Russian federation: Decriminalisation of Domestic Violence – Bhanu Pratap

Russian federation: Decriminalisation of Domestic Violence

 

The author is Bhanu Pratap Samantaray, 2nd Year Student at National Law University, Odisha.

 

INTRODUCTION

In Europe and Central Asia, Russia is one of three countries that have not adopted legislation expressly targeting domestic violence.[1] There are a number of provisions in the Russian Federation’s Criminal Code that criminalize the deliberate infliction of harm on the health of an individual and provide for punishment depending on the severity of the harm.[2] However, Article 116 of the Code[3] tends to be the only legal clause applicable to the prosecution of domestic abuse. Article 116 deals with physical abuse, described as “battery or similar aggressive acts causing physical pain but not light injury,” i.e., not merely causing temporary damage to the health of a person or the negligible loss of the general ability to function.

 

Russia’s true extent of domestic violence is uncertain since the government does not produce centralized, disaggregated domestic violence[4] data. However, 40 percent of violent crimes occur inside the family[5], according to the Russian Ministry of Internal Affairs (police), and 57,000 crimes were reported as battery pursuant to Article 116 of the Criminal Code[6] during the first nine months of 2016 (latest data available). Reportedly, 36,000 Russian women are beaten every day by their husbands or friends, and 14,000 women and 2,000 children are killed every year by family members.

 

Penalties for Battery before July 2016

 

Prior to the introduction of amendments to the Criminal Code in July 2016, the non-aggravated battery was an offense punishable by a fine of up to 40,000 rubles (approximately US$ 700) or by different terms of restraint of liberty, which could take the form of a detention period of up to three months or six months of compulsory reduced-income work at a position specified by the authorities.[7]

 

Prior to the introduction of amendments to the Criminal Code in July 2016, the non-aggravated battery was an offense punishable by a fine of up to 40,000 rubles (approximately US$ 700) or by different terms of restraint of liberty, which could take the form of a detention period of up to three months or six months of compulsory reduced-income work at a position specified by the authorities.[8]

 

Decriminalization of Non-aggravated Battery in July 2016

 

In 2015, the Supreme Court of the Russian Federation[9] adopted a bill decriminalizing non-aggravated batteries. The bill’s authors intended, according to the explanatory note, for the bill to become part of the large effort to humanize and liberalize Russian criminal law. In addition to the exclusion from the list of criminal offenses of non-aggravated assault, the Supreme Court proposed that the threat of murder or severe bodily harm be decriminalized (Article 119 of the Criminal Code), the intentional avoidance of payment of funds for the care of children or disabled parents (Article 157 of the Criminal Code) and the use of forged documents (Article 327 of the Criminal Code). The architects of the bill predicted that the decriminalization of these offenses would result in the annual elimination of around 200,000 people from the jurisdiction of the criminal justice system.[10]

 

There was no distinction between batteries inside and outside the family in the original text submitted by the Supreme Court. However, after the first reading in the State Duma (lower house of the Russian legislature), the bill was revised to the effect that the battery of ‘close persons’ would not be decriminalized and would remain punishable, along with the aggravated battery, by Article 116 of the Criminal Code. Further ‘feminist lobby’ was blamed by certain Russian lawmakers for this amendment.[11]

 

The reforms were passed in July of 2016, and a non-aggravated battery was decriminalized.[12] Only for aggravated battery and the battery of “close people,” identified as close relatives (spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, and grandchildren), guardians, in-laws, and household members, criminal penalties were retained.

 

At the same time, the non-aggravated battery was listed as an administrative crime punishable by a fine of 5,000 to 30,000 rubles (approximately US$ 88 to $526), ten to fifteen days of administrative detention, or 60 to 120 hours of mandatory work.[13]

 

The amendments also established that the commission by a person already subject to an administrative penalty for a non-aggravated battery of any type of battery is still a criminal offense punishable by a new Article 116.1 of the Criminal Code. This article provides for a fine of up to 40,000 rubles (approximately US$ 700) or the balance of the convicted person’s pension, pension, or some other benefit for a period of three months; forced labor for a period of up to 240 hours; corrective labor for a period of up to six months; or imprisonment for a period of up to three months. An individual shall be deemed to have been subjected to administrative penalties from the date of entry into force of the decision imposing an administrative penalty until the expiry of one year from the date on which the implementation of the decision was terminated.[14]

 

Amendments of February 2017

 

Conservative groups in Russian society have disapproved of the resulting disparities in treating non-aggravated batteries performed inside the family and outside the family. The Russian Orthodox Church criticized the law as lacking “moral justification and legal grounds.” [15] Conservatives argued that parents were unfair to face a tougher penalty than a neighbour would face for hitting their child.[16] There were also concerns that the retention of this clause in the Code would allow for more government interference in family life and give more control over private matters to the Russian police and judiciary.[17]

 

