(Formerly Minnesota Advocates for Human Rights)
Regional Conference on Domestic Violence Legal Reform
February 12-14, 2008
Sofia, Bulgaria
Zuzana Magurová
Institute of State and Law
Slovak Academy of Sciences,
Bratislava, Slovakia
Legislation concerning violence against women in
SLOVAKIA
Violence against women VAW / Domestic violence DV
Until the present day, the notion of domestic violence has not been defined in
Slovakia, nor has there been any separate law on violence against women or domestic
violence.
Cases of VAW and DV can be treated as a misdemeanor or criminal offence
depending on the intensity and consequences of the conduct, so they are considered either
under the Act on Misdemeanors (Act no 372/1990 Coll. effective from 1 st October 1990)
or the Criminal Code (Act no 300/2005 Coll. effective from 1st January 2006). If a case of
VAW and DV is to be considered a crime, it has to comply with the factual definition of
any crime against life and health, liberty or human dignity, family, youth etc.
It is striking that the crime of cruelty to animals became part of the former
Criminal Code in 1991, but the crime of cruelty to close persons – spouses, former
spouses after divorce, intimate partners, only in 1999.
The legislation - Criminal Code contains only “gender neutral” definitions as
“close person”. A close person is a relative in direct line, sibling and spouse; other
persons in a family or similar relationship are considered to be persons in a close
relationship if harm done to either of them would reasonably be perceived by the other as
his/her own harm.
Since the year 2002 this definition (§ 89/7) was amended for the purposes of
offences mostly committed against women and the same formulation was involved to the
§ 127/5 of the new Criminal Code (Law 300/2005 Coll. effective from 1st January 2006):
“Under sections of Criminal Code § 189 – blackmail, § 199/2 – rape, § 200/2 – sexual
violence, §201/2 – child sexual abuse, § 208 – Cruelty against close persons or dependent
persons and § 360 – assault, a close person includes not only a relative by blood, an
adoptive parent, sibling and husband, but also a former spouse, partner, former partner, a
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parent of a couple’s child, as well as persons who reside or have resided in the same
household with the offender.
Criminal Code (Law 300/2005 Coll.)
Due to this change, violence against close persons, former wives, their children
from previous marriages as well as against former partners is now deemed to be a
criminal act under § 208 (former § 215) of Criminal Code (Law 300/2005 Coll. effective
from 1st January 2006). This change gave a legal expression to the fact that in Slovakia,
after a divorce or a break-up, former spouses or former partners often remain living in the
same household and that a violent act committed under such circumstances is of the same
nature as a violent act committed before the divorce or break-up of the relationship. At
the same time, violent acts committed against former spouses and former partners have
been included into the category of more serious criminal acts, similar to violent acts
against a spouse or a partner.
Terms as psychological violence or verbal abuse are not defined separately, but
they are covered by other categories of offences in Criminal Code as § 208 Cruelty
against a close person or a person in care or custody.
An amendment to provision of the former Criminal Code on cruelty to person in
care and custody in the year 1999 brought a significant change of the penal system. Until
this year § 215 only concerned violence against children and persons in care and custody
(a child under 18 years, whether delivered in custody after a divorce or foster children or
adult person in custody), and since the 1 st. September 1999 it also concerned to close
person (including women).
In the year 2005 was adopted a new Criminal Code (Law No 300/2005 Coll.) which
is effective since 1st. January 2006, which preserved the provisions of original § 215 (with
the exception of penal rates) in
§ 208 Cruelty to (abuse of) a close person or a person in care or custody
(1) Whoever is cruel to (abusing) a close person or a person in his custody or care,
causing physical or psychological suffering to such person mainly by
a) beating, kicking, punching, causing injuries and burns of any kind, humiliating,
contemptuous treatment, stalking, making threats, exciting fear or stress, forcing into
isolation, emotional blackmailing or any other behavior jeopardizing the person’s
physical or psychological health or limiting the person’s safety,
b) groundless denying of food, rest or sleep, or denying of necessary personal care,
clothing, hygiene, health care, housing, upbringing or education,
c) forcing the person to beg or to perform activities requiring excessive physical or
psychological exhaustion regarding the age or health condition of the person, or to
perform activities that may harm the person’s health,
d) exposure to substances that may harmful the person’s health, or
e) groundless preventing of access to property that the person has a right to use shall
be sentenced for 3 up to 8 years of imprisonment.
