on 10 March 2022
Family law protection from domestic violence was introduced in Serbia in the Family Act 2005. Serbia has ratified Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence 2013 and Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 2010. The Act on preventing domestic violence was enacted 2016. Following topics according to Serbian and European law were analyzed: child as a subject of the protection of domestic violence, rights of the child and protection of domestic violence, particularly corporal punishment as a measure in upbringing a child, rights of the child to contact with parents and other persons close to the child in the cases of domestic violence, right of the child to education on violence and right of the child to express opinion in connection with violence, protective measures and proceedings of protectinon from domestic violence.
Violence as a phenomenon inherent to man, from the outset, can be manifested in different forms. According to statistics, the number of women who have suffered some form of violence is disturbingly great. Domestic violence and violence against women is a serious problem on which work on an inter- national level has recently began. Some international organizations indirectly dealt with this issue in instruments which refer to the protection of human rights. At the European level, in 2011, the Convention of the Council of Europe (so-called Istanbul Convention), was adopted which was the first legally bin- ding instrument on the European continent, that deals with the prevention of violence against women, protection of them and punishing the perpetrators. The Convention entered into force in 2014, and Serbia is one of the countries that have ratified this Convention.
Family law legislation of Serbia involves the provisions on domestic violence prevention. The law affords enjoying of right to protection from domestic violence to broad list of individuals called „family members“. Legal nature of the right to protection from domestic violence is analysed,. The right to protection from domestic violence involves only intentional acts of a perpetrator. There is a the problem of proving the right-holders title in situations where the family law protection is based on some informal relations such as „emotional“ or „sexual relationships“. At this point, it is being made the comparison between Serbian and English law which has the longest tradition in combating domestic violence. Serbian system of family law protection from domestic violence appears to be inconsistent in certain cases. Attention is paid to the possibility of opening the family law protection from domestic violence for homosexual couples. The personal values protected by the right to protection from domestic violence is analysed, as well.
Student represented this case: Husband was yelling at his wife, he was being rude, reckless and malicious – which is verbal assault, he even hit her where she suffered from minor bodily injury- the physical assault. What is even worse, their child, who is very ill, was watching that assault whole time. Decree was made by Municipal Court, which stated interim measurements against domestic violence. He had to move out from his home, not only that, he also had a restriction to be near home or his wife in radius less than 100 meters and for every other type of harassment. Judgment stated the same, and confirmed the interim measurements. The case was than proceeded to the Higher Court, he confirmed all things that are declared for meritum of judgment, but Higher Court also limited duration of interim measurements. Emotional and physical damage, constant fear for her life and life and safety of her child, fear that she cannot live in peace and safety without violence and abuse. That’s why whole society, law, courts and every person has function to prevent these things to happen and when it happens, to react so it doesn’t happen again and find recovery for victim and for abuser.
The delicate issue of children’s civil law protection against domestic violence is especially difficult when it comes to cross-border cases, where two questions arise. The first issue concerns the initiation of the court proceeding for rendering the protection measure, which entails the issues of direct international jurisdiction and the applicable law. The second issue refers to the recognition and enforcement of the foreign protection measure. The Serbian PIL is facing challenges in tackling both. In respect of deciding on the merits, there are certain shortcomings in the Serbian Act on Resolving Conflicts of Laws with Regulations of Other Countries (the 1982 PIL Act). Besides, the (general) system of recognition and enforcement of judgments envisaged in the 1982 PIL Act is not sufficiently effective in terms of the civil protection measures against domestic violence. Moreover, the international treaties binding the Republic of Serbia in the PIL matters are also not efficient enough, mostly due to the fact that their provisions are very similar to those in the 1982 PIL Act. On the other hand, although directly aimed at protecting children, the Hague Convention on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters of Parental Responsibility and Measures for the Protection of Children (the Hague Children Protection Convention) cannot deal with the situation where the child is only an indirect victim of domestic violence. The possible de lege ferenda statutory solutions are already there. In fact, the 2014 Serbian Draft PIL Act84 envisages special provisions applicable in domestic violence cases in general, including international jurisdictional grounds and applicable law, as well as the special recognition regime.
