32
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and prosecutors do not use to interpret domestic violence as a violation of the constitutional right to equality and human rights of women. Indicators for measuring discrimination have not been implemented until now. The main prerequisite to introduce them is clear and proper definition of discrimination, while main obstacles are lack of data, lack of uniformed and standardized method of recording and collecting data, lack of gender-disaggregated data, and lack of sense to recognize the embedded forms of discrimination based on traditional practices. The Law on Equal Opportunities between Women and Men does not include gender-based violence as a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men, as directed in the General Recommendation No. 19. The Macedonia, as a State Party to the CEDAW, is required to establish a comprehensive legal and policy response to eliminate discrimination in all its forms, including family violence. The gender equality legislation should clearly point to the close connection among discrimination against women, gender based violence and violation of human rights and fundamental freedoms. This is important for clearly defining mandates, tasks, and responsibilities of state bodies and institutions with respect to combating domestic violence, as measures in the process of education and professional training, role of media in eliminating stereotypes and prejudices, and collecting data and statistics. Although the Constitution provides for direct application of the ratified international treaties, the CEDAW has not been implemented in courts directly. A comprehensive anti-discrimination law has not been adopted yet. The Minister of Health has not yet named the Coordinator for equal opportunities in the health sector. There is an expert named as a focal point for gender issues in the cooperation with WHO. 33
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
The expert is non-employed in the MoH and works just on WHO related issues. There is no specific program of work done and no resources allocated for both this expert’s work, as well as for the work of the Coordinator for equal opportunities. Though recent amendments and/or new legislation have been endorsed in the health sector, the Law on Health Care is not yet gender sensitive. Wide understanding is that women are provided legal equality throughout broad anti-discriminatory clause “Everybody has the right to health care”. The Law on the Protection of the Rights of Patients moves forward by introducing taking account of the individual needs of the patient and forbidding discrimination based on sex. Recent analyses of the cases of patient’s rights infringement do not show any discrimination on the grounds of sex or gender. There is no single case reported from the health sector practice, based on gender-based discrimination. Example of good practice is introducing in the Law on protection of Patient Rights, the Counsellor for Patient Rights who is employee of the MoH and his/hers duties will be proscribed by individual act of the Minister of Health and leaves the room for proper training (if gender equality, anti/discrimination issues, as well as human rights of the vulnerable population properly addressed in the training).
Recommendations: 1. Including reference to gender-based violence, including domestic violence, in the Law on Equal Opportunities of Women and Men. 2. Including “gender” among grounds of discrimination in Article 137 of the Criminal Code on prohibiting equality of citizens 3. Adopting a comprehensive anti-discrimination law that will include references on gender-based discrimination, and affirmative measures for achieving gender equality. 34
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4. Developing and implementing indicators for measuring gender-based discrimination. 5. Reporting to the Government and the National Assembly annually on gender-based discrimination and results of the anti-discriminatory policy. 6. Regularly monitoring the implementation of the Law on Equal Opportunities between Women and Men, and proposing amendments/ improvements when needed. 7. Implementing sanctions for violation of the Law on Equal Opportunities between Women and Men, and making the cases of violation and the violators visible in the public. 8. Making the Law on Health Care gender sensitive by amending the Article 3 and putting it in line with the Law on Equal opportunities. 9. Law on Protection on Patient Rights should be used to properly address, both legally and in practice genderbased discrimination and human rights of the vulnerable population, especially children and elderly. 10. Individual act of the Minster of Health regarding councillors (based on Art. 50) should provide clearly for combating gender –based discrimination; the counsellors should be trained with respect to gender issues, discrimination issues, domestic violence issues and human rights of the vulnerable population, especially children and elderly 11. Training judges and prosecutors to use directly the CEDAW, if the legislation does not give basis for protecting women from discrimination and safeguard their human rights.
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2. Definition of domestic violence Domestic violence29 is declared a matter of public concern in amended Family Law. Article 2 directly points out that the State provides for protection against this type of violence. The legislation contains definition of domestic violence in two laws, the Criminal Code and the Family Law, that are harmonized with the latest amendments of the latter law adopted on 4 July 200830. Accordingly, the amended Family Law (Art. 6) defines domestic violence as: “…maltreatment, rough offence, endangering of safety, physical harm, sexual or other psychological and physical violence by which a feeling of unsafely, endangering or fear is provoked against: • spouse, parents or children or other persons that live in marital or out of marital community or joint household, • against ex-spouse or persons who have child or are in close personal relationships, including the ones that emerge by adoption and custody, • brothers and sisters, half-brothers and half-sisters, • elder members in the family or joint household and • persons- members of the family or joint household whose legal capacity is partially or totally withdrawn. Under close relationships, according to this law, it is understood personal relationships between persons from different sex who are or were in partner relationship, and who don’t live in out of marital community.31 The Criminal Code (Art. 122, paragraph 19) defines domestic violence as: “…maltreatment, rough offence, endangering of safety, physical harm, sexual or other psychological and physical violence by which a feeling of unsafety, endangering or fear is provoked against spouce, parents or children or other persons that live in merital or out of merital community or joint household, as well 29 Since domestic violence is the core issue of this report, the definition of the term in the legislation is of specific importance. 30 Law for amendments and addendum on the Family Law, Official Gazette No. 84/08 31 Law on Family (Official Gazette,no.:80/92,9/96,38/20004,33/06 and 84/08)
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as against ex-spouce or persons who have child or are in close personal relationship.”32 The definitions of domestic violence do not make clear that this is a specific form of gender-based violence. The list of persons against whom acts of domestic violence may be committed is shorter in the Criminal Law than in the Family Law. The definitions do not include economic violence33. It may mean various controlling patterns of behaviour that are not distinctly violent, as prohibiting to a woman to employ herself, destroying her property, forbidding her access to her property, or to handle her earning. The new definition in the amended Family Law has erased “material and work exploitation of a member of a family” that was included in acts of violence in the previous definition in the Article 94b. They do not include traditional practices harmful to women34, such as early and forced marriages35, and crimes of honour. They do not apply to the legislation in other sectors; they are of use just for the specific laws where they are proscribed in the scope in which they are proscribed. Although in the national language legislation uses term “family” instead of “domestic” violence, the scope of the concept is broad and includes not only members of the (legal) family, but also persons which live in a joint household or other community, as well as a former spouse of persons which have a common child or have close personal relations. The definitions fail to include persons in intimate relationship of same sex. There is no definition of domestic violence in the health sector legislation. Although family violence is addressed in the specific programs of the Government endorsed based on Art. 32 of the Law on Health Care, there is no definition to it. There are no provisions in the health sector legislation that imply using the definition proscribed in other laws.
32
Criminal Code of the Republic of Macedonia (Official Gazette, no.:19/04) EU Expert meeting 34 DEDAW, art. 2a, res.2003/45, art. 7. 35 Res.2003/45, art. 7. 33
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There are no legal cases where the definition was brought forward or challenged (in administrative or court procedures) on the matters related to the health sector. There is no policy document that contains the definition of family violence, in the health sector. There is no awareness raising activities with respect to legal aspects of DV in the health sector.
Recommendations: 1. Clarifying that domestic violence is a form of gender-based violence. It is recommended that the governments use the definition of gender based violence that is prevalent in international documents. 2. The languages in all relevant laws have to be clear and to unambiguously protect women victims from gender-specific violence within a family and intimate relationship. 3. Including in the definition controlling patterns of behaviour that are not distinctly violent, as economic violence, e.g. “material and work exploitation� that was included in the definition in the Family Law before it has been amended. 4. Including the broader list of persons against who acts of domestic violence may be committed from the Family Law into the Criminal Code, including same sex relationships. 5. Including traditional practices harmful to women, such as early and forced marriages. 6. Including definition of domestic violence (or reference to the definition in the Family Law and the Criminal Code) in the health sector legislation.
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3. Legal measures that are in place 3.1.
Domestic violence in the national legislation
Since 2004, the State has regulated domestic violence in the Criminal Code36, the Family Law,37 and the Law on Social Protection38. Criminal and family legislation are complementary and not mutually exempting. In criminal legislation, it is incriminated within the existing criminal offences, and not as a specific criminal act. The Macedonia does not have a separate law on domestic violence. It is incriminated within the existing criminal offences. There are proposals to change the existing domestic violence legislation and to, instead of criminalisation of DV within the existing criminal offences, create a specific criminal offence. There are also proposals to develop a separate law, or to make a codification on domestic violence.
Recommendations: 1. Assuring victims of domestic violence the maximum protection of the law by acting with due diligence to prevent and respond to such violence (to secure ante delictum role of the law) 2. Regularly monitoring the implementation of the criminal and civil legislation related to domestic violence and revising legislation. 3. Developing indicators for measuring success of the implementation of the criminal and civil legislation related to DV. 4 Widely publicizing the DV legislation and constantly inform the public about the existing protective and other measures (e.g. make and drop leaflets with explanations whom to report cases of DV, rights of victims etc., including in minority languages, in mailing boxes of houses and apartments all over country.)
36
Criminal Code, Official Gazette. No.19/04, 81/05, 60/06 and 73/06. Family Law, Official Gazette. No. 38/04, 84/08. 38 Law on Social Protection, Official Gazette. No. 21/06 and 40/07. 37
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3.2.
Domestic violence in the legislation of health sector
Family violence is not mentioned as such in the legal documents of the health sector, except for the special programs that Government endorses and budgets yearly based on the Law on Health Care. Law on Health Care regulates the rights of the citizens on health protection, procedures for realizing the rights to social protection and system and organization of the health care. (Art.1). Health care is defined as: composed by measures, activities and procedures for safeguarding and improvement if the health and working and living environment, activities and procedures undertaken by organizations in the health care area to maintain and improve the health of the people, prevention and protection from diseases, injuries and other harm to the health of the people, early detection of diseases and conditions related to health, timely and efficacy treatment and rehabilitation by implementing expert medical measures, activities and procedures. The Program on Health Care of the People with Dependency Diseases for 200839 states that the family violence occurs more often in the country, where 80% of the cases are linked to alcohol abuse from the perpetrators. The measures it envisages are implementation of the Strategy on Abuse of Alcohol for Protection of the Health of the Population (2008-2012) and endorsing Programs for treatment of the alcohol abusers , together with the Ministry of Labour and Social Affairs (MLSP), which will scope hospital services, day care or/and counselling services, with multidisciplinary approach. Program envisages treatment of the persons hospitalized upon the court order for obligatory treatment measure, just for addicts of different type (drugs, alcohol) in total amount of resources of 14.760.000,00 MKD (approx. 246.000 Euros). It is an example of good practice, although it should be made clear how much resources go for the programs for victims that abuse drugs/alcohol and how much on programs for perpetrators that abuse drugs/alcohol- the reason behind the abuse of drugs/alcohol differs. 39
40
All Health Programs for 2008 are published in Official Gazette, no.:146/07
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The Program “Health for All” does not include also family violence as such, but includes free of charge medical check up’s (blood pressure, body weight and height, body mass index, sugar and fats in the blood and other medical advices). It might be a very good opportunity for tracing down family violence, since medical teams work in the community. The Program for the Mentally Ill Persons does not include family violence as possible source for mental illness or/and specific mental problems. On the other hand, Law on Mental Health and Law on Health Care, together with this specific program provide for solid community based health infrastructure for treatment by interdisciplinary teams, scoping psycho-social support and counselling, working rehabilitation and vocational training within the Mental Health Centres (MHC’s) 3 in Skopje and another 4 in other cities). This is an example of good practice which might be used for the victims of FV, either Centres for Social Care (CSR’s) to establish continuous relationship with MHC’s, or CSR’s to establish the same infrastructure and model of work like MHC’s, or shelters to be established in the same way-which might be the best solution in the long run (upgrading the standards of care for victims). The Program for Systematic Check-up’s for Pupils and Students lacks any form of interrogation with respect to family violence tracing down. Namely, the content of the check-up is not gender sensitive and does not include family anamnesis. This might be the most important point of entry for preventing and/ or timely response to family violence at the group of pupils and students (6-24/27 years). The program has huge deficiencies regarding DV. The Program on Preventive Health Care is the most important tool to work with on prevention on DV. At the moment it scopes just activities related to participation (of the Public Health Institutes in drafting policy/strategy documents, among them being the Strategy on Violence Prevention, Poverty Reduction Strategy (part for health),and Adolescent Health Strategy . This Program is the only one envisaging participatory activities in gender equity protection. Another activity very much related to 41
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
DV is working on the Law on Health Records. All the activities in this Program are of relevance to DV (Drafting policy/strategy documents; reduce of the impact of emergency events on health; statistical researches; drafting legislation in the public health area; establishing data centre in health; preparation of Statistical Yearbook on Health; drafting standards and indicators in the health sector; monitoring, evaluation and analyses of the health status of population with stress on vulnerable groups and public health problems with priority; providing information on the health status of women, children, women in reproductive period, Roma, prisoners, impoverished, homosexuals, commercial sex workers, refugees, internally displaced persons and socially excluded persons. From the researches envisaged for 2008 of relevance to DV are the research on violent behaviour and the research on injuries and safe behaviour in the community. Public Health Institute, within this program in 2008 is expected to publish Atlas of Injuries. This program also scopes education of health professionals in primary health care on inter-personal violence. In coordination and cooperation with other government bodies, a national campaign on violence prevention is envisaged. Public Health Institute, according to this program will work also on health risk assessment. Other relevant activity envisaged is regarding health status and working abilities in non-employed persons, which are linked to the activities of the Institute for Occupational medicine-Skopje. Still, what lacks in such a program is specific work (not just segments) on prevention of DV. Action plan on Prevention and Protection of Domestic Violence in the Health Sector, which is MoH’s obligation under recent framework Strategy on Protection from Violence should be seen as complementary to these programs, i.e. the activities envisaged by the AP and may be sponsored by the Government yearly, will fall under the scope of specific programs or specific Program on Prevention and Protection from DV. Program on Active Health Care of Mothers and Children scopes activities targeted to achieve the Millennium goals until 2015 (to reduce by 2/3 child mortality and by ž mothers mortality).Although this Program scopes increased accessibility of health care services, early detection, recording, diagnosis 42
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and monitoring of children under risks and handicapped children, strengthening parent’s capacities and local community capacities for early child development and decreasing of the influence of social determinants (poverty and social inequity) , there is no mentioning of DV. One of the activities envisaged by this program is levelling up the parent’s information on regular growth and development of their children. This program is very important regarding prevention and protection from DV also, because patronage system is involved, i.e. patronage nurses do much field work, thus becoming important factor for prevention and protection from DV (system to the patient/victim approach). They work as educated mediators in the health care between health system and mother/child. This program envisages also cooperation with the NGO’s on promotion of adolescent health in the community. It also scopes development of indicators to monitor health status of children regarding social inequality, and health status of socio-economic sub-groups (marginalized, socially disadvantaged, families with law level education of mother), “disaggregated data, by gender, age, etc.” The work of the Centre for Health Protection of Mother and Child, under this program is very important, and although it scopes monitoring, evaluation, promotion, education, developing instruments for monitoring and assessment, it does not scope DV in its activities. DV is completely out of scope. Program on Health Care of Specific Groups of Population and Specific Diseases of the Non –insured Citizens provides for free of charge health care of pregnant women and children until 1 year of age, uninsured children from 1-18 years of age and elderly over 65, as well as health protection for all for some specific (listed) diseases, mainly chronic degenerative diseases. It does not scope health protection of victims of DV as specific category. It will be of big importance if the problem of DV in the health sector would have been measured in financial terms, so it might more easily fall under the scope of this Program. Other health care programs (15 in total) budgeted by the Government annually are of relevance more from the aspect of establishing / making it visible gender balance, then FV. 43
Legal Health and Health Related Aspects of Domestic Violence in the Republic of Macedonia
All above stated deficiencies can be easily remedied if there is political will on the side of the Minister of Health, since the Programs are drafted every year, so the Programs for 2009 should be started drafting from September/October, 2008. Other problem is implementation of the programs. Although the financial resources have significantly increased in 2008 due to the political will of the Government to give priority to public health concerns, proper distribution lacks, as well as mechanisms for monitoring and evaluation of the program implementation linked to proper distribution and utilization of funds. Health Insurance Law40 regulates the health insurance of the citizens, their rights and obligations with respect to health insurance, also scoping procedures for realization of rights and responsibilities of citizen. The Law contains wide list of citizens who have right to health insurance. List is complemented by the above-discussed Program on Health Care of Specific Groups of Population and Specific Diseases of the Non –insured Citizens. So the list of citizens that have right of health insurance is quite long. List scopes also persons –users of continuous finance support, persons in social-care institutions and other families, according to the social care legislation. With respect to victims of DV, in general, legally speaking, they are insured. There might be very few cases when they are not (for example-they have never entered/ not registered in the system). The problem is to exercise the right in the situation where DV occurs (without ID, other papers). He/she has the opportunity to contact her/his chosen doctor who has the record on her/him but does not have the health ID to determine whether he/she is insured. Another (the most frequent solution) is that the victim goes to social institution (SOS lines, shelter, CSC). Now victim enters social institution (e.g. centre for Social Care, shelter under the auspices of MLSP) she/he regains the right to health insurance. The issue now is that she/he has to go through the health system in specific order (chosen doctor; referrals to secondary health care needed; referrals to tertiary health care needed, otherwise, victim pays).The system is build regardless the specific situation of the victims of DV. Shelters, CSC’s point clearly out that it is very difficult for the victim to move through the 40
