Role And Practical Attitudes In Issue Of The Provisional Protection Order

• Author: Camelia Daciana Stoian, Radu Nicolae Stoian
• Pages: 136-139

ROLE AND PRACTICAL ATTITUDES IN ISSUE OF THE PROVISIONAL

PROTECTION ORDER

Lecturer Camelia Daciana STOIAN1

Lecturer Radu Nicolae STOIAN2

Abstract

We have learned to shape solutions throu gh the jurisprudence of the European Court of Human Rights or the

European Court of Justice in Luxembourg on what, until not long ago, we were treating an eternal lamentation as a

real problem but without a concrete solution h ave set or reached important standards in the segment of violence

against minors and women but have also provided an adequate degree of protection for professionals directly involved

in verifying domestic violence complaints. However, with the entry into force of Law no. 174/2018 regarding the

modification and completion of the Law no . 217/2003 on the prevention and combating of domestic violence, the role o f

the police officer in the exercise of his duties in preventing and limiting domestic violence is strengthened by defining

and enumerating the means by which he has the right to obtain evidenc e by stating his obligations and prohibitions may

have immediate application in th e content of the provisional protection order but also by regulating the way of its

confirmation by administrative resolution issued by the prosecutor. The objectives of the present study, however,

concern how this legislative measure is to be reflected in the organizational procedures necessary for the

implementation in practice of police, prosecutor's offices and courts, all set in a framework that will procedurally

support the effo rts to investigate and conclude, in a way that effectively contributes to the diminution or elimination of

an imminent risk.

Keywords: temporary protection order, domestic violence, imminent risk, victim.

JEL Classification: K14, K36

1. Actuality

We must recognize that the case-law of the European Court of Human Rights has been

more mobilizing (through measures taken in fairness and imposing as a consequence of the state

damages for moral damages and not only) than the policies of the Council of Europe, although

proved to be broad effectiveness, indicating concrete and relevant measures to prevent and combat

forms of violence against women. We have found out from the many cases that most of the

European Court's motives and conclusions include references such as:

-„.... the manner in which the applicant's complaints were dealt with by the state

authorities did not provide adequate protection against her husband's acts of violence, so it was

violated, art. 3 of the Convention. At the same time, the Court notes that although it appreciates the

legislative steps taken in Romania despite the adoption by the Government of a national law and

strategy for the prevention and combating of domestic violence, the general lack of reaction of the

judiciary and the impunity enjoyed by the aggressors indicates that there was no adequate

commitment to take appropriate measures in relation to domestic violence”3. Under those

circumstances, by the judgment, the State was ordered to pay the applicant EUR 9 800 title of moral

injury.

- „.... has been vio lated art. 3 of the Convention4 as procedural, finding that the manner

in which the investigation was conducted did not allow the applicant to benefit from the effective

protection provided in Art. 3”. Moreover, it is emphasized that „although the legislative framework

provided for cooperation between the different authorities as well as extrajudicial measures to

identify and ensure the pursuit of acts of domestic violence, and although the medical certificate

1 Camelia Daciana Stoian - „Aurel Vlaicu” University of Arad, Romania, office@avocat-stoiancamelia.ro.

2 Radu Nicolae Stoian - Arad Court, Romania, office@avocat-stoiancamelia.ro.

3 Case B against Romania (application No 49645/09) - European Court of Human Rights judgment of 23 May 2017.

4 European Convention on Human Rights - Article 3: „No one shall be subjected to torture or to inhuman or degrading treatment or

punishment”.