Reglamentation of Social Safety Operational Measures in European Union

REGLAMENTATION OF SOCIAL SAFETY OPERATIONAL MEASURES IN EUROPEAN UNION

Ilona Kronberga

Gatis Litvins

Agnese Lesinska (Agnese Lešinska)

Sanita Sile (Sanita Sīle)

2012

The research was carried out by the collective body of researchers:

Ilona Kronberga, leading researcher

Agnese Lesinska, researcher

Gatis Litvins, researcher

Sanita Sile, research assistant

The research is co-financed from the Project No. JUST/2010/JPEN/AG/1546 “Current Problems of Restorative Justice, Solution Prospects in European Union” of the European Commission Special Program “Criminal Law”.

The Ministry of Justice of the Republic of Latvia is responsible for the contents of the Research and the European Commission does not accept the responsibility for the included information.

Client:

Ministry of Justice of the Republic of Latvia

Contractor:

Association “Centre for Public Policy PROVIDUS”

Personal rights of the authors of this research belong to its developers. Property rights of the research authors belong to the Ministry of Justice of the Republic of Latvia.

Citation of the information included in the research is allowed by adding the reference to the research.

ISBN 978-9984-9911-4-6

Table of Contents

Used Abbreviations...... 5

Introduction...... 6

1. Analysis of the Legal Regulation of Estonia...... 8

1.1. Preventive Operational Measures...... 9

1.2. Persons, whom Preventive Operational Measures are Applicable to...... 10

1.3. Institution, which Applies Preventive Operational Measures...... 10

1.4. Acquisition and Summarization of Information on Violence Risk...... 12

1.5. Assessment of Violence Risk and Evidence Standard...... 13

1.6. Appealability and Application Term of Preventive Operational Measures...... 14

1.7. Procedural Status of Threatened (Protected) Person...... 15

1.8. Supervision of Fulfilment of Preventive Operational Measures...... 16

1.9. Consequences of Violation or Non-Fulfilment of Preventive Operational Measures...... 17

1.10. Steps and Activities of Implementation of Preventive Operational Measures...... 17

1.11. Implementation and Application Problems of the Institute of Preventive Operational Measures...... 18

2. Analysis of the Legal Regulation of Finland...... 20

2.1. Types of Protection Order...... 21

2.1.1. Restraining Order...... 21

2.1.2. Temporary Order...... 21

2.1.3. Extended Restraining Order...... 22

2.1.4. Eviction Order...... 23

2.2. Issue Procedure of Protection Order...... 23

2.3. Issue Procedure of Temporary Order...... 25

2.4. Content of Protection Order...... 25

2.5. Conditions for Issue of Protection Order...... 26

2.6. Amount of Evidence, When Issuing Protection Order...... 27

2.7. Appeal Procedure of Protection Order...... 28

2.8. Consequences of Violation or Non-fulfilment of Protection Order...... 28

2.9. Monitoring Procedure of Fulfilment of Protection Order...... 29

2.10. Application Practice of Protection Order in Finland and Identified Problems...... 29

3. Analysis of Legal Regulation of England and Wales...... 33

3.1. Prevention of Domestic Delinquency...... 35

3.1.1. Occupation Order...... 35

3.1.2. Non-Molestation Order...... 37

3.2. Person’s Protection from Harassment...... 39

3.3. Crime and Disorder Act...... 41

3.3.1. Anti-Social Behaviour Order...... 43

3.3.2. Sex Offender Order...... 45

3.3.3. Parenting Order...... 46

3.3.4. Child Safety Order...... 47

3.4. Anti-Social Behaviour Act and Its Reform...... 48

4. Legal Regulation in Scotland...... 61

4.1. Anti-Social Behaviour etc. (Scotland) Act...... 61

4.2. Acceptable Behaviour Contract...... 66

4.3. Protection from Harassment Act and Power to Arrest without Warrant...... 68

4.4. Domestic Abuse (Scotland) Act and Eviction Order...... 70

5. Legal Regulation in Bulgaria...... 73

6. Guidelines for Implementation of Preventive Operational Measures in Latvia...... 76

6.1. Legal Environment of Application of Preventive Operational Measures...... 76

6.2. What Has To Be Definitely Taken into Account in the Process of the POM System Development in Latvia 78

6.3. Possible POM system in Latvia...... 84

6.4. POM Types Possible in Latvia and Separate Aspects of Their Application Procedure...... 87

6.4.1. Children and Their Parents...... 88

6.4.2. Fast Reaction Methods...... 89

6.4.3. POM Applicable according to General Procedure...... 93

6.5. Inter-Institutional Group and Implementation Procedure of Preventive Operational Measures...... 99

7. Conclusions...... 105

8. List of Used Resources...... 109

Appendices...... 116

Scheme 1 Special Status of the State Police and Prosecutor’s Office in POM Application...... 116