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Health Insurance Law, (Official Gazette, no.:119/05)
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health system free of charge, although legally they are entitled to it if they have health ID, or if they enter social institution. Thus, issue of relevance is that health care will be made easily accessible to victims of DV when and where needed. Another relevant provision of the Law on Health Insurance is Art. 10 which scopes, under the services not in the obligatory health insurance package -non medically indicated abortion. This issue is of relevance in the cases of sexual assaults within DV settings (marital rape or partner rape). So far, there is no single case such problem is reported in any procedure. Nevertheless, it is of relevance to be clearly stated that under the term- non medically indicated abortion, cases when a woman remains pregnant after sexual assault within DV settings do not fall, i.e. this cases should be included in the package-free of charge. This should not be left to interpretation. Law on Terminating the Pregnancy41 does not deal with the issue of financial reimbursement, but rather more with standards of terminating pregnancy (personnel, facilities, expert medical procedures). Although so, this piece of act is relevant exactly because of financial restraints in the cases of terminating pregnancy started by sexual assaults within DV settings. Victim should be able to address (a) any health facility accredited for termination of pregnancy and get quality health care and safe abortion, and (b) she cannot address non-licensed health workers and non–accredited facilities, no matter the financial resources, she has (cause there should be none). The practice is different. State Sanitary and health Inspectorate reports cases of illegal gynaecology/obstetrics practices, thus the enforcement mechanism and information campaign on the harmful effect of unsafe abortion to the life and health of women should be strengthened. There is a new Law on Terminating the Pregnancy underway, but it will not resolve practical problems if proper enforcement mechanisms are not in place, and inspectors well trained, among other measures. In addition, a good systematic approach to the issue is expected to take place through the Strategy on Reproductive Health that is under preparation. 41
Law on Terminating the Pregnancy,( Official gazette, no.:19/77, 1/95)
45
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Law on Biomedicine Helped Fertilization42 is recently endorsed and poses rather intriguing issues regarding DV. Although this law proscribes the obligation of council ling and agreement from both partners prior to procedure (Article 11 and 12), council ling does not include DV issues. It is pre-assumed that partners agree when they come to seek the medical advice on this procedure, and the agreement is rather more seen relevant and legally binding with respect to establishing fathering rights and obligations, after the child is born. This is rather new law, as mentioned, and the practice is still to show results. Anyhow, council ling envisaged should scope gender equity issues and DV issues also. Health workers in charge will have to be trained to assess whether both partners really consent to the procedure, or in other words to detect FV (forced pregnancy) in these matters, so to avoid future problems. Law on Mental Health43 proscribes the rights of mentally ill people and their protection, not just in the health care settings. Completely in line with ECHR, this law provides for non-discrimination of this people on the ground of their illness, but also prohibits every form of torture and inhuman and degrading treatment and punishment. Although very strong in protection of these people in the system (health care or other), it does not specifically address the issue of in- house maltreatment, i.e. DV. Focusing rather more on outside (meaning out of home) maltreatment which is obvious, and stigma and discrimination in all the outside home settings, it does not address properly very possible DV. On the contrary, the focus of the law is to provide for health care in the community, in the family. This is the basis of National Mental Health Strategy (2006). The focus is right, regarding lifelong “sentencing� to psychiatric hospital of the people that may have better quality life at home and rather more psycho-social support. Mental Health Centres operate quite good and have positive results in their work, but their practice shows that often they are the last stop before entering the family (if this happens at all) due to the stigma and discrimination of these people in home settings. The most of the stories from psychiatric hospitals are the stories of abandonment as a form of DV. There is maybe still something to 42 43
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Law on Biomedicine Helped Fertilization, ( Official Gazette, no. 37/08) Law on Mental Health, ( Official Gazette, no. 71/06)
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be done, rather more in practice than through the Law on Mental Health, to strengthen family capacities and prevent DV in these cases. Mental health centres are equipped professionally to work with families on prevention, and to work with victims on health care, when it comes to people with mental illness. They rather stay to be an example of good practice of work with respect to psychological, psycho-social, health care and legal work with people in need ( in this case mental ill people), but the example can be transferred/copied to other setting that work with people in need, i.e. victims of DV. Law on Taking, Exchange, Transport and Transplantation of Human Bodies Parts for the Purposes of Treatment44 is important legal document with respect to specific form of DV, e.g. selling human bodies parts. It is important to be stressed that the law allows for transplantation only for treatment purposes. Every other activity is serious crime with criminal penalties, according to the Criminal Code. Law on Health Data (see: 3.5.Access to justice) have remained from the old SFRY system (endorsed more than 30 years ago). They (both laws, SFRY and RM) are not gender sensitive and do not include DV data collecting and indicators for it. The new law is in drafting phase. It will have to provide for appropriate addressing of gender; systematic DV data collection, indicators for proper monitoring and evaluation, as well as space for enhancing research in the area. Since National Public Health Institute will be the central institution for data collection, it is of importance PHI to become Centre for data, research, and documentation on DV in the health sector. This Law is rather very much linked to the Law on Protection of Personal Data45 and should be fully harmonized. In that respect, Law on Protection on Patient Rights also is fully aligned with this law.
44
Law on Taking, Exchange, Transport and Transplantation of Human Bodies Parts for the Purposes of Treatment (Official Gazette,no.:30/95) 45 Law on Protection of Personal Data, (Official gazette, no.:7/05)
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There is no specific Law on Coroner’s Office into national legislation. There are several provisions for it’s duties within the Law on Healthcare Protection. Coroner’s findings are not used to inform on and report the DV cases, since there is no legal obligation for it. Project of establishing IT is important activity of MoH in the health sector. This is good initiative from the aspect of fast transfer of health data through the health sector. It is expected that all personal data from all entry points of the patient will be collected at one place electronically and should be available to health professionals at all time and stages, depending on the need for further treatment of the patient, provided that personal data will be protected to the levels needed. This will have practical importance for DV victims if system changes so as they can drop in at any entry point ( be it any level or institution of heath care) and just with her/his ID card (without any other medical document) she/he will be checked up and treated. The essential set of data on the patient scopes health insurance status, so there will be no need for any other document regarding insurance also. It will save time and efforts of DV victims in seeking health care in the system.
Conclusions and recommendations 1. Legal documents in the health sector should be gendersensitive and address properly specific problems of DV 2. Law on Health Care should provide for specific rights of the victims of DV through specific programs that derive from this law: - The Program on Health Care of the People with Dependency Diseases for 2008 should make clear distribution of resources that should go for the programs for victims that abuse drugs/alcohol and how much on programs for perpetrators that abuse drugs/alcohol- the reason behind the abuse of drugs/alcohol differs. - The Program “Health for All” should be used as an opportunity for tracing down family violence, since medical teams work in the community. 48
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- The Program for the Mentally Ill Persons should include family violence as possible source for mental illness or/and specific mental problems. - The Program for Systematic Check-ups for Pupils and Students should be used to monitor DV in the population of school and student youth. - The Program on Preventive Health Care should provide for legal base for financing the preventive activities in the health sector regarding DV. - Program on Active Health Care of Mothers and Children should program and finance the work of the Centre for Health Protection of Mother and Child, in monitoring and evaluation of DV in mothers/pregnant women, as well as promotion, and education, of mothers regarding DV and gender equality. - Program on Health Care of Specific Groups of Population and Specific Diseases of the Non –insured Citizens should scope health protection of victims of DV as specific category. - All health care programs (15 in total) should refer to DV (where appropriate) as a very important tool for programming and financing Government budgeted activities regarding DV in the health sector. - Developing mechanisms for monitoring and evaluation of the program implementation linked to proper distribution and utilization of funds. - Health Insurance Law should build system regarding the specific situation of the victims of DV. Within this act, should consider abortion, in cases when a woman remains pregnant after sexual assault within DV settings as a medically indicated one, and therefore provide that it should be free of charge. - Law on Terminating the Pregnancy should provide for strong enforcement mechanisms so that standards for safe terminating of pregnancy should be performed. - The Law on Biomedicine Helped Fertilization should provide for counselling that scopes gender equity issues and DV issues also. - The Mental Health Centres that work according to the Health care Law and Law on Mental Health stay to 49
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-
- -
-
50
be an example of good practice of work with respect to psychological, psycho-social, health care and legal work with people in need (in this case mental ill people), which can be transferred/copied to other setting that work with people in need, i.e. victims of DV. The new Law on Health Data will have to provide for appropriate addressing of gender; systematic DV data collection, indicators for proper monitoring and evaluation, as well as space for enhancing research in the area. Regular revision of the efficiency of the provisions and sanctions in the health care sector has to be performed. The role of patronage services (nurces) should be recognized as essential for early detection of DV and institutional linkage between health sector and sector for social care on community level. Adopting the Law on Nursery would be recommendable to re-inforce that role and give legal power to nurces to exercise prevention, early detection, collecting data and reporting activities on community level regarding DV. There should be enacted specific Law on Coroner’s Office into national legislation. Coroner’s findings should be mandatory used to inform on and report the DV cases
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Penalization of domestic violence
The Criminal Code establishes domestic violence as a criminal act prosecuted ex officio. However, it is not defined as a separate criminal act, but it is criminalized through a number of existed criminal acts that are committed against a family member or a person in intimate relationship, as defined in Article 122. The provisions related to domestic violence are not part of criminal acts against marriage and family. The Code prescribes more severe forms of punishment for crimes against life and body if committed while performing family violence. In these cases, the fact that it happens in the context of a family violence is considered as an aggravated circumstance. Therefore, the envisioned venalities are higher. A murder as a result of family violence is sanctioned with at least ten years or with life imprisonment, while the sanction for the basic form of murder is at least five years of imprisonment (Art. 123.2(2). A person who takes life of another as a consequence of family violence without one’s own fault shall be punished with imprisonment of one to five years (Art. 125). The physical form of violence is sanctioned with bodily injury (from six months to three years) (Art. 130.2.) and grave bodily injury (from one to five years) (Art. 131.2). Accordingly to Article 131.6, “a person that commits the crime momentarily, brought without his guilt into a state of great irritation by an attack or grave insult or as a consequence of family violence by the damaged, shall be punished for the crime from paragraphs 1 and 2 - with a fine or with imprisonment of up to three years, and for the crime from paragraphs 3 and 4- with imprisonment of one to five years�. The psychological form of violence is sanctioned with coercion (Art. 139.2), illegal deprivation of freedom (Art. 140.2) and endangering security (144.2). The sexual violence is sanctioned through the criminal acts of rape (Art. 186), sexual assault on a helpless person (Art. 187), sexual attack upon a child (188) and solicitation for prostitution (Art. 191). The mediation in conducting prostitution while performing family 51
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violence is sanctioned more severe with imprisonment of one to ten years (Art. 191.6). Incest is also punishable as a criminal offence (Art. 194). Marital rape is prosecuted and punishable by the general criminal offence of rape under Article 186. The sanction for the offender is one to ten years of imprisonment. If a woman victim of domestic violence uses arms to defend herself and murders the offender, the court treats long maltreatment as the extenuating circumstance. When a firearm has been used, the court may order obligatory seizure of a firearm, cancellation of a firearm license and banning issuing the license to the offender. Legal mandate for action in cases of family violence, in accordance with amendments to the Criminal Code and Family Law is given to the Ministry of Interior and the Ministry of Labour and Social Protection. Law on Mediation46 provides for mediation of disputes (in the health sector also). It may take place between the patient and the health care institution, and/or doctor, which easies the court procedures and safes money to both sides. Mediation cannot be performed in collective labour cases, criminal cases, administrative cases, or in the cases when the judge aims to ease the resolution of the dispute (Art.1.3) The main problem of the penalization of domestic violence is related to its (weak and sporadic) implementation. It is estimated that very few cases of domestic violence are brought to a court. Prosecutors do not regularly bring charges against a perpetrator, except for the cases where minors are at stake and for sexual crimes (if there is enough evidence for it). Although the sanctions for domestic violence are higher than for basic criminal offences, sentences are by a rule mild or acquittals47. 46
Law on Mediation (Official gazette, No 60/06) In the period 2005-2007, in Prilep municipality, there were 49 cases of domestic violence prosecuted and brought at court. There were only two sentences of imprisonment, while there were 33 acquittals and only one acquittal sentenced with protection order. Source: Anica Petrovska, prosecutor, report “Penal protection against domestic violence and court practice�, the Academy for Training of Judges and Prosecutors of the Republic of Macedonia, p. 14. 47
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Marital rape is not reported, not prosecuted, and not sanctioned, although it is a prevalent form of violence. There are a number of reasons for this:(It is difficult to prove it, the burden of the proof is on the victim, her resistance is crucial; financial dependency on the husband; girls are taught that a marriage is an obligation; prejudices and stereotypes; fear of stigmatization in the family; family bondages, etc). The seizure of firearms in possess or under the control of a perpetrator should be protection measure obligatory ordered by courts; now it is just a possibility, and not obligatory measure. There is a general attitude that domestic violence may not be treated as a misdemeanour. However, in practice police often reacts on reported cases of domestic violence as the breaking the public order and peace, and bring misdemeanour charges against the both sides, the perpetrator and the victim. Domestic violence is prosecuted ex officio as a criminal offence punishable by imprisonment. However, the court practice shows that the sanctions are mild, and that victims are not encouraged to report domestic violence. The burden of proof for sexual offences is heavier than for other crimes.
Recommendations: 1. Penalising and prosecuting any non-consensual sexual act, even where the victim had not resisted physically. 2. Adopting legal provision against stalking. 3. Ensuring that the burden of proof for sexual offences should not be heavier than for other crimes. 4. Encouraging victims to use legal remedies.
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3.4.
Intervention procedural provisions and practice
The police are obliged to urgently come to the reported scene of domestic violence. The intervention of the police consists of the following acts :notification of the report; receiving the report; coming out on the scene; direct intervention on the scene; bringing up and retaining the perpetrator; protection of the victim and leading the informative talking. The procedure is regulated in detail by the police protocol and the law. In the scene of violence, the police is obliged to identify present persons, including victims and perpetrator, as well as the presence of children, is the victim visibly injured, in case of severe injuries to call the medical help, to secure the place, to report the case to the duty officer and to call the team for investigation, to inform the victim about the protection services provided by state and civil institutions, and to file a charge to the court and the prosecutor. The police are also obliged to collect evidence. These acts include investigation at the spot, securing evidences, making a file, making informative conversation with the victim, estimating the needs of the victim and children, demanding opinion of the centre for social work, sheltering the victims and children in the CSW, the National SOS line, or the health care institution. In addition, the police are obliged to take any other necessary measure, as search of the apartment, temporary removal of objects, take photos, etc. The police are obliged to report the criminal offence to the CSW. The Police, according to the Law on Police and the existed records, have an obligation to register every reported case of domestic violence, and in the same registry to describe the undertaken measures for clarification the reported case. On the local level, a juvenile delinquency inspector is appointed in each internal affairs authority to coordinate those measures to fight domestic violence that require police intervention. 54
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Procedure in case of armed domestic violence The Police always react according to the legal regulations in case of use of a firearm regardless if it happened in a private apartment or public place. The practice showed that this is very true as well as the legal changes where every use of firearm - even on family gatherings is an offence and bases for taking away the weapon. The procedure of issuing a license for possessing a weapon is foreseen in the Law on Procurement, Possession, and Carrying a Weapon, and is in the competence of the MoI. The applicants are obliged to submit appropriate evidence for business capability, confirmation of no convictions or no investigation, medical certificate and certificate for being trained from a competent organization for handling with weapon. The MoI, apart of these documents, conducts appropriate operative investigations for the character of the person related with the committed misdemeanours, his violent or non-violent behaviour. According to the legal regulation, the court’s authorities on the request of the MoI are always submitting the requested data on issued convictions for persons who submitted request for issuing a license for possessing a weapon. The procedure for investigating the background is clearly determined with the existed legal regulation and the applicant is obliged to submit the data that are predicted in the template submitted enclosed with the request. The police so far in practice, in a case when assistance was requested for protection while perpetrating domestic violence, are not obliged to ask for an order from a competent court to enter in the apartment or other premises in order to help and protect the victims of the criminal acts. This authorization is in accordance with the Criminal Procedure Code provisions, whereas it is foreseen in which cases the police officers can enter in the apartment or other premises without having court’s order. The practice of issuing permits - license for possessing the firearms until now was based on presenting the confirmation 55
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of no convictions or no initiated investigative procedure, which are very important in the procedure of issuing a license for possessing a weapon, and is in the competence of the police. If a person commits a crime or a misdemeanour, the court can, as a preventive measure, issue taking away the weapon that the MOI is obliged to conduct. In addition, if there is a court’s order issued, the MOI is obliged to stop the initiated procedure. Every misdemeanour or committed criminal act is always a basis for refusing the request for issuing a license for procurement and possession of a weapon, and the practice shows that the police in administrative procedure according to the provisions of the Law on Procurement, Possession, and Carrying a Weapon can deprive the weapon without court’s order. There is legal basis for medical check up in the procedure of issuing permits, although there are not regular check ups proscribed after issuing the licence, which is recommendable.
