In the context of the numerous acts of violence detected, of various types, physical, verbal, psychological, the Ministry of Internal Affairs issued Order no. 138/2024, published in the Official Gazette on 27.08.2024, on establishing how police officers handle cases of violence.
The main purpose of this order is to give greater protection to citizens who have been subjected to violence and to prevent crimes from being committed.
In practice, the rules that previously governed the measures to be taken by police forces could cause difficulties because they were not sufficiently clear or were open to interpretation. Thus, the issuing of this order is welcome and will lead to a better management of cases of violence in order to take the necessary measures to protect victims.
At the same time, in this context, we also refer to the Law no. 26/2024 on the Protection Order, which introduced additional rules that give the right to victims, against whom violence of any kind has been perpetrated, or their representatives, to request the issuance of a protection order against the perpetrator.
Thus, according to Article 2 of Law 26/2024: ”The provisional protection order shall be issued immediately, at the written request of the victim of violence or, where appropriate, of the guardian or other legal representative of the victim, by police officers who, in the exercise of their duties, become aware of the commission of an act of violence, and from the assessment of the factual situation it appears that there is an imminent risk of another act of violence against the victim, which endangers the life, physical integrity or freedom of the victim.”
The definition of the act of violence in the new regulation is broader and more comprehensive, indicating facts and ways of committing it that were not covered by the old regulation. Therefore, according to Art. 1 of Law 26/2024:
”For the purposes of this law, acts of violence means:
(a) any striking or act of violence causing physical suffering;
b) any act of violence of a sexual nature;
(c) threatening a person with the commission of a criminal offense or unlawful harmful act directed against him or her or another person, if it is likely to cause him or her to fear
(d) the repeated act of stalking a person, without right or legitimate interest, or of surveillance of his home, place of work or other places frequented by him, or the making of telephone calls or other types of communication by means of remote transmission which, by their frequency, content or timing, create fear, and other actions with similar effect;
(e) any act of online harassment, online hate messages, online stalking, online threats, non-consensual publication of intimate information and graphic content, illegal access to private communications and data, and any other form of misuse of information and communication technology to humiliate, frighten, silence the victim;
(f) attempting to induce or inducing a person by bribery, coercion or any other act of manifest intimidation not to report a matter to the prosecuting authorities, to refrain from giving evidence, to retract a statement, to give false testimony or to withhold evidence in criminal, civil or any other judicial proceedings;
g) any other acts of physical or mental violence endangering the life, physical or mental integrity or liberty of a person.”
This Order comes with a number of obligations imposed on the police when carrying out this procedure. It therefore imposes an obligation on police officers who go to the scene to draw up a risk assessment form which must meet certain conditions.
Thus, according to art. 5 of Order no. 138/2024: ”On the occasion of the intervention, in order to establish the existence of an imminent risk that the life, physical integrity or liberty of persons may be endangered by an act of violence, the police officers shall assess the factual situation on the basis of the risk assessment form, if the victim or, where appropriate, the guardian or legal representative makes a written request for the issuance of a provisional protection order.”
If, after filling in the form, it is concluded that there is an imminent danger that the life, physical or mental integrity or liberty of the person is in imminent danger, the police are obliged to issue a provisional protection order against the aggressor.
It should be noted that for victims who, for various objective and well-founded reasons, are unable to apply for a provisional protection order, there is the possibility that it may be issued even in the absence of such an application, if the conditions provided for by law are found to be met and an imminent risk is established.
In this regard, we reproduce the provisions of Art. 7 para. (2) of Order no. 138/2024, according to which: ”The provisional protection order may also be issued in the situation where the victim or, as the case may be, the guardian or other legal representative of the victim, due to his/her mental or physical condition or for other reasons, is unable to draft the application for the provisional protection order or is objectively unable to provide the information necessary to complete the risk assessment form.”
The new regulation also imposes a number of obligations on the police, after the protection order has been issued, to monitor the situation to ensure compliance with the protection order.
Therefore, according to art. 18 of the new regulation on the matter: ”After the issuance of the provisional protection order, a surveillance team shall be set up at the level of the police unit within the territorial radius where the victim is domiciled/ actually lives in order to monitor compliance with the measures ordered.” According to paragraph (2) of the same law: ”The police officers designated by the head of the police unit to monitor compliance with the measures ordered constitute the supervision map within which they carry out the following activities:
(a)carry out checks in the databases of the Romanian Police and depending on the result will take the legal measures or inform the authorized structures;
(b)contact the aggressor and inform him/her about the existence, the content of the provisional protection order and his/her legal obligations under the law, drawing up a protocol, in which they will record all the details regarding the execution of the provisional protection order;
(c) instruct the victim on how to act in different situations, in particular where the aggressor does not comply with the measure ordered by the provisional protection order, and provide contact details and the specific ways in which the police can be contacted;
(d) periodically check the offender’s compliance, either directly – by telephone or by going to the victim’s home, workplace, etc. – or indirectly by accessing police databases in order to identify the novel information implemented therein, at the offender’s workplace and other places frequented by the offender in order to obtain data and information on his behavior, as well as on the persons with whom he has regular contact;
(e) request, where appropriate, the inclusion of the victim’s home in the patrol itineraries of the police forces involved in maintaining public order and public safety and the regular verification of compliance with the provisional protection order, as well as the training of police officers on how tointervene in the event of the measures ordered;
(f) request data and information on the person concerned from other institutions or authorities with powers in this area;
g) perform any activities provided for by law or internal rules, deemed necessary for the proper execution of specific activities.’’
Thus, we believe that it is useful for victims to be aware of their rights in such situations, precisely in order to be able to ask state bodies to fulfill their specific duties, in accordance with the legal provisions on the matter.
At the same time, these rules are also important for the perpetrator, because, according to the law, the state bodies are under an obligation to inform the persons concerned about what the issuance of a protection order entails and exactly what obligations must be fulfilled by the person against whom the protection order has been issued.
We can see that the new rules on the matter aim to streamline the process of issuing a protection order and, consequently, the measures that can be taken by state bodies in such cases.
Therefore, this Order also aims to provide a greater degree of protection by the law to persons in a situation of manifest vulnerability and in need of urgent intervention by state bodies to protect their fundamental rights and interests.
This article was prepared, for the Blog of Costaș, Negru & Asociații, by Ms. Oana Budi from Arad Bar Association.
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