Scheme 2 Information Turnover in Inter-Institution Environment...... 117

Scheme 3 Sequence, According to Which the Information Comes from a Person to the Inter-Institution Working Group from IG Members and then to Court 118

Scheme 4 Preventive Measures in Legal Regulations of Latvia – Current and Planned...... 119

Scheme 5 Prevention System in Latvia...... 120

Scheme 6 Possible Model of Preventive Operational Measures System in Latvia...... 121

Scheme 7 Application System of Anti-Social Behaviour Order in Great Britain from Municipality to Court Level 122

Scheme 8 New and Old ASBO System in Great Britain...... 123

Scheme 9 Scheme of Prevention Management for Latvia in Compliance with Research...... 124

Used Abbreviations

UK – United Kingdom

ASBO – Anti-Social Behaviour Order

PO – Parenting Order

CSO – Child Safety Order

SOO – Sex Offender Order

CL – Criminal Law

CCP – Code of Criminal Procedure

LAVC – Latvian Administration Violations Code

LR – Republic of Latvia

CPO – Crime Prevention Order

CBO – Criminal Behaviour Order

POM – Preventive Operational Measures

TPMoPR – Temporary Protection Measures of Personal Rights

IG – Inter-institution Group/ Inter-institution cooperation Group

BCO – Behaviour Control Order

N-Ireland – Northern Ireland

Introduction

The rights of at least two persons collide in case of implementation of preventive operational measures. On the one hand, for example, the rights tolife, health and safety, on the other hand, for example, the rights tofreedom, freedom of expression, inviolability of private and family life, property. Thus, it is to be assessed whether the limitation of rights is determined on the basis of law, whether it has a legitimate aim and whether it is proportionate with that whether the society’s gain from the limitations imposed on a private person is greater than the limitation of the rights of a private person or legal interests in each case.

The institute for preventive operational measures does not contradict the concept of freedom, the founder of which, the legal philosopher John Stuart Mill pointsout that one of the unquestionable functions of the state is to prevent criminal offence prior to its commitment, as well as to resolve it and to punish the doer after that. Preventive function, most likely, can be used for the suppression of freedom rather than as a punishment function. If the state establishes accurate information that someone intends to commit a crime, it does not have to watch passively, while the crime is being committed, but rather has to interfere in order to prevent it. Society’s rights to fight off criminal offences against it by taking premature protection measures include demonstrative limitations for the maxim, which states that it is only the violations referable to one’s self that are not allowed to be interfered in order to prevent them and to punish. For example, getting drunk is not usually subjected to the law control, yet it is fully legitimate, if a man, who was once punished for violence against others while in drunkenness, is subjected to special lawful limitations referable exactly to him. If later he is spotted in drunkenness, he has to receive a penalty, and if he has committed another violation being in this state, the penalty for it has to be more severe. Drinking itself is already a crime against others for a person, who is forced to harm anyone by drunkenness.[1]