A party of State Duma members again presented a bill in November 2016 aimed at amending Article 116 of the Criminal Code. The bill introduced just one provision, which specified that the “battery of close individuals resulting in physical harm but not causing injury or other effects” would be excluded from the list of criminal offenses charged under Article 116. The bill was approved by the committees of the State Duma and in three plenary readings and was passed on Feb. 1, 2017, without any amendments or adjustments.[18] On Feb. 7, 2017, the President of the Russian Federation signed the measure into law.[19] As a result, only aggravated battery, repetitive battery, or battery that damage the health of the victim remains criminally punishable.[20] Regarding this rule, a spokesperson for the Russian President said that it would not be acceptable to “identify domestic violence with any trivial manifestations of harassment.” At the same time, he indicated that a distinction should be made between issues of isolated family ties and repetitive crimes, stressing that repetitive battery is still foreseen for criminal liability.[21]

 

International Commitments of the Russian Federation

 

It does not appear that the decriminalization of the battery constitutes an express violation of Russia’s international commitments. However, the U.N. Committee on the Elimination of Discrimination against Women[22] and the European Court of Human Rights[23] have acknowledged the presence of customary international law, which obliges states to prevent and respond to acts of violence against women and to ensure access to justice.

“The Secretary-General of the Council of Europe noted that” the reduction of a family battery from criminal to administrative crime, with weaker punishments for offenders, would be a strong sign of regression within the Russian Federation and would strike a blow to global efforts to eliminate domestic abuse.[24] Russia is bound by the European Social Charter, which allows States Parties to protect children from abuse, he pointed out.

Russia is fourth out of the forty-seven Member States of the Council of Europe that have not signed or ratified the Istanbul Convention to prevent and fight for the violence against women and domestic violence,[25] which criminalizes all acts of violence, whether physical, sexual or psychological, within the family, as well as between former or current spouses and partners.

“The February 2017 amendment, according to Human Rights Watch (HRW), was” dangerous and incompatible with the international human rights obligations of Russia.[26] “The failure to sufficiently protect victims of domestic violence and guarantee access to justice violates the international human rights obligations of Russia, said The Human Rights Watch. Russia is a party to the CEDAW Convention on the Elimination of All Forms of Discrimination against Women (Convention on the Elimination of All Forms of Discrimination against Women), which forbids violence against women, whether public or private. It prescribes violence as a form of discrimination. The CEDAW Committee acknowledged “the high incidence of violence against women” in Russia’s 2015 study. It criticized the lack of legislation to deter and combat violence against women, including domestic violence.[27] Russia is also a party to the Convention on the Rights of the Child, which forbids violence, even in the family, against children. In a study of Russia in 2014, the United Nations Committee on the Rights of the Child urged Russia to give priority to the elimination of all types of child abuse and to ban all types of corporal punishment, even in the home.[28]

 

[1] The Duma’s War on Women: Why Russia Is About to Decriminalize Wife-Beating, THE ECONOMIST (Jan. 28, 2017), http://www.economist.com/news/europe/21715726-it-fits-traditional-values-lawmakers-say-why-russia- about-decriminalise-wife-beating, archived at https://perma.cc/JM9G-VPLU 

[2] Ugolovnyi Kodeks Rossiskoi Federatsii [Criminal Code of the Russian Federation] arts. 111–115, Law No. 63-FZ, Jun. 13, 1996, SOBRANIE ZAKONODATELSTVA ROSSIISKOI FEDERATSII [SZRF] 1996, No. 25, Item 2954, http://pravo.gov. ru/proxy/ips/?docbody=&nd=102041891&intelsearch=%F3%E3%EE%EB%EE%E2%ED% FB%E9+%EA%EE%E4%E5%EA%F1 (in Russian), archived at https://perma.cc/XVE5-8F85, unofficial English translation available at http://www.wipo.int/edocs/lexdocs/laws/en/ru/ru080en.pdf

[3]  art. 116.

[4] AMNESTY INTERNATIONAL, RUSSIAN FEDERATION: BRIEFING TO THE COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN (July 2010), available at http://www2.ohchr.org/english/bodies/cedaw/ docs/ngos/AI_RussianFederation46.pdf,

[5] The Duma’s War on Womensupra note 1.

[6] Natalya Kozlova, Ruku Opusti [Leave the Hands], ROSSIISKAIA GAZETA (Feb. 9, 2017), https://rg.ru/2017/ 02/09/rg-publikuet-zakon-o-dekriminalizacii-domashnego-nasiliia.html,

[7] CRIMINAL CODE art. 116

[8] Law No. 162-FZ on Amending the Criminal Code of the Russian Federation, Dec. 8, 2003, SZRF 2003, No. 50, Item 4848, http://pravo.gov.ru/proxy/ips/?docbody=&nd=102084534&intelsearch=%D4%E5%E4%E5%F0%E0% E.B. %FC%ED%FB%E9+%E7%E0%EA%EE%ED+%EE%F2+08.12.2003+N+162-%D4%C7 (in Russian), archived at https://perma.cc/7V53-NUDY.

[9] Decision of the Plenary Meeting of the Supreme Court of the Russian Federation No. 37 of Jul. 31, 2015, http://www.supcourt.ru/Show_pdf.php?Id=10240 (in Russian)

[10] Id.