(2) An offender shall be sentenced for 7 up to 15 years if by committing an offence under
subsection (1)
a) he/she caused a serious harm to health or death,
b) because of peculiar inducement,
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c) although he/she has been sentenced for such an offence in the part twenty four
months or has been sentenced for such an offence and released on parole,
d) if he/she has continued committing such an offence for a longer time, in violent
manner, threatens with violence or other serious injury, or abuses emergency
situation or the dependence of another person
(3) An offender shall be sentenced for 15 up to 25 years of imprisonment, or an
exceptional sentence, if by committing an offence under subsection (1) and he/she caused
a serious harm to health or death to several persons.
The new Penal Code has laid down the provisions concerning bodily harm
somewhat differently.
§ 123 Bodily harm
(1) For the purposes of this act, bodily harm means any damage to health of another
person.
(2) For the purposes of this act, bodily injury means any damage to the health of another
person requiring medical examination, intervention or cure and rendering the usual
lifestyle of the injured impossible for a significant period of time.
(3) For the purposes of this act, the following serious health problems and illnesses are
considered a grave bodily harm:
a) disability,
b) loss of or significant limitation to working aptitude
c) paralysis of a limb,
d) loss of or significant limitation to the function of sensorial organs
e) damage to an important organ,
f) disfigurement,
g) inducement of abortion or killing of the fetus,
h) torture,
i) health problems over an extended period of time.
(4) For the purposes of this act, health problems over an extended period of time mean
health problems objectively requiring cure or even work absence, for a period of at least
42 calendar days during which the usual lifestyle of the injured has been altered in an
important way.
Trafficking in women
The previous Criminal Code (Law No. 140/1961 Coll.) had contained only one
provision (§ 246) specifically dealing with trafficking in women for the purposes of
prostitution but only in situations where the woman was transported abroad.
The amended Criminal Code in the year 2002 (in the view of ratification and
implementation of the UN Protocol) has introduced the offence of trafficking of human
beings - §246 (instead of trafficking in women) and trafficking in children - § 216a and
§216b.
From the year 2004 (in the view of Framework Decision of the Council of the EU
on Combating Trafficking in Human Beings) the amended Criminal Code prohibited
trafficking in people for the purposes of prostitution, pornography, forced labour or
services, slavery or practices similar to slavery or removal organs (§ 246).
The new Criminal Code adopted last year (Law 300/2005 Coll. and valid since 1st.
January 2006) contains the same regulation in
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§ 179: “Whoever, by means of fraudulent conduct, trick, restriction of personal
freedom, violence, threat of violence, threat of another gross harm or other form of force,
by accepting or providing a payment or other benefits to achieve the consent of a person
on which another person is dependent, or by abusing his own position or abusing another
person s helpless or otherwise vulnerable position, seduces, transports, holds, delivers, or
receives another person, including with the person s consent for the purpose of the person
s prostitution or other form of sexual exploitation, including pornography, for the purpose
of forced labour, forced service, slavery or practices similar to slavery, or servitude, or
for the purpose of illegal taking organs or tissues or other form of exploitation shall be
punished by imprisonment for a term for 4 up to 10 years.” .” The sentence can be
increased to
7 up to 12 years if the offender, by committing such crime generates for him or for any
other person major profit, or if the offender has continued committing such an offence for
a longer time in violent manner, threatens with violence or other serious injury, or abuses
emergency situation or the dependence of another person, depending on whether the
victim is, child, pregnant women, close person, depended person, healthy disabled
person,
12 up to 20 years if the offender, by committing such crime generates for him or for any
other person considerable profit, if the offender commits such crime as a member of an
organized criminal group or whether a serious bodily injury or death was caused.
