Domestic violence affects women in every member state across the Council of Europe. Circumstances of this type of violence vary; however, it becomes even more complicated when both the victim and the perpetrator hold property rights in their shared home.
We speak with Kateryna Shunevych and Daria Rosokhata from Ukrainian Women Lawyer’s Association “JurFem” in Ukraine about the case of Levchuk v Ukraine and the need to protect domestic violence victims in situations of joint ownership.
They share their insights advocating for the implementation of this case and their experiences engaging with the implementation process.
The Interview
On JurFem
The Ukrainian Women Lawyers Association “JurFem” is one of the first Ukrainian associations of women lawyers. The mission of JurFem is to improve the understanding of national and international legislation on equal rights and opportunities for women and men in the legal community in order to effectively protect women’s rights and opportunities in all spheres of public and political life. At the JurFem Analytical Center, we conduct gender-legal analysis on regulations, draft legal acts, monitor court practices and law enforcement activities, and highlight their impact on the protection of women’s rights in Ukraine.
JurFem worked on legislative changes to Article 173-2 of the Code of Ukraine on administrative offenses (“Commitment of domestic violence, gender-based violence, failure to comply with an urgent injunctive order or failure to report one’s place of temporary residence”), in particular on changing the sanction foreseen in the article. The proposed legislative change was successfully adopted by the legislator.
Background of the case
Between 2016 and 2018, the national courts refused to satisfy Ms. Levchuk’s demand for the eviction of her ex-husband, who had been found guilty of domestic violence acts, without conducting a comprehensive analysis of her and her children’s situation. The domestic courts did not assess the risk of future psychological and physical violence towards them. The applicant's ex-husband was not evicted, and, as a result, Ms. Levchuk and her children had to continue sharing a flat with him years after the end of the marriage, being exposed to the risk of violence. The European Court found a violation of the applicant’s right to respect for her private life, as the authorities failed to strike a fair balance between the competing rights in the eviction proceedings.
This situation highlights the fact that Ukraine does not have regulations allowing the eviction of domestic violence offenders from housing which they (co-)own. The case Levchuk v. Ukraine is indicative of this issue because it demonstrates the problems that currently exist in Ukraine’s practice, the need for changes in the legislation, as well as the difficulties that domestic violence survivors face when they want to receive protection. If the offender is a co-owner or lives on the property, "suspending" their title risks possible domestic violence in the future; this creates difficulties in protecting domestic violence survivors.
Photo Credit: Jurfem
The Role of JurFem in the Implementation Process
In 2021, JurFem established cooperation with the European Implementation Network, and thanks to this we were able to participate in the implementation process of the Levchuk case.
In our submission, we first argued that the eviction procedure must become an effective remedy to protect victims of domestic violence, as the current provision of the Housing Code of Ukraine does not constitute an effective remedy in emergency domestic violence situations.
Secondly, we showed that cases related to violence against women and domestic violence are treated as private, that such cases can be considered and brought to court only at the request of the victim, and that there are many complaints withdrawn following psychological pressure from the perpetrators. In relation to this, we asked the Committee to call on the national authorities to ensure compliance with the obligations of the law enforcement system and judicial system to respond appropriately to cases of domestic violence. We also called for the amendment of the criminal legislation in order to include the definition of “crimes related to domestic violence”, in order to ensure the proper identification of these crimes, according to the standards for the Istanbul Convention.
Thirdly, we called for training programs for judges, lawyers, and law enforcement officers to include topics related to the pre-trial investigation of domestic violence and risk assessment in the context of domestic violence. We also requested research to be carried out by the Supreme Court on the judicial practice in civil and criminal cases of domestic violence, including those which concern eviction and restriction measures; we called for the collection of disaggregated judicial statistics on domestic violence cases, and for collaboration with civil society organizations in view of developing an action plan for the implementation of this judgment.
For the implementation of individual measures, we recommended that the authorities ensure that the shortcomings identified by the ECtHR judgment are remedied during the re-opened proceedings regarding the eviction of her husband.
For ensuring the victim’s right to obtain eviction of the perpetrator and thus safeguarding her (and her children's) right to security and safety from physical and psychological harm, we recommended that the authorities apply forced execution for the recovery of the perpetrator's property quota, as a consequence of his non-compliance with court decisions on child support and evasion from making alimony payments. The additional particularities of this case allowed for the implementation of individual measures in this manner, despite the fact there was no effective remedy for eviction in domestic violence cases at the national level.
