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DOI: https://doi.org/10.34069/AI/2023.63.03.18
How to Cite:
Stepanenko, O., Stepanenko, A., Boichenko, V., Pavlova, O. (2023). Establishment of international legal regulation on the criminal-
legal combat against domestic violence. Amazonia Investiga, 12(63), 198-205. https://doi.org/10.34069/AI/2023.63.03.18
Establishment of international legal regulation on the criminal-legal
combat against domestic violence
Становлення міжнародно-правового регулювання з кримінально-правової протидії
домашньому насильству
Received: March 15, 2023 Accepted: April 25, 2023
Written by:
Oksana Stepanenko1
https://orcid.org/0000-0003-4677-9868
Аndriy Stepanenko2
https://orcid.org/0000-0001-8824-2212
Vitalii Boichenko3
https://orcid.org/0000-0002-1938-4943
Oleksandra Pavlova4
https://orcid.org/0009-0005-2815-337X
Abstract
The issue of combating domestic violence is one
of the most important in today's conditions, both
in Ukraine and throughout the world, because
violence (including domestic violence) is
recognized as violating human rights. In order to
improve the situation and implement
mechanisms for combating domestic violence at
the international level, a system of the
international legal protection of the rights of
victims of domestic violence and combating
domestic violence has been created. The purpose
of the work is to assess and study the provisions
of international legal acts aimed at combating
domestic violence. The research methodology is
a complex of methods: historical, comparative-
legal, descriptive, systemic-structural, dogmatic,
sociological and modeling, induction and
deduction, and philosophical method. An
analysis of the features of the emergence and
development of international legal regulation in
the field of combating domestic violence was
carried out, in particular, the system and features
of individual international acts regarding the
detection and response to cases of domestic
violence are considered. Also, the criminal law
regulations regulating the fight against domestic
violence were analyzed. Attention is drawn to the
development and experience of the criminal-
1
Ph. D., Associate Professor of Department of Criminal Law of National University «Odessa Law Academy», Ukraine.
2
Ph. D., Associate Professor of Department of Criminal Procedure, Detective and Search Activities of National University «Odessa
Law Academy», Ukraine.
3
Ph. D., Associate Professor of Department of Criminal Law of National University «Odessa Law Academy», Ukraine.
4
Assistant Professor of Department of Criminal Law of National University «Odessa Law Academy», Ukraine.
Stepanenko, O., Stepanenko, A., Boichenko, V., Pavlova, O. / Volume 12 - Issue 63: 198-205 / March, 2023
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legal response to domestic violence in the
international community and its transformation
in modern conditions. The possible directions of
the development of international legal regulation
regarding the criminal legal response to domestic
violence in Ukraine and the world have been
determined.
Keywords: domestic violence, international
protection, criminal law countermeasures,
international legal regulation, crime.
Introduction
Violence has existed as long as humanity has
existed, and unfortunately, its use is a common
way for many people to solve their daily
problems. It is enough to mention the Biblical
story about Cain and Abel, which is the first case
in human history of violence, moreover, between
family members. For a long time, the problem of
violence in the family remained outside the scope
of legal regulation and was solved at the expense
of existing customs and traditions. Any
interference in family relations by society or the
state was unacceptable and violated private life.
However, in the last hundred years, and
especially in the last decade, the issue of
combating domestic violence has become
particularly relevant both at the level of states
and regions and at the international level.
Currently, there is a deep awareness of the
inadmissibility of such violence, which is a gross
violation of human rights. Currently, there are
many international legal acts, the subject of
which is the issue of preventing domestic
violence.
Therefore, this article analyzes the international
legal acts regulating the issue of combating
domestic violence. Attention is drawn to the
peculiarities of the development and
retrospective of the consolidation and
criminalization of certain issues regarding
domestic violence at the international level.
Thus, the article highlights the provisions of the
Universal Declaration of Human Rights (United
Nations, 1948), which enshrines the main
guarantees for ensuring human rights, the
International Covenant on Civil and Political
Rights (United Nations, 1966a), which ensures
equal provision for men and women of the right
to enjoy all economic, social and cultural rights
and other acts that establish general provisions on
human rights and their guarantees.
