Considerations on COM(2022)105 - Combating violence against women and domestic violence

Please note

This page contains a limited version of this dossier in the EU Monitor.

 
dossier COM(2022)105 - Combating violence against women and domestic violence.
document COM(2022)105 EN
date May 14, 2024
 
table>(1)The purpose of this Directive is to provide a comprehensive framework to effectively prevent and combat violence against women and domestic violence throughout the Union. It does so by strengthening and introducing measures in relation to the following areas: the definition of relevant criminal offences and penalties, the protection of victims and access to justice, victim support, enhanced data collection, prevention, coordination and cooperation.
(2)Equality between women and men and non-discrimination are core values of the Union and fundamental rights enshrined, respectively, in Article 2 of the Treaty on European Union (TEU) and in Articles 21 and 23 of the Charter of Fundamental Rights of the European Union (the ‘Charter’). Violence against women and domestic violence endanger those very values and rights, undermining women and girls’ rights to equality in all areas of life and hindering their equal societal and professional participation.

(3)Violence against women and domestic violence is a violation of fundamental rights such as the right to human dignity, the right to life and integrity of the person, the prohibition of inhuman or degrading treatment or punishment, the right to respect for private and family life, the right to liberty and security, the right to the protection of personal data, the right to non-discrimination, including on the grounds of sex, and the rights of the child, as enshrined in the Charter and the United Nations Convention on the Rights of the Child.

(4)This Directive supports the international commitments the Member States have undertaken to combat and prevent violence against women and domestic violence, in particular the United Nations Convention on the Elimination of all forms of Discrimination Against Women and the United Nations Convention on the Rights of Persons with Disabilities, and, where relevant, the Council of Europe Convention on preventing and combating violence against women and domestic violence and the International Labour Organization’s Convention concerning the elimination of violence and harassment in the world of work, signed on 21 June 2019 in Geneva.

(5)In light of the specificities related to the offences of violence against women and domestic violence, it is necessary to lay down a comprehensive set of rules which address the persisting problem of violence against women and domestic violence in a targeted manner and cater to the specific needs of victims of such violence. The existing provisions at Union and national level have proven to be insufficient to effectively combat and prevent violence against women and domestic violence. In particular, while Directives 2011/36/EU (3) and 2011/93/EU (4) of the European Parliament and of the Council, which concentrate on specific forms of such violence, and Directive 2012/29/EU of the European Parliament and of the Council (5), which lays down the general framework for victims of crime, provide some safeguards for victims, meaning, for the purposes of this Directive, victims of violence against women and domestic violence, they do not address their specific needs.

(6)Violence against women and domestic violence can be exacerbated where it intersects with discrimination based on a combination of sex and any other ground or grounds of discrimination as referred to in Article 21 of the Charter, namely race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation (‘intersectional discrimination’). Member States should therefore pay due regard to victims affected by such intersectional discrimination by taking specific measures. Persons affected by intersectional discrimination are at a heightened risk of experiencing gender-based violence. Consequently, Member States should take that heightened level of risk into consideration when implementing the measures provided for by this Directive, especially regarding the individual assessment to identify victims’ protection needs, specialist support to victims and training and information for professionals likely to come into contact with victims.

(7)Victims are at an increased risk of intimidation, retaliation and secondary and repeat victimisation. Member States should ensure that particular attention is paid to those risks and to the need to protect the dignity and physical integrity of such victims. Previous acquaintance or a previous relationship with the offender is a factor that should be taken into account when assessing the risk of retaliation.

(8)Victims should be able to access their rights before, during and for an appropriate time after criminal proceedings in accordance with their needs and under the conditions set out in this Directive.

(9)The provisions of this Directive which relate to the rights of victims should apply to all victims of criminal conduct which amounts to violence against women or domestic violence, as criminalised under Union or national law. That includes the criminal offences defined in this Directive, namely female genital mutilation, forced marriage, the non-consensual sharing of intimate or manipulated material, cyber stalking, cyber harassment, cyber flashing and cyber incitement to violence or hatred, and criminal conduct covered by other Union legal acts, in particular Directives 2011/36/EU and 2011/93/EU. Lastly, certain criminal offences under national law fall under the definition of violence against women. They include offences such as femicide, rape, sexual harassment, sexual abuse, stalking, early marriage, forced abortion, forced sterilisation and different forms of cyber violence, such as online sexual harassment and cyber bullying. Domestic violence is a form of violence which could be specifically criminalised under national law or covered by criminal offences which are committed within the family or domestic unit or between former or current spouses or partners, whether or not they share a household. Individual Member States can take a broader understanding of what constitutes violence against women under national criminal law. It should be noted that this Directive does not address the full spectrum of criminal conduct that constitutes violence against women.

(10)Violence against women is a persisting manifestation of structural discrimination against women, resulting from historically unequal power relations between women and men. It is a form of gender-based violence inflicted primarily on women and girls by men. It is rooted in socially constructed roles, behaviour, activities and attributes that a given society considers appropriate for women and men. Consequently, a gender-sensitive perspective should be taken into account in the implementation of this Directive.

(11)Domestic violence is a serious social problem which often remains hidden. It can lead to serious psychological and physical trauma with severe consequences for a victim’s personal and professional life because the offender is typically a person known to the victim and whom the victim would expect to be able to trust. Such violence can take various forms, including physical, sexual, psychological and economic forms, and can occur within a variety of relationships. Domestic violence often includes coercive control and can occur whether or not the offender shares or has shared a household with the victim.

(12)The measures under this Directive are designed to address the specific needs of women and girls, given that, as confirmed by data and studies, they are disproportionately affected by the forms of violence covered by this Directive, namely violence against women and domestic violence. However, other persons also fall victim to those forms of violence and should therefore also benefit from the same measures for victims provided for in this Directive. Therefore, the term ‘victim’ should refer to all persons, regardless of their gender, and, unless specified otherwise in this Directive, all victims should benefit from the rights related to the protection of victims and access to justice, victim support and preventive measures.