Recommendations: 1. Adopting appropriate legislation in which the authorization of police officers shall be clearly determined on how to react in terms of reported domestic violence, use of firearms in cases of DV, protection of victims and children, etc. 2. Introducing legal changes so that the police may issue eviction and barring orders. 3. Securing that in a case of domestic violence, the perpetrator leaves the house, and not victims and children. If the police estimate that the perpetrator will repeat violent acts, or is dangerous person, or is under drugs or under other way is a threat for the victim and other persons living in the household and the neighbourhood, the perpetrator has to leave the dwelling immediately. 4. Introducing in the police protocol to send police officers preferably of both sexes to the location of violence. A female complainant should have the possibility of being dealt with by skilled and trained female officers. 56
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5. Verification of the report of domestic violence must be made even if the house or apartment is closed. 6. Obtaining evidence and interviewing the victim by ensuring safe environment to make the statement (in a separate room, in absence of the perpetrator, etc.). 7. Securing that the police officers can enter in the apartment or other premises without having court’s order in cases of domestic violence/by exclusion from the regular rules. 8. A police officer may without warrant arrest any respondent at the scene of an incident of domestic violence whom she or he reasonably suspects of having committed an offence containing an element of violence 9. Investigating for a weapon or a firearm even if it is not used (by asking the victim or other persons, neighbours, etc. does the perpetrator have a firearm (legally or illegally possessed) and/or a license). Obligatory seizure of a firearm, filing criminal charges if it is an unlicensed weapon, cancelling the license. 10. Making an information sheet about the rights of victims and procedures regarded domestic violence (both criminal and civil) and giving this sheet to the victim and the perpetrator. 11. Domestic violence should not be in competence of the juvenile delinquency inspectors, but the inspectors of general crime trained for dealing with these types of criminal offences; the juvenile delinquency inspectors to be included only in those cases when the victim or the perpetrator is a juvenile. 12. Regular medical check ups to be proscribed after issuing the licence.
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3.5.
Procedural provisions and practice with respect to the protection of the rights of the patient (DV initiated diseases, injuries and health conditions included)
General rules of administrative, civil and criminal procedure are complex and lengthy, as well and the level of knowledge of the patient/ e.g. victim of DV that she (in the most of cases) has to go along with it in exercising the right for protection of her right to health care should be very high. Thus, legal aid is much needed and should be established free of charge from the institutions (not to be project based). An example of good practice for it is new Law on Protection of Patient Rights. Some specifics are now regulated by the Law on Patient Rights, which is much hoped to ease exercising the rights of the patients. Namely, the Law provides for specific mechanisms for monitoring of the exercising of the rights of the patients on community level (Committee for improvement of the rights of the patients should be established in every municipality and its office made factual and visible to the patients – Art.39 and 40). Members of the Committee cannot work for health institutions. Responsibilities of the Committee scope: monitoring and evaluation regarding exercising and protection of patient rights on the territory of the municipality; communicating with responsible bodies to further patient’s rights, both individual and on global level ;to seek expertise in curtain cases; to promote patient right; to issue yearly report, etc. On National level, Minister of Health establishes the same type of Committee to monitor and evaluate the situation in the whole country and propose relevant measures to the Government. Even more important, for the patient are new obligations of the health care facility to care for the exercising of the rights of the patients (Art.44) and to give, free of charge legal advice to the patient with respect to exercising and protection of his rights. Also, the Law has to be disposed publicly in the easily accessible 58
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area, so that patients can read their rights. The Law proscribes for high fine penalties if provisions of the law are breached. Procedures for protection of the rights of the patients (according to the new law) have to be lead in shorter time frames than the Law on Administrative Procedure provides for. Further on, Minister of Health nominates counselor for protection of the rights of the patient, civil servant, positioned in the health care facility. He/she has to have easily accessible office in the health care facility. Among others, she/he has to give legal advice and aid free of charge to the patient; reviews patient’s complaints and mediates with the general manager their resolving; keep records on the complaints; informs and trains health professionals in the health care facility regarding exercising and protection of the rights of the patient. Health Insurance Fund is also obliged by this Law to give free of charge legal and other aid to the patients in exercising and protection their rights that derive from health insurance, through opening the Office for Protection of the Rights of the Patients on easily accessible place. In addition to this, general civil and criminal court procedures are also applicable in protection of the rights of the patients and can be given information/advice about by the counselors or health institution or health insurance fund. Although the Law does not establish working hours of the councilors, Law on Civil Servants applies. It means that she/he can work over hours or at night in specific circumstances. Health injuries due to DV acts may be covered with ex officio proceedings and/or with private initiative throughout the system (health system included). The patient’s /victim’s consent is required for any health care intervention, except for specific cases proscribed by the Law on Patient Rights. 59
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There is no special provision on measures for protection of evidence in the health sector, but indirectly the health professional has to keep record on the patient with quite substantial personal and medical data in it (according to the Law on Protection of patient Rights). A complaint can be submitted by the patient, his parent, legal representative and/or custodian. If the victim/patient is a non-national (refugee, displaced person, immigrant) health services are provided according to the health care legislation, but also the legislation on temporary residence of foreigners and according to international agreements signed in the area of health insurance. Nevertheless, urgent cases are always taken care off.
3.6.
Protection of victims during criminal proceedings
Protection of victims of domestic violence during criminal proceedings is available only for juvenile. It has been introduced by the amendments of the Law on Criminal Proceeding48. Accordingly, if a court estimates that it is needed for the sake of protection of a juvenile victim of violence or sexual abuse, s/he can testify in a separate room in order to avoid facing the perpetrator. S/he can be interrogated by a pedagogue or a psychologist. It is possible to use various audio and video techniques to protect minors during hearings. A centre for social work may order a tutor for a minor if it is on her/his sake. Adult victims of domestic violence may put a request for issuing a temporary protective measure to the court directly or via a centre for social work, regardless the criminal proceeding is on or not. The amended Family Law that has been enacted in July 2008 introduces this possibility recently49. 48 Law for amendments and addendum on the Law on Criminal Proceeding. Official Gazette, No. 15/97, 44/02, 74/04 and 83/08. 49 Law for amendments and addendum on the Family Law, Official Gazette No. 84/08. Articles 9, 11 and 12.
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Victims and witnesses may have medical and psychological care going through regular health care system/institutions, and/or to pay for these services out of their pocket. Courts always ask about a firearm/a firearm license possessed by the offender, and it is obligatory procedure. A court orders seizure of a firearm if used by the offender. It may order the seizure of a firearm license if the offender legally possesses a firearm. Future gun purchases are blocked. The conviction for domestic violence is a basis to refuse a license request. Criminal procedural provisions related to cases of domestic violence are the same as to other criminal offenses. There is no specific provision about the urgency in cases of domestic violence in criminal proceedings. The procedure is urgent only in civil proceedings. There is no measure to prevent secondary victimization of victims. Thankful to the newly enacted amendments of the Law on Criminal Proceeding, victims are now given the possibility to ask directly a court or a centre for social work to issue a temporary protection order, but it is on courts to evaluate the situation and to decide whether they will order any measure, and what measure. Victims have to be well informed about this possibility and the protection measures foreseen in the Family Law in order to demand them. A court may not order a temporary arrest of perpetrator with the aim of protecting the victim. A prosecutor may demand the arrest under the general conditions as in other criminal proceedings. There is no special condition for a hearing of victims or witnesses of domestic violence in order to avoid repetition of testimony and to lessen the traumatizing effects of proceedings. In criminal proceedings in cases of domestic violence limitation and/or exclusion of the public are foreseen only in cases of sexual offences and if victims are minors. There is no specific medical and psychological care for adult victims free of charge. The State partially complies with the international standards in this regard.
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Recommendations: 1. Making criminal proceedings in cases of domestic violence prompt and safe for victims and witnesses. 2. Introducing measures for safe interrogation of victims, protecting his/her dignity and integrity, and to lessen the traumatizing effects of testimony, e.g. in a separate room, interrogation by a professional as a psychologist, using various audio and video techniques, avoiding humiliated questions, etc. 3. Introducing measures to prevent the secondary victimisation of victims. 4. Informing victims about their rights and the right to demand the temporary protection measure to be ordered. 5. Ensuring free medical and psychological help for victims. 6. Changing the Law so that the court must to issue a protection order if a victim or a centre for social work demands it. 7. Issuing temporary arrest of the perpetrator if he is a threat for the victim, other family members, and other members of the community. 8. Ensuring free legal aid for victims so that they are properly informed about their rights and possibilities during the criminal proceeding. 9. If a victim is considering withdrawal of her complaint, exploring her reasons and giving additional protection. 10. Raising awareness of prosecutors and judges of the need of medical and psychological care for victims and witnesses in the criminal proceedings; 11. Including that the court must order to the police to seize any arms in the possession or under the control of a perpetrator, if he has threatened or expressed the intention to kill or injure himself or herself, or any other person in a family or intimate relationship, whether or not by means of such arm or dangerous weapon. Including that the court must order seizure of arm or weapon if possession of such arm or weapon 62
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is not in the best interest of the offender or the victim or any other person in a family or intimate relationship, as a result of the offender’s state of mind, mental condition, inclination to violence, or use of or dependence on alcohol or drugs. Any dangerous weapon seized must be retained in police custody for such period as the court may determine. It shall be returned to the respondent or, if the respondent is not the owner of the dangerous weapon, to the owner thereof, only by order of the court. The court may order that the weapon be forfeited to the State if it is in the interest of the safety of any person concerned 12. Providing good coordination and cooperation with health sector; 13. Providing legal base and financial resources through judicial, social and/or health system.
3.7.
Protection orders
The Centre for Social Work shall lodge a proposal with the court on behalf of juveniles and individuals with working incapacities, to demand an order of a temporary measure for protection against domestic violence in the event when the parent, custodian, or legal representative fails to do so. The Centre for Social Work shall lodge the proposal specified in indent 2 of this article on behalf of adults and individuals with working capacities, only upon consent of the domestic violence victim. Temporary protection measures that may be ordered by the relevant court are as following: 1) an order which forbids the offender to threaten to commit domestic violence; 2) an order not to harass, disturb, phone, contact or in any other way communicate with a family member, either directly or indirectly; 3) a restraint order, involving the home, school, working place, or any other designated place regularly visited by another family member; 63
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4) an order for moving away from home, regardless of the ownership, until the relevant court renders a final decision; 5) an order that prohibits possession of guns or any other weapons, or seizes them. 6) an order to return the items necessary for meeting the daily needs of the family; 7) an order to support the family financially; 8) an order to attend relevant counselling; 9) an order for mandatory treatment, provided that the offender is an alcoholic or abuser of psychotropic substances, or suffers a disease; 10) an order to compensate medical and any other costs arising from domestic violence; 11) any other measure that the court deems necessary in order to ensure security and wellbeing of the other family members. The measures from one to five are executed by the police according to the law. Centres of social work are responsible for monitoring the implementation of the measures order by a court. In this regard, a centre for social work has following responsibilities: - to report the court on implementation of the measure, - to submit a proposal to the relevant court to cancel the issued protection order before the set time limit, if it evaluates that the measure has achieved its aim, - to submit a proposal for change of the ordered measure, or for prolonging its duration, if it is estimated that the measure does not show expected results, or it is needed to prolong it. In order to implement protection measures centres for social work collaborates with citizens, legal entities, and organisations. The law provides regulations about the procedure of ordering these measures, and legal remedies against the decision of a court. It is provided that during civil or criminal proceedings the perpetrator is banned temporarily from the house where the victim and her children have continued to reside. It is possible to order 64
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the immediate separation of the victim from the offender through the immediate removal of the violent man from the common household and environment of the woman and her children. If the court orders such separation of the perpetrator from the victim and if there is precise order that the police should separate from any type of mutual contacts, then the police is obliged to act upon the order and in due time in case of disobeying the order if the police catch any of the persons in that area where the prohibition was issued, the police is obliged immediately to inform the court i.e. other authorized institution (the centre for social work). The non-compliance of the protection order is sanctioned with imprisonment from 3 months to 5 years. The MLSP has developed and adopted the Rule Book for Implementation of Measures for Protection of the Family and the Victims of Domestic Violence, on basis the Family Law, Article 94s.2. This Rule Book regulates manners of implementation of protection measures ordered by centres for social work and courts. Regarding child custody proceedings, domestic violence is used as a reason for deprivation of parental rights. This process is urgent. The court may order separation of a child from a violent parent. The divorce procedure is urgent by itself, so domestic violence is not considered as an element for acceleration of the procedure. Centres for social work use these protection measures regularly and provide proofs needed for a court to order the protection measure. However, there are certain obstacles that undermine implementation of these measures by CSW, as a lack of equipment, trained staff, and technical resources. In small towns, social workers are overloaded with their basic work related to providing services of social protection. Besides, social workers lack good working conditions. They have no protection from violent perpetrators, the objects of CSW are not properly guarded, so they may be exposed to violence by a perpetrator. They are poorly paid and have no benefits. 65
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The efficiency of the measures determined with possibly issued restraining order and their surveillance in the previous practice showed certain positive results but its issuance is yet on a very low level. Therefore, the police officers do not yet appropriately perform surveillance of the persons who appropriate restraining orders were issued for. Despite the respectful list of protection measures foreseen by the Law, it is not ensured that victims are protected effectively against threats ad possible acts of revenge. Additionally, it happens that the child custody is granted to the perpetrator, due to bad communication among different court departments. CSW does not have the mandate to interfere in the process of divorce and custody. The legislation provides for a wide scope of temporary protection measures provided by CSW and ordered by a court, including restraining orders. The victim is also given a possibility to demand the protection measure. Regretfully, the court practice shows that these measures are not yet sufficiently implemented, and that victims are not properly informed about them. Certain protection measures are not in function, as rehabilitation programs for offenders. The system of protection is based on CSW. However, the efficiency of their work in this area is undermined due to a number of constrains, as lack of resources, vehicles, staff, and the overburden with providing basic services of social protection.
Recommendations: 1. Changing the Law to that courts are obliged to order a temporary protection measure if demanded by a CSW or a victim. 2. Including prohibition of stalking. 3. Providing resources for establishing conditions for implementation of counselling for perpetrators and the mandatory medical and psychological treatment. 4. Providing financial, human, technical, and other resources for work of CSW and social workers. 66
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5. Training the professionals to recognise the issue and to properly order, implement and monitor the protection orders. 6. Ensuring victims’ support and assistance before, during, and after the criminal proceeding by introducing variety of measures as safety planning, housing, financial aid, and antiviolence training for men.
3.8.
Protection orders relevant for health care
Centers for Social Care and Shelters complain on the access to the health care for the victims (implementation of the protection measure: appropriate health measure). Usually, victims do not have health card (ID) or any document at all. Even with a document from the Center/shelter victims cannot enter the system at any point (needed and/or available). They have to go through the system as everybody else (first primary health care physician-chosen doctor, than referrals to other levels of care). Many times even inter-clinic referrals are not useful. Although there is a legal base for health care of the victims of domestic violence, the practice is deviant. Regarding this measure, in the health sector fallowing preconditions have to be fulfilled: 1. Drafting and putting into practice written protocols among MoH, MLSP and HIF (so as “drop in” system, in the situation of emergency will be secured), e.g. victim can go everywhere (needed and available at the specific time). 2. Training and raising awareness of the health professionals to provide health care to the victims, at all levels and specialties of health care, taking account gender equity aspects. 3. Establishing mobile teams as “emergency units” to deal with emergency situations in acute DV cases, and trained health professional will have to be constituent part of it. 4. Providing for proper financing of activities, possibly through the public health program on preventive health care. 67
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5. Establishing counseling opportunities for the victims within the health sector, and also throughout patronage system (victim to the system, system to the victim). Health counseling opportunities for the victims within the divorce and child custody procedures should be also provided. Public health program on preventive health care has to scope this activity as a regular one also, as an activity of regular monitoring, evaluation of the health status of the victims (especially women and children) and financing the measures envisaged. 6. Establishing counseling opportunities for the perpetrators within the health sector through Program of treatment of perpetrators (be it in the health sector/institutions or in penal system/prisons, which will be financed by the perpetrators and/or social system, if the perpetrator falls under the scope of the legislation on social care. Specific guidelines/protocol for medical/psycho-social treatment of the perpetrators should have to be established. Current situation of Special psychiatric hospital-Skopje, Psychiatric Clinic-Skopje and other units in General hospitals in country will have to be improved with respect to treatment of dependencies and mental illness when they are the source of problem of the perpetrator (human, financial, facility resources). 7. Compensation of health damage should be exercised throughout the system. Both health professionals/entities and patients, e.g. victims should have to be aware of the possibilities (consensual agreement, out of court mediation, litigation and criminal possibilities) for compensation to be exercised (post delictum). 8. Increasing knowledge by training, providing information, counseling should be provided for the victims of DV.