Separately, the research revealed the peculiarities
of the adoption of the Convention on the
Elimination of All Forms of Discrimination
against Women (United Nations, 1979), the UN
Convention on the Rights of the Child (United
Nations, 1989), the Vienna Declaration and
Program of Action of June 25, 1993 (United
Nations, 1993), the Council of Europe (2011)
Convention on the Prevention of Violence
against Women and Domestic Violence and
other acts.
The authors of the article set themselves the goal
of answering the main question of this study: has
an effective legal model for combating domestic
violence been formed? At the same time, we are
talking not only about the national level, but also
about the international legal level, since the
general principles of combating domestic
violence are universal and should be established
at the international level and serve as a model for
every civilized state.
The study of the above-mentioned documents,
conditions, and factors that contributed to their
adoption helped to understand the formation of
the regulation of criminal-legal counteraction to
domestic violence at the international level and
to reveal general patterns regarding the ways of
consolidating the fight against this phenomenon.
Theoretical Framework or Literature Review
General provisions on the prevention of violence
against women and domestic violence are
covered in the work of Banasiuk and Stepkovski
(2018).
The concept, essence, and causes of violence in
the family are analyzed in the work of
Botnarenko (2016). In particular, the author
revealed the meaning and essence of the concepts
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of "violence" and "family violence" as socially
dangerous acts directed against the will of the
persons against whom they are used. The author
singles out the signs by which, in the author's
opinion, it is possible to distinguish this type of
violence from others (domestic, gender,
household) and summarizes the reasons that lead
to violence in the family: social; economic;
psychological; pedagogical; legal; political;
physiological and medical.
Galai (2013) investigated the prospects for
improving the national practice of combating
violence in the family based on the experience of
Anglo-Saxon countries. The problem of
domestic violence and its consolidation in the
legislation of Ukraine and foreign countries is
revealed in the work of Hrynkiv (2018).
Modern aspects of legal regulation of prevention
and counteraction of corruption are analyzed in
the work of Zuyeva and Prystup (2020). The
author concluded that currently there is a quite
powerful mechanism for preventing and
countering domestic violence in Ukraine. The
author notes the need to increase educational
activities that can help citizens learn to recognize
the signs of violence, understand the risks and
threats associated with it, and seek help from
relevant services.
The grounds for establishing criminal liability for
domestic violence are analyzed in the work of
Luhina and Bilko (2021). The authors' work
traces the history of the development of
international legal norms in this area. In
particular, the authors analyzed the main acts of
soft law at the world level and also analyzed a
number of international legal acts of a
recommendatory nature at the European level.
The problem of criminalization of domestic
violence is revealed in the work of Melyankov
(2020). In particular, the research points out the
problematic issues of defining domestic violence
as a criminal act.
The criminal law counteraction to domestic
violence in some countries of the European
Union became the object of research by Mytnyk
(2019). Thus, the author has researched the
experience of criminal legal counteraction to
domestic violence in such countries of the
European Union as Great Britain, France,
Germany, and Poland. The criminal law norms of
these countries, which regulate the fight against
domestic violence, are considered. Pyvovarov
and Illina (2018) also conducted a criminological
analysis of legislation on the prevention and
counteraction of domestic violence.
In the work of Romenskyi (2004), the general
provisions of national and international
legislation regarding domestic violence and ways
to overcome it are considered.
Savinova (2021) analyzed domestic violence
from the standpoint of criminal offenses against
human dignity. The experience of the United
States in the field of combating domestic
violence and the possibility of its introduction in
Ukraine is studied in the work of Skakun (2019).
The international experience of combating
domestic violence is revealed in the work of
Shugalo (2022). The researcher concluded that
the problem of domestic violence is worldwide,
and therefore, at the international level, work is
constantly ongoing to improve the means of
combating this socially dangerous phenomenon.
The success of the implementation of the tasks,
first of all, depends on the effectiveness of the
legislation of each state and the adoption of
appropriate measures by the state authorities to
counteract manifestations of violence in the
family. Also, specific issues of domestic violence
are revealed in the work of Bonita C. Meyersfeld
(2012).