(13)Due to their vulnerability, witnessing domestic violence can be devastating for children. Children who witness domestic violence within the family or domestic unit typically suffer direct psychological and emotional harm that impacts their development and run an increased risk of suffering from physical and mental illness, both in the short and long term. The acknowledgment that children who have suffered harm caused directly by having witnessed domestic violence are themselves victims marks an important step in protecting those children suffering because of domestic violence.

(14)For the purposes of this Directive, ‘competent authorities’ should be understood to be the authority or authorities designated under national law as competent to carry out a duty as provided for in this Directive. Each Member State should determine which authorities are to be competent for each of those duties.

(15)Pursuant to Article 288 of the Treaty on the Functioning of the European Union (TFEU), a directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed, but is to leave to the national authorities the choice of form and methods. However, given the special nature of the offence of female genital mutilation and the need to ensure the protection of victims who suffer specific damage as a result thereof, that offence should be specifically addressed in the criminal laws of the Member States. Female genital mutilation is an abusive and exploitative practice that pertains to the sexual organs of a woman or a girl and that is performed for the purpose of preserving and asserting domination over women and girls and exerting social control over women’s and girls’ sexuality. It is sometimes performed in the context of child forced marriage or domestic violence. Female genital mutilation can occur as a traditional practice which some communities perform on their female members. It should cover mutilative practices undertaken for non-medical reasons, which cause irreparable and lifelong damage to victims. Female genital mutilation leads to psychological and social damage, which severely affects the victim’s quality of life. The term ‘excising’ should refer to the partial or total removal of the clitoris and the labia majora. The term ‘infibulating’ should refer to the closure of the labia majora by partially sewing together the outer lips of the vulva in order to narrow the vaginal opening. The term ‘performing any other mutilation’ should refer to all other physical alterations of the female genitals.

(16)Forced marriage is a form of violence that entails serious violations of fundamental rights and, in particular, the rights of women and girls to physical integrity, freedom, autonomy, physical and mental health, sexual and reproductive health, education and a private life. Poverty, unemployment, custom or conflicts are all factors that promote forced marriage. Physical and sexual violence and threats of violence are frequently used forms of coercion to force a woman or girl to marry. Often, forms of physical and psychological exploitation and violence, such as sexual exploitation, accompany forced marriage. It is therefore necessary that all Member States criminalise forced marriage and subject offenders to appropriate penalties. This Directive is without prejudice to the definitions of ‘marriage’ provided for in national or international law. Member States should take the necessary measures to provide for a limitation period that enables the investigation, prosecution, trial and adjudication of forced marriage. Given that the victims of forced marriage are often minors, the limitation periods should continue for a period of time that is sufficient for and commensurate with the gravity of the offence in question in order to allow for the efficient initiation of proceedings after the victim has reached 18 years of age.

(17)It is necessary to provide for harmonised definitions of offences and penalties regarding certain forms of cyber violence where violence is intrinsically linked to the use of information and communication technologies (‘ICT’) and those technologies are used to significantly amplify the severity of the harmful impact of the offence, thereby changing the characteristics of the offence. Cyber violence particularly targets and impacts women politicians, journalists and human rights defenders. Human rights defenders are individuals, groups or organisations that promote and protect universally recognised human rights and fundamental freedoms. Cyber violence can have the effect of silencing women and hindering their societal participation on an equal footing with men. Cyber violence also disproportionately affects women and girls in educational settings, such as schools and universities, with detrimental consequences to their further education and to their mental health, causes social exclusion, anxiety and inducement to inflict self-harm and can, in extreme cases, lead to suicide.

(18)The use of ICT bears the risk of easy, fast and wide-spread amplification of certain forms of cyber violence with the clear risk of creating or enhancing profound and long-lasting harm to the victim. The potential for such amplification, which is a pre-requisite for the perpetration of several offences of cyber violence defined in this Directive, should be reflected by the element of making certain material ‘accessible to the public’ by means of ICT. The terms ‘accessible to the public’ and ‘publicly accessible’ should be understood as referring to potentially reaching a number of persons. Those terms should be interpreted and applied having regard to the relevant circumstances, including the technology used to make that material accessible. Moreover, in order to only set minimum rules for the most serious forms of cyber violence, the relevant offences defined in this Directive are limited to conduct which is likely to cause serious harm or serious psychological harm to the victim or to conduct which is likely to cause the victim to seriously fear for his or her own safety or that of dependants. In each case, when assessing whether the conduct is likely to cause serious harm, the specific circumstances of the case should be taken into account, without prejudice to judicial independence. The likelihood of causing serious harm can be inferred from objective factual circumstances. This Directive establishes a minimum legal framework in that regard, and Member States are free to adopt or maintain more stringent criminal rules.

(19)Especially due to its tendency for easy, swift and broad distribution and perpetration, as well as its intimate nature, making images, videos or similar material depicting sexually explicit activities or the intimate parts of a person accessible to the public by means of ICT without that person’s consent can be very harmful for victims. The relevant offence defined in this Directive should cover all types of such material, such as images, photographs and videos, including sexualised images, audio clips and video clips. It should cover situations where making the material accessible to the public by means of ICT occurs without the victim’s consent, irrespective of whether the victim consented to the generation of the material or might have transmitted it to a particular person. The offence should also include the non-consensual production, manipulation or altering, for instance by image editing, including by means of artificial intelligence, of material that makes it appear as though a person is engaged in sexual activities, in so far as the material is subsequently made accessible to the public by means of ICT without the consent of that person. Such production, manipulation or altering should include the fabrication of ‘deepfakes’, where the material appreciably resembles an existing person, objects, places or other entities or events, depicts the sexual activities of a person, and would falsely appear to other persons to be authentic or truthful. In the interest of effectively protecting victims from such conduct, threatening to engage in such conduct should also be covered.