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Access to justice
Accordingly to Criminal Code and Family Law, victims can report cases of domestic violence to police, a prosecutor’s office, and a centre for social work. Since recently, victims are encouraged to report domestic violence and to use legal remedies. Victims have a possibility to appeal to self-defence as a ground for avoiding punishment when they commit a crime that is a response to the structural violence of which they are the victims. The State encourages the recruitment of female police officers. Accordingly to the Family Law, Article 94g.3.7, centres for social work are obliged to provide free legal aid and legal representation to victims of domestic violence. Access to justice is not as safe and prompt as demanded by international standards. Courts do not use all available legal means to combat domestic violence. Judges mainly prosecute cases of physical abuse, but not those of sexual abuse. Criminal proceedings are lengthy. Sentences for crimes of domestic violence are lower than the minimum prescribed by law, and majority of sentences are acquittals. The burden of proof for domestic violence and sexual offences lies with the victims, and for women it is difficult to prove that they are victims. There are no specialized courts/units on domestic violence. However, there is an increasing tendency to report cases of domestic violence50. Although victims are evidently encouraged to use legal remedies, they are still not well informed about their right to access to mechanisms of justice. Particularly poor women, rural women, illiterate, and Romani women do not know from whom to ask a help. There is information on protection measures and procedures for protection of victims of domestic violence available on the web site of the MLSP, but it seems that it is not sufficient. There is not enough information on minority languages. There have been taken some efforts in providing 50 For example, in Prilep, in 2005 domestic violence makes 0,9% of the total number of the reported criminal offences, in 2006 2,4%, and in 2007 2,6%. Source: Anica Petrovska, prosecutor, report “Penal protection against domestic violence and court practice�, Academy for Training of Judges and Prosecutors of the Republic of Macedonia, p.11.
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information in minority languages, as campaign in Romani and Albanian, but not on a systematic basis. The main characteristics regarding access to justice are incomplete legislation, including laws and by-laws; incomplete data collecting; mild sanctions, often acquittals; complete or partial non-functionality of part of the temporary protection measures; shortage of continuous preventive activities and insufficient response of professionals. Health care sector is important to ease access to justice, firstly with respect to the protection of the health of the victim, and secondly, to collect data both in individual cases (to help the victim to access justice also through civil and criminal proceedings) and on family violence in general (to inform the policy on the measures needed to combat violence through prevention and care for the victims and/or perpetrators). Reporting of family violence to health professionals is not unusual. The other side of the coin is how many the professionals, e.g. the health system works in benefit/protection of the victim, not just providing basic/necessary health care. Victims are not encouraged to report domestic violence and to use legal remedies from the health professionals/sector, nor does the health professionals/health system report it regularly further in the system (social, criminal) for several reasons pointed out by the health professionals: - victim requests health professional not to report (economic dependence; fear for the children; fear for the future; not seeing the solution on medium and long term); - health professional, although obliged by law51 and Art. 32 of the Code of Ethics of Medical Chamber (1992), frequently does not report, not sure whether he/she will attribute to the solution of the overall problem or cause vicious circle. According to health professionals’ knowledge the overall system is not ready to protect the victim from further torture and provide her/him housing, economic and other stability. 51 Law on Health Care, (Art.49); Law on the Rights of the Patients (Art. 38), Law on Family (Art.94), Law on Interior Matters (Art. )
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They are rather more vigorous when it comes to children, when they collaborate with the CSC’s. - health professionals are not adequately protected (personal protection, facility protection) from perpetrators and may be exposed to his violent behavior. The only protection that health professionals are performing on regular basis is health care protection and medical/personal data protection. The new Law on Protection of the Rights of the Patient obliges health professionals/entities to perform legal advice, e.g. inform the patient about the legal remedies and of their right to access to the mechanisms of justice in the health sector. The information will have to be available on the language that patient understand (Art. 8) including Romani. The obligation of the health professional (Art. 22 of the same law) to keep medical dossier/record of the patient where all the findings have to be recorded is important step in collecting evidence on domestic violence and/or sexual offences. According to the Law on Protection of Personal Data, and the Law on Patient Rights (Art. 25, Para 2, indent 5) data from the medical dossier are on disposal of the prosecutors/courts upon their official demand and if justified (aimed to be used for protection of the lives, safety and health of others). As stated above, the procedure for access the rights of the victim within the legal system (social, health, criminal, other) will be much eased if mobile teams are established and if health professional is part of them. According to Family Law, Article 94g.3.7, centres for social work are obliged to provide free legal aid and legal representation to victims of domestic violence. Law on Protection of the Rights of the Patient provides for free of charge legal aid by health professionals and entities (see: 3.3. Procedural provisions and practice with respect to the rights of the patient).
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Conclusions and recommendations Victims should be encouraged to report of family violence to health professionals. There is legal base for reporting of family violence within the health system and with other systems, but in order this to be exercised regularly the overall protection system must be on place and fully operative. Health professionals should be adequately protected (personal protection, facility protection) from perpetrators so that they can perform their duties. Protocols for cooperation of health professionals with police force should be established and operative.
An example of good practice: The new Law on Protection of the Rights of the Patient obliges health professionals/entities to perform legal advice, e.g. inform the patient about the legal remedies and of their right to access to the mechanisms of justice. The information will have to be available on the language that patient understand (Art. 8) including Romani. The obligation of the health professional (Art. 22 of the same law) to keep medical dossier/record of the patient where all the findings have to be recorded is important step in collecting evidence on domestic violence and/or sexual offences. According to the Law on Protection of Personal Data, date from the medical dossier are on disposal of the prosecutors/courts upon their official demand and if justified. The procedure for access the rights of the victim within the legal system (social, health, criminal, other) will be much eased if mobile teams are established and if health professional is part of them.
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3.10. Liability of state officials Accordingly to the Family Law, Art. 94g.1, officials, and legal entities have an obligation to notify the Centre about the acts of domestic violence without any delay. Social workers, psychologists, social care personnel and the other personnel form the educational institutions are obliged to report immediately to the police case with elements of domestic violence or any type of case of injured person in order appropriate measures to be undertaken for planning, registering and solving the case and its connection with the criminal - legal affairs in the competence of the police. Health professionals are also obliged to report/notify acts of violence, domestic violence included, to the police or the public prosecutor accordingly, as described above. Nevertheless, there are no special forms that they use in the reporting procedure. Not reporting family violence for the health professionals means misdemeanor, according to the Family Law (Art. 94-g) and is penalized by fine penalty of 5.000,00-10.000,00 denars (approx. 80-150 Euros) for the physical person/manager, e.g. health professional/manager of health organization and 100.000200.000 denars (approx. 1.500-3000 Euros) for the legal entity, e.g. health organization. In addition, in the health care system there is a range of responsibilities for the health professionals/organizations that are penalized by fine penalties (Law on Protection of Patient Rights). Patient can be remedied financially (compensated) throughout administrative, civil, and criminal procedure. Criminal code penalizes crimes against life, body, and health. Both health professionals and patients, e.g. victims of DV should be aware of these legal provisions, to act accordingly. The Law on Mediation, as mentioned above provides for mediation between health organisation and patient when a dispute occurs, in a rather faster and not so expensive procedure. Mediation is out of court procedure based on the free will of the parties, helped by third neutral person-mediator to resolve the dispute. Mediator cannot impose solution of the dispute (Art.2). 73
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It is of importance that also civil servants are liable for their acts under the provisions of the Law on Civil Servants in performing their duties. It is of particular relevance for the State Sanitary and Health Inspectors who perform surveillance over the Law on Health Care and Law on Protection of Patient Rights, Bureau for Pharmaceuticals and their inspectors when inspecting pharmacies and health organizations with respect to medicaments and drugs, as well as other civil servants employed in the Ministry of Health, specifically counselors for protection of the patient rights. Both fine penalties, criminal charges and other measures are eligible against the civil servants for misdemeanor of this Law. Citizens are also obliged to report acts of domestic violence as any other criminal act. The fine for non reporting is 5.000 denars. There is no data on number of fines / misdemeanors against state officials and professionals due to non reporting domestic violence. Citizens hesitate to report domestic violence, as they are afraid that they may become victims of the perpetrator. They are also afraid that he will set a revenge on them. There is an obligation on the side of the professionals, including in the health sector, to report/notify acts of violence, domestic violence included to the police or the public prosecutor accordingly, and there are fine penalties for the misdemeanor. They have to be well aquatinted with these provisions. There have to be established special forms for the reports. Enforcement mechanism for the Law on Family will have to have well trained professionals in perusing the enforcement of the Law. Enforcement bodies, for example like State Sanitary and Health Inspectors who perform surveillance over the Law on Health Care and Law on Protection of Patient Rights, Bureau for Pharmaceuticals and their inspectors when inspecting pharmacies and health organizations with respect to medicaments and drugs, as well as other civil servants employed in the Ministry of Health, specifically counselors for protection of the patient rights will have 74
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to be trained on gender issues, as well as family violence so that to pay special care while working on enforcement of health legislation. Also they have to know clearly what their liabilities are.
Recommendations: 1. Training all professionals to recognise acts of domestic violence. 2. Training health professionals to recognise early signs of domestic violence (e.g. during the systematic health care controls of children in schools, health examination of women, etc.). 3. Raising awareness of both health professionals and patients, about the legal provisions (health legislation, administrative, civil, and criminal procedure) to act accordingly and protect their rights. 4. The Law on Mediation should be seen as an incentive for faster resolution of disputes 5. Introducing special and unified forms of records (files, evidences) for all professionals.
3.11. Compensation The Family Law prescribes an order to an offender to compensate medical and any other cost arising from domestic violence. It is made possible for victims to receive appropriate compensation for any pecuniary, physical, psychological, moral, and social damage suffered, corresponding to the degree of gravity, including legal costs incurred.
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The amended Law on Social Protection52 gives the beneficiary of social protection the right to compensation for a damage resulted due to discrimination up to five average monthly salaries in the country.
Recommendations: 1. Encouraging victims to demand compensation. 2. Informing victims about this possibility. 3. Encouraging courts to order the perpetrator to compensate costs to the victim.
52
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VI. The Policy Framework in Respect With Domestic Violence 1. Protective measures 1.1.
Governmental services and shelters, hotlines, counselling and rehabilitation programs for victims
The Government provides institutional response to victims of domestic violence as sheltering, and this obligation is regulated by law. The Ministry of Labour and Social Policy allocates funds to support state shelters, and operation of the National SOS line (that is run by a women’s NGO). Centres for social work are obliged to provide necessary shelter for the individual – domestic violence victim for six months at longest, with extension possibility for another six months (Family Law, Art. 94g.3.1). Law on Social Protection introduces centres for victims of domestic violence within centres for social work (Art. 93). Accordingly, these centres are obliged to assure daily and temporary lodging and care for victims of domestic violence up to six months, with the possibility to be prolonged for six months (Arts. 19.8, 9). These centres are also obliged to provide counselling, meals, hygiene maintenance, and cultural activities. There are six governmental shelters that provide temporary housing for victims of domestic violence, and they are equipped for quick sheltering of victims and children. Besides in the capital Skopje, these shelters exist in Bitola, Kumanovo, Ohrid, Kochani and Strumica. Children of victims have specialized assistance, such as childcare and maintenance. Governmental shelters in centres for social work ensure that children who have lived with domestic violence have access to support. Serving as a custody body, they may decide to initiate a measure that is in benefit of children. 77
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Accordingly to the MLSP, the minimal standards are met. The MLSP has adopted the Rules of Norms and Standards for establishing of institutions for social care that include standards for sheltering centres for victims of domestic violence. The biggest shelter is in the capital, Skopje, and has capacity of 20 persons. Other shelters may provide housing for two persons by a shelter. The governmental shelters report the MLSP every 3 months. Beside the institutional response that should carry out the formal response to situations of domestic violence, equally important and essential is the NGOs response to the phenomenon. The following services are provided by NGOs: National SOS line, one Shelter Centre in Skopje, and three Legal Aid centres in Skopje, Tetovo and Stip. Besides the National line, there are several other SOS lines operating within NGOs from different parts of the country. NGO shelters are also equipped to care women with small children. Staff is trained and gender sensitive. Besides sheltering, they provide free legal aid, counselling, free representation before a court, and psychological programs and aid for victims. There are training and capacity building periodically organised for the staff provided by NGOs or international human rights NGOs. They have good cooperation with police. The NGO shelters have had project for economic empowerment of women so to foster their economic independence (training for job interviews, sewing etc.). International donors (EAR) supported these projects. Recognises the importance of economic independence of victims to exit from the circle of violence (leave the perpetrator), the National Strategy against Domestic Violence foreseen a number of activities aimed at social and economic reintegration of the victims, as providing professional retraining and establishing system for mandatory employing of a victims of domestic violence, according which at least 50% of the foreseen subvention working places (Programme for creating working places) for the unemployed women. 78
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State shelters are not open during weekends. The same is on the working days after 16.30 pm. In that period, the national SOS line urgently shelters the victim if needed. NGO shelters are not equipped to care persons with special needs, as elder and disabled persons. NGO shelters have difficulties to get sufficient resources to establish minimal standards. Social services for victims of domestic violence in the country suffer from insufficient human capacities, insufficient financial means, insufficient resources, and lack of expertise. Estimation about the need and accessibility of shelters to all women in geographical distribution differs. The MLSP estimates that shelters are accessible to all women as centres for social work exist throughout the country, so those in small towns can also deal with victims and provide them sheltering. Shelters in the civil sector do not share this opinion and estimate that existing shelters do not meet needs of all women. While the MLSP estimates that governmental shelters meet the minimal standards, the centres for social work stress that they lack space, equipment, vehicles, computers, capacity, human resources, and trained staff. Social workers are overloaded. There are some ideas to point a person on duty for cases of domestic violence. It will help if CSWs will have intervention vehicles, so that they can set duty mobile team for urgent interventions. They also lack psychiatrists for providing rehabilitation programs for victims. It is estimated that the State should pay more attention to vulnerable groups, as elder people and rural women. In the governmental shelters there is no support for women to find a job or to selfemploy, e.g. by cooperation with the National Employment Agency, in order to foster their economic independence. It is evaluated that there is a need for these types of activities and support of women who often cannot leave the perpetrator because they economically depend on him. The governmental support to the activities of the civil sector in this area exists, but it is not sufficient. For instance, the MLSP has provided space for the activities of the NGO Shelter Centre in Skopje, while the costs of services are covered by grants of 79
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foreign donors. Therefore, the provision of their services depends on foreign donors. One of the most urgent issues to be resolved within these services (shelters, hotlines, counselling and rehabilitation programs for victims) is health care. There are several possible solutions to resolve this issue. The standards for shelters (By-Law on Norms and Standards for Establishing and Start up of Institutions for Social Care for Victims of Family Violence53) do not envisage health care as constitutive part of the shelter. It might be an expensive solution, but also the most efficient one (if health professional works there regularly and is available on call). She/he can perform both health care needed on primary health level and mediate/refer the victim to other levels of health care. Now, social workers, to some extent, mediate between the health system and the victim. Mostly, the victim is left alone to manage through the health system according to the rules for any other patient (chosen doctor in PHC, referral to other levels; health insurance card needed and/or financial resources for participation/payment). Other solution might be that PHC practitioners to be contracted by CSC’s to perform the PHC, on the basis of bid (who provides more).PHC practitioners should be trained specifically to perform health services (prevention and control of diseases, medical conditions). Another valid solution is that CSC’s or HIF/MoH issue card recognized in the health care system on every level, as permission for free of charge health care services for the victim. Reimbursement will be done by the social system (CSC’s) to the health organization. Such approach needs good coordination and promotion of this right of the victim in the social care, health care and insurance system. It might be feasible and supported even more with the new IT health system, as the most efficient system. For the uninsured, the Program on Health Prevention and/or the Program on Uninsured should finance their health protection. 53 By Law on norms and standards for establishing and start up of institutions for social care for victims of family violence (Official Gazette, no:33/07)
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However the number of shelters may be sufficient, health professionals should be seen as a point of entry into the system for protection of the victims (firstly health protection, than in coordination with CSC’s-social and other protection). This solution might add some value to the already existing capacities. Especially in the PHC settings in rural areas and small town areas this approach might be less stigmatizing/traumatizing and providing for fewer problems (“everybody knows” problem). It has to be seen just as a complementary approach to the existence and functioning of CSC’s which should deal with the issue of stigma and discrimination on municipality level. As mentioned, health professionals need to be trained continuously and to be also gender sensitive. They also are good point of entry for persons with special needs (disabilities, mental illness) and since they are geographically distributed widely and proportionately (by establishing rural ambulances with the newly endorsed conclusion of the Government54, even more) they will prove to be a real accessible points of entry. SOS lines are also point of entry which should be strengthened with respect to emergency health care, either by establishing protocols for cooperation with EHCS and/or PHC practitioners. At any point persons working on SOS lines have to be trained on essential issues of the health system (whom the best to address in given situation). It is not recommended that these persons perform health care at any point, if they are not licensed health professionals. Counseling services, with respect to health care should be made available, as mentioned, both in the health system and prison system. Rehabilitation programs for victims in the health care vaguely exist. When it comes to the children, than Center for Child mental health-Skopje does some work. Rehab programs for others (as victims) do not exist in the health care setting. They are fragmented into the rehab program for people with mental illness, rehab program for specific disease and injuries-where victims are seen as patient with specific health problem. 54
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There are no specific rehab health services/programs for victims, which will include also child rape, sexual rape/abuse and other forms of domestic violence. Again, possible solutions vary from establishing specific services for victims (the issue of stigmatization derives) or training and awareness rising of health professionals at all levels of health care and every specialization, especially mental health and reproductive health.
