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United Nations Committee on Economic, Social and Cultural Rights - State Party Reports |
Attachment IV
119(I) of 2000
212(I) of 2004.
THE VIOLENCE IN THE FAMILY
(PREVENTION AND PROTECTION OF VICTIMS)
LAWS 2000 AND 2004
(English translation and consolidation)
Office of the Law Commissioner
Nicosia,
1st March, 2005
ΓΕΝ (Α) – L.75
NICOSIA
__________________________________________________________
PRINTED AT THE PRINTING OFFICE OF THE REPUBLIC OF CYPRUS
Price:
CONTENTS
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Page
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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . .
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3
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Arrangement of sections . . . . . . . . . . . . . . . . . . . . . . . . . .
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4
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The Violence in the Family (Prevention and Protection of Victims) Laws 2000
and 2004 (Consolidation in English)......
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7
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INTRODUCTION
This is a translation into English and consolidation of the Violence in the Family (Prevention and Protection of Victims) Law, 2000 (L. 119(I)/2000), incorporating the amendments made by law enacted up to 1st March, 2005, i.e. Law 212(I)/2004.
It is not a consolidation in the true sense of the word, in that no renumbering of sections has been made.
Office of the Law Commissioner
Nicosia,
1st March, 2005
A LAW TO PROVIDE FOR THE PREVENTION
OF VIOLENCE IN THE FAMILY AND PROTECTION
OF VICTIMS
______
ARRANGEMENT OF SECTIONS
PART I – Introductory provisions
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119(I) of 2000
212(I) of 2004.
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Section
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1.
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Short title.
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2.
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Interpretation.
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PART II - Meaning of violence
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3.
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Meaning of violence and fields of its application.
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4.
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Aggravated violence.
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5.
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Rape of wife by husband.
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PART III
Family Counselors, Advisory Committees
and Multidisciplinary Groups
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6.
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Appointment of Family Counselor.
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7.
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Advisory Committee.
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8.
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Multidisciplinary Group.
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PART IV - Statements of witnesses and victims
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9.
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Taking of a statement.
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10.
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Video recorded statements.
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11.
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Rules for the taking of a video-recorded statement.
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12.
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Power of the Court not to allow the presentation of part of the
statement.
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13.
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Examination-in-chief with the leave of the Court.
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14.
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Immediate complaint admissible as evidence.
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PART V - Trial of cases and evidence
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15.
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Speedy trial.
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16.
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Corroboration.
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17.
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Testimony of a phychiatrist or physchologist.
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18.
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Prevention of intimidation.
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19.
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Control of cross-examination.
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20.
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Compellability of spouses.
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PART VI - Orders and treatment of an accused
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21.
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Court order for the removal of a minor.
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22.
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Interim order restraining the suspect or removing the victim.
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23.
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Restraining Order.
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24.
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Supplementary provisions relating to section 23.
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25.
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Probation order or suspension of imprisonment on special conditions.
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PART VII - Fund
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26.
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Establishment of Fund.
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27.
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Administration of Fund.
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28.
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Investments.
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29.
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Regulations.
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30.
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Auditing.
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PART VIII - Shelter and Offences
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31.
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Establishment and operation of a shelter.
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32.
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Harassment of a victim and other person.
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33.
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Application of the provisions of section 15.
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34.
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Prohibition of the disclosure of the identity of the victim.
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35.
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Prohibition of delivery, receipt or publication of copies of statements to
or from third parties.
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35A.
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Omission of a citizen to report cases of violence.
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PART IX - Miscellaneous
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36.
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Budgets.
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37.
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Annual Report.
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38.
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Regulations.
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39.
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Rules of Court.
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40.
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Repeal.
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A LAW TO PROVIDE FOR THE PREVENTION OF VIOLENCE IN THE
FAMILY AND PROTECTION
OF VICTIMS
_______
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119(I) of 2000
212(I) of 2004.
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PART I – Introductory provisions
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|||||||
The House of Representatives enacts as follows:
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|||||||
1. This Law may be cited as the Violence in the Family (Prevention
and Protection of Victims) Laws 2000 and 2004.
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Short title.
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|||||||
2. In this Law unless the context otherwise requires:–
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Interpretation.
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|||||||
“Committee” means the Advisory Committee, constituted under
section 7 of this Law;
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|||||||
“competent person” for the purposes of section 10 of
this Law means any police officer, family counselor or welfare officer;
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|||||||
“Court” means a competent Court exercising criminal
jurisdiction;
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2(a) of 212(I)/2004.
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|||||||
“declaration” includes any account of facts made either in
words or in any other form;
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|||||||
“Family Counselor” means the Family Counselor appointed under
section 6 of this Law;
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“marital home” means the place where the victim of violence has
his usual residence, irrespective of whom of the spouses
or other tenants such
place belongs to or irrespective of the ownership percentages;
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|||||||
“member of the family” means-
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2(b)(i) of 212(I)/2004
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|||||||
(a)
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husband and wife who-
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(i)
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have been legally married, whether the marriage exists or not, or
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(ii)
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are or were cohabiting as husband and wife;
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(b)
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the parents of the persons referred to in paragraph (a);
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(c)
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children of the persons referred to in paragraph (a), irrespective of
whether such children are the natural or adopted children of
either or both of
the said persons, as well as the grandchildren of the persons referred to in
paragraph (a);
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||||||
(d)
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any person residing with any of the above mentioned persons.
