Below you can read all the observations of the Diotima Center on the ratification of the Istanbul Convention:
The Draft Law does not explicitly define violence against women as including economic violence, which could explicitly fall under psychological violence (par. 40 of the explanatory memorandum and Article 3 par. a) and b) of the Convention.
The explanatory memorandum of the Convention explicitly refers to “economic violence”, which in international tools (non-legal) is defined as the deprivation of financial resources and is often found in conjunction with other forms of violence.
In its most common form, it takes the form of obstruction of access to the family fund, deprivation of the ability to manage or co-manage the family fund, and even the deprivation of women’s access to the gains from their work.
Ι. It is proposed to add article 6B to Law 3500/2006 with standardization of the offense of psychological violence as follows:
‘A member of the family who, by his/her continuous conduct, causes to another member of the family damage to his/her mental integrity shall be punished with imprisonment for at least one year. This kind of behavior also includes the obstruction of adult members’ access to the family fund, the intentional deprivation of financial resources, and the systematic deprivation of the money that the family member earns from his/her work.”
II. In this case, Article 1(1) also needs to be amended, with the addition of Article 6B to the definition of domestic violence.
III. Draft Law: Article two: Amendments to criminal code provisions
- In Article 310 of the Criminal Code, the Draft Law proposes the addition of paragraph 4 with the following content:
‘4. Any person who intentionally persuaded a woman, whether an adult or a minor, to perform an act of mutilation or self-mutilation, if that act was committed or attempted, shall be punished with imprisonment.’
The above-proposed amendment is misplaced and outside the wording and spirit of the Convention for the following reasons:
– Articles 38a and b of the Convention clearly refer to genital mutilation.
– Art. 38 b. The Convention refers to “coercion” and “encouragement”, while in the case of c. (minor) it also refers to “incitement”.
– In para. a. of Art. Article 38 of the Convention defines genital mutilation specifically, as including any range of excision and amputation.
– The threatened sentence (imprisonment) has a lighter context than that of para. 1 of art. 310 P.C., which provides for imprisonment of at least two years for grievous bodily harm.
– From the wording of the above article it becomes unclear who is the subject of the act, which was oppressed, the victim him/herself or the perpetrator of the mutilation;
IV. It is proposed to amend Article 310 of the Penal Code par. 2 as follows:
- A serious physical or mental illness shall exist in particular if the act caused the injured person “or the victim” risk of life or serious and long-term illness or severe amputation, or “if the act consisted in the excision, amputation or the performance of any other amputation in the whole range or in any part of the large or small vulvar labia, or of the woman’s clitoris” or if prevented him/her significantly and for a long time from using his/her body or mind.
V. It is proposed to add a 4th paragraph to Article 310, para. 2 as follows:
- Whoever intentionally incited, induced, or oppressed a woman, adult or minor, to undergo an act of excision, amputation, or the performance of any other amputation in the whole range or in any part of her large or small vulvar labia or clitoris, or to perform an act of self-mutilation in the aforesaid sense, shall be punished with imprisonment for not less than two years, whether this act was committed or attempted.
VI. In this case, Article 6 para. 2 Law 3500/2006 needs to be amended:
- If the act referred to in the first paragraph is likely to cause the victim danger to his/her life or serious bodily harm ‘within the meaning of Art. 310 para. 2″, a minimum of two years imprisonment is imposed. If a serious physical or mental illness of the victim follows, imprisonment of up to ten years is imposed. If the perpetrator sought or knew and accepted the result of his act, he is punished with imprisonment.
VII. Forced marriage
In the context of the obligation to criminalize the coercion of an adult or child to enter into marriage, it is appropriate to criminalize it independently and separately. The proposed addition to the Draft Law to art. 323A para. 1 of the phrase ‘or with a view to forcing that person to enter into marriage’ places the criminal conduct only in the context of trafficking in human beings; leaving doubt whether parents are also criminally responsible. It is also appropriate that the concept of marriage should also cover “that which the victim considers being an actual marriage”, in order to cover the informal religious marriage that may be contracted among the refugee population.
VII. Stalking
Paragraph 5 of the second article of the Draft Law introduces as a condition of criminality the “contrary expressed will of the victim” against the wording of the Convention. Proof of fulfillment of this condition is difficult to prove and establishes indirect liability for the victim of stalking. It is proposed to delete this condition from the proposed amendment to No. 333 para. 1 of the Penal Code.
VII. Repeal art. 329 and 339 para. 3 Penal Code
It is obvious that it is appropriate to repeal the above anachronistic provisions on offenses related to marriage.
VIII. Article three, amendments to Law 3500/2006
The amendment proposed in the Draft Law, while rightly deleting the condition of cohabitation, fails to incorporate the letter and spirit of the Convention, as:
1) It casts doubt on whether by partner the law describes only partners having concluded a civil partnership
2) It discriminates against same-sex couples as it continues to refer to women and men, excluding the application of the Domestic Violence Act to same-sex couples, contrary to the explicit reference in para. 53 of the Explanatory Memorandum to the Convention.
3) It keeps out of scope former permanent partners who have not entered into a civil partnership, which is outside the spirit of the Convention (see paragraphs 41 and 42 of the Explanatory Memorandum of the Convention).
It is proposed to amend the relevant article. 1 para. 2c) of Law 3500/2006 as follows:
(c) The provisions of this Law shall also apply in the case of permanent partners (of the same or different biological sex) and to children, familiar or to one of them, as well as to former spouses and former partners.’
IX. Criminal Mediation
It is proposed to amend Art. 12 para. 3 Law 3500/2006, as follows:
- If the person providing explanations does not submit him/herself, or through his counsel, the order referred to in para. 2 of Article 11 a declaration on criminal mediation, ‘may’ be summoned to do so by the competent public prosecutor. In that case, he/she may be given three days to reply.’
The potential application of the procedure by the public prosecutor’s office should be provided for, all the more so because its omission has led to acquittals, due to the invalidity of the pre-trial investigation. It must be clear from the relevant context that it is at the discretion of the public prosecutor’s office to initiate the criminal mediation procedure.
X. Residence permit for victims of domestic violence
The spirit and the letter of the Convention require the legislative assurance of how to maintain or grant legal residence status in the country, for victims of domestic violence of foreign nationality. The previous regime (art. 2 par. 1 c. JMD 30651/2014) for irregularly residing third-country nationals provided that the granting of a residence permit requires the submission of a certified copy of the complaint submitted to a competent Greek authority for domestic violence or a social service report related to the background of the case.
However, JMD 68019/2015 introduced a single and exclusive obligation to present a certified copy of the complaint submitted to a competent Greek authority for domestic violence as defined by the provisions of articles 6, 7, 8, and 9 of Law 3500/2006 or articles 299 and 311 of the Criminal Code.
This obliges victims of domestic violence (even if they are accommodated in shelters for abused women and supported by professionals in public structures to combat gender-based violence) to sue without necessarily wanting to do so.
It is necessary to reinstate the provision as it was in force under JMD 30651/2014 with a disjunctive requirement of termination or social report, in harmony with the content of the explanatory memorandum of the Convention in paras. 53 and 59 and art. 18 para. 4 of the Convention.
