Reporting of violence against women or domestic violence
1. In addition to the rights of victims when making a complaint under Article 5 of Directive 2012/29/EU, Member States shall ensure that victims can report acts of violence against women or domestic violence to the competent authorities through accessible, easy-to-use, safe and readily available channels. That shall include, at least for the cybercrimes referred to in Articles 5 to 8 of this Directive, the possibility of reporting online or through other accessible and secure ICT, without prejudice to national procedural rules regarding formalising online reporting.
Member States shall ensure that the possibility to report online or through other accessible and secure ICT includes the possibility to submit evidence by the means set out in the first subparagraph, without prejudice to national procedural rules regarding formalising the submission of evidence.
2. Member States shall ensure that victims have access to legal aid in accordance with Article 13 of Directive 2012/29/EU. Member States may extend legal aid to victims reporting criminal offences, where provided for under national law.
3. Member States shall take the necessary measures to encourage any person who knows about or suspects, in good faith, that acts of violence against women or domestic violence have occurred, or that acts of violence are to be expected, to report such acts to the competent authorities without fearing negative consequences.
4. Member States shall ensure that healthcare professionals subject to confidentiality obligations are able to report to the competent authorities where they have reasonable grounds to believe that there is an imminent risk that serious physical harm will be inflicted on a person as a result of violence against women or domestic violence.
5. Member States shall ensure that, where the victim is a child, without prejudice to rules on legal professional privilege or, where provided for under national law, clergy-penitent privilege or equivalent principles, professionals subject to confidentiality obligations under national law are able to report to the competent authorities where they have reasonable grounds to believe that serious physical harm has been inflicted on the child as a result of violence against women or domestic violence.
6. Where children report acts of violence against women or domestic violence to the competent authorities, Member States shall ensure that the reporting procedures are safe, confidential, designed and accessible in a child-friendly manner and designed and accessible in child-friendly language, in accordance with the child’s age and maturity.
Member States shall ensure that professionals trained to work with children assist in reporting procedures to ensure that they are in the best interests of the child.
Member States shall ensure that, where the holder of parental responsibility is involved in the act of violence, the ability of a child to report the act is not conditional upon the consent of the holder of parental responsibility and that the measures necessary to protect the safety of the child are taken by the competent authorities before that person is informed about the reporting.
Investigation and prosecution
1. Member States shall ensure that persons, units or services investigating and prosecuting acts of violence against women or domestic violence have adequate expertise in those matters and have effective investigative tools at their disposal to effectively investigate and prosecute such acts, especially for the purpose of gathering, analysing and securing electronic evidence in cases of cybercrime as referred to in Articles 5 to 8.
2. Member States shall ensure that reported acts of violence against women or domestic violence are processed and transferred without delay to the competent authorities for the purposes of investigation and prosecution and for the purpose of adopting protection measures pursuant to Article 19, where necessary.
3. Where the competent authorities have reasonable grounds to suspect that a criminal offence might have been committed, they shall, without undue delay, effectively investigate, upon receipt of a complaint or on their own initiative, acts of violence against women or domestic violence. They shall ensure that an official record is filed and preserve a record of relevant findings and evidence in accordance with national law.
4. In order to assist in the voluntary securing of evidence, in particular in cases of sexual violence, the competent authorities shall direct victims, without undue delay, to relevant healthcare professionals or to the support services referred to in Articles 25, 26 and 27 that are specialised in assisting with securing evidence. Victims shall be informed of the importance of collecting such evidence at the earliest possible time.
5. Member States shall ensure that investigations into or the prosecution of acts of rape are not dependent on a victim or the victim’s representative reporting the act, or on a complaint by a victim or the victim’s representative, and that criminal proceedings are not discontinued solely because the report or complaint has been withdrawn.
Individual assessment to identify victims’ protection needs
1. In addition to the requirements for the individual assessment set out in Article 22 of Directive 2012/29/EU, Member States shall ensure that, at least in respect of victims of sexual violence and victims of domestic violence, the requirements set out in this Article are fulfilled.
2. At the earliest possible stage, such as at the time of first coming into contact with the competent authorities or as soon as possible after first coming into contact with them, the victim’s specific protection needs shall be identified by means of an individual assessment, where appropriate in collaboration with all relevant competent authorities.
3. The individual assessment as referred to in paragraph 2 shall focus on the risk emanating from the offender or suspect. That risk may include any of the following:
(a)
the risk of repeated violence;
(b)
the risk of bodily or psychological harm;
(c)
the possible use of and access to weapons;
(d)
the fact that the offender or suspect lives with the victim;
(e)
the misuse of drugs or alcohol by the offender or suspect;
(f)
child abuse;
(g)
mental health issues; or
(h)
stalking behaviour.
