In civil and juvenile courts, which often intervene in the path of escape from violence by women mothers supported by anti-violence centers, the Istanbul Convention appears to be virtually unknown and does not apply to decisions regarding custody of daughters and sons. And the preponderant role of the expert witnesses and the consequent secondary victimization of women who have been subjected to violence in civil and juvenile courts.
This is, in short, the result of one new survey conducted by D.i.Re and widespread today, carried out through an investigation that involved the lawyers who collaborate with the anti-violence centers of the network, supporting an average of 15 women every year.
“An important investigation, why it reflects the concrete experience of the lawyers who accompany women in the courts and they follow them knowing well the difficulties encountered in the path to justice ”, he affirms Antonella Veltri, president of D.i.Re.
entitled The (non) recognition of domestic violence in civil and juvenile courts, edited by the lawyers Tweety Carrano ed Elena Biaggioni, from Paula Sdao for data processing, with the contribution of lawyers Ethel Carri e Maria Christina Cavaliere, the investigation examined - through a questionnaire completed by 55,1 percent of the lawyers active in the anti-violence centers D.i.Re (54 lawyers out of 98) throughout the national territory - judicial proceedings in civil courts and for minors in the period between 1 January 2017 and 30 June 2019.
Objective of the investigation was verify the application of Article 31 of the Istanbul Convention relating to "Custody of children, visitation rights and security", which imposes "the need to consider violence (and mother's safety) in determining and regulating these rights, the prohibition of mandatory mediation mechanisms, the need for risk assessment tools, the protection of the victim".
The (non) recognition of violence
Violence is not substantially recognized by civil and juvenile courts:
- in the decisions adopted by the civil and juvenile courts in the cases followed by the lawyers D.i.Re, Istanbul Convention is not May cited as a regulatory reference;
- in all legal proceedings in civil and juvenile courts the lawyers filed documentation proving the violence suffered by the woman and the violence witnessed by minors (allegations): complaints (94,4%), reports (100%), precautionary measures issued in criminal proceedings (98,1%), indictment orders (96,3%), convictions (88,9 %), reports from the Anti-violence Centers (63%);
- almost the 78% of the advocates declares that the allegations are placed at the basis of the judicial measures and / or sentences in the cases followed by them. Nevertheless, the 42% of lawyers report that violence is only minimally recognized.
Decisions regarding custody and access rights
The situation is even more serious when we look at the decisions regarding minors who may have witnessed violence or have suffered violence themselves: the survey clearly shows that "even today for the Courts the main objective is to safeguard and preserve 'the relationship with the offspring', or the parent-child bond, regardless of the presence of violent behavior towards the mother. The ingrained belief is that an abusive man can be a good parent”, Write Carrano and Biaggioni.
- Even in the face of the documentation filed by the lawyers (allegations) regarding the violence suffered and / or witnessed, only 22% of the lawyers state that the protected encounters between the abusive father and the children are organized in such a way as to protect the mother.
- Neither the Juvenile Court nor the Ordinary Court use risk assessment tools: the only positive experience in this sense is cited by the Mascherona anti-violence center in Genoa.
- In ' 88,9% of cases before the ordinary Court and in 51,9% of the cases at the Juvenile Court was arranged custody shared between parents even in the presence of complaints, reports, precautionary measures issued in criminal proceedings, indictment decrees, convictions and reports from the anti-violence centers.
- In 70,4% of the cases in the ordinary Court and even in the 90,7% of the cases in the Juvenile Court has been ordered entrustment to social services, though in almost all cases, placement with the mother was arranged at the same time.
“The prerequisite for placing custody to third parties is the inability of both parental figures to take adequate care of their children. At the same time, the judges believe that the abused woman is the 'suitable' parent to take care of them materially. This situation is a direct consequence of the confusion between violence and conflict, one of the main obstacles in accessing justice for women who suffer from violence”, Write the curators.
How CTUs re-legitimize women who have been subjected to violence
The investigation confirms the preponderant role of reports of social services on parenting, arranged in 75 percent of cases followed by lawyers at the Juvenile Court, and of the CTU (official technical consultancy) which, on the other hand, are arranged in 75,9 percent of cases at the civil court for which the lawyers have provided documentation proving domestic violence and witnessed violence.
The investigation has deepened the functioning of the expert witnesses.
- In '83% of the questions to which the expert witnesses are called to respond they are standardized and not defined according to the case under examination, and well in 94% of cases, no questions were asked about the violence suffered and / or witnessed. In other words, these are questions that once again investigate what magistrates believe to be a conflict between parents and not a situation of violence.
- Il 74,1% of the lawyers declares that parental alienation (PAS) or other manipulative behaviors on the part of the mother are mentioned in the reports of the expert witnesses.
- The CTUs and CTPs (technical consultations of the parties, often necessary precisely to defend oneself from the CTUs) they move a huge flow of money: in 75% of the cases, such appraisals cost up to 5.000 euros.
- Furthermore, the lawyers confirm that the sentences are actually written by the expert witnesses: in all cases the judge, having acquired the report of the expert witness, assumes in his / her provision (definitive or interlocutory) the suggestions proposed by the expert witness, without subjecting the expert report to any critical judgment.
Family mediation: prohibited but de facto imposed
The Istanbul Convention also prohibits mandatory mediation in separation and custody cases involving women who have been subjected to violence. Nevertheless:
- almost the 65% of the advocates declares that in the cases considered for the purposes of the survey, the ordinary Court invites parents to family mediation, a lower percentage is registered in the Juvenile Court (35,2%).
- An even higher percentage of invitation to family mediation is registered by the social service (70%).
- Finally almost the 60% of the advocates state that both the ordinary court and social services invite parents to undertake a support path to parenthood, while the 40% of the advocates declares that this indication is given by the Juvenile Court.
This practice, Biaggioni and Carrano explain, “is in open violation of Article 48 of the Istanbul Convention and produces secondary victimization".
What to do?
For the curators of the survey, the answer lies in the GREVIO recommendations, the Group of Experts on Violence Against Women of the Council of Europe, which in its Report on the application of the Istanbul Convention in Italy released in January 2020, it was very clear, and that they are reported in full in the conclusions of the research.
On the other hand, the lawyers report, the same Superior Council of the Judiciary when it comes to Resolution on the guidelines on organization and good practices for dealing with proceedings relating to crimes of gender and domestic violence, published on May 9, 2018, he already gave indications on the matter, which continue to be disregarded.
“This investigation is meant to be a contribution to the necessary and urgent rethinking of the functioning of civil and juvenile justice with respect to violence against women and witnessed violence”, Concludes the president of D.i.Re Antonella Veltri. "D.i.Re will continue to strive for ending secondary victimization of women and minors, an institutional violence that should no longer exist in a country that has signed and ratified the Istanbul Convention ”.
The full text of the survey The (non) recognition of domestic violence in civil and juvenile courts è available here.
Survey carried out thanks to the contribution of: