Nasilje u porodici: prekršaj ili krivično djelo?
Domestic Violence: a Misdemeanor or a Criminal Offense?

Author(s): Milena Aćimić Remiković
Subject(s): Law, Constitution, Jurisprudence, Criminal Law, Studies in violence and power
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Domestic violence; Montenegrin legislation; Misdemeanor; Criminal offense;
Summary/Abstract: In Montenegrin legislation, domestic violence was not recognized as a separate criminal offense for a long time. The incorporation of domestic violence into the Criminal Code of Montenegro is a kind of confirmation of the inability of the state to effectively and adequately intervene in case of domestic violence, but also the victory of society over the patriarchal understanding of this social phenomenon as a private matter that is kept within the walls of the family home. On the way to a successful fight against domestic violence, the Montenegrin legislature faces a major problem in legislation and practice regarding the treatment of cases of domestic violence, as well as a series of problems that arise on this occasion. There is an overlap between the provisions of the Criminal Code and the provisions of the Law on Protection from Domestic Violence regarding the qualification of acts of domestic violence. This legal solution consequently creates two types of problems: first, which is related to the legislative framework itself and second, which concerns the implementation of existing laws in the field of domestic violence in practice. It is unclear whether the act of domestic violence should be prosecuted as a criminal offense under the Criminal Code or as a misdemeanor under the Law on Protection from Domestic Violence. The analysis of this problem in the article led to the conclusion that domestic violence is often qualified as a misdemeanor because the competent authorities believe that, in this way, they will provide a victim with a procedure that is more efficient and economical than the criminal procedure in which a victim is left without adequate protection during the procedure. The problem also arises from the fact that all judges do not have the same attitudes and understandings regarding domestic violence, and that the different criteria exist among different judges, especially in the form of interpretation of what is considered "severe violence", which is crucial in the qualification of acts of domestic violence as misdemeanors or criminal offenses. Based on the analyses of the legislative framework and the problem of its application in practice, the author concluded that complete harmonization with the Istanbul Convention is necessary, based on which any physical, psychological and sexual violence between family members should be considered a criminal offense. It should clearly and unambiguously define some minor forms of domestic violence as misdemeanors and the rest as the criminal offenses, for which an adequate sanction must be prescribed in order to tighten the penal policy in accordance with international regulations in this field. Also, it is necessary to provide adequate protection to the victims of domestic violence, which the current legal solution does not do. The said measures should be introduced to the legislation to clarify the distinction between domestic violence as a misdemeanor and a criminal offense.

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