Person’s freedom is not absolute and its use is limited by the rights and lawful interests of other persons. The state has a positive and compulsory responsibility to ensure that each private person does not violate the rights and fundamental freedoms of other private persons. Firstly, the state bears the responsibility, if competent institutions were objectively aware (i.e. they could and must have known) of already occurred or expected violation of fundamental rights, and they were objectively capable of preventing the violation by using their public authority means. For example, the European Court of Human Rights in the case Opuz v. Turkey[2]; the applicant and her mother regularly and protractedly suffered violence and threats on the part of applicant’s husband, the fact of which was repeatedly reported to the local police and prosecutor’s office. Eventually the husband stabbed the applicant with a knife and later murdered her mother. The European Court of Human Rights established that the state institutions did not do everything possible to protect the applicant and her mother from husband’s violence, therefore, Turkey violated the liabilities imposed on it by Articles 2 and 3 of the Convention. The court found that the state had to ensurenot only the punishment and supervision functions, but also the prevention functions in order to ensure person’s fundamental rights. State institutions bear positive responsibility to apply preventive operational measures, if a person is subjected to the risk of criminal offence on the part of other person. Preventive operational measures are to be applied only in a manner, which respects the guarantees of procedural justice[3]. In the case Opuz v. Turkey the court also established gender discrimination within the meaning of Article 14 of the Convention, taking into account that domestic violence against women in the defending country is a systemic problem. Secondly, the volume and content of the state’s responsibility under such conditions depends on the essence and content of particular fundamental rights. In this case two situations are to be distinguished: a) if it is a case of gross violation of essential fundamental rights (life threat, torture, constant and unbearable interference into private life, etc.), state’s liabilities with regard to the offended person are rather wide: responsibility to perform quick and effective investigation; if necessary, to apply criminal-procedural operational measures and criminal-judicial sanctions against the offender, etc.; b) if it is a case of dispute between two or more private persons, in which each of the parties invokes prima facie legitimate rights and interests, than state’s responsibility is generally limited by the possibility guaranteed by Article 6 of the Convention to protect one’s rights and lawful interests in an equitable court.[4]

Of course, the positive responsibility of the state cannot be absolutized. It is necessary to assess, whether state institutions were aware or had to be aware of the risk of threat toperson’s rights or judicial interests on the part of third person and whether state institutions did not act in compliance with the conditions of a particular case in order to prevent the risk.[5]

Therefore, according to the policy of the European Court of Human Rights, in case of violation of essential fundamental rights or in case of such risk there is a positive responsibility of the state to actively act with an aim to protect the rights of private persons, which necessitates preventive operational measures.[6] In case of less important rights and freedoms, when the consequences of offence are less gross, the state bears the responsibility to provide private persons only with the possibility to prevent the already existing or potential threat. Private person him/herself is to act actively for its prevention.

1. Analysis of the Legal Regulation of Estonia

Legal regulation - Law on Obligations Act[7], Code of Civil Procedure[8], Code of Criminal Procedure[9], Police and Border Guard Act[10] and Penal Code[11] - and policy of Estonia with regard to preventive operational measures are analysed in this chapter. Legal regulation of Germany and Austria are also analysed in addition to the experience of Estonia, since the basis of regulatory enactments of Estonia has been formed according to the model of both countries.

Unlike Finland, the institute ofrights of preventive operational measures in Estonia is included into different laws both as material and procedural norms of rights. Legal regulation encompasses the whole segment of legal relations, in which a private person might necessitate preventive protection of rights. With the help of these measures a person is assigned to act within the framework of behaviour requirements specified in the law.

Legal regulation of Estonia complies with the European Convention on Human Rights and Fundamental Freedoms, which is binding for Estonia, and the policy of the European Court of Human Rights. There are no doubts regarding the necessity and significance of this regulation for the protection of human rights in Estonia; yet the actual effectiveness of these measures is currently being questioned.[12] If it is assessed from the point of view of the policy of the European Court of Human Rights, the compliance of these rights-protection measures with Article 13 of the European Convention on Human Rights and Fundamental Freedoms, which prescribes that anyone, whose rights and freedoms determined in the Convention are violated, is provided with effective protection in the state institutions, regardless of the fact that the violation was committed by the persons fulfilling official duties, is being questioned. In any case of unjustified violation of rights, a private person has the rights to protection determined in the aforementioned Convention.[13] The European Court of Human Rights has clearly pointed out that the rights are to be ensured practically and effectively[14] rather than theoretically or illusively, thus, the possibility of rights protection always has to be“effective” both in practice and in theory[15], exactly in the sense that its implementation cannot be interfered by the action or inaction of state institutions or officials in any unjustified way.[16]

Preventive operational measures of Estonia wereincluded into regulatory enactments in 2006 in response to the appeal of the European Council to create judicial tools in order to decrease domestic violence.[17] Estonia, unlike other countries (Germany, Austria, Norway, Sweden, etc.),[18] has not yet criminalized the actions, which are limited by the Protection Order, as separate components of criminal offence.