(20)The dissemination of images, videos or other material depicting sexually explicit activities or the intimate parts of a person without that person’s consent to the public by means of ICT should not be criminalised, where such non-criminalisation is necessary to safeguard the fundamental rights protected under the Charter, in particular the freedom of expression, including the freedom to receive and impart information and ideas in an open and democratic society, as well as the freedom of the arts and sciences, including academic freedom. Moreover, the offence should not cover the handling of material by public authorities, in particular to conduct criminal proceedings or to prevent, detect or investigate crime, and Member States should be able to exempt a person from responsibility under specific circumstances, for example where telephone or internet helplines handle material in order to report an offence to authorities.

(21)Cyber stalking is a modern form of violence which is often perpetrated against family members or persons living in the same household as the offender but is also perpetrated by ex-partners or acquaintances. Typically, technology is misused by the offender to intensify coercive and controlling behaviour, manipulation and surveillance, thereby increasing the victim’s fear, anxiety and gradual isolation from friends, family and work. Therefore, minimum rules on cyber stalking should be established. The offence of cyber stalking should cover repeated or continuous surveillance, by means of ICT, of the victim without the victim’s consent or a legal authorisation. Such surveillance might be enabled by processing the victim’s personal data, such as by means of identity theft, by stealing passwords, by hacking the victim’s devices, by secretly activating keylogging software to access the victim’s private spaces, by installing geo-localisation apps, including stalkerware, or by stealing the victim’s devices. Furthermore, the offence of cyber stalking should cover the monitoring of victims, without the victim’s consent or authorisation, via technological devices connected through the Internet of Things, such as smart home appliances. However, there can be situations where surveillance is carried out for legitimate reasons, for example in the context of parents monitoring their children’s whereabouts and their online activity, of relatives monitoring the health of ill, elderly or vulnerable persons or persons with disabilities, or of media monitoring and open-source intelligence.

(22)Criminal liability should be limited to situations in which monitoring is likely to cause serious harm to the victim. When assessing whether an act is likely to cause serious harm, the focus should be on whether the act would typically cause harm to a victim.

(23)In the definition of the offence of cyber stalking, the concept of ‘tracking’ should refer to tracing the location of a person and following that person’s movements and the concept of ‘monitoring’ should refer to watching over a person more generally, including observing that person’s activities. In the context of cyber stalking, both actions ultimately aim at controlling a person.

(24)Minimum rules concerning the offence of cyber harassment should be laid down in order to cover the most serious forms of cyber harassment. That should include repeatedly or continuously engaging in threatening conduct directed at a person at least where such conduct involves threats, by means of ICT, to commit criminal offences and where such conduct is likely to cause the person to seriously fear for his or her own safety or the safety of dependants. That should also include engaging, together with other persons, by means of ICT, in publicly accessible threatening or insulting conduct, directed at a person, where such conduct is likely to cause serious psychological harm to that person. Such broad attacks, including coordinated online mob attacks, can morph into offline assault or cause significant psychological injury and, in extreme cases, lead to the suicide of the victim. Such attacks often target prominent women politicians, journalists and human rights defenders or otherwise well-known women, but they can also occur in different contexts, for instance on campuses, in schools and at work. Such online violence should be addressed especially where the attacks occur on a wide scale, for example in the form of pile-on harassment by a significant amount of people. The minimum rules concerning the offence of cyber harassment should also include the unsolicited sending of an image, video or other similar material depicting genitals to a person (‘cyberflashing’), where such conduct is likely to cause serious psychological harm to that person. Cyberflashing is a common form of intimidating and silencing women. The minimum rules concerning the offence of cyber harassment should also include rules on situations in which the personal information of the victim is made available to the public by means of ICT, without the victim’s consent, for the purpose of inciting other persons to cause physical or serious psychological harm to the victim (‘doxing’).

(25)Over recent years, the increase in internet and social media usage has led to a sharp rise in public incitement to violence and hatred, including based on gender. The easy, fast and broad sharing of hate speech through the digital world is reinforced by the online disinhibition effect, as presumed anonymity on the internet and a sense of impunity reduce people’s inhibition to engage in such speech. Women are often the target of sexist and misogynous hate online, which can escalate into hate crime offline. That conduct needs to be prevented or intercepted at an early stage. The language used in that type of incitement does not always directly refer to the gender of the targeted person, but the biased motivation can be inferred from the overall content or context of the incitement.

(26)The offence of cyber incitement to violence or hatred presupposes that the incitement is not expressed in a purely private context but publicly through the use of ICT. Therefore, it should require dissemination to the public, which should be understood as entailing making a given item of material which amounts to incitement to violence or hatred accessible, through ICT, to a potentially unlimited number of persons, namely making the material easily accessible to users in general, without requiring further action by the person who provided the material, irrespective of whether those persons actually access the information in question. Accordingly, where access to the material requires registration or admittance to a group of users, that information should be considered to be disseminated to the public only where users seeking to access the material are automatically registered or admitted without a human decision or without selecting to whom access is granted. In assessing whether material qualifies as amounting to incitement to hatred or violence, the competent authorities should take into account the fundamental right to freedom of expression as enshrined in Article 11 of the Charter.

(27)In order to ensure a fair balance between the freedom of expression and the prosecution of the offence of cyber incitement to violence or hatred, Member States should be able to choose to punish only conduct which is carried out in a manner likely to disturb public order or which is threatening, abusive or insulting. The application of those conditions, where required by national law, should not lead to undermining the effectiveness of the provision defining the offence of cyber incitement to violence or hatred.

(28)Penalties for the offences defined in this Directive should be effective, dissuasive and proportionate. To that end, minimum levels for the maximum term of imprisonment should be set for natural persons. The maximum terms of imprisonment provided for in this Directive for the offences committed by natural persons should apply at least to the most serious forms of such offences.

(29)Victims should be able to report offences of violence against women or domestic violence and provide evidence easily without being subject to secondary or repeat victimisation. It is of the utmost importance that victims, when reporting offences, are referred to a specialised contact point, whenever possible, irrespective of whether a criminal complaint is filed. That contact point could be a trained police officer or any professional trained to assist victims.