Rape
The Criminal Code (Law No 300/2005 Coll. effective from 1st January 2006) in
§199 prohibits rape, including spousal rape: “Whoever, by force or threat of direct force,
causes a woman to engage in a sexual intercourse, or abuses the woman’s vulnerability
for such an act, shall be imprisoned for a term of 5 up to 10 years.”
The sentence can be increased to :
- 7 up to 15 years depending on whether the victim is, child, pregnant women, close
person, depended person, healthy disabled person, or if the offender has continued
committing such an offence for a longer time in violent manner, threatens with violence
or other serious injury, or abuses emergency situation or the dependence of another
person,
- 15 up to 20 years whether a serious bodily injury was caused,
- 20 up to 25 years whether death was caused.
Sexual violence
The Criminal Code (Law No 300/2005 Coll. effective from 1st January 2006) in
§200 prohibits sexual violence: “Whoever, by force or threat of direct force, causes
another person to oral sex, anal sex, or any other sexual practices or abuse his/her
vulnerability for such an act, shall be imprisoned for a term of 5 up to 10 years.”
Prostitution
Prostitution is legal, selling of sex is not criminalized. The Criminal Code (Act no
300/2005 Coll. effective from 1st January 2006) prohibits relating activities such as
knowingly spreading sexually transmitted diseases (§ 167), trafficking in people for the
purposes of prostitution (§179), deprivation of personal freedom (§ 182) restriction of
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personal freedom (§ 183), restriction of freedom of movement (§ 184), abduction to
a foreign country (§ 187) and pumping activities (§ 367). According to § 367 of
Criminal Code (Law 300/2005 Coll. effective from 1st January 2006) whoever hires,
transports, seduces, exploits, procure or offer another person to engage in prostitution or
whoever exploits the prostitution or allows the prostitution of another person shall be
punished by imprisonment for term of up to 3 years. The sentence can be increased to:
- 1 up to 5 years if the offender has continued committing such an offence for a longer
time in violent manner, threatens with violence or other serious injury, or abuses
emergency situation or the dependence of another person
- 3 up to 10 years depending on whether the victim is, child, pregnant women, closely
related person, depended person, healthy disabled person, or whether brutal force was
used,
- 7 up to 12 years if the offender, by committing such crime generates considerable profit,
if the offender commits such crime as a member of an organized criminal group or the
victim is younger than 15,
- 10 up to 15 years whether a serious bodily injury or death was caused.
Pornography:
According to § 132 of Criminal Code (Law 300/2005 Coll. effective from 1st
January 2006) pornography product is such depiction of sexual intercourse or depiction
of naked parts of body that evokes sexual excitement or sexual satisfaction. In similar
way is defined also a child pornography product. Criminal law penalizes production,
buying, importing and following selling, borrowing, distribution and publishing
pornography products (§ 371 a § 372) and individually penalizes 3 ways of handling the
child pornography, namely its production (§ 368), distribution (§ 369) and possession (§
370).
Sexual harassment:
The Slovak antidiscrimination and equal opportunities legislation is missing a
definition of sexual harassment, and there are not statistics available to measure the
frequency or severity of its occurrence.
Directive of the Council no 2002/73/EC on amendment of Directive no. 76/207/EC
was not yet fully transposed into our legislation although since the 1st July 2004 is valid
the Act on Equal Treatment in Certain Areas and Protection against Discrimination,
amending and supplementing certain other laws (Antidiscrimination Act) Act No.
365/2004 Coll. The law listed discrimination grounds, and defines direct discrimination,
indirect discrimination, harassment (but not sexual harassment), victimization;
instruction to discriminate and incitement to discrimination.