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2(b)(ii) of 212(I)/2004.
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||||||
“Minister” means the Minister of Labour and Social
Insurance;
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|||||||
“minor” means a person under the age of eighteen;
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“Psychiatrist” means a doctor registered under the Medical
Registration Law, recognised as a specialist in psychiatry
pursuant the Medical
Registration (Special Qualifications) Regulations;
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Cap. 250.
30 of 1959
30 of 1961
53 of 1961
79 of 1968
114 of 1968
14 of 1974
18 of 1979
72 of 1991
112(I) of 1996
102(I) of 2004.
Official
Gazette,
Supplement III (I):
11.4.1986
3.3.1988
27.7.1990
17.4.1991
27.5.1994
2.5.2003
30.4.2004.
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|||||||
“Psychologist” means a professional psychologist registered
under the Registration of Professional Psychologists Law;
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68(Ι) of 1995
104 (I) of 1996
17(I) of 1999
234(I) of 2004.
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“self-control treatment” means the treatment mentioned in
section 25 of this Law;
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“statement” includes an interview;
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“typing” includes printing in any form;
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“video recording” means the recording by the use of any means
in moving pictures of objects, facts, organizations or persons
either in a
moving or speaking form which can be reproduced and presented by the use of any
technical means;
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“violence” means the violence as defined in section 3 of this
Law.
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PART II – Meaning of Violence
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3.–(1) For the purposes of this Law, violence means any act,
omission or behaviour which causes physical, sexual or mental injury
to any
member of the family by another member of the family and includes violence used
for the purpose of having sexual intercourse
without the consent of the victim
as well as of restricting its freedom.
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Meaning of violence and fields of its application.
3 of 212(I)/2004.
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|||||||
(2) Notwithstanding the meaning of the term “violence” pursuant
to subsection (1) above, the offences referred to in sections
4(2) and 5 of this
Law as well as the offence referred to in section 147 of the Criminal Code shall
fall within the said meaning.
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Cap. 154.
3 of 1962
43 of 1963
41 of 1964
69 of 1964
70 of 1965
5 of 1967
58 of 1967
44 of 1972
92 of 1972
29 of 1973
59 of 1974
3 of 1975
13 of 1979
10 of 1981
46 of 1982
86 of 1983
186 of 1986
111 of 1989
236 of 1991
6(I) of 1994
3(I) of 1996
99(I) of 1996
36(I) of 1997
40(I) of 1998
45(I) of 1998
15(I) of 1999
37(I) of 1999
38(I) of 1999
129(I) of 1999
30(I) of 2000
43(I) of 2000
77(I) of 2000
162(I) of 2000
169(I) of 2000
181(I) of 2000
27(I) of 2001
12(I) of 2002
85(I) of 2002
144(I) of 2002
145(I) of 2002
25(I) of 2003
48(I) of 2003
84(I) of 2003
164(I) of 2003
124(I) of 2004.
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(3) Any act or behaviour constituting violence, pursuant to
subsections (1) and (2) of this section or an offence, pursuant to sections
174, 175 and 177 of the Criminal Code, when committed
in the presence of a minor
member of the family, shall be considered as violence used against the said
minor if it may cause to him/her
mental injury. The said act or behaviour shall
constitute an offence punishable under subsection (4) of this section.
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(4) Any person using violence pursuant to subsection (1) shall commit
an offence under this Law, punishable, except for the case
of common assault
which is punishable with imprisonment for two years and in the case where a more
severe punishment is provided
under any other or this Law, with imprisonment up
to five years or with a fine up to three thousand pounds or with both such
penalties.
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4.–(1) Where the offences set out in the first column of
subsection (2) below are committed by one member of the family against
another
member of the family, they shall be considered, for the purposes of this
Law, as particularly serious and the Court, where the charge is based on
the sections of the Criminal Code set out in the second column
of subsection
(2), may impose the increased penalties set out in the third column of the same
subsection in lieu of the penalties
provided in the aforesaid sections of the
Criminal Code.
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Aggravated
violence.
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|||||||
(2) The offences to which subsection (1) refers are the
following:–
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|||||||
Offences
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Section
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Penalty
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(a) Indecent assault on females
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151
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The imprisonment is increased from two to five years.
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(b) Indecent assault on males
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152
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The imprisonment is increased from two to five years.
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(c) Defilement of girls under thirteen years of age.
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153(1)
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Life imprisonment (the penalty remains the same).
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(d) Attempt to defilement of girls under thirteen years of age.
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153(2)
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The imprisonment is increased from three to seven years.
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(e) Defilement of girls between thirteen and sixteen years of age.
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154
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The imprisonment is increased from two to ten years.
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(f) Defilement of idiots or imbeciles.
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155
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The imprisonment is increased from two to twelve years.
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(g) Unnatural offences.
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171
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The imprisonment is increased from five to ten years.
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|||||
Offences
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Section
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Penalty
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|||||
(h) Unnatural offence with violence.
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172
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The imprisonment is increased from fourteen years to life
imprisonment.