(30)Member States should, in addition to in-person reporting, provide the possibility to submit complaints online or through other accessible and secure ICT for the reporting of violence against women or domestic violence, at least with regard to the cybercrimes of non-consensual sharing of intimate or manipulated material, cyber stalking, cyber harassment and cyber incitement to violence or hatred as defined in this Directive. Victims should be able to upload materials relating to their report, such as screenshots of the alleged violent conduct.

(31)In light of the specificities of violence against women and domestic violence, and the increased risk that victims might withdraw their complaint despite having been the victim of an offence, it is important that relevant evidence be collected in a comprehensive manner as early as possible, in accordance with applicable national procedural rules.

(32)Member States can extend legal aid, including free legal aid, to victims when reporting criminal offences, where provided for by national law. When assessing the victim’s resources for the purpose of deciding whether to grant legal aid, Member States should consider the victim’s effective access to his or her financial resources. Domestic violence can translate into economic control by the offender, and victims might not have effective access to their own financial resources.

(33)In the case of domestic violence and violence against women, especially where committed by close family members or intimate partners, victims might be under such duress from the offender that they fear to reach out to the competent authorities, even if their lives are in danger. Therefore, Member States should ensure that their confidentiality rules do not constitute an obstacle for healthcare professionals to report to the competent authorities, where they have reasonable grounds to believe that there is an imminent risk of serious physical harm. Such reporting is justified because such acts might not be reported by those who experience or directly witness them. Similarly, instances of domestic violence or violence against women which affect children are often only intercepted by third parties noticing irregular behaviour or physical harm to the child. Children need to be effectively protected from such forms of violence and adequate measures promptly taken. Therefore, professionals who come into contact with child victims, including healthcare, social services or education professionals, should not be constrained by confidentiality rules where they have reasonable grounds to believe that serious physical harm has been inflicted on a child. Where professionals report such instances of violence, Member States should ensure that they are not held liable for breach of confidentiality. However, legal professional privilege should be protected, in accordance with Article 7 of the Charter, as justified by the fundamental role assigned to lawyers in a democratic society. Where provided for by national law, the clergy-penitent privilege, or equivalent principles applicable in order to safeguard the freedom of religion, should also be protected. In addition, the possibility for professionals to report such instances of violence is without prejudice to national rules on confidentiality of sources applicable in the context of the media.

(34)In order to tackle underreporting in cases where the victim is a child, safe and child-friendly reporting procedures should be established. That can include questioning by competent authorities in simple and accessible language. Member States should ensure that, to the extent possible, professionals specialised in caring for and supporting children are present in order to assist them with reporting procedures. There might be circumstances where such assistance might not be relevant, for example due to the maturity of the child or in the case of online reporting, or where such assistance might prove difficult, for instance in sparsely populated areas.

(35)It is important that Member States ensure that victims who are third-country nationals, irrespective of their residence status, are not discouraged from reporting instances of violence against women or domestic violence and are treated in a non-discriminatory manner as regards their residence status in accordance with the objectives of Directive 2012/29/EU. To protect all victims from repeated violence, it is important to apply a victim-centred approach. In particular, it should be ensured that the enforcement of the return procedure under Directive 2008/115/EC of the European Parliament and of the Council (6) does not prevent victims from exercising their right to be heard under Directive 2012/29/EU. Member States can, in accordance with Directive 2008/115/EC, decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory and are to comply with the obligation under that Directive to take into account as far as possible the special needs of vulnerable persons during the period for voluntary departure, where such a period is granted pursuant to that Directive.

(36)Delays in processing complaints of violence against women and domestic violence can create particular risks for victims thereof, given that they might still be in immediate danger and that offenders might often be close family members or spouses. Therefore, the competent authorities should be properly trained and have the adequate expertise and effective investigative tools to investigate and prosecute such acts, without having to set up specialised services or units.

(37)Investigations into or prosecutions of acts of rape should not be dependent on a victim or the victim’s representative reporting such acts or on a complaint by a victim or the victim’s representative. Similarly, criminal proceedings should continue even where the victim withdraws the complaint. That is without prejudice to the discretion of the prosecuting authorities to discontinue criminal proceedings for other reasons, for example where they conclude that there is not sufficient evidence to continue criminal proceedings.

(38)Victims of domestic violence and sexual violence are typically in need of immediate protection and specific support, for example in the case of intimate partner violence, where the rate of recidivism tends to be high. Therefore, an individual assessment of the victim’s needs should be initiated at the earliest possible stage, such as at the time of the victim first coming into contact with the competent authorities, as soon as possible after the victim first comes into contact with the competent authorities, or as soon as suspicion arises that the person is a victim of domestic violence or sexual violence. That can be done before a victim has formally reported an offence or on the competent authorities’own initiative if a third party reports the offence.

(39)When assessing the victim’s protection and support needs, the primary concern should be ensuring the victim’s safety and providing tailored support, taking into account, inter alia, the individual circumstances of the victim. Circumstances requiring special attention might include, for example, the fact that the victim is pregnant, the victim’s dependence on or relationship to the offender or suspect, the risk of the victim returning to the offender or suspect, recent separation from an offender or suspect, the potential risk that children are used to exercise control over the victim, the risks for victims with disabilities, and the use of companion animals to put pressure on the victim. The degree of control exercised by the offender or suspect over the victim, whether psychologically or economically, should also be taken into account.

(40)In order to ensure comprehensive support and protection to victims, all competent authorities and relevant bodies, not limited to law enforcement and judicial authorities, should be involved in assessing the risks for victims and appropriate support measures on the basis of clear guidelines issued by the Member States. Such guidelines should include factors to be taken into consideration when assessing the risk emanating from the offender or suspect, including the consideration that suspects charged with minor offences are as likely to be as dangerous as those charged with more severe offences, especially in cases of domestic violence and stalking. The competent authorities should review the individual assessment at regular intervals to ensure that no new protection or support need of the victim remains unaddressed. For instance, such a review could take place at important junctures in the process, such as the commencement of court proceedings, the handing down of a judgment or order, or in the context of proceedings for the revision of custody arrangements or rights of access.