As can be seen from the above analysis of the
legislation, the issue of criminalization of
domestic violence and the regulation of
international courts on this issue arouses interest
among scientists. However, unfortunately, a
comprehensive analysis of the development of
international legal regulation of criminal law
counteraction to domestic violence was not
conducted. This causes interest and relevance of
research.
Methodology
The methodological base of the research includes
a number of methods of scientific knowledge,
which in their totality allowed to answer the main
question regarding the formation of an effective
legal model of combating domestic violence at
the national and international levels. Below we
will consider how each of the research methods
used helped us achieve the research objective.
With the help of the historical method, it was
possible to highlight the peculiarities of the
formation of international legal regulation on
criminal-legal counteraction to domestic
violence at various stages of the state's historical
development, as well as to argue the need for
further scientific research.
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The use of the comparative legal method made it
possible to determine the content and essence of
criminal law norms and institutions, as well as
the characteristics of the criminal policy of the
state or interstate groups. In particular, this
method made it possible, taking into account the
international experience of foreign countries, to
investigate the regulation of combating domestic
violence in different countries and to propose
ways to improve the specified criminal law
practice in Ukraine.
A descriptive method was used to outline
concepts in the field of international legal
regulation of domestic violence. The specified
method helped to characterize the functioning of
international legal protection against domestic
violence in different time periods. In addition,
this method helped to understand the role played
by international legal institutions to ensure rights
and protection against domestic violence, both at
the international and national levels.
The system-structural method made it possible to
analyze criminal-legal concepts, in particular for
an in-depth study of normative provisions that
determine the essence of the criminal-legal
characteristics of domestic violence. Thus, the
use of this method in the process of researching
issues of criminal responsibility for domestic
violence made it possible to outline the internal
constructions of norms and the relationship and
interdependence of their elements both within
and with other criminal law concepts and
categories.
The use of the dogmatic method of research is
connected, in particular, with establishing the
content of legal norms and legal prescriptions,
clarifying the regularities of the operation of the
law using the rules of legal logic. Its main task is
to comment on criminal law and the practice of
its application. It is based on the laws of logic and
syntax and is used during the systematization of
international criminal law norms, the definition
of terms, and the interpretation of concepts. This
method provides an opportunity to analyze the
norm of criminal law in view of compliance with
the rules of legislative technique, the
construction of the disposition and sanctions of
this norm, to identify shortcomings, and to study
the ways of improving the international legal
regulation on combating domestic violence.
The use of the sociological method helped to
establish how social conditions, phenomena, and
factors influenced the formation of the
international legal protection of human rights in
relation to domestic violence.
A significant role in the conducted research was
played by the use of the modeling method. Thus,
the use of the modeling method made it possible
to identify the mechanisms of functioning and
preliminary consideration of the results of
changes and impacts and to formulate proposals
for the current legislation of Ukraine regarding
criminal liability for domestic violence.
A review of the legal doctrine regarding the
international legal regulation of criminal
counteraction to domestic violence at the
philosophical level made it possible to
understand that the basis and criterion of criminal
law (as well as any other) is the natural right of a
person, its naturalness and inalienability are
established both in the international and in
national constitutional law.
In addition, the method of induction was applied
- in order to obtain a general conclusion based on
formal and logical inferences, as well as the
method of deduction - during the identification
and characterization of criteria for differentiation
and establishment of criminal liability for
domestic violence.
Results and Discussion
In order to understand the peculiarities of the
legal model of combating domestic violence at
the international level, it is worth analyzing the
normative legal acts of an international nature,
containing the relevant norms, in chronological
order.
The Preamble to the Universal Declaration of
Human Rights of December 10, 1948 states that
recognition of the dignity inherent in all members
of the human family and their equal and
inalienable rights is the basis of freedom, justice,
and universal peace.
It is fair to say that the Universal Declaration of
Human Rights enshrines the guiding provisions
on human rights and the inviolability of the
individual. At the same time, the relationship to
violence as an acute social problem is monitored.