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(i) Attempts
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173 (2)
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The imprisonment is increased from seven to ten years.
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(j) Grievous harm.
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231
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The imprisonment is increased from seven to ten years or the fine provided
is imposed or both of the said penalties are imposed.
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(k) Wounding and similar acts.
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234
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The imprisonment is increased from three to five years.
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(l) Common assault
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242
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The imprisonment is increased from one to two years or the fine provided is
imposed or both of the said penalties are imposed.
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|||||
5. Notwithstanding the provisions of any law, the offences of rape
under sections 144 and 145 of the Criminal Code, and of the attempt
to commit
rape, under section 146 of the same Code, may be considered as having being
committed by a husband against his wife, if,
on the facts of the case, the said
offences would have been constituted, in the case where the perpetrator and the
victim were not
married, and shall be punishable in accordance with the
provisions of the Criminal Code.
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Rape of wife by husband.
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|||||||
PART III
Family Counselors, Advisory Committees and
Multidisciplinary Groups
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|||||||
6.-(1) The Minister shall appoint appropriate persons to carry out
the duties of Family Counselors for the better implementation of
the provisions
of this Law.
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Appointment of
Family
Counselor.
|
|||||||
(2) The Family Counselor shall exercise the following functions:
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|||||||
(a) To receive complaints relating to a likelihood of exercise of violence
and carry out the necessary investigations;
(b) to counsel, advise and mediate for the easing of any problems in the
family that are likely to, or may lead to the use of violence;
(c) to make arrangements for immediate medical examination of the
complainant and if he deems it necessary to accompany him/her;
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4(a) of 212(I)/2004.
|
|||||||
(d) to make a complaint to the Police for the investigation of the
possibility of the commission of a criminal offence;
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|||||||
(e) to carry out, upon directions by the Court, investigations in relation
to the financial state of the family in general and of
the perpetrator in
particular, in cases where a restraining order is contemplated;
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|||||||
(f) to carry out investigations and make arrangements for the accommodation
of the accused or of his family in case a restraining
order is made;
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|
|||||||
(g) to proceed promptly to all necessary arrangements for the medical or
other examination of a child for whom there is a reasonable
suspicion of
ill-treatment by a member of the family;
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4(b) of 212(I)/2004.
|
|||||||
(h) any other function which the Minister may assign to him.
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|||||||
(3) The Family Counselor, in the exercise of his duties may request the
assistance of any State officer, of the Police or of any other
appropriate
person.
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(4) The Family Counselor, in the exercise of the functions referred to in
paragraph (a) of subsection (2) of this section, shall act,
upon the written
approval of the Director of Social Welfare Services, in accordance with the
provisions of section 5(1) of the Criminal
Procedure Law and shall apply to the
same extent and in the same manner the provisions of subsections (2), (3) and
(4) of the same
section.
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Cap. 155.
93 of 1972
2 of 1975
12 of 1975
41 of 1978
162 of 1989
142 of 1991
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(5) In the case of information or a complaint for the commission of
the offence of violence against a minor, the Family Counselor
may, if he deems
it appropriate depending on the seriousness of the information or complaint,
request the views, advice and opinion
of the multidisciplinary group established
under section 8 of this Law for the better handling of the case and inform the
Director
of the Social Welfare Services about the incident.
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9 of 1992
10(I) of 1996
89(I) of 1997
54(I) of 1998
96(I) of 1998
14(I) of 2001
185(I) of 2003
219(I) of 2004.
|
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(6) The Family Counselor shall exercise the powers conferred upon him by
paragraph (g) of subsection (2) of this section after he
has attained the
consent of the person having the parental care of the said minor and shall
thereafter report the case to the police.
The consent of the person having the
parental care of the minor shall not be required where the Family Counselor is
of the opinion
that there is a reasonable suspicion that the minor has been
ill-treated by the person having the parental care or by another member
of the
family, provided that the Attorney-General of the Republic is informed in
writing about the incident prior to the medical
examination of the minor or if
this is possible immediately after the examination at the first given
opportunity and under no circumstances
not later than three days after the
examination.
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4(c) of 212(I)/2004.
|
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(7) (a) The Director of Social Welfare Services may exercise the powers
conferred upon him by section 4 and other relevant sections
of the Children Law
or any other law substituting the same, in cases where the reasons for the
exercise of the powers conferred upon
the Family Counselor by paragraph (g) of
subsection (2) of this section exist.
|
Cap. 352.
83(I) of 1999
143(I) of 2002.
|
|||||||
(b) The Director of the Social Welfare Services may, if the Family
Counselor is unable or refuses to exercise the functions mentioned
in subsection
(4) above or if he considers appropriate weighting the seriousness of the case,
act pursuant to the above subsection
himself instead of the Family Counselor,
exercise such functions himself or delegate the same to another experienced
officer of his
Department.
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|||||||
7.-(1) There shall be established an Advisory Committee for the
prevention and combating of violence in the family.