(41)In order to avoid secondary and repeat victimisation, intimidation and retaliation, dependants should receive the same protection measures as those afforded to the victim, unless there are indications that dependants do not have specific needs. The competent authorities should assess whether there are any indications that the dependant has no specific protection needs because if it can be determined that there are no specific protection needs, any measure based on the wrong assumption of specific protection needs would be disproportionate. Dependants under the age of 18 are, due to their vulnerability, especially at risk of suffering emotional harm that prejudices their development. Where provided by national law, other dependants can also be considered to be at similar risk.

(42)Victims are often in need of specific support. To ensure they effectively receive offers of support, the competent authorities should refer victims to appropriate support services. That should, in particular, be the case where an individual assessment has found that the victim has particular support needs. When determining whether to refer child victims to support services, the best interests of those victims should be a primary consideration, as laid down in Article 24 of the Charter. Member States should ensure that the processing of related personal data by competent authorities is based on law, in accordance with the relevant provisions concerning the lawfulness of processing set out in Regulation (EU) 2016/679 of the European Parliament and of the Council (7) and in accordance with Directive (EU) 2016/680 of the European Parliament and of the Council (8). Such law should include appropriate personal data safeguards that respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of individuals. Where competent authorities transfer victims’ personal data to support services for the purposes of victim referral, they should ensure that the data transferred are limited to what is necessary to inform the support services of the circumstances of the case, so that victims receive appropriate support and protection. A support service should only store personal data for as long as necessary and, in any event, for no longer than five years, or a shorter period of time if established in national law, after the last contact between the support service and the victim.

(43)Member States should take the necessary measures to ensure the availability of emergency barring orders, restraining orders and protection orders to ensure the effective protection of victims and dependants.

(44)Without constituting a substitute to the arrest and detention of suspects and offenders, which remain subject to national law, Member States should ensure that emergency barring orders, restraining orders or protection orders can be issued in situations of immediate danger, such as where harm is imminent or has already materialised and is likely to be inflicted again, and that, in such relevant situations and where, pursuant to national law, such orders are subject to an application from the victim, victims are informed of the possibility to apply for such orders.

(45)Protection orders can include prohibiting the offender or suspect from accessing certain localities, from approaching the victim or dependants closer than a prescribed distance or from contacting them, including by using online interfaces. Protection orders can also include prohibiting the possession of firearms or deadly weapons, where necessary. Emergency barring orders, restraining orders or protection orders should be issued either for a specified period or until modified or discharged.

(46)Electronic monitoring makes it possible to, where relevant, ensure compliance with emergency barring orders, restraining orders and protection orders, to record evidence of breaches of such orders and to enhance the supervision of offenders. Where available, appropriate and relevant, taking into account the circumstances of the case and the legal nature of the proceedings, electronic monitoring should be considered to ensure the enforcement of emergency barring orders, restraining orders and protection orders. Where electronic monitoring is used, victims should always be informed about its capabilities and limitations.

(47)In order to safeguard the effectiveness of emergency barring orders, restraining orders and protection orders, breaches of such orders should be subject to penalties. Those penalties can be of a criminal or non-criminal nature and can include imprisonment, fines or any penalty that is effective, proportionate and dissuasive. It is essential that victims have the option to be informed of a breach of emergency barring orders, restraining orders or protection orders, where such a breach might have an impact on their safety. As breaches of emergency barring orders, restraining orders or protection orders can increase risks and require further protection to be put in place, a revision of the individual assessment should, when necessary, be considered after a reported breach.

(48)Presenting evidence of past sexual behaviour, the sexual preferences of the victim and the attire or outfit of the victim to challenge the credibility and lack of consent of victims in sexual violence cases, especially rape cases, can reinforce the perpetuation of damaging stereotypes of victims and lead to repeat or secondary victimisation. Therefore, Member States should ensure that evidence concerning the past sexual conduct of the victim, or other aspects of the victim’s private life connected thereto, is only permitted where it is necessary to assess a specific issue in the case at hand or for the exercise of the rights of defence.

(49)Given the unique specificities and circumstances involved in offences of violence against women and domestic violence, guidelines for law enforcement and prosecutorial authorities have an inherent value. Due to the particular vulnerabilities of victims, guidance as to how they should be treated at each stage of the process is essential to raise awareness and to avoid revictimisation in addressing those types of offences. Guidelines for prosecutorial authorities can be understood as both a procedural handbook and a reference for best practice. Particularly in relation to how to approach victims and how to treat them in accordance with their unique circumstance and experience, women’s specialist services can offer expert advice and guidance based on their daily interactions with victims. Member States are encouraged to consult and cooperate with women’s specialist services for the creation and revision of any such guidelines. Member States should review their guidelines for law enforcement and prosecutorial authorities when important developments in their legal frameworks or society at large occur. That could include cases where there are substantial changes to existing laws or established case law or where new trends or forms of violence emerge, in particular where technological developments lead to new forms of cyberviolence.

(50)Given the complexities and gravity of offences of violence against women and domestic violence and specific support needs of victims, Member States should ensure that designated bodies provide additional support and prevent such offences. Given their expertise in matters of discrimination on the grounds of sex, national equality bodies, set up in accordance with Council Directive 2004/113/EC (9), and Directives 2006/54/EC (10) and 2010/41/EU (11) of the European Parliament and of the Council, are well placed to carry out those tasks. To enable those bodies to effectively carry out their tasks, Member States should ensure that they are provided with sufficient human and financial resources.

(51)Certain offences covered by this Directive involve the increased risk of repeated, prolonged or even continuous victimisation. That risk occurs especially in relation to offences involving making material resulting from certain offences of cyber violence accessible, through ICT, considering the ease and speed with which such material can be distributed on a large scale and the difficulties that often exist when it comes to removing such material. That risk typically remains even after a conviction. Therefore, in order to effectively safeguard the rights of the victims of those offences, Member States should take suitable measures which aim to promptly remove the material in question. Considering that removal at the source might not always be feasible, for instance because of legal or practical difficulties relating to the execution or enforcement of an order to remove, Member States should also be allowed to provide for measures to promptly disable access to such material.

