Proposition 53K1994

Projet de loi relatif à l'interdiction temporaire de résidence en cas de violence domestique.

General information ¶

Submitted by

The Senate

Submission date

Nov. 29, 2010

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

civil procedure married person civil union domestic violence physical aggression cohabitation expulsion from housing

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld N-VA LDD MR VB

Contact form ¶

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Discussion ¶

May 3, 2012 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mrs. Minister, dear colleagues, the text that is submitted to us today aims at the temporary removal from home in case of domestic violence.

The consideration of this problem is quite recent. In fact, it was only in 1997 that a first step was made in this area by adding within Article 410 of the Criminal Code an aggravating circumstance in case of violence against his spouse or cohabitant(s). In 2003, a new amendment to this article increased the maximum penalty incurred by the perpetrator of such acts from six months to one year in order, in particular, to make preventive detention applicable and to allow the effective removal of the perpetrator.

The bill submitted to vote today comes from the Senate and aims to facilitate this distance and also to prevent violence within a relationship. It allows the King’s Attorney to decide on the temporary removal from the family home of an adult person in the event of serious and immediate threats to the safety of persons living under the same roof – even occasionally.

The Minister of Justice announced in a committee to be in favor of the general spirit of the text. However, it proposed to seek the opinion of the State Council and highlighted some technical difficulties. In the aftermath, a majority of committee members also insisted on the importance and necessity of establishing a rapid removal procedure when domestic violence is committed.

However, the procedure defended by the draft – namely, for example, the use of the King’s Prosecutor – has interpelled several commissioners. It was therefore decided to seek the opinion of the State Council in order to verify the legality and feasibility of the proposed approach.

Following the opinion given by the State Council, the Minister made her own questions and remarks of the State Council, as did many members of Parliament. Amendments have therefore been submitted. Therefore, the text as amended and submitted to your vote gives the King’s Prosecutor the power to issue a prohibition of domicile if he finds at the reading of the minutes relating to the punishable facts, that an adult person seriously and immediately threatens the safety of third parties living with him.

This prohibition entails the obligation to leave the home immediately and the prohibition to enter, stop or be present there, as well as the prohibition to come into contact with its inhabitants or occasional residents.

This prohibition shall apply for a maximum of ten days from the date of notification.

The written order of the prosecutor shall be communicated immediately to the parties. A copy of the decision shall be notified, by the most appropriate means of communication, to the head of body of the local police of the police zone in the jurisdiction of which the domicile is situated.

The King’s Prosecutor also contacts the victim reception service of his prosecutor’s office to assist and inform cohabitants or co-residents.

In case of an extremely urgent situation, for reasons of effectiveness, the decision of the prosecutor may be communicated verbally. Copy of the order will be communicated as soon as possible.

Within 24 hours of the notification of the order, the removed person shall make known the place and the way in which he is accessible during the prohibition. The Prosecutor of the King may at any time lift this prohibition if he considers that the threat has been avoided.

The draft stipulates that on the first day of opening of the register following the date of the order, the King’s Prosecutor shall communicate it to the peace judge of the canton of the domicile.

The Prosecutor of the King shall also communicate to the Peace Judge the minutes that gave rise to the prohibition of domicile and, where applicable, the decision to lift the prohibition and any minutes establishing the breach of that prohibition.

Within 24 hours of the communication of the order, the peace judge shall fix the date and time of the hearing during which the cause may be heard. By judicial folding, the secretary communicates this information to the parties and to the King’s Prosecutor and invites the parties to submit a request for urgent and provisional measures.

It is also provided that the King’s Prosecutor may at any time review the modalities of the measure if the circumstances justify it.

In order to fully respect the contradictory nature of the proceedings conducted before the peace judge, it is provided that the King’s Prosecutor shall communicate the minutes which gave rise to the prohibition of residence not only to the peace judge, but also to the parties.

It decides on the requests of the removed person or of persons living with him concerning urgent and provisional measures relating to the occupation of the common domicile or the common residence.

The Peace Judge may therefore declare by judgment either that it lifts the prohibition of residence; or that it extends the prohibition of residence up to a maximum of three months from the judgment, but that measure must be expressly motivated and justified by the facts or circumstances; or that it modifies the modalities of the measure if the circumstances so require.

Note also that the bill has been divided into two projects since one part of the text falls under Article 78 of the Constitution while another part falls under Article 77. Both sides were discussed simultaneously in the committee.

In addition, many technical changes have also been made following the State Council opinion, in particular with a view to ending the use of divergent concepts regarding the place of residence. In fact, the text sometimes used the notion of housing, home, residence. Finally, the notion of home is systematically replaced by the notion of residence.

For the surplus, I invite you to refer to my written report.