Also at this time, the understanding is that
violence is not limited to physical, sexual, and
psychological harm, but can manifest itself in
intimidation, suffering, coercion, and deprivation
of freedom.
In turn, the International Covenant on Economic,
Social, and Cultural Rights of December 16,
1966 (United Nations, 1966b), stipulates that the
states participating in this Covenant undertake to
ensure equal rights for men and women to enjoy
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all the economic, social, and cultural rights
provided for in this Covenant.
These international acts are quite important in
matters of personal protection from domestic
violence, but they are more general in nature.
But all these above-mentioned legislative acts are
basically aimed at ensuring human rights to
counteract manifestations of violence.
At the same time, the issue of combating
domestic violence was not resolved at the above-
mentioned stage. So, in general, combating
domestic violence is a system of measures
carried out by executive authorities, local self-
government bodies, enterprises, institutions,
organizations, etc., aimed at stopping domestic
violence, providing assistance and protection to
the victim, compensating for the damage caused
to him, as well as providing adequate
investigating cases of domestic violence,
bringing offenders to justice and changing their
behavior.
Activation of legislative regulation of protection
of persons from domestic violence in most
countries of the world began after the General
Assembly of the United Nations declared 1975 as
the year of women. Thus, in 1975, the first-ever
World Conference on the Status of Women was
held in Mexico. And a few years later, namely on
December 18, 1979, the General Assembly of the
United Nations adopted the Convention on the
Elimination of All Forms of Discrimination
Against Women (hereinafter - the Convention on
the Elimination of Discrimination against
Women) - an international treaty that is described
as an international "bill of rights" for women.
The adoption of the Convention on the
Elimination of Discrimination, among other
things, is due to the need to take into account the
importance of the contribution of women to the
well-being of the family and to the development
of society, which until now has not received full
recognition, the social significance of
motherhood and the role of both parents in the
family and in raising children and realizing that a
woman's role in reproduction should not be a
reason for discrimination, since raising children
requires the joint responsibility of men and
women and the entire society as a whole. Also,
important provisions of the Convention on the
Elimination of Discrimination, among others, are
the provisions provided for in Article 16,
according to which the obligation of the
participating states to guarantee the right of
women to marry only with their free and full
consent is established. (UN Convention on the
Elimination of All Forms of Discrimination
against Women (CEDAW or Women's
Convention) dated 18.12.1979).
It is worth noting that many states have
implemented the norms of the above-mentioned
international legal acts into their national
legislation.
Considering that children (persons under the age
of 18) are quite often victims of domestic
violence, it is important that the authors of the
UN Convention on the Rights of the Child of
November 20, 1989, provided that the
participating states take all necessary legislative,
administrative, social and educational measures
in order to the protection of the child from all
forms of physical and psychological violence,
abuse or abuse, lack of care or negligent and
brutal treatment and exploitation, including
sexual abuse, by parents, legal guardians or any
other person concerned about the child.
The next stage in the established need to confront
the problems of domestic violence was the
holding of the World Conference on Human
Rights from June 14 to 25, 1993 in Vienna, as a
result of which the Vienna Declaration and the
Action Program were adopted on December 20,
1993 (the UN Declaration on the Elimination of
Violence against Women).
The Vienna Declaration established that the
rights of women and girls are an integral, integral
and indivisible part of general human rights.
It is quite important that the Vienna Declaration
emphasizes the importance of working to
eliminate violence against women in public and
private life.
In addition to the analyzed international legal
acts, there are also many international documents
that are of a recommendatory nature regarding
combating domestic violence.
These acts of international legislation establish
the general principles of prevention of domestic
violence and also determine the direction of the
state's policy in the field of combating this
phenomenon.
The signing on May 11, 2011 (entered into force
on August 1, 2014) of the Council of Europe
Convention on Preventing and combating
violence against Women and domestic violence
(the Istanbul Convention) was definitely a
landmark event in terms of combating domestic
violence. The Istanbul Convention became the
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first legally binding document in Europe on this
issue and the largest international agreement in
terms of the scope of legal regulation of the
relevant issue.