(52)The provisions of this Directive on orders and other measures for the removal of and disabling access to relevant material should leave the relevant rules set out in Regulation (EU) 2022/2065 of the European Parliament and of the Council (12) unaffected. In particular, such orders should comply with the prohibition on imposing general obligations of monitoring or active fact-finding and with the specific requirements of that Regulation regarding orders to remove illegal online content.

(53)Measures which aim to promptly remove material or disable access to material should include, in particular, empowering national authorities to issue orders to hosting service providers to remove, or to disable access to, one or more specific items of the material in question. National authorities should also be able to address orders to disable access to other relevant intermediary service providers.

(54)Any measures to remove or disable access, including, in particular, orders to remove or disable access, are liable to affect the rights and interests of parties other than the victims, such as the content providers, the hosting services providers whose services might be used and the end-users of those services, as well the general interest. Therefore, it should be ensured that such orders and other measures can only be taken in a transparent manner and that adequate safeguards are provided for in order to ensure that they remain limited to what is necessary and proportionate, that legal certainty is ensured, that hosting services providers, other relevant intermediary service providers and content providers can exercise their right to an effective judicial remedy in accordance with national law, and that a fair balance is struck between all rights and interests involved, including the fundamental rights of all parties concerned in compliance with the Charter. A careful weighing of all rights and interests at stake on a case-by-case basis is important.

(55)Considering the potential importance of material that might be the subject of orders or other measures taken under this Directive to remove it or disable access thereto for investigating or prosecuting the relevant offences under criminal law, the necessary measures should be taken to allow the competent authorities to obtain or secure such material, where necessary. Those measures could consist, for example, of requiring relevant hosting services providers or other relevant intermediary service providers to transmit the material to those authorities or to preserve the material for a limited period that does not go beyond what is necessary. Any such measures should ensure the security of the material, remain limited to what is reasonable and proportionate and comply with the applicable rules on the protection of personal data.

(56)In order to avoid secondary victimisation, victims should be able to obtain compensation in the course of criminal proceedings.

(57)Specialised support services should provide support to victims of all forms of violence against women and domestic violence, including sexual violence, female genital mutilation, forced marriage, forced abortion and sterilisation, sexual harassment and various forms of cyber violence. Victims should be offered specialist support services irrespective of whether they have filed a formal complaint.

(58)Specialist support services should provide victims support tailored to their specific needs. Such support should be provided by a person of the same gender where requested or appropriate and where such a person is available. Building on the requirements set out in Directive 2012/29/EU, the legal framework needs to be supplemented in order to ensure that specialist support services are provided with all the necessary tools to provide targeted and integrated support for victims, in view of their specific needs. Such services could be provided in addition to, or as an integrated part of, general victim support services, which can call on existing entities providing specialist support, such as women’s specialist support services. Specialist support could be provided by public authorities, victims’ support organisations, or other non-governmental organisations, taking into account the geography and demographic composition of the Member States. Such authorities or organisations should be granted sufficient human and financial resources. Where the services are provided by non-governmental organisations, Member States should ensure that they receive appropriate funds.

(59)Women’s specialist services can play a crucial role in providing advice and support for victims, including women’s support centres, women’s shelters, helplines, rape crisis centres, sexual violence referral centres and primary prevention services. They can also be provided by non-governmental women-led organisations.

(60)Victims typically have multiple protection and support needs. In order to address those needs effectively, Member States should provide specialist support services at the same premises, by coordinating services through a contact point, or by facilitating access to such services through one-stop online access. One-stop online access would ensure that victims in remote areas or unable to physically reach such specialist support services are also able to access such services. One-stop online access should at least entail setting up a single and updated website where all relevant information on and directions to access available support and protection services are provided. Such a website should follow accessibility requirements for persons with disabilities.

(61)Victims have unique support needs given the trauma experienced. Specialist support services should provide assistance to victims which is empowering and which aids in their recovery process. Specialist support services should be available in sufficient numbers and adequately spread over the territory of each Member State, taking into account the geography and demographic composition of the Member State concerned, as well as the offering of online means. To assist with that end, specialised support should be provided whenever possible in a language that the victim can understand and in a manner that is age-appropriate for the victim.

(62)Specialist support services, including shelters and rape crisis centres, should be considered essential during crises and states of emergency, including during health crises. The aim should be to continue to offer those services in situations where instances of domestic violence and violence against women tend to surge.

(63)Assistance and support to victims should be provided before, during and for an appropriate time after criminal proceedings, for example where medical treatment is still needed to address the severe physical or psychological consequences of the violence, or where the victim’s safety is at risk in particular due to the statements made by the victim in the course of those proceedings.

(64)The traumatic nature of sexual violence, including rape, requires a particularly sensitive response by trained and specialised staff. Victims of sexual violence need immediate trauma support combined with immediate forensic examinations for the safe-keeping of evidence needed for future prosecution. Rape crisis centres or sexual violence referral centres should be available in sufficient numbers and adequately spread over the territory of each Member State, taking into account the geography and demographic composition of the Member State concerned. Such centres can form part of the existing healthcare system in the Member State. Similarly, victims of female genital mutilation, who are often girls, typically are in need of targeted support. Therefore, Member States should ensure that they provide dedicated support tailored to these victims. Considering the unique circumstances of victims of such offences and their associated vulnerability, such specialist support should be provided with the highest standards of privacy and confidentiality.

(65)Sexual harassment at work is considered as a form of discrimination on the grounds of sex by Directives 2004/113/EC, 2006/54/EC and 2010/41/EU. Sexual harassment at work has significant negative consequences both for the victims and the employers. Internal or external counselling services should be provided to both victims and employers, where sexual harassment at work is specifically criminalised under national law. Such services should include information on ways to adequately address instances of sexual harassment at work and on remedies available to remove the offender from the workplace.