Recommendations: 1. Ensuring sheltering for victims of DV accessible 7/24 throughout the country, particularly for the groups at risk, as rural women, minority women, etc. 2. Ensuring that shelters are well equipped, including to care persons with special needs. 3. Securing budget lines for both state and NGO run shelters. 4. Ensuring that shelters are guarded, so protected from perpetrators. 5. Ensuring free and quick access to health care and health counselling for sheltered victims, including victims of sexual abuse. 6. Developing special rehabilitation programs/centres for victims of sexual abuse. 7. Training health care workers and raising their gender sensitiveness in order to provide proper services to victims.
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Rehabilitation programs for offenders
The Family Law prescribes rehabilitation programs for perpetrators. These programs are foreseen to be implemented as protection measures: - to attend relevant counselling; and - a mandatory treatment provided that the offender is an alcoholic or abuser of psychotropic substances, or suffers a disease. Bbudgetary support for these services may be given through the social care system (if they do not have any specific health disease and/or condition when health care system finances the program- for example-mental illness). Mechanism for forcing perpetrators to enter such program exists. Namely, if the court orders protective measure for treatment for alcohol abuse, than refusal is considered as misdemeanor, e.g. not obeying court order and is punishable by the law. There are no obstacles for providing health rehabilitation programs for offenders (both in the health care setting and/or prisons). The programs have to be established (protocols) and staff trained. When it comes to the diseases of addiction there are programs, but specifically for the victims there is none. Specific programs for perpetrators are stipulated by legislation, but his type of service and program is not established yet. Every interviewed person has stressed the need and importance of these rehabilitation programs that are not in function until now. However, no one could estimate costs for establishing and functioning of these programs. The Shelter Center Skopje has initiated this program at the MLSP this year, while the training for the staff will be provided by the Dutch NGO Aim for Human Rights.
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Recommendations: 1. Establishing rehabilitation programs and counselling for perpetrators, as provided by the Law. 2. Training the professionals for running these programs. 3. Using the good experiences of other countries in running these programs and in training the staff. 4. Establishing budget lines for running these rehabilitation programs. 5. Establishing and developing cooperation with the civil sector in running these programs.
1.3.
Education and training for professionals, including healthcare proffessionals
The State provides training for professionals on prevention and intervention related to violence against women, including domestic violence, but it is not organised on the systematic and regular basis. A number of trainings have been organised until now for social workers, judges, prosecutors, lawyers, psychologists, police officers, media professionals, and health care workers. They have been organised by NGOs or in the collaboration with NGOs. In 2004-2005, the MLSP, in cooperation with the UNICEF, has organised two cycles of multisectoral training for dealing with victims of domestic violence for professionals working in social care, health care, police, judiciary, and civil sector. In total 86 professionals passed the training The Academy for Education of Judges and Prosecutors, the public state institution for advanced training of judicial professionals established in 2006, has included the issue of violence against women, including domestic violence, in its program. This issue is included in program of the training of newly appointed judges, while this training of experienced judges is facultative. 84
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In 2008, until now the Academy has organised three training modules. The issue of non-discrimination has been included in the training module in 2008. The program focused on introducing the most important international documents in this field. One seminar of this Academy within the criminal legislation, organised in March 2008, was devoted to the issue of domestic violence. The program included presentation of issue of discrimination, the specifics of giving opinion by experts, the role of health care institutions for minors and centres for social work, ordering and implementing protection measures, institutional responses to domestic violence, civil and penal system of protection, procedures, collecting and presenting evidences, etc. In the last period, the MOI is also undertaking activities for education and training of the police officers on how to react in the cases of reported domestic violence, protection of the victims of domestic violence, as well as appropriate protection of the police officers who are undertaking certain official actions. The training of the police officers in this period is developing according to the working program of the MOI as well as appropriate programs of the nongovernmental sector and the international institutions, but there is no obligatory training of the personnel that deals with domestic violence. The program of the Police Academy and other educational institutions in their curricula includes the human rights education, the women’s issue, and the gender issue as well. The program of the Police Academy treats the issue of violence against women and domestic violence in several subjects. The Government, according to its Working program, shall support the development and the education of the basic program for training the professional personnel who shall work on this issue, and within the MOI Bureau for public security, a Centre for basic training of the police personnel shall be established, where in the curricula these issues shall be treated appropriately. This issue can be realized in the next educational course for newly employed police officers (not later than in the beginning of the 2009). 85
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The Sector for Gender Equality within the MLSP has a mini project on training on raising gender sensitiveness of social workers, police officers, and health care workers. It will be implemented until the end of the year. However, there is no sufficient financial means secured until now. There will be 2 two days seminars for 2x20 professionals. These training should be systematically organised by the State. In addition, the Sector for Gender Equality works on gender training of teachers (up to 4rd grade) and on training aimed at elimination of stereotypes. The notions of gender based discrimination and violence are not considered as relevant issues that professionals should be trained for. There are no educative subjects related to sexual violence. Education of health care professionals, although very complex, does not scope family violence as such, or gender perspective, nor in the secondary medical schools (nurses), nor at the faculties. There is no continuous medical training at place at all. To fulfill the gap, firstly training should be performed on DV and gender issues accordingly, and secondly DV should become part of the regular curricula of medical schools and faculties. Following the adoption of the new domestic violence regulation, the Government has started to introduce this issue in advanced training of professionals in almost all relevant fields (social protection, judiciary, police, health care section, etc.). The training is provided by the state institutions, as well as with the cooperation with the civil sector. However, training for state officials and professionals on prevention and intervention related to violence against women, including domestic violence, it is not organised on a systematic and regular basis until now. This issue is introduced in the curricula of the Academy for Training of Judges and Prosecutors, and steps have been made for introducing it in the curricula of the Police Academy. The notions of gender based violence and gender based discrimination have not been considered as relevant issues that professionals should be trained for. A number of seminars has been organised aimed at raising gender sensitiveness of the state officials and professionals.
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The gaps are noticed in education and training of health care professionals, and teachers. Fallowing the endorsement of the Law for Protection of Patient Rights, also counsellors for patient rights should be adequately trained, as well as State Sanitary and Health Inspectors who are in charge for surveillance of the “healthcare “ legislation.
Recommendations: 1. Including the seminar program of the Academy for Training Judges and Prosecutors on domestic violence more space about gender based violence, forms, causes, and consequences. Due to fact that majority of victims are women, while majority of perpetrators are men, gender sensitiveness of all professionals dealing with victims and cases of domestic violence is of high importance. 2. Including the topic of domestic violence in program of training in all levels, including programs for senior judges and prosecutors. Domestic violence has been recently introduced in the Criminal Code, and for its proper implementation it is crucial that the judicial professionals are well trained. 3. Taking all necessary measures to provide regular training on the Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol thereto to judges, lawyers and law enforcement officials 4. Bridging the gaps in the education of health care professionals through adequate curricula (DV issues inserted) 5. Fallowing the endorsement of the Law for Protection of Patient Rights, also counsellors for patient rights should be adequately trained, as well as State sanitary and health inspectors who are in charge for surveillance of the “healthcare “ legislation.
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1.4.
Specialized units to respond the cases of domestic violence
There are no specialized units to respond cases of domestic violence. The new Strategy on Protection against Domestic Violence clearly points out the need to establish them. Health professional should be included in the unit. There are no specialized services that are dealing with domestic violence in police, too, but a National program is adopted in order to harmonize the legal regulation, originating the need for establishing the specialized institutions that treat the issue of domestic violence. From the legal regulation shall originate appropriate by law acts in order to implement the laws (Handbooks, Procedures, etc.).
Recommendations: 1. Establishing specialised units to respond cases of domestic violence, as pointed by the National Strategy against Domestic Violence. 2. Include health professional in the unit.
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2. Preventive measures 2.1. National Action Plans and Strategies The State has both National Action Plans on Gender Equality and the National Strategy on Protecting against Domestic Violence. By adopting the Declaration for Combating Violence against Women, Including Domestic Violence (24 November, 2006) the Parliament declared commitments for combating all forms of violence against women, including domestic violence, By this Declaration, the State joined the pan-European campaign of the Council of Europe in 2006 for eliminating violence against women. The National Action Plan on Gender Equality for 2007-2012 was adopted in June 2007. This is a strategic document of the Government that defines the goals, measures, indicators, key policy makers, and stakeholders for improvement of gender equality in various areas of life. The basic goal of this document is to improve the status of the woman and to provide continuous development in implementation of gender equality. The Operational Plan for 2008 for the implementation of the National Action Plan on Gender Equality has been adopted in January 2008. The National Action Plan on GE addresses, amongst other, to the issue of women and violence. The main strategic goals in this area are: - To upgrade the level of information, strengthen the public awareness and educate about the problem concerning all types of violence, - To improve and efficiently implement the legislation, the institutional protection and coordination and, cooperation in fight against violence, - and to prevent and protect women and children, victims of human trafficking. These goals include the issue of combating and preventing domestic violence. Regarding this specific issue, in the first year of its implementation (2008) it was planned to create and implement programs/strategies for fight against family violence. This specific goal has been recently realised, by adoption of the National Strategy on Protecting against Domestic Violence. 89
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The general goal of the Strategy for protection against domestic violence is decreasing of domestic violence and improvement of the quality for protection with systematic measures in the areas/ domains of prevention, intervention, education, follow-up and inters sector coordination. The specific goals are defined as following: a) Establishment and development of multi-sectoral coordinative approach for protection of victims of domestic violence b) Prevention of the domestic violence issues through the educational process c) Education of professional structures d) Improvement of the system for protection of the victims of domestic violence e) Improvement of the civil protection system f) Improvement of the criminal protection system g) Introducing a system of documenting and reporting on cases on domestic violence by all the relevant institutions h) Establishment of mechanisms for implementation of the Strategy. For each goal, the relevant results, activities, responsible ministry/ institutions, and period of implementation are defined.
The Government expects to achieve the following results until 2012: • Established cooperation and coordination of activities of the relevant institutions on local and central level • Determined factual situation for the current educational contents, plans and programmes from the aspects of the rights of the children for safe learning, progress and nondiscrimination • Increased security and protection from violence in the educational institutions • Amended curriculum in the educational process which is addressed towards the matrix of values concerning the gender issues 90
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• Determined rate of DV on children and rate of violence in relationship at the high school population • Increased information of the youth (primary, high school student and out of school population) for recognising of interpartnership violence • Increased information of the existing school personnel for recognition of the domestic violence. • Incorporated contents for recognition of domestic violence and the existing system of protection in the educational process of the future teachers • Increased information of the police servants and initiations of reporting criminal acts that refer to DV • Increased sensibility, knowledge and skills of the professional structures (public prosecutors and judges), in the part of providing material evidence for committed acts of DV, as well as in the part of sentencing more severe punishments (foreseen by the law) for the perpetrators of DV • Increased knowledge and skills of the social workers on the proceedings in cases of DV • Trained professionals for work with perpetrators • Trained health professionals for early detection of signs of violence and appropriate intervention • Determined prevalence of the DV among elderly people • Improved legal frame regarding the system of protection • Social and economic reintegration of the victims of domestic violence (marginalized groups) • Organizational structure of the Centres for social care for the effective proceeding in domestic violence cases improved • Capacities of the governmental and nongovernmental sectors for providing services for the domestic violence victims determined • Increased level of information of the general population for the services that are available in the protection system and in the civil justice protection system • Positive legal framework and proceeding of the relevant institutions in regard of the Civil restraining orders improved • Increased efficiency in conducting of the civil restraining orders • Improved legal / bylaws framework for providing appropriate criminal justice protection of the victims, sanctioning, and re -socialization of the offender. 91
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• Level of informing of the general population for the legal regulation of domestic violence, particular for physiological and sexual violence, and for the criminal justice protection system, increased • Factual situation and way of the proceeding of the police officers in the Civil restraining orders determined. • Factual situation as regard to the penalty policy for the offenders, as well as timeline and way of proceeding domestic violence cases from the public prosecuting offices and basic criminal courts, determined • Designed system for documenting and reporting on cases of DV • Designed system for obligatory and continuous reporting and monitoring of the conditions in every department • Effective and coordinated implementation of the strategy by all relevant institutions on national level • Effective implementation of the strategy by all relevant institutions on a ministerial level. The Strategy defines the institutional framework for its implementation and introduces the National coordinative body for the coordination of all relevant Ministries (the Ministry of Labour and Social Policy, the Ministry of Justice, the Ministry of Interior, the Ministry of Education and Science, and the Ministry of Health. In the same time, special coordinative bodies will be established on a ministerial level in each of the relevant ministries. The Strategy indicates that the Government recognises domestic violence as a form of discrimination against women that is the public matter. It puts the focus on preventive activities that was weak point of the governmental activities in this field until now. The Strategy does not provide the definition of domestic violence. The definition is aligned with the one proscribed in the Criminal Code (see: relevant definitions) with the latest amendments of the Family Law (Official gazette, no.:84/08) to the extent that now the definition from the Family Law is wider. This may cause curtain problems in implementation. Regarding the institutional framework for its implementation, it 92
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is foreseen to have the National coordinative body consisted by the representatives of the five relevant ministries, with rotating presidency. This is not good solution, as in this case this means that no one (ministry, Minister) will be in charge (as the holder of responsibility) for the implementation of the Strategy. The Sector for Gender Equality is not included among the institutions responsible for the implementation of the Strategy. Health activities are not scoped to the extent needed/health is not scoped as cross cutting issue in all other areas. It is not foreseen to develop a joint National Action Plan for the implementation of the Strategy. Each Ministry will develop (or already have) its own Action Plan for its implementation. Strategy does not contain the obligation of regular annual reporting to the Government and the Parliament Gender equality mechanisms are not included among the mechanisms in the institutional framework. It seems that it is expected that specific sectoral action plans will resolve the situation with setting up the stage for sectoral and inter-sectoral activities (setting up indicators, M&E procedures, budgets-though the overall one is already set up by the Strategy and may pose curtain constraint to the implementation of the Strategy itself-especially since sectoral budgets are not at place, at least there is none in the health sector). It seems that the reporting should start from the relevant sector coordinative committees to the National one headed by the Minister (LSA and MI respectively). They will report to the Government, though there is no formal request for it in the Strategy. The staff responsible for the implementation should be trained and gender sensitive and since the Strategy has been just endorsed this should remain as a recommendation. The Strategy has not been publicised and promoted yet. The Strategy against Violence envisages a budget of 3.000.000,00 denars for 2008 and 6.000.000,00 denars for the rest of the period for implementation, but for the overall activities, not just for activities against violence against women. National Action Plan for Gender Equality (2007-2012) envisages yearly and 93
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triennium working plans with separate budget lines, but it does not specifically mentions figures. A systematic review of convictions for women currently serving prison sentences for killing their abusers is not envisaged by the Strategy against Violence. Parliamentary Commission for the protection of human rights and freedoms in this area does not have any specific activity with respect to domestic violence, although implementation of CEDAW instrument is one of their fields of work. Much more interested in the issue seem to be Woman Parliamentarians, lobbying for gender equity and against domestic violence as gender based violence, which is rather not well understood in the overall setting of the Parliament, but also elsewhere, with some exemptions. Both Strategy and National Action Plan on Gender Equality should be seen as over arching strategy amongst all others, including the one against domestic violence (see: III Cross cutting issues) The Government made huge step forward in complying with international standards with respect to combating domestic violence by adopting the National Strategy in this field. However, certain shortages have been found that may undermine its efficiency and realisation of the expected results.
