PROCEDURAL FEATURES OF COURT TRIALS IN CRIMINAL CASES UNDER ARTICLE 126¹ OF THE CRIMINAL CODE OF UKRAINE («DOMESTIC VIOLENCE»)

Abstract

The article provides a comprehensive and
systematic analysis of the procedural features of
criminal proceedings in cases of domestic violence as
provided for in Article 126¹ of the Criminal Code of
Ukraine, taking into account current challenges of law
enforcement practice and the state’s international
obligations in the field of human rights protection.
The study examines the evolution of national
legislation in the field of prevention of and combating
domestic violence, starting from the formation of a
comprehensive state policy in this area and
culminating in the criminalization of systematic
domestic violence as an independent corpus delicti.
Particular attention is paid to amendments to criminal
procedural legislation aimed at implementing
international standards, primarily the provisions of
the Istanbul Convention, as well as the case law of the
European Court of Human Rights.
Special emphasis is placed on the analysis of the
form of private prosecution in criminal proceedings
concerning domestic violence. The article reveals the
specific features of initiating a pre-trial investigation
upon a victim’s complaint, as well as the statutory
exceptions regarding the impossibility of terminating
criminal proceedings due to the subsequent
withdrawal of charges by the victim. It is substantiated
that this model of criminal prosecution, despite certain
contradictions, represents an attempt by the legislator
to take into account the specific nature of domestic
violence, in particular the risks of secondary
victimization and psychological pressure on victims.
The article also explores the procedural features
of initiating a pre-trial investigation taking into
account the requirement of systematic conduct as a
mandatory element of the corpus delicti provided for
in Article 126¹ of the Criminal Code of Ukraine.
Considerable attention is paid to problematic
aspects of evidence in domestic violence cases. The
peculiarities of proving psychological violence,
which, unlike physical violence, does not leave
obvious material traces, as well as the difficulty of
establishing a causal link between the perpetrator’s
actions and the negative physical or psychological
consequences for the victim, are analyzed. The
necessity of a comprehensive approach to the
formation of the evidentiary base is substantiated,
involving both direct and indirect evidence, the results
of psychological examinations, materials from social
services, and electronic evidence.
Within the framework of international standards,
the content of the “due diligence” standard and its
significance for criminal proceedings in domestic
violence cases are disclosed.
Keywords: domestic violence, criminal
procedure, crime, victim, private prosecution,
standard of proof, Istanbul Convention, international
standards, criminal liability