(66)Member States are encouraged to ensure that national helplines are reachable free of charge through the harmonised number at Union level, namely 116 016, in addition to any existing national numbers, and that they are available round the clock. The public should be adequately informed of the existence of and use of that harmonised number. It should be possible for such helplines to be operated by specialist support services, including women’s specialist support services, in accordance with national practice. Existing helpline providers, including non-governmental organisations, have significant experience in providing such services. The support provided via such helplines should include crisis counselling and the provision of information to victims about face-to-face services, such as shelters, specialist support services, other relevant social and health services or the police. Support helplines for victims of crime should be able to refer victims to specialist support services, specialist helplines, or both, where needed and requested.

(67)Shelters and other appropriate interim accommodation for victims of crime play a vital role in protecting victims from acts of violence. Beyond providing a safe place to stay, shelters should provide the necessary support concerning interlocking problems related to victims’ health, including mental health, financial situation and the well-being of their children, ultimately preparing victims for an autonomous life. Member States should ensure that a sufficient number of shelters and other appropriate interim accommodation is available. The term ‘sufficient numbers’ is intended to ensure that the needs of all victims are met, both in terms of shelter places and specialised support. The Final Activity Report of the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence, of September 2008, recommends safe accommodation in specialised women’s shelters, available in every region, with one family place per 10 000 head of population. However, the number of shelter places should depend on a realistic estimation of the actual need. The identity of victims staying in such shelters should remain confidential in order to ensure women’s safety. Shelters should be equipped to address the specific needs of women, including by providing women-only shelters. Shelters and other appropriate interim accommodation should be available to dependants under the age of 18. Nonetheless, the safety and well-being of the victims staying in such shelters and accommodation remains the first priority, in particular where victims and dependants close to adulthood share accomodation. Where shelters are not free of charge and Member States request a contribution from victims when hosted in shelters or interim accommodation, the contribution should be affordable and not hinder victims’ access to shelters or interim accommodation. Shelters should ensure that there are trained and specialised staff to engage with and support victims.

(68)To effectively address negative consequences for children, support measures for children should include specialised psychological counselling adapted to the age, developmental needs and individual situation of the child, together with paediatric care where necessary, and be provided as soon as the competent authorities have reasonable grounds to believe that children might have been victims, including child witnesses. When providing support to children, the rights of the child, as laid down in Article 24 of the Charter, should be a primary consideration.

(69)Considering the life-long consequences of violence against women or domestic violence for children whose parent has been killed as a result of those offences, Member States should ensure that such children can fully benefit from this Directive, in particular through targeted protection and support measures, including during any relevant judicial proceedings.

(70)In order to ensure the safety of children during possible visits with an offender or suspect who is a holder of parental responsibility with rights of access as determined under the applicable national civil law rules, Member States should ensure that supervised neutral places, including child protection or welfare offices, are made available so that such visits can take place there in the best interests of the child. If needed, the visits should take place in the presence of child protection or welfare officials. Where it is necessary to provide for interim accommodation, children should, as a priority, be accommodated together with the holder of parental responsibility who is not the offender or suspect. The best interests of the child should always be taken into account.

(71)Victims experiencing intersectional discrimination are at a heightened risk of violence. They could include women with disabilities, women with dependant residence status or a dependant residence permit, undocumented migrant women, women applicants for international protection, women fleeing armed conflict, women affected by homelessness, women with a minority racial or ethnic background, women living in rural areas, women in prostitution, women with low income, women detainees, lesbian, gay, bisexual, trans or intersex persons, older women or women with alcohol and drug use disorders. Victims experiencing intersectional discrimination should consequently receive specific protection and support.

(72)Women with disabilities disproportionately experience violence against women and domestic violence and, due to their disabilities, often have difficulty accessing protection and support measures. Therefore, Member States should ensure that they can benefit fully from the rights set out in this Directive on an equal basis with other persons, while paying due attention to the particular vulnerability of such victims and the difficulty they likely have reaching out for help.

(73)Actions to prevent violence against women and domestic violence should be based on a comprehensive approach composed of primary, secondary and tertiary preventive measures. Primary preventive measures should aim to prevent violence from occurring and could include actions such as awareness-raising campaigns and targeted education programmes to increase understanding among the general public of the different manifestations of all forms of violence and their consequences and to increase knowledge about consent in interpersonal relationships at an early age. Secondary preventive measures should aim to detect violence early and prevent its progression or escalation at an early stage. Tertiary prevention should be focused on preventing reoffending and revictimisation and on properly managing the consequences of the violence and could include the promotion of bystander intervention, early intervention centres and intervention programmes.

(74)Member States should take appropriate preventive measures. Such measures could include awareness-raising campaigns to counter violence against women and domestic violence. Prevention can also take place in formal education, in particular through strengthening sexuality education, socio-emotional competencies and empathy and learning how to develop healthy and respectful relationships. Taking into account language barriers and different levels of literacy and ability, Member States should focus targeted measures on groups at a heightened risk, which include children, taking into account their age and maturity, persons with disabilities, persons with alcohol and drug use disorders, and lesbian, gay, bisexual, trans or intersex persons.

(75)Member States should take measures to prevent the cultivation of harmful gender stereotypes in order to eradicate the idea of the inferiority of women or stereotyped roles of women and men. That could also include measures which aim to ensure that culture, custom, religion, tradition or honour is not perceived as a justification for, or does not give rise to a more lenient treatment of, offences of violence against women or domestic violence. Preventive measures should encourage men and boys to act as positive role models to support equality between men and women, but they should also aim to overcome stereotypes whereby men are inhibited from reaching out for help in situations of violence directed against them. Considering that, from a very young age, children are exposed to gender roles that shape their self-perception and influence their academic and professional choices as well as expectations of their roles as women and men throughout their life, it is crucial to address gender stereotypes as of early-childhood education and care.

(76)In order to focus resources where they are most needed, the requirement to take preventive measures to raise awareness of female genital mutilation and forced marriage and the extent of those measures should be commensurate with the number of persons at risk of or affected by that practice in the Member State concerned.