4. The individual assessment as referred to in paragraph 2 shall take into account the victim’s individual circumstances, including whether the victim experiences discrimination based on a combination of sex and any other ground or grounds of discrimination as referred to in Article 21 of the Charter (‘intersectional discrimination’), and, therefore, faces a heightened risk of violence, and the victim’s own account and assessment of the situation. It shall be conducted in the best interest of the victim, paying special attention to the need to avoid secondary or repeat victimisation.
5. Member States shall ensure that the competent authorities take adequate protection measures, with due regard to the individual assessment as referred to in paragraph 2. Such measures may include:
(a)
measures under Articles 23 and 24 of Directive 2012/29/EU;
(b)
the granting of emergency barring orders, restraining orders or protection orders pursuant to Article 19 of this Directive;
(c)
measures other than those referred to in points (a) and (b) of this paragraph to manage the offender or suspect’s behaviour, in particular under Article 37 of this Directive.
6. When appropriate, the individual assessment as referred to in paragraph 2 shall be undertaken in collaboration with other relevant competent authorities, depending on the stage of the proceedings, and relevant support services, such as victim protection centres, specialised services, social services, healthcare professionals, shelters, specialist support services and other relevant stakeholders.
7. Competent authorities shall review the individual assessment as referred to in paragraph 2 at regular intervals and, where relevant, take new or update ongoing protection measures in accordance with paragraph 5, to ensure that they address the victim’s current situation.
8. Dependants shall be presumed to have specific protection needs without undergoing an individual assessment as referred to in paragraph 2, unless there are indications that they do not have specific protection needs.
Individual assessment of victims’ support needs
1. Member States shall ensure that, taking into account the individual assessment referred to in Article 16, the competent authorities assess the victim’s individual support needs as provided for under Chapter 4. The competent authorities shall assess dependants’ individual support needs as provided for under Chapter 4, unless there are indications that they do not have specific support needs.
2. Article 16(4), (6) and (7) applies to the individual assessment of victims’ support needs under paragraph 1 of this Article.
Referral to support services
1. Where the assessments referred to in Articles 16 and 17 identify specific support or protection needs or where the victim requests support, Member States shall ensure that support services, such as specialist support services, in cooperation with the competent authorities, contact victims to offer support, with due regard for their safety. Member States may make such contact subject to the consent of the victim.
2. The competent authorities shall respond to the victim’s request for protection and support without undue delay and in a coordinated manner.
3. Member States shall ensure that, where needed, the competent authorities can refer child victims to support services, where necessary without the prior consent of the holder of parental responsibility.
4. Where necessary to ensure that the victim receives appropriate support and protection, Member States shall ensure that the competent authorities transmit relevant personal data concerning the victim and the situation of the victim to the relevant support services. Such data shall be transmitted in a confidential manner. Member States may make the transmission of such data subject to the consent of the victim.
5. Support services shall store personal data for as long as necessary for the provision of support services and, in any event, for no longer than five years after the last contact between the support services and the victim.
Emergency barring orders, restraining orders and protection orders
1. Member States shall ensure that, in situations of immediate danger for the victim’s or dependants’ health or safety, the competent authorities are granted the power to issue, without undue delay, orders addressed to an offender or suspect of an act of violence covered by this Directive ordering the offender or suspect to vacate the residence of the victim or dependants for a sufficient period of time and prohibiting the offender or suspect from entering, or coming closer than a prescribed distance from, that residence, from entering the victim’s workplace or from contacting the victim or dependants in any way.
Orders referred to in the first subparagraph of this paragraph shall have immediate effect and not be dependent on a victim reporting the criminal offence or on the initiation of an individual assessment pursuant to Article 16.
2. Member States shall ensure that the competent authorities are granted the power to issue restraining orders or protection orders to provide protection for as long as necessary to victims against any acts of violence covered by this Directive.
3. Where the victim is an adult, Member States may require, in accordance with their national law, that emergency barring orders, restraining orders and protection orders as provided for in paragraphs 1 and 2 be issued at the request of the victim.
4. Member States shall ensure that, where relevant for the safety of the victim, the competent authorities inform victims of the possibility to apply for emergency barring orders, restraining orders or protection orders and of the possibility to seek cross-border recognition of protection orders pursuant to Directive 2011/99/EU ( 17 ) or Regulation (EU) No 606/2013 ( 18 ) of the European Parliament and of the Council.
5. Any breaches of emergency barring orders, restraining orders or protection orders shall be subject to effective, proportionate and dissuasive criminal or non-criminal penalties. Member States shall ensure that, where such a breach occurs, a revision of the individual assessment referred to in Article 16 is considered in accordance with paragraph 7 of that Article, where necessary.
6. Member States shall ensure that victims are offered the opportunity to be notified, without undue delay, when there is a breach of an emergency barring order, restraining order or protection order which could have an impact on their safety.
7. This Article does not oblige the Member States to modify their national systems as regards the qualification of emergency barring orders and protection orders as falling under criminal, civil or administrative law.