Finally, the bill as amended and as I have just described it was adopted unanimously.

Madame Deom, you can continue with your speech!

I thank you, Mr President.

Dear colleagues, as I pointed out in the introduction of my report, the awareness of the importance of fighting violence between partners is quite recent. It was in 1997 that the first concrete measures came into being and a number of parquets applied zero tolerance. The issue of domestic violence has been among the priorities of the College of Attorneys-General for some time.

The text proposed today aims to take a step further in the right direction to fight against this violence and reject the old idea that it is appropriate to leave the spouses, cohabitants or co-residents the care to settle internally their sometimes very violent conflicts.

This bill will now facilitate the removal of the adult who seriously and immediately threatens the safety within the residence. This measure will temper the situation and offer each member of the family cell the space and time needed to take a step back without violence or threat and to be able to reflect on what they want for their future.

Technically, we questioned whether it would be appropriate to entrust the task of deciding this measure to the King’s Attorney. Nevertheless, it must be noted that the time of action, in order to be effective, must be extremely limited in order to prevent acts of violence as much as possible. Therefore, it is necessary to resolve the system proposed in the bill. In cases of extreme urgency, the prosecutor may even communicate the decision of removal verbally and confirm this measure by sending the order, always to be effective and minimize the risks for the potential victim or victims.

This measure, which is meant to be effective and quick, is also – it has been the subject of amendments and the opinion of the State Council – counterbalanced by guards, precisely to avoid abuses. In particular, it is planned:

- that the Peace Judge shall set up an hearing as soon as possible, during which the parties shall be heard;

- that the parties will obtain all the documents of the file to ensure the contradictory character of the discussions;

- that the modalities of this measure may be revised at any time if the circumstances justify it, either by the Procurator of the King himself or after the hearing before the Peace Judge, by the Peace Judge himself;

- that a check of legality of the measure of removal from the domicile taken by the Prosecutor of the King will be carried out primarily by the Peace Judge.

It is also planned that the King’s Prosecutor informs – which is important for the follow-up in the accompaniment of victims – the victim reception service of the removal measure so that it can assist and respond to requests for information from co-residents or co-habitants for whom the measure has been taken.

My group and I therefore welcome the unanimous vote, as I indicated in my report, which intervened in a committee on this text, and we hope that the same unanimous vote will be obtained at the vote this afternoon. For us, this is a new strong gesture in favor of victims of domestic violence.

They are still registered as speakers. Schoofs and Mrs. Marghem. Per ⁇ they can be invited to join us; if it does not make them difficult to participate in our work, we will welcome them with pleasure.

As previously stated, this is a good text that will be adopted today. Good but necessary.

Those who follow the issue of intra-family violence, the evolution of legislation but above all its application, know that the issue of removal from home or residence is an important point that, unfortunately, was not sufficiently applied, ⁇ due to lack of resources.

Having met many actors, from my region and more broadly from Hainaut, who fight every day against violence within the family framework, I know that in times of crisis, external and rapid intervention is needed. External because often both sides are taken into a spiral of violence that prevents them from still being able to appeal to their ability to discern. Rapid to prevent tensed situations from aggravating the violence of words and acts that can be said or committed in those moments.

The removal from the residence is an important aspect of the tool panel at the disposal of the police and magistrates to allow partners involved in acts of violence to make a break, a break, each on his side, to take his breath and consider a positive and respectful outcome of each in the conflict that opposes them.

The problem was that, very often, this distance – even if it is present in the circular, in the texts, on paper – was not pronounced, not applied or not respected, due to the lack of means of control and lack of means of securing the home.

In this case then, unfortunately, it is the victim – mostly women – who is forced to leave his place of residence to join a shelter, a house for beaten women, who will welcome him in all discretion and this, in order to avoid the perpetrator of the violence does not find her and continues the pressures and violence on her and the possible children.

The victim of domestic violence finds itself more victim to the inability of our society to protect it and forced to cut off from its place of living. We do not want it anymore! With the proposal we vote today, we mean that this situation is no longer acceptable. It will be necessary to make the proposed legislation a reality on the ground. It is known that the means are lacking but, to the Minister of Justice and to the Minister of the Interior, I want to say today that by this vote, the Parliament commits – and the Government must commit to it – that this possibility of removal from the residence, the perpetrators and no longer the victims, is effective.

Ecolo and Groen supported this proposal, with the amendments made after the State Council’s comments on form and substance, ⁇ in the discussion on the notion of domicile and residence but also on the role of the King’s Prosecutor and the Peace Judge, which was to be clarified.

From now on, the perpetrator of domestic violence can be immediately removed from his residence for a maximum of ten days, with a total prohibition to come into contact with people who reside there.