Recommendations: 1. Clearly nominating one Ministry/Minister for the presidency of the coordinative body, namely the MLSP as the most responsible Ministry in this field. 2. Including the Sector for Gender Equality in the list of the institutions responsible for the implementation of the Strategy. 3. Including gender equality mechanisms at all level in the institutional framework of the Strategy. 4. Including the Parliamentary Commission for the protection of human rights and freedoms in this area, as implementation of the CEDAW instrument is one of their fields of work 94
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5. Developing and adopting one joint Action Plan for implementation of the Strategy. The joint National Action Plan is needed to have an overview of all relevant actors with their responsibilities and duties, budgets, indicators, and timeframe for implementation. 6. Informing the public about the adoption of the Strategy and its content (in the media, disseminate to NGOs, women’s groups, shelters, etc.). 7. Providing definition of DV in the Strategy (or reference to the definition in legislation) 8. Training and developing capacity of all staff responsible for implementing the Strategy. 9. Including systematic and regular review of legislation related to DV in the Strategy. 10. Including regularly information of the public and the media on implementation of the Strategy. 11. Including regularly awareness campaign run in cooperation with NGOs.
Complementarities of the national strategy on protection from domestic violence with other strategic and policy documents National Strategy on Protection from Family Violence complements few strategic documents in other areas, health included. In the area of health, some relevant documents are already endorsed and some are in either drafting procedure or are in the procedure of endorsement: 1. Strategy Against Alcohol Abuse (2008); 2. Strategy Against HIV/SIDA (2007-2011); 3. Strategy Against TB (2007-2015); 4. Strategy on Tobacco Control (endorsed in 2002); 5. Strategy on Mental Health (2005); 6. Health Care Strategy (in drafting phase) 95
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7. Strategy on Non-Communicable Diseases (in drafting phase) 8. Strategy on Youth and Adolescent Health (in drafting phase) 9. Strategy on Palliative Care (in drafting phase) 10. Strategy on Reproductive Health (in drafting phase) Other relevant documents that may be perceived (and used) as an instrument for furthering consorted and integrated efforts against family violence are: 1. Strategy on Collaboration of the Government with Civil Sector (2007-2011), 2. Strategy on Integration of the Republic of Macedonia in EU (2004), 3. National Program Against Human Trafficking(1999), 4. Strategic Plan of Action of Ministry of Interior (20072010), 5. National Plan of Action for Children (2008), 6. Economic Program of the Government of the Republic of Macedonia 7. Strategy for Dem ographic Development of the Republic of Macedonia (2008-2015) 8. Strategic Plan of MLSP (www.mtsp.gov.mk) , 9. Strategy on Roma in the Republic of Macedonia (www.mtsp.gov.mk), 10. National Strategy on Employment-2010 and national Action Plan on Employment (2006-2008) (www.mtsp.gov.mk), 11. Program for Social Inclusion (MLSP) (www.mtsp.gov.mk), 12. Program for re-socialization and reintegration of childrenvictims of human trafficking (MLSP) (www.mtsp.gov.mk), 13. Program for development of the Child Protection (2008) and others. Although all of the national policy and strategic papers stress the importance of prevention, awareness raising, knowledge improvement (education, training), improvement of the current legal framework, improvement of the overall capacities (human, financial, organizational), access to services, importance of the 96
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NGO involvement, local-community role, media role, etc.. What is generally lacking is: - establishing indicators for success/or failure, - establishing budget lines for specific activities, - gender equality approach, - specific measures against domestic violence as cross cutting issue, - effective M&E mechanisms - implementation.
Recommendations: Endorsing and/or putting into practice the documents relevant to DV.
2.2.
Education of children and young persons
The gender sensitive school education and curricula free of gender stereotypes and prejudices is at the starting point. Educational programs targeted at men and boys to prevent violence and eliminate gender stereotypes are not developed. There is the citizens’ education in schools, but it does not include this issue. Therefore, it is encouraging that the National Strategy for Protection against Domestic Violence has included the prevention of this violence through educational process, as one of the specific goals. In this regard, the following activities are foreseen to be implemented in coming years: - Conduction of analysis of the educational curriculum contents, plans and programmes - Preparation of recommendations to the relevant institutions for the amendments of the contents in the coordination with the Convention for the rights of the children and a plan for its application - Preparation of a research for the situation with violence of children in schools - Adoption of the recommendations and its implementation 97
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- -
- - - - - - - - - -
in the action plan for children’s protection in the schools at the territory of the country Conduction of analysis of the curriculum in the primary and high schools for the matrix of values concerning the marriage and family relations Formation of an expert body, consisted of expert organisations, institutes and research centres in cooperation with the Bureau for development of education and preparation of appropriate curriculum for the rights of children and the family Adoption of the proposed changes and their amendments in the curriculum programme for primary and high schools concerning the gender issues Conduction of research for the rate of domestic violence on children Conduction of research for the rate of violence in relationship at the high school population Distribution and promotion of the results of the research for the rate of violence in relationship in the schools Preparation of educational-information programme for awareness training for the types of violence and their on time recognition Conduction of trainings for peer-educators Conduction of the programme for raising awareness among the students in the primary and high schools as well as in the community. Preparation and distribution of information materials and video spots with youth participation. Conducting of training in the primary schools Introduction of curriculum at the faculty of pedagogy.
In addition, the Ministry of Education and Science will harmonise the educational program with the law on Gender Equality and to make the analysis of curricula and textbooks from gender perspective in elementary school. The Sector for Gender Equality is working on gender training of teachers up to 4th grade and on elimination of stereotypes.
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Media
Media is very important factor in combating discrimination against women and domestic violence. Traditional stereotypes and prejudices on men and women that are present in media perpetuate gender inequalities and contribute to persistence of subordinating position of women and violence against women. This fact is also highlighted in the latest study of ESE (2008:183) about DV and national response to DV. Accordingly, in the country there is a high level of acceptance of the values that increase the risk of domestic violence. However, this fact is not sufficiently recognised by the policy-makers. Media is regulated by the Law on Radio Diffusion Activities55. Art.68 regulates the principles for establishing and emitting specific programs, among others: development of human and moral values of human being; privacy protection; respect for the human dignity; equity/non discrimination based on genderamongst other; objective and impartial transfer of events based on equal approach to different standing points, etc. There is no penalty for infringement of this provision. Radio Diffusion Council however, may revoke the license if it assess that the program emitted infringes the provision. Penal provisions envisage fine penalties for: emitting programs which contain overdose of violence or other programs that may seriously endanger physical, psychological and moral development of minors; emits programs with pornographic content (proscribed as obligation under Art.70); emits advertisements of alcohol products and/or medicaments(contrary to established rules). Media falls under the Law on Protection of Personal Data too, as well as under the Criminal Code with respect to crimes that can be done through media. Media still do not go behind sensationalistic presentation of cases of domestic violence. The dignity and personality of women victims of violence are not respected. Usually, media simple report on specific cases of domestic violence with no protection of privacy 55
Law on Radio Diffusion Activities (Official Gazette, no.:100/05)
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of victims, even if they are minors. On the other hand, there are no measures taken to ensure that the media promotes respect for women and their suffering. The media does not recognise domestic violence as an issue of public interest and an issue of human rights violation. Information about women rights and the measures to protect them against violence, about police and legal intervention, and about services available for victims have not been disseminated in all relevant languages on a regular basis and using media to reach all women throughout the country. There have been activities of women’s NGOs in this respect, but not on regular basis. Women’s NGOs complain that the media use not to publish their materials that they disseminate during the international campaign 16 days of activism against violence against women. If publish, this is on a personal and friendly basis. Some media even demand from NGOs to pay for this information, as for advertising. Women’s NGOs and the Sector for Gender Equality within the MLSP have organised a number of training for sensitising the media, but with no visible effects until now. The training are organised on sporadic basis, and the problem is that editors do not attend these training, while journalists use to attend them. The Law on Gender Equality orders the media, among other institutions listed in the Article 44.4, to deliver plan of activities for promotion of gender equality with special measures to the MLSP in a period of one year form the day came in force. Although the Law was adopted two years before, there is no notion that the media has satisfied this obligation, or that any media has been sanctioned for this omission. There is the Code of Conduct for media professionals, but it does not include rules for eliminating gender stereotypes and sexisms in the media. The Broadcasting Council does not deal with this issue. The obligation to treat with caution victims of crimes, particularly in cases of sexual violence, is not respected, despite the provisions of the Law on Personal Data Collection and of the Law on Radio Diffusion, as well as the ethical codes of conduct. Media schools do not offer mandatory education on gender issues. 100
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Since media has very important role in the overall activities against DV, it is of utmost importance that the Law does not provide for any ambiguities (overdose of violence, for example) and provides for specific penalties for the cases when victims of FV are not properly treated by journalists (respect for human and moral values of human being; privacy protection; respect for the human dignity; equity/non discrimination based on gender-amongst other; objective and impartial transfer of events based on equal approach to different standing points) in the course of covering the specific event. It is not just protection of personal data, but far more serious problems which may lead to further victimization of the victim and health harm. Media are envisaged by the Strategy against Violence as temporary member of National Coordinative Body. This should be revised and targeted by sectors plans accordingly. There is intention within the Coordinative Body on Violence and Health (within MoH), a journalist to be permanent member. Although playing very important role in shaping public opinion and values and opinions of individuals, as well as in perpetuating gender stereotypes, media has not been included in the policies against domestic violence. Media still do not go behind sensationalistic presentation of cases of domestic violence, and by a rule, do not respect dignity and privacy of victims, even if they are minors.
Recommendations: 1. Recognising the role of media in combating violence in general, domestic violence, and discrimination against women. 2. Including media in all policy documents dealing with these issues. 3. Using media regularly to publicize results of the research in this field and inform the public with new finding (e.g. on the costs of DV) 4. Including training of journalists and editors on importance of combating domestic violence and violence in general. 101
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5. Raising gender awareness of journalists and editors, and their recognition that DV is morally and socially unacceptable phenomena that undermines women’s human rights. 6. Punishing media who violates the Law on Protection of Personal Data and the Law on Radio Diffusing Activities by breaching respect for the human dignity and privacy protection of victims of DV. 7. Initiating amendments to the Code of Conduct to include elimination of presentation of sexism, prejudices, and gender stereotypes. 8. Ensuring that media regularly delivers plans of activities for promotion of gender equality as provided in the Law on Equal Opportunities between Women and Men. 9. Regularly organising press conferences, issue statements and inform the media about the activities related to implementation of the Strategy on Protection against DV and implementation of the DV legislation, research and data on prevalence of DV, its causes and consequences. Regularly informing media about legal changes and outcomes/results of the policy in this field. 10. Including media in the awareness raising campaign against DV. 11. Including media with related activities and measures (as above mentioned and others) in the national Strategy on Protection against DV 12. Undertaking measures to ensure that the media respect and promote respect for women.
2.4.
Awareness raising
The government informs the public about the policy, legislation, measures and activities in this field by making Information available at the web site of the MLSP. Until now, there have been several campaigns organized or supported by the Government about awareness rising to make domestic violence morally and socially unacceptable. However, they are not conducted on systematic basis. Periodically, the government supports the campaign by announcing a tender for a support in this field. However, the procedure is usually lengthy. In 2008, the tender 102
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was published in March, but the results have not been published until now, although the grantees should report on their projects until the end of the year. NGOs organise campaign on periodical basis, accordingly to grants they receive for their projects. There is no continuity in this field. As the Strategy on Cooperation with NGOs has been recently adopted, the expectations are raised that the non-governmental awareness raising campaigns in this field will be supported on more systematic basis. Despite these lacks, campaigns have produced good effects. As a result, the number of reported cases of DV has increased, even from communities with high traditional values, as the Albanian population and rural areas. The Government does not undertake systematic activities aimed at awareness rising on prevalence of DV, as well as on raising gender awareness. There have been several campaigns organised or supported by the Government, there has been some cooperation with NGOs, but these efforts are not sufficient.
Recommendations: 1. Undertaking awareness-raising measures, including a campaign of zero tolerance, to make such violence socially and morally unacceptable 2. Regularly inform the public about the results of the research on prevalence of domestic violence, and the costs of domestic violence
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VII. Monitoring 1. Statistics and data collecting Data collecting: Despite evident progress in legislation, there is still a lack of official statistics on domestic violence. As reported, there are no official statistical data for this type of violence. Likewise, governmental institutions that are in contact with this phenomenon (centres for social work, courts, and health institutions) do not have appropriate statistics on unique data set that will allow comparison and monitoring of this phenomenon (Republic of Macedonia. Ministry of Health, 2006:86). There can be found data about the reported, investigated, prosecuted and sentenced cases of domestic violence. However, the data is still not collecting on uniform way. In addition, these data are more indicators of the work of courts, prosecutors’ offices and other criminal institutions, rather than it is the indicator of the real level of criminality / DV56. Dark number of DV is still unknown. The statistical data kept at the MoI are classified by perpetrators of various categories of offences, and not by sex, just data about victims are gender disaggregated.57 56 Accordingly to the data given by the MoI, in the country there were total of 380 criminal acts and 770 misdemeanors with elements of domestic violence registered in 2007. In the first three months of 2008, there were total of 77 criminal acts and 128 misdemeanors with characteristics of domestic violence registered. These numbers show the number of registered cases, but to get the picture about the prevalence of DV and effects of the legislation to DV, a lot of indicators is missing, as rate of reported/prosecuted/dismissed/penalized/ sanctioned cases of a) physical violence, b) sexual violence, c) psychological violence; the share of female and male victims in all these groups; the share of female and male victims/perpetrators; rate of multiple forms of DV; rate of repeated forms of DV; rate of sexual violence against children; rate of DV against disadvantaged women; rate of victims in rural areas / urban areas, etc. 57 The Former Yugoslav Republic of Macedonia. “Combined initial, second and third periodic reports of States parties: The Former Yugoslav Republic of Macedonia.� Report submitted under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women, 5 August 2004. p. 19.
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Shelters and women’s NGOs collect data and make evidence about the cases they deal with, but it is not done on systematic and uniformed basis, so it is not possible to summarize the data. There is no systematic cooperation in collecting data between the governmental and the civil sector. There was no data on violence against women within the latest four official reports of the Ombudsperson office. The same can be outlined for the report of the Litigator for equal opportunities. There are neither available data on gender based discrimination in the official report (Varesano, Friscik, & Trochu-Grasso, 2008:8). There is no official statistics on DV. Governmental institutions that gather data on DV, victims and perpetrators do not do that on systematic, clear and uniform approach. The governmental institutions do not lead periodical surveys/polls on victimization and on specific criminal offences related to domestic violence. There are scarce data about victims (age, employed/unemployed, disability, nationality, refugee, and other status) and their relations with perpetrators. No unified records at health care and social care institutions. No data on incidents of DV committed by police officers, military and other officials who are entitled to carry and possess firearms by their professions. The Government should take more efforts to collect data on DV, victims and perpetrators on systematic, clear and uniform way. The legal reform should be accompanied with the reform of the state statistics and data collecting. The real picture in this area cannot be provided without developed and unified record keeping and data collecting by all relevant institutions and organizations, and their cooperation in this area, as a basis for establishing and implementing indicators for measuring domestic violence.
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Recommendations: 1. Undertaking reform of state statistics and data collecting on DV 2. Applying additionally techniques to identify real level of prevalence of DV (dark number), as pools on victimisation, ethnographic methods, etc. 3. Developing unified methodologies for collecting data, developing instruments and clear definitions, to permit the identification of resources earmarked for this problem and the evaluation of initiatives to tackle it 4. Undertaking regular poll on victimisation 5. Unifying and linking system of reporting of all relevant actors (medical workers, social workers, police officers, shelters, SOS lines, etc.) 6. Ensuring strong collaboration and partnership with the civil sector 7. Developing unified methodology that would enable international cooperation. 8. Introduce statistics on victims and perpetrators and their relationships in courts statistics, police statistics, statistics of CSW, health care institutions, prosecutors’ offices. In their annual reports, include but not limited to, the total numbers of reports/cases, the number of reports made by the victims of each sex, the number of reports investigated, the average time lapse in responding to each report, the type of police action taken in disposing cases including the number of arrests, etc. Collect all relevant data necessary for a complete analysis of all the circumstances leading to incidents of domestic violence.
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Data collections in the health system In general, in its present state health statistics in Macedonia is meeting neither the national nor the international requirements as they are expected to be met at the present time. It should respond to requirements of EU, which are of relevance to DV: -
to implement internationally comparable indicator list, is the ECHI-2 list.
