The National Network to End Violence Against Women and Domestic Violence expresses deep disagreement and concern about the proposed amendments to the Law on Police, which mean step back in the protection of victims of domestic and other forms of violence against women. These changes introduce uncertainty and additional barriers which seriously worsen the safety of victims.
What predict the changes ?
The current Law on Police states that the police officer who committed domestic violence will be stricken of the weapons as soon as there is a notification from the competent Center for Social Work and the seizure of weapons lasts until the legal completion of the trial procedure against that officer. However, the amended Article 31 of the draft law derogates from this possibility and provides for the implementation of an entire procedure of internal control within the Ministry of Interior, which then provides an opinion on whether the police officer should have his weapon confiscated.
Such a proposed amendment to this article is in contradiction with the Istanbul Convention and the Law on Prevention and Protection against Violence against Women and Domestic Violence and, if adopted as such, would call into question the implementation of temporary measures for the protection of victims of these forms of violence.
These amendments also delete Article 31-a, which obliged the head of the organizational unit to refer to a mandatory psychological and psychiatric examination a police officer who is accused of a crime or misdemeanor with elements of violence or for whom a notification has been received from the competent social work center that he has committed domestic violence, and which obliges the findings of such an examination to be submitted to the Ministry of Interior.
The adoption of these amendments will leave victims of gender-based and domestic violence unprotected and increases the risk of escalation of violence by the perpetrator.
If these amendments are passed, the distrust that victims have towards institutions will only increase, especially when the perpetrator is part of the police system.
Therefore, we categorically oppose the proposed amendments to the Law on Police. We demand their immediate withdrawal, in order to ensure that the law will truly serve the protection of all citizens, especially the most vulnerable.
The following is a more extensive legal opinion on the reaction to the proposed amendments to the Law on Police:
The notification of the beginning of the process of preparing the draft law amending and supplementing the Law on Police states that the purpose of the draft law is to enable the content and normative-legal clarification of the legal solutions in the direction of their improvement and harmonization with regulations adopted after the adoption of the basic text of the Law on Police. The draft report on the assessment of the impact of the regulation specifies that the Law on Police is being harmonized with the Law on Internal Affairs, in order to harmonize the regulations under the jurisdiction of the Ministry of Internal Affairs and overcome the inconsistencies of specific legal solutions.
However, with an insight into the Law on Internal Affairs, it emerges that precisely the provisions that are deleted from the Law on Police are fully regulated in the Law on Internal Affairs. All the more so since these provisions were simultaneously adopted in the Law on Police and the Law on Internal Affairs – the amendments were published in the same Official Gazette No. 33/15 of 05.03.2015.
| Article 155-a of the Law on Internal Affairs | Article 31-a of the Police Law |
| (1) An employee of the Ministry who is authorized to carry official weapons, and for whom a procedure has been initiated for a criminal offense or misdemeanor with elements of violence, or for whom a notification has been received from the competent center for social affairs that he/she has committed domestic violence, the head of the organizational unit in which he/she works shall refer him/her to a mandatory psychiatric and psychological examination, or counseling with a psychologist (psychological counseling). (2) The findings of the psychiatric and psychological examination, or counseling with a psychologist (psychological counseling) with a mandatory finding and opinion on the employee’s ability to be assigned to a job with authorization to carry and use official weapons, shall be submitted to the Ministry. | The head of the organizational unit in which the police officer is employed shall refer the police officer for whom a procedure has been initiated for committing a crime or misdemeanor with elements of violence, or for whom a notification has been received from the competent social work center that he has committed domestic violence, to a mandatory psychiatric and psychological examination, or counseling with a psychologist (psychological counseling). The findings of the psychiatric and psychological examination, or counseling with a psychologist (psychological counseling) with a mandatory finding and opinion on the ability of the police officer to be assigned to a job with authorization to carry and use official weapons, shall be submitted to the Ministry. |
Although the provision in this form remains in the Law on Internal Affairs, although the Law on Police refers to the Law on Internal Affairs, we believe that the existence of this article as such in the Law on Police is of great importance, because it fully and unequivocally points to a serious, comprehensive treatment in the fight against violence and especially domestic violence, when the perpetrator is a police officer.
On the other hand, the provision of Article 31, especially the provisions of paragraphs 2-4 of this article, are of particular importance because they perform the most significant preventive function when criminal proceedings for violence or domestic violence are initiated against a person who possesses an official weapon – confiscation of the weapon.