[11] Domestic Violence Bill: Senator Says NGOs Distort Statistics in Bid for Grants, RUSSIA TODAY (Feb. 1, 2017), https://www.rt.com/politics/375943-senator-blames-feminist-lobby-for/, archived at https://perma.cc/GAC5-Q3KS.

[12] Law No. 323-FZ, July 3, 2016, SZRF 2016, No. 27 (Part II), Item 4256, http://pravo.gov.ru/proxy/ips/?docbody= &nd=102403665&intelsearch=%D4%E5%E4%E5%F0%E0%EB%FC%ED%FB%E9+%E7%E0%EA%EE%ED+ %EE%F2+03.07.2016+N+323-%D4%C7 (in Russian), archived at https://perma.cc/L378-E2KP.

[13] KODEKS ROSSISKOI FEDERATSII OB ADMINISTRATIVNYKH PRAVONARUSHENIAKH [CODE OF THE RUSSIAN FEDERATION ON ADMINISTRATIVE OFFENSES] No. 195-FZ, Dec. 30, 2001, SZRF 2002, No. 1 (Part I), Item 1, http://pravo.gov.ru/proxy/ips/?docbody=&prevDoc=102404552&backlink=1&&nd=102074277 (in Russian), archived at https://perma.cc/9YS6-EK9K, as amended by Law No. 326-FZ of Jul. 3, 2016, SZRF 2016, No. 27 (Part II), Item 4259, http://pravo.gov.ru/proxy/ips/?docbody=&nd=102404552&intelsearch=03.07.2016+N+326-%D4%C7 (in Russian), archived at https://perma.cc/B67Z-DUR4.

[14] Id. art. 4.6.

[15] The Russian Orthodox Church Says a New Ban on Domestic Violence Is an Assault on the Holy Scriptures, MEDUZA (Jul. 5, 2016), https://meduza.io/en/news/2016/07/05/the-russian-orthodox-church-says-a-new-ban-on-domestic-violence-is-an-assault-on-the-holy-scriptures, archived at https://perma.cc/4M4F-SWQM.

[16] The Duma’s War on Womensupra note 1.

[17] Kozlova, supra note 6.

[18]  Bill No. 26265-7 on Amending Article 116 of the Criminal Code of the Russian Federation (in Regard to Criminal Responsibility for Battery), STATE DUMA OF THE RUSSIAN FEDERATION, LEGISLATIVE HISTORY DATABASE, http://asozd2.duma.gov.ru/main.nsf/%28SpravkaNew%29?OpenAgent&RN=26265-7&02 (in Russian; last visited Jun. 15, 2017), archived at https://perma.cc/9SYY-9VKB.

[19]  Law No. 8-FZ, Feb. 7, 2017, SZRF 2017, No. 7, Item 1027, http://pravo.gov.ru/proxy/ips/?docbody=&nd=102424494&intelsearch=07.02.2017+N+8-%D4%C7 (in Russian),

[20] For the definition of “aggravated battery,” see discussion in Part II of this report.

[21] Kremlin Commented on Decriminalization of Domestic Violence, LENTA.RU (Jan. 25, 2017), https://lenta.ru/news/2017/01/25/violence2/ (in Russian; translated by author), archived at https://perma.cc/PY83-H5AD.

[22] Kremlin Commented on Decriminalization of Domestic Violence, LENTA.RU (Jan. 25, 2017), https://lenta.ru/news/2017/01/25/violence2/ (in Russian; translated by author), archived at https://perma.cc/PY83-H5AD.

[23] A.T. v. Hungary, CEDAW Comm., No. 2/2003, U.N. Doc. CEDAW/C/32/D/2/2003 (2005), http://www.un.org/womenwatch/daw/cedaw/protocol/decisions-views/CEDAW%20Decision%20on%20AT%20vs%20Hungary%20English.pdf, archived at https://perma.cc/NF5U-V44E

[24] Lee Hasselbacher, State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, and International Legal Minimums of Protection, 8 N.W. J. INT’L HUM. RTS. 192, ¶ 8 (2010), http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1098&context=njihr, archived at https://perma.cc/5LXR-JB8X.

[25] Press Release, Council of Europe, Russia: Decriminalising Domestic Violence Would Be a Clear Sign of Regression, Says Secretary General Jagland (Jan. 16, 2017), http://www.coe.int/en/web/istanbul-convention/-/russia-decriminalising-domestic-violence-would-be-a-clear-sign-of-regression-says-secretary-general-jagland,

[26]  Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, Council of Europe Treaty Series No. 210, https://rm.coe.int/168008482e,

[27] CEDAW, Concluding Observations on the Eighth Periodic Report of the Russian Federation, U.N. Doc. CEDAW/CO/RUS/8 (Nov. 20, 2015), available at http://www.hr-dp.org/files/2016/08/04/Committee_on_the_Elimination_of_Discrimination_against_Women,_Concluding_Observations_on_the_Eighth_Periodic

 _Report_of_the_Russian_Federation.pdf

[28] U.N. Committee on the Rights of the Child, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of the Russian Federation, U.N. Doc. CRC/C/RUS/CO/4-5 (Jan. 31, 2014), available at http://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/RUS/CRC_C_RUS_CO_4-5_16305_E.pdf

 

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