-
to keep mortality statistics – following the principles previously already introduced by the WHO – mortality by selected number of causes of death reported in detail; 2. hospital morbidity statistics – reporting on the hospital discharges by diagnoses and by demographic characteristics of patients – it is explicitly requested that this be done based on single record registration,
-
to introduce health interview surveys, based on the experience of WHO (EUROHIS) and further developed by Eurostat,
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to perform a comprehensive overview of health professional groups in the country with a detailed stratification by gender, age group, field of work, type of service, etc.
-
to fully implement the adapted OECD methodology on health accounts.
The setting at present has the following key partners and stakeholders: 1. 2. 3. 4. 5.
Ministry of Health Institutes for Health Protection Health Insurance Fund National Statistical Office Institute of Occupational Health and Institute of Epidemiology 6. State agencies – for data protection, for free access to public information 7. Other actors – the Medical Faculty in Skopje, professional chambers (especially the Medical and the Pharmacists) 107
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Domestic violence is not reported as such. There are no specific forms and indicators developed in the health system of collecting data on FV. Data are collected according to MKB-10 classification. There is an opportunity to include FV in the form for injuries, as a cause of the injury, but it rarely happens. The overall collecting of data suffers from underreporting due to the deficiencies stated above, but also because of the law motivation of the health professionals to administrate the reporting procedure (fulfilling forms). An example of good practice is introducing financial incentives (0,2% from the overall payment of the HIF to the health professional is earmarked for exercising reporting) Specific indicators on DV should be developed and forms also in the reporting system in the health sector. The new law provides for excellent opportunity to correct the data collection and reporting system in health sector.
Conclusions and recommendations: 1. Assuring stable and transparent means of financing of the reporting system. All the parts of the health reporting system, which encompass health data, should be financed from one source – the MoH public health budget of the national budget. Social statistics could access the necessary data through data repositories or mines with common data sets. On the other hand, health care should have the access to data from other sectors, when required so and when optimising the potential analytical output. That is especially true of the labour statistics, including absenteeism, occupational diseases and injuries at work, but also of invalidity, injuries in general (especially related to traffic and domestic violence), unemployment, education and other proxies of social status, which can add to the comprehensiveness of the analyses. 2. Facilitating the provision of socio-economic indicators for the needs of health care and public health through the new law. 3. Assessing of the overall national needs for DV related health statistics 108
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4. A set of data relevant to domestic violence should be properly set, so that the system regularly can record the problem and data can inform further policies against domestic violence. To this and, indicators will have to be developed appropriately. 5. A methodology on assessing and measuring the burden of family violence for the individual, family and society will have to be developed, so that cost-effective policies can be developed further on. 6. The overall collecting of data suffers from underreporting due to the deficiencies stated above, but also because of the law motivation of the health professionals to administrate the reporting procedure (fulfilling forms). An example of good practice is introducing financial incentives (0,2% from the overall payment of the HIF to the health professional is earmarked for exercising reporting)
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2. Supporting research and monitoring Until now, the Government has not put efforts in supporting the research in the field of domestic violence, its prevalence, causes, and consequences. All the existing research has been done by NGOs and experts in the field, with the support of international donors. Existing research: 1. Caceva, Violeta, et al. Report on the implemented field research on the subject of: Domestic Violence. Ed. Marija Stankova. Skopje: Association for Emancipation, Solidarity and Equality of Women of Republic of Macedonia - ESE, 2000. 2. Chacheva, Violeta, Jasminka Friscik and Stojan Mishev. Life in a Shadow. Skopje: Association for emancipation, solidarity and equality of women of RM - ESE, 2007. 3. Gancheva, Yordanka, ed. The costs od domestic violence against women in fry Macedonia: a costing exercise for 2006. Skopje: Economic policy research institute, 2008. Besides the Survey “Live in Shadow� which focused on domestic violence prevalence and institutional response to it, done by the NGO ESE, there are no other comprehensive surveys or analysis (governmental or nongovernmental) on prevalence, complaint and conviction rates of the different forms of gender based violence (Varesano, Friscik, & Trochu-Grasso, 2008:8). There is also few unpublished research on this topic, as on the implementation of international standards in field of domestic violence in Macedonia, done by ESE and UWOM, and on firearms possession and domestic violence legislation in Macedonia, done by the support of the SEESAC. The newly adopted National Strategy on Domestic Violence indicates that the Government slowly shows interest to research the problem and to systematically record and study. The Strategy foresees several researches to be conducted in this field, primary aimed at raising awareness and education of children and youth: - Conduction of analysis of the educational curriculum contents, plans and programmes, 110
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Preparation of a research for the situation with violence of children in schools, Conduction of analysis of the curriculum in the primary and high schools for the matrix of values concerning the marriage and family relations, Conduction of research for the rate of domestic violence on children, Conduction of research for the rate of violence in relationship at the high school population.
Until now, the State has not paid attention to supporting research in this field. Regarding the State monitoring, it has been poorly conducted. The international obligations of the State in respect with the CEDAW and the CAT set the duties to monitor the compliance of the national legal and policy system and to report the relevant UN committees. The Concluding comments of the both committees have prescribed to the Government to set regular monitoring mechanisms and procedures in the field of domestic violence. Hopefully, regular and systematic monitoring will be on stage from this year, as the National Strategy establishes monitoring system and monitoring mechanisms58. Ministry of Health of Republic of Macedonia (MoH), in cooperation with WHO/Euro, Office in Skopje has published “the Report on Violence and Health in Macedonia and Guide for Prevention� (2006), fallowing The World Report and aiming to promote/trigger public health national response to violence, domestic violence included. There is no other research done regarding DV in the in the health sector. The Action Plan on Family Violence and Health (in drafting) supports research and monitoring of domestic violence in health. Especially the research is needed with respect to some population groups like children, elderly and people with special needs. Another very urgently needed research will be a research on child rape and incest, which, according to published (in the media) cases increase. Policy should be informed better on future activities through researches and analyses of the legislation, system, burden of DV on the individual, family, community and societal level, specific health problems and approaches to them. 58
See more in the Paragraph 2.1.
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The main obstacle seen by major of the health professionals is financing and lack of integrated approach (with other areas). National Strategy against Violence does not envisage research in health.
Recommendations: 1. Encouraging, supporting and promoting the compilation of statistics and research on the extent, causes and effects of violence, and on the effectiveness of measures to prevent and deal with violence 2. Regularly reporting of monitoring bodies to the government: on the extent, nature and consequences of DV, and on the impact and effectiveness of laws, policies and programmes for combating DV 3. Regularly monitoring the effects of laws, by-laws, policies and measures, and undertaking their regular revision accordingly to changing circumstances and need to increase their efficiency 4. Support research in DV and health through The Action Plan on family violence and health. 5. Conducting research on child rape and incest; burden of DV on the individual, family, community and societal level; specific health problems and approaches to them
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VIII. Small Arms and Domestic Violence Licensing of small arms is regulated by the Law on Arms59. Licensing procedures are put in place. A basis license to be issued scopes confirmation from the CSC’s that the person has full legal capacity; medical certificate on the health status and also if there is no endangerment of the public order (the person is not convicted for intentional crime that is prosecuted ex officio, or for the offence of public order with violent elements, or other circumstances such are: heavier abuse of alcohol, use of narcotics, heavier infringements of the family relations, education institution, work place, etc. (Art.12). There are provisions that provide for testing of technical knowledge of the use of weapon, as well as of the legislation regarding weapon. The license is valid for 10 years from the day it has been issues. Art 42 regulates the cases of withdrawal of the license which also include lost health capability, legal capacity or intentional crime has been committed that is prosecuted ex officio, or the offence of public order with violent elements is committed, or there are other circumstances at place such are: heavier abuse of alcohol, use of narcotics, heavier infringements of the family relations, education institution, work place, etc. Many of the DV cases involve use of weapon, particularly to threaten a victim. Presence of a gun at home/ in a household or under the control of the perpetrator is a way of his control tactics under the victim. It prevents the victim to report violence due to fear of escalation of violence. There for licensing procedure has to be lead with utmost seriousness by every institution involved. It also goes for the officials that carry weapon in the line of their duties. On the side of the health sector, medical examination will have to be done with utmost seriousness in the procedure of issuing 59
Law on Arms, (Official gazette, no.:7/05)
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health certificate. Also, having regards the length/duration of validity of the license (10 years), periodical examinations should be proscribed and/or authorized licensing body should have access and periodically check health dossier/status of the licensed persons. Rational behind is prevention, although the law proscribes for post delictum measures of revoking of the license, which, of course might be too late. The presence of firearms as a risk factor to DV in families which members possess and carry guns for their professional duties (as police officers, military officers, etc.) has not been explored now. The MoI admits that the fact that the presence of firearm in the home for some members of the family can cause stress situation. The existing legal regulation in particular the Law on Police, allows the police officers 24 hours continuously to carry the weapon, which is a legal working obligation and the police officer during those 24 hours to apply the police authorizations, especially in prevention and catching the perpetrators of the criminal acts. The number of the registered domestic violence where an official firearm is used is estimated to be not very large, but there are no precise data. In the previous practice, there are not special stress release programs for the police, nor special psychological support programs exist and treatment of the police officers who have problems with use of vices as alcohol, drugs and others that increase the violence. In this direction, it is necessary to adopt a national program that shall treat these issues, and at the same time shall contribute towards reducing the domestic violence committed by the police officers or the military personnel. On the side of the health sector, medical examination will have to be done with utmost seriousness in the procedure of issuing health certificate. Also, having regards the length/duration of validity of the license (10 years), a. Rational behind is prevention, although the law proscribes for post delictum measures of revoking of the license, which, of course might be too late. 114
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Recommendations: 1. Ensuring that the licensing procedure is to be lead with utmost seriousness by every institution involved. It also goes for the officials that carry weapon in the line of their duties. 2. Amending the Law on Arms by shortening the duration of validity of license from 10 years to 2 years. 3. Periodical examinations should be proscribed and/ or authorized licensing body should have access and periodically check health dossier/status of the licensed persons 4. Changing the Law on Arms by introducing obligatory notification of current and previous spouses (past 2 years) of an individual’s intention to acquire a firearm license. If a spouse or a previous spouse has concerns, it will trigger a secondary review of the application. 5. Ensuring stress relief programs for police officers and other state officials that have to carry firearms as their professional duty to relief stress as a consequence of a job.
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IX. Local Self-Government and Domestic Violence Law on Local Self-Government60 regulates, amongst all, responsibilities of the local-self-government in the area of social and health affairs. Namely, local self-government provides for social care of children (kindergartens, children with disabilities, children with social problems, children from one-parent families), of elderly (elderly homes, elderly under social risk), people with disabilities, street children, persons under social risk; persons disposed on abuse of drug and alcohol, and for awareness raising, according with the National Program on social care development (Art. 22, para 1, point 7). There is no mention of family violence, although it is primarily a problem that derives in the community. Regarding health care, local self-government provides for health education, health promotion, some preventive activities, occupational health, monitoring of the living environment , communicable disease surveillance, aid for persons with special needs (e.g. mental illness, child abuse, etc.) and other areas if proscribed by the law (Art.22, para 1, point 9). Since DV needs complex activities to be combated, health education, health promotion, and preventive activities need to be developed on the level of local self-government. Also the issue of child abuse as a consequence of DV has to be properly addressed on the level of municipality. Hence, municipality has to develop action plan against DV (global one) where special social and health concerns should be properly addressed. It will be very important part in the chain of organized activities of the society. Following the good practice introduced in the area of protection of patient rights, a body should be established and it’s office to deal with practical coordination for implementation of such plan, linked with other players on national level. Local self-government should be constitutive part of the National Coordination Committee against DV. 60
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Conclusions and recommendations 1. Law on Local Self-Government should address family violence. 2. Developing strategies and action plans against DV at local level. 3. Establishing a duty to the local commissions on gender equality to monitor the situation regarding DV and implementation of the local strategies and action plans, to collect data and collaborate with the National Coordinative Body in charge with the implementation of the National Strategy on Protection against DV. 4. Establishing the Association of the Units for Local Selfgovernment should be constitutive part of the National Coordination Committee against DV.
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X. Conclusions The Macedonia has achieved evident progress in responding domestic violence, but there are still a number of gaps that undermine successful policy of combating domestic violence. The State is a member Party to the CEDAW, the Optional Protocol to the CEDAW, and the Convention against Torture. The Constitution forbids discrimination based on sex and promote for equality of all citizens. The adoption of the Law on Equal Opportunities of Women and Men has been accompanied with development of the institutional mechanisms for gender equality at national and local level. Thankful to pressure of women’s movement and women’s groups, domestic violence is recently recognised by the Government as a matter of public concern. Since 2004, domestic violence is penalized and prosecuted ex officio. The acts of violence within a family and interpersonal relationship do not constitute a separate criminal offence, but are considered as aggravating circumstances and penalized within other criminal offences. The Criminal Code and the Family Law have introduced broad definition of domestic violence and members of a family. The criminal and civil provisions are interconnected. The main authorities responsible for protecting and assisting victims of domestic violence are centres for social work. The Family Law gives them mandate to undertake measures for protection against domestic violence. These measures are temporary sheltering, appropriate health care, appropriate psychological and social intervention and treatment, counselling, ensuring regular school attendance for children, notifying the prosecution organ, legal aid and legal representation, bringing procedures before the relevant court and undertaking measures those come out from the relations between children and parents. Centres for social work may undertake other measures deemed essential for resolution of problems. Licensed NGOs may also undertake services aimed at protection of victims. The offender may be ordered to compensate medical and any other cost arising from domestic violence. 118
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Centres for social work may request protection measures to be ordered by a court. The recently amended Family Law gives this right to the victim, too. The court protection orders include prohibition of threatening and harassing a victim, a restraining order, a removal from a dwelling, a seizure of a firearm, supporting the family, attending the counselling, mandatory rehabilitation treatment, compensation of costs, etc. The police are obliged to respond to notification of domestic violence and to protect victims and children. State officials are obliged by law to respond domestic violence. The State has developed the National Strategy on Protection against Domestic Violence (2008-2011) adopted in 2008. The main goals are defined as decreasing of incidents of domestic violence, and improving of the quality of protection. The Strategy foresees measures related to prevention, intervention, and education, follow-up and inter sector coordination. The institutional framework for implementation of the Strategy foresees the National coordinative body with rotating presidency among five relevant ministries (MLSP, MoJ, MoI, MoES and MoH) to be established. The training of the relevant professionals (judges, prosecutors, social workers, police officers, health care workers) has been started and provided by the respectable institutions as the Academy for Training of Judges and Prosecutors that promises to be a successful practice. The State provides institutional supports for temporary sheltering and the national SOS line. There are six governmental shelters within centres of social work, but the governmental and civil sectors do not share same estimations about the accessibility of shelters in sufficiently wide geographical distribution throughout the country. The rural women do not have sufficient access to sheltering. Additionally, while the MLSP estimates that governmental shelters meet the minimal standards, the centres for social work stress that they lack space, equipment, vehicles, trained staff, and other resources. However, there are still certain shortages in the national response to domestic violence to be addressed, beside the weak implementation of existing legislation. As observed, the policy, 119
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legislation and programs in this field are still gender neutral. Domestic violence is not widely recognised as a form of gender based violence and a form of discrimination against women that undermines women to enjoyment of human rights. This shortage is evident even in the Law on Equal Opportunities of Women and Men. The Constitution lacks clear reference to promoting gender equality and eliminating discrimination based on gender. There is no general anti-discrimination law adopted until now. The comprehensive policy of addressing structural inequalities in the promotion of women’s advancement is still missing. Despite developed domestic violence penal regulation, the level of reporting is still very low. Every tenth abused victim reports the perpetrator. Legal remedies are accessible, but the criminal proceeding is not enough prompt and safe for victims and witnesses, so they hesitate to report the abuser. The burden of proof for sexual crime is heavier than for other offences, while sanctions are mild. There are a number of protection measures to be ordered by a court, including restraining order, but there is no measure to immediately physically separate the victim and other family members from the perpetrator. Police officers lack authorization and clearly defined instructions how to react in cases of reported domestic violence. Mandatory rehabilitation and medical treatments of perpetrator are protection measures that may be ordered, but they are still not implemented, due to lack of standards and resources. The level of reporting by medical personnel is also insufficient, as they are not familiar with the procedure and not trained to recognise signs of domestic violence. The issue of firearms as a risk factor in domestic violence is still not addressed by the State, despite the prevalence of firearms in civilian possession. Specific measures for vulnerable groups, children and elderly especially, are not addressed adequately and to the utmost extent. There is also a lack of intersectoral protocols at national and local level that would help to improve intervention system, as well as clear guidelines for reporting and responding of medical personnel and police officers, Majority of state officials and professionals are still not gender aware. There is a lack of the governmental awareness raising campaign and of the support for 120
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the campaign of women’s groups. Data collecting and statistics in this field are poor, and there is no uniformed guideline for record keeping. Research is, by a rule, done by NGOs, with the support of international donors. Patriarchal values in the society still persist, and are not addressed by the targeted governmental response. The media contribute to this picture by promoting gender stereotypes and by sensationalistic presentation of cases of domestic violence. Gender sensitive education of children and young is not developed. Preventive policy and programs almost not exist at all, and this is a gap targeted in the recently adopted National Strategy for Protection against Domestic Violence.