In particular the Committee shall-
|
Advisory
Committee.
|
|||||||
(a)
|
Monitor the problem of violence in the family in Cyprus;
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(b)
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inform and enlighten the public and professionals using various means,
including special conferences, educational programmes and seminars;
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(c)
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promote scientific research in relation to the violence in the
family;
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|
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(d)
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promote the services for dealing with all aspects of violence in the
family;
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|
||||||
(e)
|
monitor the effectiveness of the related services in operation and the
application of and compliance with, the relevant legislation.
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|
||||||
(2) The Committee shall consist of persons appointed in their personal
capacity by the Council of Ministers and have knowledge of
and experience on the
matter. The appointments shall be from the public and private sector. The
members shall not exceed eleven
and their term of office shall be five
years.
|
5(a) of 212(I)/2004.
|
|||||||
The persons appointed from the public sector shall be selected from the
Ministries and services mentioned in subsection (4) of this
section and the
persons appointed from the private sector shall be selected from the members of
the associations or organizations
involved in the prevention and combating of
violence in the family, in equal proportion.
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|
|||||||
(3) A member of the Committee shall be appointed by the Council of
Ministers as president and shall have responsibility for convening
and chairing
meetings and another member shall be appointed to substitute for the president
in case of absence.
|
|
|||||||
(4) The Ministries and services mentioned in subsection (2) of this section
are -
|
|
|||||||
- The Ministry of Health;
- The Ministry of Justice and Public Order;
- The Ministry of Education and Culture (Educational Phsychologist);
- The Social Welfare Services of the Ministry of Labour and Social
Insurance;
- The Law Office of the Republic;
- The Police.
|
|
|||||||
(5) The Committee may engage scientific or other necessary staff and have
an Office.
|
5(b) of 212(I)/2004.
|
|||||||
(6) The Committee shall regulate its own procedure with internal
regulations.
|
|
|||||||
8.–(1) The Council of Ministers may, by notification
published in the Official Gazette of the Republic, appoint multidisciplinary
group or groups comprising persons having the necessary qualifications and
experience for giving advice, views, opinions and any
kind of assistance,
regarding the better treatment of minors or other persons victims of
violence.
|
Multidisciplinary
group.
|
|||||||
(2) The members of the multidisciplinary group shall be nominated from a
list of persons prepared and submitted to the Council of
Ministers by the
Minister:
Provided that, the members of the group which deals with issues
relating to minor persons victims of violence must possess
the following
specializations:
|
|
|||||||
- Child psychologist;
- Paediatrician;
- Clinical Psychologist;
- Social Worker of the Ministry of Labour and Social Insurance,
responsible for matters relating to children:
|
6 of 212(I)/2004.
|
|||||||
Provided further that, the Minister shall have the right to include
in the group any person possessing such other qualifications
as the Minister may
deem necessary.
|
|
|||||||
(3) The Council of Ministers may include, in the notification by which the
multidisciplinary group is appointed or in a subsequent
notification,
regulations for the better functioning of the group.
|
|
|||||||
PART IV – Statements of
witnesses and victims
|
|
|||||||
9. In case of a complaint, the statement of the victim shall be
taken by a police officer of the same sex, unless otherwise required
by the
victim or the family counselor when the victim is a minor.
|
Taking of a
statement.
7 of 212(I)/2004.
|
|||||||
10.–(1) Subject to the provisions of subsection (2) of this
section, at the trial of offences of violence under the provisions
of this or
any other law, a video recorded statement given to a competent person by any
person who is a victim of violence or a witness
to the commission of an offence
in contravention of the provisions of this Law, may, with the leave of the
court, be submitted as
evidence.
|
Video recorded statements.
|
|||||||
(2) For the application of the provisions of subsection (1) of this
section, the following requirements and restrictions shall apply:
|
|
|||||||
(a) The video recording should relate to the case on trial;
|
|
|||||||
(b) No leave shall be granted for the submission of a video recorded
statement –
|
|
|||||||
(i)
|
if the person, whose statement has been video recorded, cannot appear
before the court for cross-examination (if requested under this
section);
|
|
||||||
(ii)
|
if the rules for the taking of a video recorded statement referred to in
section 11 of this Law, have not been complied with;
|
|
||||||
(iii)
|
if the court considers, after taking into consideration all the
circumstances of the case, that the interest of the administration
of justice
requires that the video recorded statement should not be submitted;
|
|
(c) the sound track of the videotape in which the statement has been
recorded shall be submitted transcribed and typed with the video
recorded
statement.
|
|
||
(3) Any declaration contained in a video recorded statement which is
admissible as evidence under this section, shall be deemed
to be direct oral
evidence of the person making the declaration and therefore–
|
|
||
(a) Shall be admissible as evidence of any fact that would have been
admissible in the case of direct oral evidence;
|
|
||
(b) No such declaration may be used as corroboration of other evidence of
the same witness.
|
|
||
(4) The application of the provisions of subsection (1) of this section
shall not affect the power of the Court to exclude any
admissible evidence if it
considers this to be in the interest of justice.
|
|
||
11. The rules for the taking of a video recorded statement are the
following:
|
Rules for the taking of a video recorded statement.
