The current Law 8/21, of June 2, by which the civil and procedural laws is reformed to help individuals with disabilities within the train of their authorized capability, incorporates a number of forecasts that depart a lot to be desired, evidencing that our legislators appear to confuse the fact of individuals with disabilities in our nation with the Mr. Wonderfull mugs. As well as, the textual content distills mistrust of judges as, if as a substitute of defending those that want it most, what we do when it comes to individuals’s capability (on the request of the household, with the intervention of the prosecutor and the forensic physician, and with examination of the affected individual and different ensures of transparency and publicity), we maliciously dedicate ourselves to incapacitate, piecemeal and with out assessing the particular circumstances of the topic.
However, amongst all of the reforms that mentioned Regulation implements, there may be one particularly that has nothing to do with the wording of the legislation and, even much less, with the variation of our authorized system to the International Convention on the Rights of Persons with Disabilities, made in New York on December 13, 2006, which is what is meant with this Act.
Particularly, the Regulation introduces in artwork. 94 of the Civil Code (CC) a brand new paragraph. Thus, after offering, as has been foreseen for many years, that the decide might restrict or droop visits and communications if severe circumstances come up that make it advisable, the next is indicated under:
«The institution of a visitation or keep regime is not going to proceed, and if it exists, it is going to be suspended, with respect to the mother or father who’s concerned in a felony continuing initiated for trying in opposition to life, bodily integrity, liberty, ethical integrity or liberty and sexual indemnity of the opposite partner or their kids. Nor will it proceed when the judicial authority notices, from the allegations of the events and the proof practiced, the existence of well-founded indications of home or gender violence. Nevertheless, the judicial authority might set up a regime of go to, communication or keep in a decision motivated in one of the best pursuits of the minor or within the will, needs and preferences of the aged with a incapacity in want of help and after evaluating the scenario of the parent-child relationship ».
It appears that evidently the Regulation chooses to obviously introduce the automatism to forestall a mother or father from establishing visits, or suspending any, if he’s concerned in a “felony course of initiated” for crimes that, if he’s the one who commits them in opposition to her, are typical of gender violence. Initiating a felony course of is one thing that occurs with the mere presentation of the criticism. So, in idea, simply report to the individual from whom I’m separating / divorcing, to forestall him from seeing the kids.
For my part, grant that energy, that impact, to the mere presentation of a felony criticism, with out requiring that it’s judicially confirmed -or no less than have a minimal procedural path- in opposition to the presumption of innocence and it supplies dad and mom, confronted with a extremely emotional course of, a harmful instrument to be misused.
Then, after time, that criticism could possibly be withdrawn or it not be confirmed, with the file or acquittal of the accused. The felony course of will probably be over, however the injury triggered to the mother or father’s parent-child relationship that it has been disadvantaged of visits could possibly be troublesome to restore. Damages that basically have an effect on, it shouldn’t be forgotten, these kids.
However the Regulation not solely establishes severe penalties within the face of unproven denounced information, but additionally supplies that the decide who is aware of the separation or divorce, with out criticism or, subsequently, open felony proceedings, will recognize well-founded indications of gender violence or home violence. and that this evaluation additionally results in the non-establishment of a visiting regime.
With this, for my part, the noose on the presumption of innocence is tightened much more. It isn’t as a result of there is no such thing as a proof of felony acts and even so visits are prevented; is that there’s not even a criticism or a felony course of with its particular ensures and its competent decide to evaluate proof of crime. It’s left within the arms of the civil decide to evaluate the existence of a criminal offense With a view to extract severe penalties on the precise of visits, when till now the legally acceptable factor is, earlier than the looks of proof of crime, to refer the matter to the decide of violence, with out going to evaluate them.
Word: the Regulation doesn’t distinguish whether or not she or he is concerned within the felony course of; and even talks about home or gender violence, understanding each. However this isn’t about girls in opposition to males, however about chapter of the presumption of innocence and dangers of instrumentalization.
Definitely, it is going to be essential to see how this automatism materializes. As a result of the Regulation goes on to say that, even in these instances, the decide might agree on a visitation regime if he believes that one of the best pursuits of the minor demand it. That’s It could be that, regardless of the entire above, the decide does conform to visits.
The issue is that, by advantage of this automatism, I perceive that first it could be the impact of suspending or not establishing the visits after which, if something, they might be agreed. As well as, it’s expressly indicated that this will probably be “after analysis of the parent-filial relationship”, which can entail the want for psychosocial reporting, with the ensuing procrastination in time, and the corresponding damages to the connection with the kids.
It appears, subsequently, that we face a very dangerous reform. He deepens on this impression the truth that, in step with his complete disconnection from the thing of the Regulation, there is no such thing as a justification some to the identical all through the preamble. One thing so essential and doesn’t deserve a single rationalization from the legislator of why it’s remembered. That is, being benevolent, little or no severe. It’s as if I condemn somebody simply because, with out motivating the choice; one thing that as a decide I’m expressly prohibited from doing, however that evidently the legislator can do with full peace of thoughts. I enterprise to suppose that the explanations for this reform will not be said as a result of, merely, there are not any confessable ones.
In any case, I’ve gone to Istanbul Conference Let’s examine if the justification is there, even when the Regulation says nothing. Artwork. 31 of the Conference does point out the duty of the signatory States to undertake the legislative measures which are mandatory in order that, when agreeing on custody and visits to the dad and mom, incidents of violence inherent to this Conference are taken into consideration and in order that the train of no visitation or custody rights jeopardize the rights and security of the sufferer and youngsters. However this wording doesn’t impose any automation and it’s broad and generic sufficient to know that it was coated with the authorized instruments already obtainable to the decide.
And it’s that, already by means of artwork. 94 CC in its earlier wording, already by means of artwork. 158 CC, the civil decide, based mostly on acts of gender violence (for sure), may now not agree or droop visits. Not relying on the broad capacities that the felony decide has on this regard when it comes to adoption of precautionary measures and the accent penalties of those crimes, not on custody, however even on parental authority. However after all, for that you need to “belief” the judges, of the judiciary, which appears to be asking rather a lot from the legislature. Therefore, the choice has been to robotically set up the lack of visits with the only real criticism, and that is it.
I might be incorrect (it is a considerably hasty evaluation), however I’m very afraid that this regulation it is not going to resolve any downside, however reasonably will create them.