1.1. Preventive Operational Measures

Part 1 of Article 1055 of the Law on Obligations Act prescribes that Restraining Order might be applied, residence in shared living-space or communication (meet and contact (by telephone, mobile telephone, Internet, etc.) might be regulated or other similar operational measures might be applied in case of bodily injuries, health threat, inviolability of private life or in case of other personal rights. Likewise in Germany,the court can issue a Protection Order with regard to violence, threats and molestation based on Article 1 of the German Protection From Violence Act (GewSchG) and Article 1666 of the Civil Code[19]. The court can forbid to contact, to visit working place or place of residence, etc.[20] Similarly in Austria, the Family Court can forbid to contact (to call, meet, send letters, etc.), to visit certain places, etc. under the civil procedure.[21]

Article 23 of the Family Law Act describes in more detail, how a case, when the court has set the responsibility for spouses to live separately for a period determined in the Protection Order, is resolved.[22] Ownership and rights touse are taken into account, when carrying out a decision regarding separate living of the spouses. In Germany, the court can limit the rights of the guilty person to stay at a shared place of residence based on Article 1361b of the Civil Code and Article 14 of the Partnership Law, even though the guilty person has signed a lease agreement.[23] The fact that the guilty person has signed a lease agreement has no decisive significance in Austria as well.[24]

The pluralism of preventive operational measures also results from Article 544 of the Code of Civil Procedure. Similarly, it is also prescribed by Article 1411 of the Code of Criminal Procedure.

Thus, the types of preventive operational measures are not limited by the law. The state institution, which applies them, can select the most appropriate Protection Order for particular actual and legal conditions. In the civil procedure, the Protection Order is applied in compliance with criminal procedure (see further) or in cases, when there is no ground to initiate the criminal procedure, since the incurred or potential damage does not reach the set minimal threshold of invasion. For example, if any person insistently disturbs other person by sending exceedingly many e-mails or SMS, and such action causes unpleasant and disturbing feelings to the addressee.

The diversity of the types of preventive operational measures is evaluated positively, because it ensures the application of the most appropriate one for the conditions of each case, thus, guaranteeing physical and psychological inviolability of a person.

1.2. Persons, to whom Preventive Operational Measures are Applicable

In the civil procedure, preventive operational measures can be applied only against a private person (in court - the defendant), who has caused or threatens the rights and freedoms of other private person (in court - the applicant).

In the criminal procedure, preventive operational measures can be applied against the suspected or the accused within the framework of the criminal procedure, within which the person, in favor of whom they are determined, is a victim (Part 1 of Article 1411 of the Code on Criminal Procedure).

Whereas according to the Police and Border Guard Law, they can be applied to anyone, who causes threats to the rights and freedoms of other person in cases specified in this law (see Paragraph 3).

Thus, a person, who is causing threats toanother person, is to be precisely identified in each case.

1.3. Institution, which Applies Preventive Operational Measures

According to Part 1 of Article 544 of the Code on Civil Procedure and Part 1 of Article 1411 of the Code on Criminal Procedure, preventive operational measures can be applied by a court of general jurisdiction, as well as by an investigative judge within the criminal procedure. In Germany, the decision is carried out by a specialized court as well – the Family Court.[25]

Likewise as in Germany, where a special application form is prepared, court cases on preventive operational measures are considered outside the general procedure[26] in accordance with their significance for human safety and society’s interests. The court considers the request within couple ofdays.[27] The procedure can be prolonged because ofthe collection of additional evidence. Similarly in Austria, according to the Austrian Protection Against Violence Bill, the protection can be determined for 3 months or more.[28]

In the criminal procedure, state fee is not to be paid, while in civil procedure, state fee is to be paid according to Article 22 of the State Fees Act[29] according to the procedure set by Section 8 of the Code on Civil Procedure.

Moreover, police rights specified in Articles 71 and 731 of the Police and Border Guard Act to apply preventive operational measures supplement both procedural measures. The police can issue a Restraining Order, if immediate supervision of person’s rights and freedoms is necessary for the benefit of society, because there is no possibility to use these rights and freedoms or itis extremely hindered, and it cannot be accomplished according to the procedure set in the Code on Civil Procedure and Code on Criminal Procedure. The police can determine short-term restriction to approach any particular person, to visit certain places, etc., if the existing threat threatens the health and life of other person, protection is in the interests of the society, the risk is recognized as important one, fast and immediate action is necessary in order to ensure person’s safety. The police can determine the restriction for up to 12 hours. The restriction for a longer period of time can be determined by the Minister of Internal Affairs.