Sunday, May 14, 2017

Substantive law 11/k


Article 29 – Civil lawsuits and remedies
1Parties shall take the necessary legislative or other measures to provide victims with adequate civil remedies against the perpetrator.
2Parties shall take the necessary legislative or other measures to provide victims, in accordance with the general principles of international law, with adequate civil remedies against State authorities that have failed in their duty to take the necessary preventive or protective measures within the scope of their powers.
Article 30 – Compensation
1Parties shall take the necessary legislative or other measures to ensure that victims have the right to claim compensation from perpetrators for any of the offences established in accordance with this Convention.
2Adequate State compensation shall be awarded to those who have sustained serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources such as the perpetrator, insurance or State-funded health and social provisions. This does not preclude Parties from claiming regress for compensation awarded from the perpetrator, as long as due regard is paid to the victim’s safety.
3Measures taken pursuant to paragraph 2 shall ensure the granting of compensation within a reasonable time.
Article 31 – Custody, visitation rights and safety
1Parties shall take the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the scope of this Convention are taken into account.
2Parties shall take the necessary legislative or other measures to ensure that the exercise of any visitation or custody rights does not jeopardise the rights and safety of the victim or children.

Article 32 – Civil consequences of forced marriages
Parties shall take the necessary legislative or other measures to ensure that marriages concluded under force may be voidable, annulled or dissolved without undue financial or administrative burden placed on the victim.
Article 33 – Psychological violence
Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person’s psychological integrity through coercion or threats is criminalised.
Article 34 – Stalking
Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of repeatedly engaging in threatening conduct directed at another person, causing her or him to fear for her or his safety, is criminalised.
Article 35 – Physical violence
Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of committing acts of physical violence against another person is criminalised.
Article 36 – Sexual violence, including rape
1Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:
aengaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;
bengaging in other non-consensual acts of a sexual nature with a person;
ccausing another person to engage in non-consensual acts of a sexual nature with a third person.
2Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.
3Parties shall take the necessary legislative or other measures to ensure that the provisions of paragraph 1 also apply to acts committed against former or current spouses or partners as recognised by internal law.
Article 37 – Forced marriage
1Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised.
2Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of luring an adult or a child to the territory of a Party or State other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage is criminalised.

Article 38 – Female genital mutilation
Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:
aexcising, infibulating or performing any other mutilation to the whole or any part of a woman’s labia majora, labia minora or clitoris;
bcoercing or procuring a woman to undergo any of the acts listed in point a;
cinciting, coercing or procuring a girl to undergo any of the acts listed in point a.
Article 39 – Forced abortion and forced sterilisation
Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:
aperforming an abortion on a woman without her prior and informed consent;
bperforming surgery which has the purpose or effect of terminating a woman’s capacity to naturally reproduce without her prior and informed consent or understanding of the procedure.
Article 40 – Sexual harassment
Parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction.
Article 41 – Aiding or abetting and attempt
1Parties shall take the necessary legislative or other measures to establish as an offence, when committed intentionally, aiding or abetting the commission of the offences established in accordance with Articles 33, 34, 35, 36, 37, 38.a and 39 of this Convention.
2Parties shall take the necessary legislative or other measures to establish as offences, when committed intentionally, attempts to commit the offences established in accordance with Articles 35, 36, 37, 38.a and 39 of this Convention.
Article 42 –Unacceptable justifications for crimes, including crimes committed in the name of so-called “honour”
1Parties shall take the necessary legislative or other measures to ensure that, in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called “honour” shall not be regarded as justification for such acts. This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour.
2Parties shall take the necessary legislative or other measures to ensure that incitement by any person of a child to commit any of the acts referred to in paragraph 1 shall not diminish the criminal liability of that person for the acts committed.

Article 43 – Application of criminal offences
The offences established in accordance with this Convention shall apply irrespective of the nature of the relationship between victim and perpetrator.
Article 44 – Jurisdiction
1Parties shall take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with this Convention, when the offence is committed:
ain their territory; or
bon board a ship flying their flag; or
con board an aircraft registered under their laws; or
dby one of their nationals; or
eby a person who has her or his habitual residence in their territory.
2Parties shall endeavour to take the necessary legislative or other measures to establish jurisdiction over any offence established in accordance with this Convention where the offence is committed against one of their nationals or a person who has her or his habitual residence in their territory.
3For the prosecution of the offences established in accordance with Articles 36, 37, 38 and 39 of this Convention, Parties shall take the necessary legislative or other measures to ensure that their jurisdiction is not subordinated to the condition that the acts are criminalised in the territory where they were committed.
4For the prosecution of the offences established in accordance with Articles 36, 37, 38 and 39 of this Convention, Parties shall take the necessary legislative or other measures to ensure that their jurisdiction as regards points d and e of paragraph 1 is not subordinated to the condition that the prosecution can only be initiated following the reporting by the victim of the offence or the laying of information by the State of the place where the offence was committed.
5Parties shall take the necessary legislative or other measures to establish jurisdiction over the offences established in accordance with this Convention, in cases where an alleged perpetrator is present on their territory and they do not extradite her or him to another Party, solely on the basis of her or his nationality.
6When more than one Party claims jurisdiction over an alleged offence established in accordance with this Convention, the Parties involved shall, where appropriate, consult each other with a view to determining the most appropriate jurisdiction for prosecution.
7Without prejudice to the general rules of international law, this Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with its internal law.
Article 45 – Sanctions and measures
1Parties shall take the necessary legislative or other measures to ensure that the offences established in accordance with this Convention are punishable by effective, proportionate and dissuasive sanctions, taking into account their seriousness. These sanctions shall include, where appropriate, sentences involving the deprivation of liberty which can give rise to extradition.
2Parties may adopt other measures in relation to perpetrators, such as:
–monitoring or supervision of convicted persons;
–withdrawal of parental rights, if the best interests of the child, which may include the safety of the victim, cannot be guaranteed in any other way.
Article 46 – Aggravating circumstances
Parties shall take the necessary legislative or other measures to ensure that the following circumstances, insofar as they do not already form part of the constituent elements of the offence, may, in conformity with the relevant provisions of internal law, be taken into consideration as aggravating circumstances in the determination of the sentence in relation to the offences established in accordance with this Convention:
athe offence was committed against a former or current spouse or partner as recognised by internal law, by a member of the family, a person cohabiting with the victim or a person having abused her or his authority;
bthe offence, or related offences, were committed repeatedly;
cthe offence was committed against a person made vulnerable by particular circumstances;
dthe offence was committed against or in the presence of a child;
ethe offence was committed by two or more people acting together;
fthe offence was preceded or accompanied by extreme levels of violence;
gthe offence was committed with the use or threat of a weapon;
hthe offence resulted in severe physical or psychological harm for the victim;
ithe perpetrator had previously been convicted of offences of a similar nature.
Article 47 – Sentences passed by another Party
Parties shall take the necessary legislative or other measures to provide for the possibility of taking into account final sentences passed by another Party in relation to the offences established in accordance with this Convention when determining the sentence.
Article 48 –Prohibition of mandatory alternative dispute resolution processes or sentencing
1Parties shall take the necessary legislative or other measures to prohibit mandatory alternative dispute resolution processes, including mediation and conciliation, in relation to all forms of violence covered by the scope of this Convention.
2Parties shall take the necessary legislative or other measures to ensure that if the payment of a fine is ordered, due account shall be taken of the ability of the perpetrator to assume his or her financial obligations towards the victim.

https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168008482e

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