Criminal Procedure (Law No. 301/2005 Coll. )
The amended version of the Rules of Criminal Procedure (Act on Penal
Proceedings No. 141/1961 Coll.) effective since the 1st October 2002 introduced an
important change in the disposal right of the injured who were no longer expected to
express their consent with the criminal prosecution of the perpetrator in case of deliberate
crimes, i.e. – violence against a group of inhabitants or against individuals, bodily harm,
blackmail, violation of domiciliary freedom. The aim was to prevent further violent
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actions that the perpetrators use against the injured in order to force them to withdraw
their consent with the prosecution. The new Penal Code transposed the regulations
concerning the consent of the injured party used in the amendment. According to Article
211, criminal proceedings as a result of causing bodily harm, according to Article 157 and
158, i.e. due to recklessness, against a person who is in a relation to the injured entitling the
injured not to testify against that person as a witness, may only be initiated with a consent of
the injured party.
According to Article 212, Section 3, of new Criminal Procedure (Law No.
301/2005 Coll. which is effective since 1st. January 2006) the consent expressly
withdrawn or taken back may be given again only if the circumstance of the case show
that such a withdrawal or taking back was carried out in distress, as a result of threats,
pressure, dependency or subordination. It is apparent from Section 4 that if the
circumstances of the case clearly show that the consent has not been given again just
because the injured was in distress, exposed to threats, under pressure or in dependent or
subordinate relation, the consent is considered given.
Article 85 of the new Criminal Procedure lays down powers of the police, when
detaining a suspect and limiting their personal freedom, that are similar to those laid
down before.
§ 85 (1) According to Article 1, a person suspected of having committed a crime may be
arrested by the police if there are any of the reasons for custody as set by Article 71,
Section 1, even though no indictment has been raised yet. The prosecutor has to issue
their consent prior to the arrest. Without such prior consent the arrest may only be carried
out if the circumstances do not provide for postponement and it is impossible to receive a
prior consent, especially when the suspect has been caught committing the crime or when
fleeing.
(2) T he personal freedom of a person who was caught when committing a crime or
immediately thereafter may be limited by anybody if it is necessary in order to establish
their identity, prevent their fleeing or to secure evidence. However, such a person has to
be immediately handed over to the police…
(3) T he police officer who carried out the arrest, or to whom the person caught when
committing a crime according to Section 2 has been handed over, will immediately
inform of the arrest the prosecutor, also writing a report containing the place and time of
the arrest or of taking over the arrested person as well as other details, such as the
principal reasons. Personal details of the suspect are to be included as well. A copy of the
report has to be delivered to the prosecutor without postponement.
The provisions of Article 103 authorize the police to enter the habitation, other
premises or plots of land only if the circumstances do not provide for postponement and
the entry is necessary in order to protect the life or health of people or…
Act on Police Corps (Law No. 171/1993 Coll.)
§ 29 – “Authority to open apartment” authorizes the police to enter an apartment.
If it is reasonably believed that life is at risk, or health of a person is at serious risk or if a
serious damage to property is imminent and no postponement is possible…, the police
officer is entitled to open the apartment, enter it and carry out measures to avoid the
imminent danger.
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However, in practice many cases of domestic violence are only assessed as
infringements. The violent partner often forces his victim to file together with him a
complaint in respect to the inadequacy of the police raid. Therefore, police officers are
very reluctant to intervene in households.
Detainment of a person by the police officer is of administrative nature, stipulated
by the Act on Police Corps, Article 19, Authority to detain a person, and needs to be
distinguished from arrest (§ 85, 76 of Criminal Procedure)
The police officer is entitled to detain a person:
a) whose acts present imminent danger to their life or health or the lives and health of
others or to property,
b) who is caught during the commitment of an infringement, if there is a reasonable belief
that the person will continue acting that way or if it is necessary for properly carrying out
the investigation and clarification of the case,
c) who is present in the crime scene immediately after the crime has been committed and
there is a connection to the crime in question. A person cannot be detained for more than
24 hours from the moment of limiting their personal freedom. It is likely that this
authority is still not used at its fullest in our country. The victims could profit from
having 24 hours to possibly leave the household (and pack their belongings).