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XI. Towards the Action Plan for Prevention and Control of DV in the Health Sector The main gaps found should provide for the basis of the future overall national response to DV. As detected, the main gaps are related to the following areas: - effective and prompt protection and assistance of victims, by ensuring physical separation and barring contacts, - preventive policy and measures, including education, awareness raising, and inclusion of media - health care system awareness, guidelines training and proactive response, - clear definition of duties and responsibilities of relevant authorities, and interagency cooperation at local level, - role of men, - data collecting and record keeping, and - monitoring and evaluation. These gaps may be eliminated by addressing above-mentioned gaps by appropriate action plan that would provide for clear and simple instructions related to these issues. This should be done with a clear approach to introduce a victim-centred activities, which should have protection and prevention in the centre of activities. In that sense, it is recommended developing and implementing action plan on prevention of domestic violence and protection of its victims, that would be complementary with and added-value to the existing criminal and civil legislation and activities. This context given, the Action Plan for Prevention and Control of DV in the Health Sector should be built acknowledging the fallowing more specific findings: - - Gaps - Gender neutral approach - domestic violence is not recognised as a form of gender based violence and a form 122
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of discrimination against women that undermines women to enjoyment of human rights, Lack of anti-discrimination legislation, Lack of addressing structural inequalities in the promotion of women’s advancement, Definition of domestic violence does not include economic violence, Low level of reporting, Access to justice not enough safe and prompt, The burden of proof is on the victim, Lack of protection measure to immediately pull out the victim and other family members from the range of the abuser, Lack of clear guidelines for reporting and responding by medical personnel and police officers, and rules of procedures for all relevant actors and institutions, Lack of multy-agency working cooperation at local level, Lack of resources of centres for social work, Lack of national awareness raising campaign and other preventive measures, Low level of public awareness on prevalence, causes, consequences and legal measures on domestic violence, Lack of gender awareness of the public and all relevant professionals, Health is not seen as a cross-cutting issue, Lack of regular and systematic State monitoring and evaluation of policies and legislation, Lack of official statistics, Indicators for measuring domestic violence and evaluate impact of policies and legislation are not developed, Poor data collecting, Research not supported, Lack of defining the lead responsible state authority, Lack of permanent education and training of all relevant professionals, community leaders, parliamentarians, leaders of political parties, etc. that would include basic knowledge on violence against women, Lack of rehabilitation programs for abusers and victims, Lack of gender sensitive school education of children and young persons, as well as textbooks and curricula free of stereotypes and prejudices, 123
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- -
Inappropriate and sensationalistic presentation of cases of domestic violence in the media. Lack of Local Self-Government activities
Proposed Structure of the Action Plan on Prevention of Domestic Violence and Protection of Victims in the Health Sector: I. General provisions a. Scope b. Objectives c. Use of terms d. Subjects e. Basic principles II. Legislative framework III. Ministry of Health as responsible authority for health IV. Horizontal coordination with other responsible authorities (including special units) V. Vertical coordination in the health sector VI. Education and training ( healthcare personal, counsellors for protection of patient rights) VII. Protection measures (Protection measures (Family Law),Emergency protection measures, Police eviction and barring orders, Effects of protection orders) VIII. The confidentiality of aid to victims IX. Ensuring safety measures for a child X. Ensuring safety measures for a child XI. Ensuring safety measures for elderly XII. Health care in judicial process for protection orders XIII. Health care in the police procedure XIV. Providing protection services for victims (Temporary shelter for victims) XV. Victim support and assistance XVI. Developing and implementing indicators for measuring XVII. Funding for domestic violence prevention and protection of victims 124
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XVIII. Statistics and keeping records XIX. Developing and implementing specific action on violence and health, so as health will be realised as cross cutting issue XX. Media XXI. XXII. XXIII. XXIV. XXV.
Awareness raising Supporting research and monitoring Small arms, domestic violence and health Local self-governments and domestic violence Final provisions
Fiduciary: MLSP; Sector for Gender Equality; MoJ; MoI; MoES; MoH; the Government; Local self-government; the Parliament (Health Committee) Partners: NGOs (women’s NGOs, minority NGOs, human rights NGOs, NGOs dealing with violence (anti violence) children, young, disabled, etc.) Financial aspects/costs: • working group (representatives of the governmental and the civil sector) and/or consultants for drafting the action plan, including consultations with all relevant authorities • public discussion - presentation of the action plan to the Committee on Violence and Health, to civil sector, the public (round tables, public events, media) • drafting the final version of the action plan • capacity building for implementation of the action plan.
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Bibliography International and regional instruments: 1. Universal Declaration on Human Rights 2. International Covenant on Civil and Political Rights 3. International Covenant on Economic, Social and Cultural Rights 4. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage 5. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 6. General Recommendation number 19 of the CEDAW Committee 7. General Recommendation number 24 of the CEDAW Committee 8. Optional Protocol to the CEDAW 9. UN Declaration on Violence against Women 10. CEDAW: AT vs Hungary: Views of the CEDAW-Committee in the case of AT vs Hungary, No 2/2003; 26-01-05 11. Beijing Platform for Action 12. Beijing plus 5 Outcome document: A Special Session on Women 2000: Gender Equality, Development and Peace for the Twenty-First Century 13. Model legislation on domestic violence by the Special Rapporteur on violence against women, E/CN.4/1996/53/ Add.2, 2 February 1996 14. UN Commission on Human Rights resolution 2003/45 Elimination of violence against women 15. European Convention for Protection of Human Rights and Fundamental Freedoms 16. Recommendation N° R(85)4 of the Committee of Ministers to Member States on violence in the family 17. Recommendation 1450 (2000) Violence against women in Europe 18. Recommendation 1582 (2002) Domestic violence against women 127
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19. Recommendation No. R (90) 2 20. Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence 21. Recommendation 1681 (2004) 22. Resolution on the need to establish a European Union wide campaign for zero tolerance of violence against women 23. Recommendations of the Expert Forums of the EU Conference on violence against women 24. EU Expert Meeting on Violence against Women
Laws, by-laws, and policy documents: 1
Constitution of the Republic of Macedonia (1991)
2
Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19-22 June, 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948
3 4 5 6 7 8 9 10 11 128
Law on Health Care (Official Gazette, no. 38/91,46/93, 55/95,10/04,84/05,111/05, 65/06,5/07) Law on Health Insurance (Official Gazette, no.:119/05) Law on Social Protection (Official Gazette, no.:40/07) Law on Interior (Official Gazette, no.19/95, 55/97,38/02, 33/03, 19/04, 51/05) Ethical Codex of the Police (2007) By-Law on health and Psycho-physical Capabilities of the Police Officer to be Employed (2007) Law on Protection of Patient Rights (Official gazette, no.:82/08) Law on Terminating the Pregnancy (Official Gazette, no.: Law on Biomedicine Helped Fertilization (Official Gazette, no.:37/08)
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Law on Taking, Exchange, Transport and Transplantation of Human Bodies Parts for the Purposes of Treatment(Official Gazette,no.:30/95) Law on Mental Health (Official gazette, no.:71/06) Criminal Code of Republic of Macedonia (Official Gazette, no.:19/04)
15
Family Law (Official Gazette,no.:80/92,9/96,38/20004, 33/06 and 84/08)
16
Family Law; By Law on norms and standards for establishing and start up of institutions for social care for victims of family violence (Official Gazette, no:33/07)
17
Law on the Protection of Child (Official Gazette, no.:98/2000, 65/04)
18 19 20 21
Law on Civil Servants (Official Gazette, no.:59/2000‌ 36/07) The Law on Equal Opportunities of Women and Men (Official Gazette, no.: 66/06) Labor Law (Official Gazette, no.: 62/05) Law on Social Care (Official gazette, no.:50/97,16/200 0,17/03,65/04,62/05,111/05,40/07 )
22
By –law on form, content and the manner of keeping register of civil associations in the area of social care (Official gazette, no.:10/05)
23
By-law on manner and procedure for granting funds to civil associations for performing specific activities in the area of social care (Official gazette, no.:24/05 and 38/07
24
By-law on norms and standards for establishing and start up of the institutions for social care-Center for victims of family violence (Official gazette, no.:33/07)
25
By-law on the way of performing and monitoring of the endorsed protection measures for family protection and persons-victims of family violence, exercised by Center for Social Care, and for the way of monitoring the temporary measures endorsed by the court (Official gazette, no.:103/07) 129
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26 27 28 29 30 31 32 33 34 35 36
Law on Administrative Procedure(Official Gazette, no.:38/05) Law on Foreigners(Official gazette, no.:35/06) Law on Security of Persons and Property (Official gazette, no.:80/99)
37
Law on data in the Electronic Form and Electronic signature (Official Gazette No.34/2001, 03.05.200).
38
Law on Records Keeping in the Health Sector (Official Gazette of the Socialist Federal Republic of Yugoslavia, 1978).
39
Law on Records Keeping in the Health Sector (Official Gazette of the Socialist Republic of Macedonia, 1979)
40
Law on Health Care. Official Gazette of Macedonia 1991
41
15 Programs for Health Care for 2008 are published in Official Gazette, no.:146/07.
42
Draft of the Law on Records Keeping in the Health Sector, version 2002.
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Law on Asylum and Temporary Protection (Official Gazette, no.:49/03 and 66/07) Law on Employment and Labor of Foreigners (Official Gazette, no.:70/07) Law on Protection of Personal Data (Official Gazette, no.: 7/05) Law on Offences Against Public Order and Peace (Official Gazette, no.:66/07) Law on Police Academy (Official Gazette, no.:/03) Law on Litigation Procedure (Official Gazette, no.:79/05) Law on Criminal Procedure(Official Gazette, no.:15/05) Law on Administrative Disputes(Official Gazette, no.:62/06)
Law on Protection from Communicable Diseases (Official Gazette, no.:66/04) Law on mediation, (Official gazette, no.:60/06)
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National Strategy for an Integrated Health Information System (2008) National Health Strategy (in procedure of endorsement) Law for Personal Data Protection (Official Gazette , no.: 2005) Law on Radio Diffusion Activities (Official Gazette, no.:100/05) Law on Local Self-Government, (Official gazette, no.:5/02) Law on State Statistics (Official Gazette, no. 54/97 and 21/07) Law on Arms, (Official gazette, no.:7/05 last amended in 2007) By-law on the Medical Check up for assessing of the capabilities for possession and carrying weapon, the list of diseases and health conditions which make a person non-capable for possession and carrying weapon and procedure for issuing medical certificate (Official Gazette, no.7/05) Programme of Statistical Researches for the Period 2003-2007. Government of Macedonia, 20.11.2003. Health System in Transition – Macedonia. European Observatory on Health System in Transition, 2006. Draft statistical programme for the Republic of Macedonia for 2008-2013 National Strategy on Protection from Family Violence (2008) National Action Plan on Gender Equality (2008) Strategy Against Alcohol Abuse (2008); Strategy Against HIV/SIDA (2007-2011); Strategy Against TB (2007-2015); Strategy on Tobacco Control (endorsed in 2002); Strategy on Mental Health (2005); Health Care Strategy (in drafting phase) Strategy on Non-Communicable Diseases (in drafting phase) 131
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65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83
Strategy on Youth and Adolescent Health (in drafting phase) Strategy on Palliative Care (in drafting phase) Strategy on Reproductive health (in drafting phase) Strategy on Collaboration of the Government with Civil Sector (2007-2011), Strategy on Integration of Republic of Macedonia in EU (2004), National Program Against Human Trafficking(1999), Strategic Plan of Action of Ministry of Interior (20072010), National Plan of Action for Children (2008), National Demographic Policy (MLSP) Strategic Plan of MLSP (www.mtsp.gov.mk) Strategy on Roma (MLSP) Strategy on Employment(MLSP) Joint Program for Social Inclusion (MLSP) Program for re-socialization and reintegration of children-victims of human trafficking (MLSP) Program for development of the Child Protection (2008) (MLSP) OSI and Faculty of Medicine Project“Patient’s RightPractitioner’s Guide“(2008) Health in All Policies, Ministry of Social Policy and Health, Finland, 2006 Declaration for Combating Violence against Women, Including Domestic Violence Draft Law on Protection against Discrimination
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2. Council of Europe. Legislation in the Member States of the Council of Europe in the field of Violence against Women. Vol. I: Albania to Ireland. Strasbourg, 2007. 3. Council of Europe . Legislation in the Member States of the Council of Europe in the field of Violence against Women. Strasbourg, 2007. 4. Council of Europe . Proposals for future action of the Council of Europe andits member States to prevent and combat violence against women. Final Activity Report. Task force to combat violence against women, including domestic violence. Strasbourg: Council of Europe, 2008. 5. Council of Europe. Directorate General on Human Rights. “Combating Violence against Women: Stocktaking study on the measures taken in Council of Europe member States.” 2006. Council of Europe Web site. 5 April 2007 <http://www.coe.int/T/E/Human_Rights/Equality/PDF_ CDEG(2006)3_E.pdf>. 6. Council of Europe. Directorate General of Human Rights and Legal Affairs. Protecting women against violence: Analytical study on the effective implementation of Recommendation Rec(2002)5 on the protection of women against violence in Counic of Europe member States. Strasbourg: Council of Europe, 2007. 7. Dilevska, T. (2002), “The Social and Economic Position of Women in Macedonia (in relation to poverty and unemployment”, in Transition, Privatisation and Women, Dokmanovic, M. (ed.), Subotica: Women’s Centre for Democracy and Human Rights, pp. 111-114. 8. Former Yugoslav Republic of Macedonia (The). “Combined initial, second and third periodic reports of States parties: The former Yugoslav Republic of Macedonia.” Report submitted under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women, 5 August 2004. n.d. 9. Republic of Macedonia. Ministry of Labour and Social Policy. National Strategy for Protection against Domestic Violence 2008-2011. Skopje, 2007. 10. Republic of Macedonia. Ministry of Labour and Social Policy. Operational Plan for 2008 for the Implementation of the National Action Plan on Gender Equality. Skopje, 2008. 133
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11. Republic of Macedonia. Ombudsman of the Republic of Macedonia. “Annual Report 2006.” 2008. Ombudsman of the Republic of Macedonia Web site. 2 August 2008 <http://www.ombusman.mk/comp_includes/webdata/ documents/IZV-2006-so%20procenti-ang.pdf>. 12. Republic of Macedonia. Ombudsman of the Republic of Macedonia . “Annual Report 2007.” 2008. Ombudsman of the Republic of Macedonia Web site. 2 August 2008 <http://www.ombudsman.mk/comp_includes/webdata/ documents/Izvestaj-2007-ang.pdf>. 13. Tozija, Fimka, Dragan Gjorgjev and Snezana Cicevalieva, Report on Violence and Health in Macedonia and Guide for Prevention. Skopje: Ministry of Health of the Republic of Macedonia, 2006. 14. UNICEF. Violence against Children: Results of an Institutional Assessment of the Responsiveness of Service Providers to Violence against Children in Macedonia. Skopje: UNICEF, 2006. 15. UNIFEM. “Engendering Constitutions: Gender Equality Provisions in Selected ConstitutionsL A comparative study accompanied with case studies in: Bosnia and Herzegovina, Kosovo, Montenegro, Serbia.” November 2007. Ed. Kristin Van der Leest. <http://www.unifem.sk/ uploads/doc/Constitutional%20publication%20Nov%20 20071.pdf>. 16. United Nations. “Criteria for identifying indicators on VAW.” Supporting Paper 3 submitted by OHCHR, Expert Group Meeting on indicators to measure violence against women, Geneva 8-10 October 2007. 2007. 17. United Nations . “Gender Perspectives on Small Arms.” Briefing note 3. United Nations, 2001. 18. United Nations . “Good practices in combating and eliminating violence against women.” Report of the expert group meeting, 17 to 20 May 2005, Vienna, Austria. 2005. 19. United Nations . “Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural, Including the Right to Development: Indicators on violence against women and State response.” Report of the Special Rapporteur on violence against women, 134
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its causes and consequences, Yakin Erturk, 29 January 2008. United Nations, 2008. 20. United Nations. Committee on the Elimination of Discrimination against Women. “Concluding comments of the Committee on the Elimination of Discrimination against Women: the former Yugoslav Republic of Macedonia.” United Nations, CEDAW, Thirty-fourth session, 3 February 2006. CEDAW/C/MKD/CO/3. 21. United Nations. Division for the Advancement of Women. “Background paper for the expert group meeting on good practices in legislation on violence against women.” Expert Group Meeting on good practices in legislation on violence against women, United Nations Office at Vienna, 26 to 28 May 2008. 2008.
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