Науково-практична Інтернет-конференція 10.12.2015 - Секція №2
The aim of this research is to explore the development tendencies of protection of domestic violence victims under Azerbaijani laws through giving definition to victims of it. Azerbaijan has made progress in fight against domestic violence by adoption of the Law “On the Prevention of Domestic Violence”, dated 22 June 2010. Moreover, scope of victims is expected to be scrutinized throughout the article. In order to get the general overview of the problem and its ways of legal solution, we are going to research the Law “On the Prevention of Domestic Violence” in the light of experience and good practices of several states and international legal documents. Hence, pros and shortcomings of the current legislation would be easily found. 
It is worth reviewing and getting acquainted with legislations and attitudes of several foreign countries such as the UK, the US and Ukraine in this field and paying attention to international documents and paying attention to the shifted definition of the term “domestic”. Domestic violence can be classified both narrowly and broadly. “Domestic” covers relations not just between spouses, but also other members of a family unit such as children, the elderly and others out of intimate intercourse. This is a broad definition of scope of victims recognized by international community. Nevertheless, we are planning to focus on intimate partners as change in their legal status led to extension of the list of people under protection. 
Traditionally, domestic violence occurs among intimate partners. Violence within a family unit is defined as violence happening between heterosexual couples living together as husband and wife [1, p. 29]. However, the definition differs from country to country depending on the comprehension of the problem by the government and traditions. While domestic violence implies violent acts between spouses in an official marriage in some conservative countries, countries committed to the values of Western democracies recognize a wider range of victims inlcuding several types of intimate partners. While considering legislative acts of several western states, tendedncies towards extention of scope of people under protection are overtly seen. Great Britain could be a very good sample for explaining and showing trends in shift of victims` scope. The fight against domestic violence in Great Britain shas resulted in adoption of a new law in the 1970s [2, p. 2-3]. Until that time domestic violence was not properly recognized as a problem of a legal character [3, p. 12]. So, 2 main factors were important for the violence to be deemed as “domestic”: occurance of violence between men and women; and official marriage. 1996 Family Law Act of the UK expands the scope of victims by including intimate partners living out of marriage [3, p. 12]. Yet, intimate partners being together, but not living under the same roof were denied protection under the abovementioned law [4, p. 2-3]. Eventually, liberalisation of legislation was an impetus for promoting protective measures for a wider range of people. Currently domestic violence is considered to be violence such as physical assault and psychological pressure occuring among family members, current or ex partners regardless of sex or sexual orientation. According to the Law of the Republic of Azerbaijan “On the Prevention of Domestic Violence”, domestic violence is a deliberate infliction of physical and moral damage by persons to others, envisaged under this law, caused by abuse of close relative relations, current or past cohabitations [5]. As may be seen, Azerbaijani legislators acted in line with requirements and term “domestic” covered more much broader range of people. The Law is applicable to women and men living both in an official marriage and without official registration. Thus, the Law protects both current and ex partners regardless of official marriage. We should have a look at CoE Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) in order to understand new tendencies. Istanbul Convention determines domestic violence as follows: “domestic violence” shall mean all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim [5]. As it may be seen, definition of “doemstic” is too broad and contains violence within both family unit and domestic unit and violence between intimate partners; common residence for both partners is out of question. Apparently, there has been no common approach about domestic violence before adoption of the Azerbaijani Law “On the Prevention of Domestic Violence”. It should be noted that no common approach has been achieved in the international community either. The definition has shifted throughout the time. Lack of common understanding of a problem impeded its effective prevention. Domestic violence was recongized to happen among spouses or women and men living as spouses in the mid 1970 s. For instance, now the British government accepts the definition proposed in 2000: domestic violence is any kind of violence occurring between current or ex partners in intimate relations regardless of time and place. Moreover, definition became even more overwhelming in the UK: Any criminal offence arising out of physical, sexual, psychological, emotional or financial abuse by one person against a current or former partner in a close relationship, or against a current or former family member. To our mind, being more general, the definition encircles much wider range of persons as victims. That concept confines domestic violence to both intimate partners and other family members. The Azerbaijani Law “On the Prevention of Domestic Violence” defines domestic violence as a deliberate infliction of physical and moral damage by persons to others, envisaged under this law, caused by abuse of close relative relations, current or past cohabitations [4]. Yet, there are some shortcomings. The commentary to the Law notes that the main element of the domestic violence is close family ties of those living together and dependency relations created during cohabitation. As seen from the commentary, in order to classify a misdemeanor as domestic violence family ties and cohabitation should exist simultaneously. Of course, the Law uses the term “current or past cohabitations”. Anyway, there is a need in cohabitation, either current or past. For the purpose of expanding the use of the Law, it would be better to change conjunction “and” with “either or”: – domestic violence is a deliberate infliction of physical and moral damage by persons to others, envisaged under this law, caused either by abuse of close relative relations or current or past cohabitations. Since, scope of victims