|
||
(a)
|
The name, address, profession and capacity of the person taking the
statement as well of the person operating the video camera shall
be mentioned or
recorded at the commencement of the statement;
|
|
|
(b)
|
the place, date and time of the commencement of the taking of the statement
as well the time of conclusion of the statement shall
be mentioned or
recorded;
|
|
|
(c)
|
the name, address, profession and other particulars of the person giving
the statement shall be mentioned or recorded;
|
|
|
(d)
|
a declaration of the person taking the statement to the person giving the
statement to the effect that the statement shall be video-recorded
and that it
may be submitted before the Court as evidence and a declaration of the person
giving the statement that he consents shall
be written down. Furthermore, the
said declaration shall be written down and signed by the person making the
statement upon a relevant
confirmation by the person taking the statement. This
provision shall not apply in the case of a minor not being accompanied by the
person having his/her parental care or by a welfare officer or a family
counselor. In the case where the minor is accompanied by
any of the above
persons, the consent shall be given by such person.
|
|
|
(e)
|
(Repealed).
|
8 of 212(I)/2004.
|
|
12.–(1) The Court may, at the examination of an application
for presentation of a video recorded statement, if is of the opinion
that the
interest of justice so requires, order that certain parts of the video-recording
should not be submitted as evidence. The
Court, in the exercise of its
discretionary power shall take
into consideration the probable harm that may be suffered by the accused or
any accused if, more than one, and whether this is greater
than the benefit of
submitting the video recorded statement or part thereof. The Court shall also
take
into consideration any pressures that may be exerted upon the
|
Power of the Court not to allow the presentation of part of the
statement.
|
||
witness for the purpose of compelling him not to appear and give evidence
before the Court.
|
|
||
(2) The Court may order that parts of the video recorded statement or of
the typed and transcribed sound track of the videotape shall
be deleted if it
considers that they do not constitute admissible evidence or if it considers it
expedient in the exercise of its
powers pursuant to subsection (4) of section 10
of this Law.
|
|
||
13. Where a video recorded statement is received by virtue of
section 10 of this Law, the person whose evidence was video-recorded shall
be
called as a witness by the side which requested the presentation of the video
recorded statement and this witness shall be placed
at the disposal of the other
side for cross-examination purposes, subject to the provisions of section 19 of
this Law. No examination-in-chief
shall be made on the issues covered by the
video recorded statement except only with the leave of the Court:
|
Examination-in-chief with the leave of the Court.
|
||
Provided that, where the witness is called to give evidence for
cross-examination purposes, the provisions of section 55 of
the Criminal
Procedure Law shall apply.
|
|
||
14. Without prejudice to the provisions of section 10 of the
Evidence Law, the complaint by a victim of violence to any police officer,
family counselor, welfare officer, psychologist, doctor, including a
psychiatrist who examines the victim, an educationalist, members of the
Advisory Committee, a member of the Association for the Prevention of Violence
in the Family or members of the close
family environment of the victim within a
reasonable time from the commission of the offence, shall constitute evidence.
|
Immediate complaint admissible as evidence.
Cap. 9.
42 of 1978
86 of 1986
54(I) of 1994
94(I) of 1994
32(I) of 2004.
9 of 212(I) of 2004.
|
||
PART V – Trial of cases and evidence
|
|
||
15.–(1) The Court may, upon application by the Police, issue
a warrant for the arrest of any person accused for any act of violence
under
this Law.
|
Speedy
trial.
|
||
(2) A person arrested under subsection (1) shall be brought before the
Court within twenty-four hours from his arrest, to be charged
for the offence of
violence or for the issue of an order for his remand in custody under section 24
of the Criminal Procedure Law.
|
|
||
(3) The investigation shall be conducted and the case shall be tried
without delay. The Court may, at any time before the completion
of the trial,
either direct the detention of the accused or allow his discharge on bail to the
satisfaction of the Court that he
will appear on the date of the trial of the
case and that he will keep the conditions that appear to the Court necessary to
impose
for the protection of the members of the family, including the condition
not to visit or harass in any way a member of his family.
|
|||
(4) The Attorney-General of the Republic may consent to the trial of any
case of violence under this Law by a judge exercising criminal
jurisdiction.
|
10 of 212(I)/2004.
|
||
16. The Court may find the accused guilty upon the
testimony of the victim only, if it is not possible under the circumstances to
secure corroboration.
|
Corroboration.
11 of 212(I)/2004.
|
||
17.–(1) Where a minor, during his/her examination by a
psychiatrist or psychologist for the purposes of evaluation or psychotherapy,
mentions that he/she has been ill-treated by any person, the testimony of the
psychiatrist or psychologist may be admissible in Court
as an exception to the
rule against hearsay.
|
Testimony of a psychiatrist or psychologist.