We will vote on a good mechanism but that must be considered in the whole arsenal of measures put in place to combat domestic violence, still numerous in our country, and which are mainly female victims.

I will end by repeating what I said in the committee. Distancing is a good thing, but it will also be necessary that this period of distancing be exploited by the perpetrator of the violence, to cause him to question his actions. Thus, Recommendation 12 of the report drafted by the Criminal Policy Department on Departure from Home insists on the need to integrate a psychosocial aspect into the measure. An accompaniment should be provided from the beginning for the victim, in psychological, psychosocial, administrative and legal terms, but also for the perpetrator in order to empower him and educate him to another form of conflict management and thus fight against recurrence. This is precisely our long-term goal: to lower the statistics not because victims do not dare to take the step of denouncing what they are living, but because this violence will tend to decrease.

The ball is now in the camp of the Ministers of Justice and Interior for the implementation of this measure. Recommendation 1 of the report of the Criminal Policy Service states that the immediate measure of removal and the optimal protection of the victim must be guaranteed but, for this, it will also be necessary – and it is recommendation 4 of the same report – to spread information widely so that the measure is accessible and known to potential victims.

Mr. Speaker, CD&V is ⁇ pleased with the present bill, which was unanimously approved in the committee and which deals with a topic long cited by CD&V women. Violence in the family, violence against women, partner violence, should be avoided and prevented as much as possible. This is a proposal from colleague Sabine de Bethune that was submitted to the Senate and sent to the House as a draft law.

The draft law concerns the prevention of violence and the preventive work around violence, through a system of home prohibition. In this way, it can be effectively intervened in threatening situations. The home ban does not act after the facts, but attempts to intervene before effective violence.

This draft law is largely in line with international commitments. In this context, I think of the 2011 Istanbul Convention on the Prevention and Combat of Violence against Women and Domestic Violence and the 2007 Lanzarote Convention on the Protection of Children from Sexual Exploitation and Sexual Abuse.

The proposal was initially discussed in the Senate. We had presented this in the room too. During the Senate discussions, in addition to the principles of preventive out-of-house placement, several important changes were made. While it was originally worked through the peace judge, who had to make a judgment within 24 hours, it was eventually opted to work with an accelerated procedure through the King’s Attorney. While initially only partner violence was considered, it is now also considered possible violence against children and the elderly who are in the same domestic situation. Even in the case of actual cohabitation is now provided with the possibility of a home ban.

An important new measure that we are not used to use is the intervention possibility of the King’s Attorney to effectively decide on a house ban. In our committee meeting we have discussed this for quite a long time, especially on guarantees for those who are placed out of the house or imposed a house ban.

We concluded in the committee that the rights are sufficiently guaranteed through a quick intervention, a quick filing and the possibility of finally obtaining a final measure before the peace judge, in any case within ten days after the person concerned was imposed a house ban.

The purpose of this measure is primarily to ensure that rest in the family is restored in an acute emergency situation and that it is possible to determine what structural measures need to be taken.

In the Chamber Committee, after a first discussion, it was decided to send this proposal to the State Council. The State Council has raised a number of concerns, which mainly relate to the form, but which have nothing to do with the content. In that regard, a number of amendments were submitted, for example, in which the prohibition of housing is stated as a formulation rather than a displacement, in which the place of residence, la résidence in French, is clarified, and in which the role of the public prosecutor as a whole is re-clarified.

This proposal is a step towards preventive action, but it remains a legal step. For efficiency, it remains important that this measure is further developed in a proper and streamlined manner. Also important is the way the parquet will handle this to make things go efficiently. There must also be a good framework. The necessary contacts should also be established in connection with the provision of aid, as this aspect is also very important. Cooperation in this area should be encouraged.

I hope that there will be a positive vote in this plenary session soon.

Mr. Speaker, dear colleagues, as we used to say to the MR, the first of freedoms is to live in safety. When insecurity is hidden within your own home, the situation quickly becomes intolerable. Whether it is physical or moral violence, this situation is obviously unacceptable.

Unfortunately, in Belgium, 45,000 cases are recorded each year, not counting the dramas that take place behind the doors of the homes and that are not denounced. Indeed, it takes a lot of courage to denounce the failure of life together, as violence is always the sign of the failure of dialogue. Faced with this plague, it is necessary to fight with several tools because, we will have seen, the houses are overloaded. Women, who are often the victims, must leave everything in the rush, put children in shelter while respecting their schooling. Many lawyers are experiencing this type of situation, as well as social stakeholders who urgently provide for the accommodation of families thus disintegrated due to the violence that arises at a given time within these families.