expands day by day. Article 4 of the Law determines the list of people protected by it. The Law applies to close family members; other relatives living together; ex spouses living together or separately after divorce; and men and women living as husband and wife without official wedlock and other relatives living with them. However, scope of relatives cohabitating is wider in Azerbaijan, especially in rural areas. Thus, close relatives are the following: husband, wife, parents, children, grandparents, grandchildren, siblings, step brothers and sisters, adopted children and other relatives if living together. However, incentive to intrude into the private life of a female relative is inherent not only to close family members, but also to other relatives not living under one roof. For instance, so-called “obscene” life style of a divorced woman can be a real incentive to take active measures by her cousins. Unfortunately, honor crimes are wide-spread and Azerbaijan is not an exception. Nevertheless, potential victims of such harassments are beyond the reach of the Azerbaijani Law. Hence, cousins are not close relatives in accordance with the legal provisions. Besides, women who are not in intimate relationship before the marriage and are molested by their ex fiances or current boyfriends are not protected by the above mentioned law. Those persons are not demanded to be classified as close relatives, but the definition “other relatives in case of cohabitation” included in article 4.0.1. doesn not reflect present-day realities. Apparently, cohabitation is not a vital condition for offense to happen. Therefore, abolition of article 4.0.1. would be preferable. Azerbaijani legislation provides the list of close relatives. We mentioned them already. That list does not cover in-laws. If talking about the strengths of the Law, we can mention that the Law applies to both current and ex partners. Thus, women can be molested and harassed even after official divorce has taken place because women are considered to be the property of men. For that reason, that provision of the Law is important. Besides, the Law accords protection to couples living not in an official marriage. The provision of the Law provides equal protection opportunities to married couples and couples living out of wedlock. The population residing in rural areas are used to living in a religious marriage, rather than in an official one. Therefore, absence of that provision would have exposed a huge part of population to danger. When talking about something different from an official marriage, we imply not just a religious marriage, but also any form of cohabitation not recorded by a governmental official. In spite of equal protection of couples living in an official marriage or out of wedlock by the legislation, status of couples is not recognized to the same extent. Thereby, protection of women and men out of official wedlock is restricted to the period of time of cohabitation. Hence, ex-partners are not entitled to any kind of protection under the Law. Apparently, this distinction gives floor for discrimination. In our opinion, regardless of few flaws in the Law, it covers and provides protection to wide range of population. We have reviewed the possibilities of occurrence of domestic violence in close family ties. As may be seen, close family ties should be strengthened by cohabitation. Frequently, a victim can be molested by another person beyond the family unit or a person not living together with a victim. Sometimes women can be annoyed by ex-boyfriends or somebody they have been dating for a short period of time. In that case, they neither live under one roof, nor possess close family ties. Absence of close family ties or cohabitation does not guarantee a woman escape from domestic violence. That is why scope of victims under this Law should be extended to wider range of population. Adoption of the Azerbaijani Law “On the Prevention of Domestic Violence” by the Parliament shows willingness and readiness of the government to fight against domestic violence. The Law determines the scope of potential victims on the following grounds: close family ties and cohabitation. In our opinion, the Law should be based on three pillars in the future years: close family relations; cohabitation; and intimate relations. Intimate relationship was approached in the Law in the light of close family ties. Thus, relations between spouses are considered as close family ties and couples living without official registration are determined as a separate category. Nevertheless, we should keep in mind that violence can occur even between couples yet not having intimate relations. Here is a question that may arise, is a mere fact of intimate relations sufficient for the outrage to be considered domestic violence? However, intimate relationship should be of permanent character and periodic in order such relations to be classified as a ground for domestic violence. Hence, one episode of intimate relations and violence afterwards would not suffice for considering it as domestic violence. Yet, we should bear in mind that young people can start off relations without intimacy, it is especially common for muslim coutries. In that case, problems will arise in relation to criterias, on which such kind of realtions should be based. Then the gap in the Law will be a real impediment for protection of such couples against domestic violence. The provision of the Law is expected to be revised for offering protection to as wide a range of population as possible. So, in the narrowest sense, term “domestic” embraces women and men in intimate relations, notwithstanding official registration of the marriage. Apparently, list of victims protected against domestic violence is getting broader and this trend is also seen in the Azerbaijani legislation and as it was mentioned earlier, the Azerbaijani legislation on regard of victim status is mostly based on three pillars such as intimate relations, family ties and cohabitation.
 
References:
1. Mirrlees-Black C. Domestic Violence: Findings from a New British Crime Survey Self-Completion Questionnaire, A Research, Development and Statistics Directorate Report / C.Mirrlees-Black. – London: Home Office? 2001. – P. 29.
2. Dobash R.E. Women, violence and social change, Routledge / R.E. Dobash, R.P. Dobash. – London, 1992. – P. 2-3.
3. Burton M. Legal responses to domestic violence, Routledge-Cavendish / M. Burton. – London 2008, P. 2-3, 12.
4. The Law of the Republic of Azerbaijan “On the Prevention of Domestic Violence” dated 22 June 2010. – № 1058-IIIQ.
5. Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence art.3, § b, 11.05.2011. – CETS № 210. {jcomments on}