12 of 212(I)/2004.
|
||
(2) The Court shall not convict any person upon the evidence mentioned in
subsection (1) above, unless such evidence is corroborated
in material issues by
other independent evidence which may include evidence of an expert.
|
|
||
18.–(1) During the trial of cases for the commission of
offences of violence, the Court–
|
Prevention of intimidation.
|
||
(a)
|
Shall order that the whole or part of the case be tried in camera;
and
|
|
|
(b)
|
may order, that the testimony of any victim of violence and any other
person for whom there is reasonable suspicion that he/she is
in any danger or
under threat by a reason of the fact that he/she will testify as a witness, or
that his/her testimony may be adversely
affected, be taken in the absence of the
accused giving all those directions and causing all the necessary arrangements
to be made
so that the accused will know of the testimony of the said witness
and cross-examine him/her.
|
|
|
(2) Without prejudice to the generality of subsection (1), the following
measures may be used for purposes of protecting the witnesses:
|
|
||
(a)
|
The placing of a special screen; or
|
|
|
(b)
|
the use of a closed television circuit; or
|
|
|
(c)
|
the use of any other means or system,
|
|
|
in a manner that the witness shall not be visible by the accused and vice
versa. In order to safeguard the rights of the accused
the appropriate
technological arrangements or other installations shall be made in the aforesaid
cases, so that the accused shall
be able to listen to the procedure and give
instructions to his lawyer.
|
|
||
19. The Court may intervene during the cross-examination of minors
or other victims of violence and give the appropriate directions to
prevent
their intimidation by aggressive and intensive questioning or by questions
containing threats of any kind.
|
Control of cross-examination.
|
||
20. Notwithstanding the provisions of section 14 of the Evidence
Law, the spouse of an accused charged with an offence of violence within
the
meaning of this Law, shall be a competent witness if the spouse is the victim of
violence and a competent and compellable witness
if the victim of violence is
another member of the family.
|
Compellability of spouses.
|
||
PART VI – Orders and treatment of an
accused
|
|
||
21.–(1) The Court may, during or after the trial of a case
of violence where the victim is a minor, order the removal of such victim
and
his/her placing in a safe place or his/her placing under the care of the
Director of Social Welfare Services of the Ministry
of Labour and Social
Insurance, for such a period as it may considers appropriate.
|
Court order for the removal of a minor.
|
||
(2) The Court may issue an interim order for the removal of a minor victim
by applying the provisions of section 22 of this Law.
|
|
||
22.–(1) The Court may, upon application by a member of
the family or by the police or by the prosecutor or by the Attorney-General
of the Republic or by a Family Counselor or by another person acting on
behalf of any of the above, issue an interim order restraining the suspect
or
for the removal of the minor victim until a criminal case against the accused
for the criminal offence of violence is filed and
tried.
|
Interim order restraining the suspect or removing the victim.
13(a) of 212(I)/2004.
|
||
(2) The Court shall issue an order, at any time, upon an application
accompanied by an affidavit sworn by the victim or, in the
case of a minor
victim, by any other person who is in a position to have direct knowledge of the
facts or by any other evidence,
causing a prima facie risk for use or repetition
of violence, including statements of the victim or other persons in any form,
certificates,
confirmations and other evidence under this or any other
Law.
|
13(b) of 212(I)/2004.
13(b) of 212(I)/2004.
|
||
(3) (a) The interim order shall be valid for a period up to
eight days from the day of its service to the suspect and shall be returnable
to
the Court during such period at the time and day as may be specified by the
Registrar.
|
|
||
(b) At the day and time specified by the Registrar the Court shall hear the
suspect or / and any affected or interested person who
shall appear and shall
decide whether to terminate the validity of the order or to extend it up to
eight additional days.
|
|
||
(c) The Court may further extend the order up to eight days, in each case,
provided that the total validity of the order shall not
exceed twenty four days
before the filing of the criminal charge against the suspect.
|
|
||
(d) The Court may, after the filing of the criminal charges against the
suspect, issue or extend an order to restrain or remove a
minor victim to be
valid until the trial of the case.
|
|
||
23.–(1) The Court may issue against a person charged for the
commission of any offence of violence, under this Law, an order valid
for such
period and upon such conditions as it may impose, prohibiting such person to
enter or remain in the marital home. Such an
order shall be called “a
restraining order”.
|
Restraining
Order.
|
||
(2) For the issue of a restraining order it is required
that–
|
|
||
(a)
|
It is proved to the satisfaction of the Court that the accused has a
history of repeated acts of violence against members of his family
or that he
has two convictions in the last two years for similar offences; or
|
|
|
(b)
|
the violence used has caused such actual bodily, sexual or mental harm, as
to endanger the life, integrity or sexual or mental health
of the victims;
or
|
|
|
(c)
|
the accused refuses to be submitted to self-control treatment
imposed as a condition for the purposes of applying section 33 of Criminal
Code or otherwise.
|
|
|
(3) The Court shall, in the restraining order fix a date before the
expiration of the restraining period, for the purpose of
examining the
possibility of extension or variation of such order.
|
|
||
The Court shall, in the aforesaid examination, hear the views of the
accused or of the complainant and any other person affected
by the issue of the
order, unless where they are minors and it is not considered expedient that they
shall testify against the accused,
as well as the views of the competent
services.
|
|
||
(4) The accused may apply for the revision or annulment of the rest
order before the expiration of the period fixed therein.
|
|
||
(5) Restraining orders shall be imposed in lieu of any other penalty,
subject to the provisions of subsection (6) of this section,
or together with
other penalties that the Court has power to impose under any other law.
|
|
||
(6) The Court shall not issue a restraining order in cases where it
imposes simultaneously a sentence of imprisonment for any
period exceeding six
months. In cases where a sentence of
|
|
||
imprisonment for a period not exceeding six months is imposed, a
restraining order may be made simultaneously with the sentence of
imprisonment
but the validity shall commence after the release of the accused.