Positive Developments in Implementation
We were glad to see that, following our submission, the Committee of Ministers classified the case under the enhanced procedure. This ensures that the case receives the international attention it deserves.
The authorities took up our recommendation on individual measures. As they weighed the risks of future psychological and physical violence by the applicant’s former husband and the State's obligation to provide adequate protection for the applicant against domestic violence, the Rivne Court of Appeal established that the eviction of the applicant’s former husband from the contested flat would strike a fair balance between the applicant and her children’s interests on the one side and those of her former husband on the other.
Furthermore, the applicant’s ex-husband's property was transferred to the applicant, and the property value and the debts were discharged. This measure is in line with our recommendations. As of today, the applicant and her four children are the sole owners of the property. The applicant’s former husband no longer resides there and is no longer a co-owner of the flat, which diminishes the risk of his return and thus to their safety.
Photo Credit: Jurfem
General measures
The ratification of the Istanbul Convention in 2022 has been a positive development in this case. In our submission, we had outlined that domestic legislation was not in line with the Istanbul Convention. At the same time, for us, the ratification of the Istanbul Convention symbolizes only the beginning of important work in cooperation with Civil Society Organizations (CSOs) and state authorities on implementing the ideas and values of the Convention. Before ratification, Ukraine worked on the "implementation" of the provisions of the Convention, which resulted in frequent changes to the current legislation. However, there was a need for full ratification of the Istanbul Convention for a comprehensive approach to amending the current legislation. We were happy with the ratification, as it meant that legislative and public support for the Istanbul Convention also increased. Jurfem is currently involved in the implementation of the Istanbul Convention and amending current legal acts.
There have also been some positive developments in protecting the rights of children who are victims and witnesses of domestic violence. The legislative drafter initiated an attempt to protect the housing rights of children together with their legal guardian, where evictions require housing alternatives that meet the requirements of national legislation and international law (draft law №6441 of 17.12.2021). This bill to protect the housing rights of children in cases of eviction is vital in the context of the Levchuk case as it aims to ensure housing conditions for children, regardless of the circumstances that allow eviction.
Furthermore, we appreciate the preparation and development by the Government of Ukraine of an action plan (submitted to the Committee of Ministers last year) to implement the judgment of the Levchuk v. Ukraine case; it is very valuable in the context of promoting further legislative amendments regarding the eviction of domestic violence offenders.
The adoption of the Decree of the President of Ukraine "On Urgent Measures to Prevent and Combat Domestic Violence, Gender-Based Violence, Protection of the Rights of Victims of Such Violence" No. 398/2020 and the State Social Program are also important steps towards applying the legislation, as they both provide measures and tasks for state authorities.
The implementation of these instruments will plays a crucial role in other domestic violence cases which concern the eviction of the offender from the residence where the survivor lives with the child. We feel that the current judicial practice will depend on the quality of the implementation of this judgment. Therefore, every step was taken with caution and at the same time with the confidence that the changes should be positive and gender sensitive.
Photo Credit: Jurfem
Challenges and remaining issues
The regulation of the Housing Code on the issue of eviction of the offender has not changed, as it is not one of the types of restrictive measures which can be applied in emergency domestic violence situations. Therefore, the practice of domestic violence prevention is not sufficiently effective.
There is currently no official disaggregated data on women who suffer most from domestic and gender-based violence (rural areas/ urban areas, etc.). We do not know the age of the survivors and perpetrators or the nature of the relationship between the perpetrator and the survivor, which means we cannot formulate appropriate government policies to prevent and respond to domestic violence. The Ukrainian authorities should collect disaggregated data that includes information on the proportion of convictions for all forms of violence and the number of court orders issued to protect survivors of violence.
Additionally, one of the possible challenges in this matter may be the introduction of martial law. After the introduction of martial law in Ukraine, the Supreme Court changed the territorial jurisdiction of courts located in temporarily occupied territories or directly in the combat zone. It was found that the western and central regions of Ukraine have a higher rate of handling cases related to domestic violence than those regions in which active hostilities are taking place or which are located near the front zone. Therefore, access to justice for survivors of domestic violence during the war is somewhat limited.
CSO Advice and Final Comments
The experience of participating in the ECtHR implementation is valuable, as it provides an opportunity to be part of changes, respond to such changes, and provide expert support and input for the authorities. For our part, we would like to draw attention to the need for proper communication between CSOs themselves and express a unified position on the way to positive changes.
Relevant information on Levchuk v. Ukraine
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