Protection of victims’ private life
Member States shall ensure that, in criminal proceedings, evidence concerning the past sexual conduct of the victim or other aspects of the victim’s private life related thereto is permitted only where it is relevant and necessary.
Guidelines for law enforcement and prosecutorial authorities
Member States may issue guidelines for cases concerning violence against women or domestic violence for the competent authorities acting in criminal proceedings, including prosecutorial guidelines. Those guidelines shall be gender sensitive and advisory in nature and may include guidance on how to:
(a)
ensure that all forms of violence against women and domestic violence are properly identified;
(b)
gather and preserve relevant evidence, including online evidence;
(c)
conduct the individual assessments under Articles 16 and 17, including the process for reviewing such assessments;
(d)
handle cases which might require emergency barring orders, restraining orders or protection orders to be issued or implemented;
(e)
treat victims in a trauma-, gender-, disability- and child-sensitive manner and ensure the child’s right to be heard and the best interests of the child;
(f)
ensure that victims are treated in a respectful way and that proceedings are conducted in such a manner as to prevent secondary or repeat victimisation;
(g)
cater to the enhanced protection and all relevant support needs of victims experiencing intersectional discrimination as provided for in Article 33(1);
(h)
identify and avoid gender stereotypes;
(i)
raise awareness about all victim groups in the context of domestic violence;
(j)
refer victims to specialist support services, including medical services, in order to ensure that victims are appropriately treated and that cases of violence against women or domestic violence are appropriately handled without undue delay; and
(k)
ensure that victims’ privacy and confidential information are protected.
In order to ensure that the guidelines referred to in the first paragraph are appropriately updated, they shall be reviewed where necessary, having regard to the way in which they apply in practice.
Role of national bodies, including equality bodies
1. Member States shall designate and make the necessary arrangements for one or more bodies to carry out the following tasks:
(a)
publishing reports and making recommendations on any issue relating to violence against women and domestic violence, including gathering existing good practices; and
(b)
exchanging available information with relevant European bodies such as the European Institute for Gender Equality.
For the purposes of the first subparagraph, Member States may consult with civil society organisations.
2. The bodies referred to in paragraph 1 of this Article may form part of equality bodies set up pursuant to Directives 2004/113/EC, 2006/54/EC and 2010/41/EU.
Measures to remove certain online material
1. Without prejudice to Regulation (EU) 2022/2065, Member States shall take the necessary measures to ensure that online publicly accessible material as referred to in Article 5(1), points (a) and (b), and Articles 7 and 8 of this Directive is promptly removed or that access thereto is disabled.
Measures as referred to in the first subparagraph of this paragraph shall include the possibility for the competent authorities to issue binding legal orders to remove or to disable access to such material. Member States shall ensure that such orders meet, at least, the conditions set out in Article 9(2) of Regulation (EU) 2022/2065.
2. Orders as referred to in the second subparagraph of paragraph 1 shall be addressed to hosting service providers.
Where removal would not be feasible, the competent authorities may also address orders to disable access to the material concerned to relevant intermediary service providers other than hosting service providers that have the technical and operational ability to take action regarding the material concerned.
3. Member States shall ensure that, where criminal proceedings regarding an offence as referred to in Article 5(1), point (a) or (b), Article 7 or Article 8 are terminated without leading to a finding that an offence has been committed, orders as referred to in the second subparagraph of paragraph 1 of this Article are discharged and the addressees of such orders are informed thereof.
4. Member States shall ensure that the orders and other measures referred to in paragraph 1 are taken following transparent procedures and are subject to adequate safeguards, in particular to ensure that those orders and other measures are limited to what is necessary and proportionate and that due account is taken of the rights and interests of all relevant parties involved, including their fundamental rights in accordance with the Charter.
Member States shall ensure that hosting service providers, other relevant intermediary service providers and content providers affected by an order as referred to in the second subparagraph of paragraph 1 have a right to an effective judicial remedy. Such right shall include the right to challenge such an order before the courts of the Member State of the competent authority that issued the order.
5. Member States shall ensure that the relevant content providers affected by an order as referred to in the first subparagraph of paragraph 1 are informed, where appropriate by the hosting service providers or by any other relevant intermediary service providers concerned, of the reasons for the removal of or the disabling of access to the material pursuant to the orders or other measures referred to in paragraph 1 and of the possibility to have access to judicial redress.
6. Member States shall ensure that the removal of or the disabling of access to the material pursuant to the orders or other measures referred to in paragraph 1 does not prevent the competent authorities from obtaining or securing, without undue delay, the evidence necessary for the investigation and prosecution of an offence as referred to in Article 5(1), point (a) or (b), Article 7 or Article 8.
Compensation from offenders
1. Member States shall ensure that victims have the right to claim, in accordance with national law, full compensation from offenders for damages resulting from offences of violence against women or domestic violence.
2. Member States shall ensure, where appropriate, that victims are able to obtain a decision on compensation in the course of criminal proceedings.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