| Current article 31 | Proposal for amendment to Article 31 |
| A police officer is authorized to carry weapons and other means of coercion. The weapons referred to in paragraph (1) of this Article, together with their ammunition, shall be temporarily confiscated from a police officer against whom proceedings have been initiated for a crime or misdemeanor involving elements of violence, until the finality of the decision in the criminal or misdemeanor proceedings. The weapons referred to in paragraph (1) of this Article, together with their ammunition, shall be temporarily confiscated from a police officer when the Ministry receives notification from the competent social welfare center that he has committed domestic violence, until the finality of the decision of the competent court for a temporary protection measure. The confiscation of the weapons and ammunition referred to in paragraphs (2) and (3) of this Article shall last until the completion of the procedure, which will ultimately end with a final decision. | A police officer is authorized to carry weapons and other means of coercion. In the event that a report is made or when knowledge is obtained of a crime committed with the use of weapons by a police officer, the organizational unit responsible for internal control in the Ministry shall take measures in accordance with the law and prepare a report in which it shall state its opinion on the question of whether it is necessary to temporarily seize the service weapon and ammunition from the police officer. In the event of temporary seizure of the weapon and ammunition referred to in paragraph 2 of this Article, the police officer shall be temporarily assigned to an appropriate job position in the Ministry without authorization to carry and use service weapons. The seizure of the weapon and ammunition shall last until the decision made in the procedure conducted against that police officer for the crime for which the weapon was seized becomes final. |
As can be seen from the proposed amendment, instead of the current solution, with every procedure for a criminal act of violence or domestic violence, the weapon should be immediately confiscated from the person who possesses an official weapon, a transitional solution is being adopted in which a special assessment will be made as to whether it is at all necessary to seize an official weapon from a person against whom a criminal procedure for violence committed with the use of a weapon is being conducted. Namely, the Law on Police itself stipulates that means of coercion, including firearms, may be used only if the purpose of the police action cannot be achieved in any other way (Article 80, paragraph 3). This means that firearms may be used exclusively as a last resort and under certain conditions. This principle has such weight that in no case can it be allowed to first assess the need for confiscation of the weapon, instead of immediately temporarily confiscating the weapon until the appropriate procedure is carried out. In addition, domestic violence often occurs without the use of weapons, the very possession of a weapon is a way of intimidation, harassment and endangering the life of the victim. Therefore, the new article is completely contrary to efforts to protect victims of domestic violence.
In addition to this, the special provision that regulates that if the CSW informs the Ministry of Internal Affairs that a police officer has committed domestic violence, the weapon should be immediately confiscated is deleted. In practice, this means that if it is a violent crime in which the police officer did not use a weapon, it will be considered that there is no basis for confiscating the service weapon! In the context of domestic violence, this seriously worsens the position of victims whose abuser is a police officer. First, the biggest mitigating circumstance for them has been deleted – the circumstance of reporting the violence to the Center for Social Affairs, and not having to report it to the police, and then, in order to receive appropriate protection in the home, they must prove that the abuser used a weapon against them! Here we must emphasize that in most cases, domestic violence is not an isolated incident, but a series of various types of violence that are not always physical, but may contain a threat to use force, and when the perpetrator has a service weapon that has not been confiscated, the threat is quite real.
We would also like to emphasize that the procedure for confiscating weapons from a perpetrator of domestic violence does not apply only to police officers. On the contrary, the Law on Prevention and Protection from Violence against Women and Domestic Violence stipulates that when a police officer arrives at the scene of a report of violence against women or domestic violence, he shall temporarily confiscate the weapon from the perpetrator and initiate a procedure provided for by law for the revocation of the weapon permit, the collector’s weapon permit, or the permit to carry a weapon. (Article 49, paragraphs 1 and 4 of the Law). All this is done preventively, so that the reported person does not use the weapon in a fit of rage or in retaliation for reporting the violence.
This law also obliges the Center for Social Work to immediately notify the Ministry of Internal Affairs whenever it becomes aware that gender-based violence has been committed by a person who owns a firearm. If it concerns a person who has access to and handles official firearms, the CSW shall immediately, and no later than within 24 hours, submit a written notification to the institution or legal entity in which the person is employed and shall notify the Ministry of Internal Affairs thereof. (Article 48 of the Law). Hence, by deleting paragraph 3 of Article 41, the provisions of the Law on Prevention and Protection from Violence against Women and Domestic Violence are also violated.
****
With these changes, victims of domestic violence are being sent the message that their safety is conditional, that institutions will assess whether their fear is sufficiently “justified” to take action, and that if their abuser is a police officer, he will have the privilege of remaining armed while the system decides whether the possession of a service weapon poses a threat. Instead of immediate and unequivocal protection, they receive uncertainty, an additional burden to prove their own suffering, and a feeling that the institutions care more about the rights of the perpetrator than about their safety. If they could previously turn to the Center for Social Affairs and know that this would result in the immediate confiscation of their weapons, now they are being told that they must expose themselves to the police – perhaps to their abuser’s colleagues – and wait to see if the system decides to protect them.
This is not just a legal change, but a message that the victim must fight on two fronts – against the abuser and against the institutions that are supposed to protect them, but are now imposing additional barriers on them. Instead of feeling safe, the victim is told that her word is not enough, that even if she survives violence, she will have to prove herself to be “enough at risk” to receive protection. In this way, the law, instead of being her shield, becomes another obstacle she will have to overcome in order to survive.