|
|
||
(7) Any person against whom a restraining order has been issued, who,
while the said order is in force, contravenes any of the
conditions thereof
shall commit an offence punishable with imprisonment up to two years. The
provisions of section 15 of this Law
for a speedy trial of cases of violence
shall also apply in the cases of commission of offences in contravention of the
provisions
of this subsection.
|
|
||
24.–(1) In issuing a restraining order the Court shall take
into consideration the ownership of the marital home and shall issue
an
appropriate order in relation to the accommodation of the suspect or accused or
his family, as follows:
|
Supplementary provisions
relating to
section 23.
|
||
(a) If the accused has no share in the ownership of the marital home more
than half, the Court shall not inquire into the matter of
accommodation for the
accused but shall refer the matter for examination to the Family
Counselor;
|
|
||
(b) if the accused has an undivided share of more than half in the
ownership of the marital home, the Court shall inquire into the
matter of
accommodation of the accused and thereafter shall give such directions as it may
deem necessary regarding the accommodation
of the accused or his family or any
members thereof.
|
|
||
(2) The Court, when giving directions in cases under paragraph (b) of
subsection (1) of this section, shall inquire into, among
others, the financial
means of the accused and his family
|
|
||
in relation to the accommodation of the accused or of his family or any
member thereof and shall afford the accused the right to apply
to the Court
within a fixed period of time and request the change of the address of the
marital home for which the restraining order
is in force, if he finds suitable
home for his family to move.
|
|
||
|
|
||
(3) For the purposes of this section, “suitable home” means
a house which the accused may find for his family under
subsection (2) of this
section, which must be such as to ensure as far as possible the smooth
continuation and functioning of the
family of the accused therein.
|
|
||
25.–(1) The Court may, if it considers expedient, in lieu of
imposing any other sentence on the accused, accept his request to
place him on
probation under the Probation and Other Means of Treatment of Offenders Law on
the special condition that he will be
submitted to self-control treatment
by specialists or on such other conditions as the Court may consider necessary
for preventing the repetition of acts of
violence.
|
Probation order or suspension of imprisonment on special conditions.
46(I) of 1996.
|
||
(2) The Court may, if it deems expedient impose on the accused a
suspended sentence of imprisonment notwithstanding the provisions
of section 5
of the Sentence of Imprisonment (Conditional Suspension in Certain Cases) Law,
and to place the accused during the period
of suspension on probation and on the
special condition or any other conditions referred to in the subsection (1)
above.
|
95 of 1972
41(I) of 1997
186(I) of 2003.
|
||
PART VII – Fund
|
|
||
26.–(1) There shall be established a Fund with the name
“Fund for the Victims of Violence” for achieving and promoting
the
objects of this Law. The Fund shall be a body corporate with perpetual
succession and a seal of prescribed form and shall have
power to acquire,
possess and dispose of, property, enter into contracts, bring and defend civil
actions or other legal proceedings
and generally do whatever is necessary for
the objects of its establishment, utilization and development.
|
Establishment of Fund.
|
||
(2) All contributions, donations, bequests and grants shall be
deposited in the Fund.
|
|
||
(3) All the contributions to the Fund, of any form, shall be considered
to be made for charitable purposes.
|
|
||
(4) Unless a contribution is ear-marked for a particular purpose, the
allocation of sums deposited in the Fund shall be made in
the discretion of the
Advisory Committee on the basis of priorities and programmes which it shall from
time to time prepare.
|
|
||
(5) There shall be allocated from the Fund sums, for purposes of
dealing with immediate needs, finding accommodation pursuant
to section 24 of
this Law, assisting of victims of violence and for other purposes which the
Committee may deem appropriate and the
Minister may approve.
|
|
||
27.–(1) The Fund shall be administrated by the Advisory
Committee which shall be specially convene as the Administrator of the
Fund.
|
Administration
of the Fund.
|
||
(2) The Court and the Attorney-General of the Republic shall have and
shall exercise in relation to the Fund the same powers that
they have in
accordance with the provisions of the Associations and Institutions Law, or
other relevant law, as if the Fund is a
charitable institution and is registered
in accordance with the provisions of the said Law.
|
57 of 1972
85(I) of 1997.
|
||
28.–(1) Subject to subsection (2) of this section, the
Advisory Committee, acting as the Administrator of the Fund, may invest
and
utilize money of the Fund in any way it may deem necessary for the strengthening
and better development of the fund.
|
Investments.
|
||
(2) Where the Advisory Committee intends to use money of the Fund for
purposes of investment or its development and the amount
to be used exceeds one
half of the total of the deposits of the Fund, the Advisory Committee shall
before doing so submit its decision
to the Minister for approval.
|
|
||
29. The Advisory Committee acting as the Administrator of the Fund
shall, with the approval of the Minister, make regulations for the
better
operation of the Fund, including the manner of disposing of the resources and
property of the Fund.
|
Regulations.
|
||
30. For purposes of auditing the accounts of the Fund the
provisions of section 39 of the Associations and Institutions Law shall
apply.
|
Auditing.