The Convention reflects the concept of gender-
based violence. This means that violence against
women is a form of discrimination based on
gender, and that is why states have a duty to
combat all forms of discrimination against
women.
The Convention enshrines the principle of due
diligence on the part of the state (due diligence
principle), according to which states must
actively take the necessary legislative and other
measures to prevent violence against women,
investigate, punish, and provide compensation
for acts of violence.
At this stage of the development of social
relations, the fight against domestic violence is
needed more than ever. Although all EU member
states address violence against women and
domestic violence in legislation, the scope and
implementation vary considerably across the
bloc. Currently, there is no specific legal
instrument at the EU level. The EU Gender
Equality Strategy 2020-2025 found that gender-
based violence and harassment have reached
alarming levels, and are under-reported, under-
addressed, and ignored (United Nations, 2011).
At the same time, gender-based and domestic
violence remains a common phenomenon in
Europe, especially for women and girls. Most EU
countries have laws against violence against
someone based on gender or sexual orientation,
but the lack of a single definition of gender-based
violence and general rules to address this
problem perpetuates the problem. That is why the
European Parliament has repeatedly called for
the adoption of new EU legislation in this area.
To better tackle gender-based violence in all EU
countries, MEPs called on the European
Commission in September 2021 to make it a
crime under EU law, alongside terrorism, human
trafficking, cybercrime, sexual exploitation, and
money laundering. This would allow the
introduction of uniform legal definitions,
standards, and minimum criminal penalties
throughout the EU. Among the actions to be
punished, the Parliament lists cyber-harassment;
cyberstalking; violation of privacy; recording
and distribution of images of sexual violence;
remote control or surveillance (including
spyware); threats and calls for violence; sexist
hate speech; tendency to self-harm; illegal access
to messages or accounts in social networks;
violation of communication bans imposed by the
court; and human trafficking. Completing the
EU's accession to the Istanbul Convention of the
Council of Europe on preventing and combating
violence against women and domestic violence
remains a political priority.
As can be seen from the above, the formation and
development of international legal mechanisms
for criminal and legal counteractions to domestic
violence have been ongoing for the past 100
years, changing and developing. Despite the
changes in legal regulation, it can be argued that
all of them were aimed at better ensuring human
rights and combating cruel, inhumane treatment
and domestic violence.
Conclusions
As a result of the conducted research on the
development of international legal regulation on
criminal-legal counteraction to domestic
violence, the following conclusions were made:
1. A significant part of international law
regarding the problem of domestic violence
is made up of soft law norms. International
legal norms contain enough prohibitions and
principles that have been transformed over
the past 30 years, and yet the Universal
Declaration of Human Rights dated
December 10, 1948, the International
Covenant on Civil and Political Rights dated
December 16, 1966, the International
Covenant on Economic, Social and cultural
rights from 16.12.1966 contain the
fundamental legal principles that the family
itself should be under the special protection
of the state, as well as that no one should be
subjected to treatment that degrades his
dignity.
2. The understanding of the problem of
violence, the victims of which are women,
was revealed in the Vienna Declaration and
Action Program of 06.25.1993, as well as in
the UN Declaration on the Eradication of
Violence against Women of 12.20.1993. The
adoption of a number of recommendations in
Europe regarding violence against women
created prerequisites for the adoption of the
Istanbul Convention, which was recently
ratified by Ukraine and establishes
important standards for combating domestic
violence and combating these phenomena.
3. The indisputable positive point of the
presence of international law-making on
combating domestic violence is that the
world community recognizes this problem
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and expresses the need to confront it by
various means, including criminal law.
Undoubtedly, the very fact of the adoption
of the specified international acts did not
become a panacea for solving all problems
in the field of combating domestic violence.
Currently, the difficult path of implementing
the provisions of the specified acts in the
legislation of the countries of the world, as
well as the complex process of law
enforcement, continues. Also, currently,
there are many problematic practical aspects
that need to be solved, and therefore the
study of issues related to criminal
responsibility for domestic violence is
important and relevant.
Further scientific research will be directed to the
study of problematic issues of regulation of
criminal-legal response to domestic violence,
both at the international and national levels.
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