(77)In order to ensure that victims are identified and receive appropriate support and protection, Member States should ensure that officials likely to come into contact with victims receive training and targeted information. Court staff should be required to receive such training only if they are likely to come into contact with victims and only to a level appropriate to the contact they have with victims. Training should be promoted for lawyers, prosecutors and judges and for practitioners who provide victim support or restorative justice services. Such training should include, as appropriate, training on the specific support services to which victims should be referred or specialist training where their work focuses on victims with specific needs and specific psychological training. Training should cover the risk and prevention of intimidation and repeat and secondary victimisation and the availability of protection and support measures for victims. To prevent and appropriately address instances of sexual harassment at work, persons with supervisory functions should also receive training, where sexual harassment at work is specifically criminalised under national law. Those persons should also receive information on the risk of third-party violence. ‘Third-party violence’ refers to violence which staff might suffer at the workplace at the hands of someone other than a co-worker and includes cases such as nurses sexually harassed by a patient.

(78)To establish a comprehensive approach to preventing and combating all forms of violence against women and domestic violence, Member States should ensure that relevant officials and professionals receive training on coordinated multi-disciplinary cooperation, with a view to ensuring that relevant government bodies and authorities swiftly handle referrals of cases and that relevant professional specialists, including in the medical, legal, educational or social services fields, are engaged in the handling of such cases. It should be for Member States to decide how they organise such training. The obligations in this Directive should not be interpreted as interfering with the autonomy of higher education institutions.

(79)In order to counteract underreporting, Member States should liaise with law enforcement authorities in the development of training, in particular regarding harmful gender stereotypes but also in the prevention of offences, given their typical close contact with groups at risk of violence and victims.

(80)Intervention programmes should be set up to prevent and minimise the risk of committing offences of violence against women or domestic violence or of reoffending. Intervention programmes should be delivered by trained and skilled professionals. Intervention programmes should specifically aim to ensure safe relations and to teach offenders or those at risk of offending how to adopt non-violent behaviour in interpersonal relationships and how to counter violent behavioural patterns. The Member States could use common standards and guidelines prepared by the European Institute for Gender Equality for intervention programmes.

(81)Information as regards available intervention programmes should be given to an offender or suspect of violence covered by this Directive who is subject to an emergency barring order, restraining order or protection order.

(82)With regard to offences amounting to rape, offenders should be encouraged to participate in intervention programmes to mitigate the risk of recidivism.

(83)Member States should adopt and implement effective, comprehensive and coordinated policies encompassing all relevant measures to prevent and combat all forms of violence against women and domestic violence. Those policies should place the rights of the victim at the centre of all measures. Member States should have discretion to decide which authorities are designated or established as official bodies responsible for coordinating, implementing, monitoring and evaluating policies and measures to prevent and combat all forms of violence covered by this Directive, in accordance with the principle of procedural autonomy of the Member States, provided that such authorities have the necessary competences to carry out the tasks provided for in this Directive. Member States should ensure minimum policy coordination at central level as well as, where appropriate, at regional or local level, in accordance with national law and without prejudice to the distribution of powers in each Member State. That coordination could be part of national action plans.

(84)Civil society organisations, including non-governmental organisations working with victims, embrace a wide range of actors with multiple roles and mandates. Such organisations provide valuable expertise and their involvement and contributions could be beneficial during the design, implementation and associated monitoring processes of government policies.

(85)As part of efforts to combat violence against women and domestic violence, Member States should adopt national action plans.

(86)In order to ensure that victims of the offences of cyber violence defined in this Directive can effectively realise their rights to have illegal material relating to such offences removed, Member States should encourage self-regulatory cooperation between relevant intermediary service providers. To ensure that such material is detected early on and tackled effectively and that victims of those offences are adequately assisted and supported, Member States should also facilitate the establishment or raise awareness of existing self-regulatory measures of a voluntary nature, such as codes of conduct. Such facilitation should include self-regulatory measures for the detection of systematic risks, in particular to reinforce mechanisms designed to tackle cyber violence and to improve the training of employees of such intermediary service providers who engage in the prevention of violence and provide assistance and support to victims. Such self-regulatory measures could complement action at Union level, in particular under Regulation (EU) 2022/2065.

(87)Exchanging best practices and consulting in individual cases, within the mandates of Eurojust, the European Judicial Network in criminal matters and other relevant Union agencies, could be of great value in preventing and combating all forms of violence against women and domestic violence.

(88)Policies to adequately tackle violence against women and domestic violence can only be formulated on the basis of comprehensive and comparable disaggregated data. In order to effectively monitor developments in the Member States, Member States are also invited to regularly conduct surveys. That could be done using the harmonised methodology of the Commission (Eurostat).

(89)Member States should ensure that the data collected for the purposes of this Directive are limited to what is strictly necessary in relation to supporting the monitoring of the prevalence and trends of violence against women and domestic violence and to design new policy strategies in that area. Member States should provide required data to the European Institute for Gender Equality in order to allow for the comparability, assessment and analysis of those data at Union level.

(90)Any processing of personal data carried out pursuant to this Directive, including the exchange or transmission of personal data by the competent authorities, is to be carried out in accordance with Regulation (EU) 2016/679 and Directives 2002/58/EC (13) and (EU) 2016/680 of the European Parliament and of the Council. Any processing of personal data by Union institutions, bodies, offices or agencies is to be carried out in accordance with Regulations (EU) 2016/794 (14), (EU) 2018/1725 (15) and (EU) 2018/1727 (16) of the European Parliament and of the Council, or any other applicable Union rules on data protection.

(91)This Directive establishes minimum rules, and Member States are therefore free to adopt or maintain more stringent criminal law rules concerning the definition of criminal offences and penalties in the area of violence against women. As regards the provisions of this Directive on the rights of victims, Member States can introduce or maintain provisions with higher standards, including those which provide a higher level of protection and support for victims.

(92)Since the objective of this Directive, namely to prevent and combat violence against women and domestic violence across the Union on the basis of common minimum rules, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the envisaged measures, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

(93)In accordance with Article 3 of Protocol No 21 on the position of United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and the TFEU, Ireland has notified, by letter of 22 June 2022, its wish to take part in the adoption and application of this Directive.

(94)In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

(95)The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on 5 April 2022,