|
||
PART VIII- Shelter and Offences
|
|
||
31. A shelter may be established and operate for the provision of
safe accommodation to victims of violence and in case such shelter
is in
operation under a certificate of suitability issued by the Minister, pursuant to
this section, the victims of violence accommodated
therein shall have legal
protection from any harassment.
|
Establishment and operation of a shelter.
|
||
32. An accused or any other person acting on his behalf or by his
own motion, who harasses or intimidates a victim of violence or a witness
in a
case of violence or a relative thereof in any place, and in a manner which
affects or could affect the investigation or trial
of a case of violence or
causes mental agitation to a victim of violence or a witness in a case of
violence knowing that he is a
victim of violence or a witness in a case of
violence, shall commit an offence punishable with imprisonment up to three years
or
with a fine up to
one thousand five hundred pounds or with both such penalties and where the
harassment or intimidation is committed against a victim
accommodated in a
shelter, the offence shall be punishable with imprisonment up to five years or
with a fine up to three thousand
pounds or with both such penalties.
|
Harassment of a victim and other person.
|
||
33. The provisions of section 15 of this Law concerning speedy
trial shall also apply in the case of offences committed in contravention
of the
provisions of section 32 of this Law.
|
Application of the provisions of section 15.
|
||
34.–(1) Where a complaint for an offence under this Law is
made, the name and address of the victim of violence or of the complainant
and
of the person against whom the complaint is made as well as any other
particulars that may lead to the identification of the
victim, shall not be
disclosed or published by any means of mass media or otherwise.
|
Prohibition of disclosure of the identity of the victim.
|
||
(2) A violation of the provisions of this subsection constitutes an
offence punishable with imprisonment up to two years or with
a fine up to one
thousand pounds or with both such penalties.
|
|
||
35.–(1) Notwithstanding the provisions of any other law, the
delivery, receipt or publication–
|
Prohibition
of delivery,
receipt or
publication of
copies of statement
|
||
(a)
|
of any video recorded statement of a victim or witness, taken pursuant to
section 10 of this Law to or from any person;
|
to or from third parties.
14(a) of 212(I)/2004.
|
|
(b)
|
of any statement of a victim or witness in an offence of violence, other
than the one mentioned in paragraph (a) above, taken by any
means, other than
the one mentioned in paragraph (a) above, to or from any other person who is not
related to the investigation,
prosecution or trial of the case,
|
|
|
shall be prohibited.
|
|
||
(2) Notwithstanding the provisions of this section or any other law,
during the trial of offences of violence, pursuant to this
Law, any person
giving a video recorded statement under the provisions of section 10 or an
accused who is called upon to plead and
does not plead guilty, shall be entitled
upon a written application to the prosecution, to request to be supplied with a
copy of
the transcribed and typed soundtrack of the videotape in which the
statement to be submitted before the Court as evidence, has been
recorded:
|
14(b) of 212(I)/2004.
|
||
Provided that, the projection of the said videotape in which the statement
has been recorded may be allowed to the said persons upon
their written
application to the prosecution.
|
|
||
(3) Any person who contravenes the provisions of this section shall
commit an offence punishable with imprisonment up to five
years or with a fine
up to three thousand pounds or with both such penalties.
|
14(b) of 212(I)/2004.
|
||
|
|
||
35A. Any person who omits to report a case of violence against a
minor or a person having severe mental or psychological deficiencies,
which came
to his knowledge, shall commit an offence and in case of conviction, shall be
liable to imprisonment up to two years or
to a fine up to one thousand pounds or
to both such penalties.
|
Omission
of a citizen to
report cases of violence.
15 of 212(I)/2004.
|
||
PART IX – Miscellaneous
|
|
||
36.–(1) The Committee shall prepare budgets of income and
expenditure for the complete and effective performance of its functions
and
objects for which it has been established which shall be approved by the
competent Ministry and shall keep complete accounts.
|
Budgets.
|
||
(2) The income of the Committee consists of Government grants, the
amount of which shall be determined by the Council of Ministers.
|
|
||
(3) The Committee shall keep complete accounts and its accounts shall
be submitted to and audited by the Auditor-General of the
Republic in the same
manner as the accounts in the Public Service are audited:
|
|
||
Provided that, the Auditor-General of the Republic may proceed to
audit the accounts of the Committee whenever he deems it necessary.
|
|
||
37. The Committee shall prepare and submit to the Minister and to
the House of Representatives an annual report regarding its activities
as a
Committee.
|
Annual
Report.
|
||
38.–(1) The Council of Ministers may make Regulations for
the better carrying into effect of the provisions of this Law.
|
Regulations.
|
||
(2) Without prejudice to the generality of subsection (1), the
Council of Ministers may make Regulations for the registration,
operation and
any other matter relating to the shelter, including the imposition of fees and
charges.
|
|
||
39. The Supreme Court may issue Rules of Court for the better
carrying into effect of the provisions of sections 15, 21, 22, 23, 24 and
25 of
this Law.
|
Rules of Court.
|
||
40. The Violence in the Family (Prevention and Protection of
Victims) Law shall be repealed, upon the entry into force of this Law, without
prejudice to any act, action or appointment made by virtue of the repealed law
which shall be deemed to have been made by virtue
of this Law.
|
Repeal.
47(I) of 1994.
|
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