Women’s Rights Foundation has filed a judicial protest against the Ministry for European Affairs and Equality following a bill tabled in the House of Parliament, Bill 84 of 2019 proposing amendments to the Temporary Protection Order as perArticle 540A (1) of the Criminal Code, just a year after its introduction.
Women’s Rights Foundation said the nature of a temporary protection order reflects the aim of an emergency barring orders as found in the Istanbul Convention. As explained in the Explanatory Note to the said Convention, the aim is to provide immediate protection so as to ensure the safety of the victims of domestic violence without putting the burden on the victim who often is accompanied by dependent children.
“That the law as is being proposed delineates from the nature of the emergency barring order as foreseen in the Istanbul Convention in the following ways: - a) Irrespective of the results of a risk assessment carried out to victims of domestic violence, the proposed amendments require that a police inspector is to carry out an investigation; b) this investigation has to be carried out within 12 hours from the moment that the risk assessment is carried out; c) it is up to the Police inspector to apply to the court for the issuance of the temporary protection order if according to his/her investigation the victim is at serious risk of harm; d) the court can at its discretion issue a temporary protection order within 8 hours when it receives the application as filed by Police Inspector; e) the victim is to be provided with sheltered accommodation during this period; f) that if a temporary protection order is issued, this is only valid for up to a period of 30 days, however if the police are of the opinion that criminal proceedings are not to be instituted during this period, then the temporary protection order is no longer valid.”
Women’s Rights Foundation said it was very concerned by these proposed amendments since “these are contrary to the spirit of the Istanbul Convention and if implemented, will, once again ,place the burden on the victim, who more often than not are women with children, in tow and forcing them to seek shelter to secure their own safety. It is shameful to have a situation where now, the very law that is meant to protect them is putting them in a situation where they are being deprived of their fundamental rights.”
“We are also very concerned by the fact that such orders are dependent solely on an investigation that is to be carried out by an officer or a rank not less than police inspector, given that police resources are over stretched as it is. We are further perplexed how the police can ask for a court order requesting the issuance of a temporary protection order, whilst in the same breath still leaves at their discretion not to proceed with instituting criminal action against the perpetrator.”
The group said it is further aware that despite the legal obligations to inform victims about any action taken or otherwise against the perpetrator in terms of the Victims of Crime Act, it is often left up to the victim to chase for information and this could lend victims to be at further risk, if they are not duly informed as to whether the temporary protection order is valid or otherwise. Victims could end up in a situation that they come face to face with their perpetrators given that the temporary protection order would no longer be valid, without their knowledge.
“We call upon legislatures to take into serious account that such proposed amendment goes against the rights of victims, especially given that domestic violence is deemed to be a serious violation of theirfundamental human rights.”