It is true that, for years already, the relevant prosecutors and police services have applied a policy of zero tolerance towards “family criminals”. However, a solution allowing the victim to stay in the family residence, while the perpetrator is temporarily removed from it, was missing in our arsenal. This innovative measure will allow victims to take measures less urgently and give them a welcome deadline.

I am ⁇ pleased that with the help of the informed remarks of the State Council and colleagues who worked in this committee, we have reached a text balanced between the quickest and most appropriate solution for victims and the least offensive to copyright defence rights.

In the first instance, the Prosecutor of the King, in the face of the finding that a person who is older at the residence represents a serious and immediate threat to the safety of one or more persons occupying the same residence, may order a residence ban against that person. The prohibition of residence entails for the removed person the obligation to leave the common residence immediately and the prohibition to enter, stop there, be present there or to enter into contact with persons who occupy the same residence with him, for a maximum of ten days from the notification of this decision to the person concerned.

Then it is the peace judge who takes the relay in a more regulated way, outside the urgency. No later than the first day of opening of the register following the date of the order of prohibition of residence, the Prosecutor of the King shall communicate it to the Peace Judge of the canton in which the relevant residence is situated. Within 24 hours of the notification of the order, that same magistrate shall fix the date and time of the hearing during which the case must be heard and which shall take place within a period as referred to in Article 3, § 3. On this occasion, the rights of defence are obviously respected as the parties have the possibility to introduce a request for an urgent and provisional measure or for a provisional measure in relation to the common residence, all in a contradictory debate. The same judge shall also communicate the day and time of the hearing to the Prosecutor of the King who served in the first period and who ordered the prohibition of which I mentioned above.

If the parties, or the King's Prosecutor, make a written or oral request at the hearing, the Peace Judge shall instruct the case in the Council Chamber and hear the parties present. During this hearing, the peace judge decides on compliance with the conditions of the temporary removal procedure. He may lift the residence ban or extend it by reasoned judgment for a maximum of three months from the judgment. This decision is, of course, enforceable by provision. It can always be revised and comes into effect immediately despite any recourse.

The distant person has a tribune to present his defense and request the removal of the measure or its arrangement. The final decision is made by a magistrate of the headquarters which allows to have full guarantees of an independent and impartial justice as the rule provides in our Constitution.

I am therefore pleased that domestic violence has been addressed in a general way by taking as a reference the residence, that is, the daily affective focus. It is in this context that both children and spouses or partners or even the elderly present in this home can – we hope – be adequately protected.

Obviously, like any new measure, its effectiveness will depend on the responsiveness and cooperation of all relevant actors.

We welcome this project and we will vote for this measure that brings a solution to the unacceptable problem of domestic violence and which is also a tool that was cruelly lacking in the judicial landscape. I think here in particular of the judge of peace who thus finds an opportunity to have a new opportunity to express his office and his dimension of judge of proximity.

Mr. Speaker, Mrs. Minister, colleagues, the Flemish Belang supports the legal measures relating to the displacement if intra-family dramas threaten to occur. We believe that this can actually prevent dramas. Of course, we do not live in a perfect world. In any case, we can welcome the present draft.

These are radical, intrusive measures, which, although they constitute a violation of a number of fundamental rights such as the right to a home, the right to a private life, the right to a family life, are, in our opinion, justified.

In some cases, it is indeed necessary. It is important to understand the need for these measures. We hope that the majority and all parties in the hemisphere with regard to other changes in the field of criminal law in the future will also demonstrate the same sense of radicalism, when it is necessary to prevent and limit certain criminal acts.

In this regard, we say yes. Again, we hope that this will be possible in other areas of our society. Not all crime occurs within the family. Much of what is happening in society today can be prevented.

We will need to have the courage to approve other measures later. My proposal will soon be addressed in connection with tackling pedophilia. I hope that the same courage will be demonstrated to take radical measures in this regard as well and to reduce and curb crime in society.

It must not be limited to what we will approve today.

In short, we welcome the text.

On behalf of my group, I agree with the previous speakers. If what we do here is quite innovative, we also sign up in a form of continuity.

In fact, the Civil Code already includes today a preferential assignment of marital housing to the partner who has suffered violence. And the text that we are dealing with today goes even further while emphasizing prevention. Rather than waiting for dramas to occur, we try to avoid them through this measure of temporary removal from home.

We have thought a lot about respecting each other’s rights, but the text we propose this afternoon is surrounded by sufficient legal shutdowns to be voted by a large majority of parliament, if not the whole of parliament.

There will remain a real challenge with this text, beyond the good intentions: to make it applicable on the ground. It will, of course, require the contribution of the prosecutor’s office, that of a peace judge, but also of the local police in many situations.

Mr. Minister of Justice, I would like to conclude by saying that in the future and in the very short term, this competence may also be attributed to the future family and youth court.