In January 2007 an internal commentary procedure was begun in respect to a bill amendment that
changes and amends Act on Police Corps. The wording of the amendment was inspired by the legal rules in
Austria and, above all, the Czech Republic.
According to the proposal, the police officer will be authorized to act against a violent person and to
expel them from a joint habitation, based on the facts discovered. According to a reasoning report currently
drawn in respect to the bill amendment, the protection of life and health takes precedence over housing
protection and, it should also prevent the victims from fleeing from their apartment (habitation) in fear of the
perpetrator as well as further attacks against people.
The police officer will be authorized to expel the violent person from a particular apartment or house
for a period of up to 10 days. The police officer is to write a report of the action taken and to hand it over to
the police department that will issue a written decision of expelling the person from the joint habitation. The
expelled person should be entitled to collect their personal belongings but should also have the keys taken away
from them.
The bill amendment should have be submitted to the Government of Slovakia in March 2007, but
the legislation process was interrupted.
Act on Misdemeanours (Infractions) (Law No. 372 /1990 Coll.)
A similar approach as with consent in amendment of Criminal Procedure, was
also applied when amending the Act on Misdemeanours (effective since the 1st October
2002), with the infractions committed among close persons, e.g. threatening to cause
bodily harm and actual minor forms of bodily harm, now being officially dealt with by
the authorities.
Civil Procedure Code (Law No. 99 /1963 Coll.)
The amended version of the Rules of Civil Procedure in the year 2002 stipulated
a new kind of preliminary ruling (interim measure) that prevents the perpetrator to enter
the apartment or house where a close person or a person in their care or custody lives in
respect to whom the perpetrator is suspected of having committed the crimes(§ 76/1/g).
At the same time it cut down period for delivering the preliminary ruling concerning
minor children or person endangered by violence. The deadline for issuing an interim
measure is 7 days (§ 75 /2).
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Civil Code (Act No. 40/1964 Coll.)
The amended version of the Civil Code in the year 2002 has brought about a
major breakthrough in the current practice. It has stipulated a provision enabling to
prevent the perpetrator from using the apartment or house, jointly owned by the spouses
while the marriage still lasts or after it has been divorced, until the property is divided by
the court.
The amendment to the Civil Code has added Section 2 to Article 146, enabling the
court to put, at a request by one of the spouses, limitations on the right to use the
apartment of the other spouse in respect to the apartment or house owned jointly by them,
or exclude the other spouse completely from the right to use the apartment provided
further cohabitation is impossible due to physical or mental violence or threats thereof in
respect to the spouse or a close person who share the apartment or house with the
perpetrator.
Additionally, Article 705a authorizes the court to exclude from or limit the right
of one of the spouses to use the habitation at a request by the other spouse, provided
further cohabitation is impossible due to physical or mental violence or threats thereof in
respect to the other spouse or the divorced spouse jointly using the apartment or in
respect to a close person who shares the apartment together with the perpetrator.
Article 712a, Section 8 states that if a divorced spouse, while the marriage still
lasts or after it has been divorced, has committed or commits physical or mental violence
in respect to the other spouse or a close person sharing the apartment, the court may rule
that the perpetrator is not entitled to housing compensations.
JUDr. ZUZANA MAGUROVÁ
She graduated the Faculty of Law of Komensky University in Bratislava. Currently she
works at the Institute of State and Law of the Slovak Academy of Sciences, and is a
member of the Slovak Bar Association and of the organization Možnosť voľby (Pro
Choice Slovakia). She actively takes part in the current legislative amendment and
possibility of its modification mainly concerning gender-based violence and the issue of
equal opportunities. She also deals with the problematic of domestic violence and
possibilities of protecting victims.(zuzana.magurova@chello.sk)
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