Yes, the victims' charter covers the individual. It does not necessarily have to be a joint process.
The second motion before the committee is that Ireland should exercise its option under the Protocol to the Treaty on the Functioning of the European Union to opt into the adoption of a proposal for a regulation on mutual recognition of protection measures in civil matters. The objective of this proposal is to further develop the European area of justice by enabling the recognition and enforcement of civil protection measures where a person protected by a measure travels or moves to another member state. It will ensure, for example, a victim of domestic violence who has a barring order or a safety order made in his or her favour can continue to have the protection of the order even when in another member state. The regulation aims to achieve this by conferring automatic recognition of protection measures issued in one member state in other member states.
Article 1 sets out the scope of the regulation and that it applies to protection measures taken in civil matters, whatever the nature of the authority issuing the measures.
Article 2 defines a protection measure as any civil measure of a preventive and temporary nature taken by an authority, which may not necessarily be a court, in a member state under its law with a view to protecting a person when serious risk exists to their physical and/or psychological integrity. The measures in question include in particular the types of protection afforded in Ireland under the domestic violence code.
Article 3 confers jurisdiction on the authorities of the member state in which the risk occurs. While this will normally be the member state of the protected person's habitual residence, this may not always be the case, such as when a person moves abroad for a determined and relatively short period for study purposes.
Article 4 states recognition shall take place without any special procedure being required once the protection order has been certified in accordance with Article 5. This means that the protected person does not have to make further court appearances to have the protection measure recognised in another member state.
Article 5 provides for a standard certificate which may be issued by the competent authority, generally the courts, in the member state of origin. The certificate will form the basis for the recognition and enforcement of a protection measure in another member state. All relevant information for enforcement purposes must be provided in the certificate. The protected person may invoke the protection measure by providing the authorities of the member state in which they are temporarily resident with the certificate.
Article 8 allows a member state of recognition to adapt, to the extent possible, a foreign protection measure unknown in its domestic law to the nearest equivalent available under its own law.
Article 9 sets out that where enforcement of the order or measure is necessary, no formal declaration of enforceability is required. In enforcing the protection measure, the member state of enforcement must apply the rules provided under its national law for similar protection measures.
For the protection of the person posing the risk, at whom the order is directed, Article 10 sets out certain safeguard requirements which must be complied with before the member state of origin may certify the measure in accordance with Article 5. The article provides that a person causing the risk who did not enter an appearance in the member state of origin shall have the right to apply for a review of the protection measure before the competent authorities of that member state where he was not served with the document instituting the proceedings or an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence or he was prevented from contesting the protection measure by reason of force majeure or due to extraordinary circumstances without any fault on his part.
This right of review at the certification stage will not be available if the person posing the risk failed to challenge the protection measure when it was possible for him to do so. I note it only states him and not her.
The article further provides that where the protection measure is taken without the person causing the risk being summoned to appear and is intended to be recognised and/or enforced without prior service of that person, that person has the right to challenge the measure under the law of the member state of origin.
Article 11 provides that under no circumstances may a protection measure taken in a member state be reviewed as to its substance in the member state in which recognition and/or enforcement is sought.
Article 12 sets out the rules which apply if the protection measure is irreconcilable with a decision taken in the member state of recognition. This is the only ground upon which a member state of recognition can refuse to recognise a duly certified protection measure from another member state. It also provides for the member state of recognition, on application by the person causing the risk, to suspend or withdraw the recognition or enforcement of a certified protection measure where the original measure is suspended or withdrawn in the member state of origin.
Most of the other provisions are procedural in nature including matters such as notice provisions, translation requirements, changes to the forms and commencement provisions. Article 16 also requires that an applicant who has received legal aid in the member state of origin be provided with the most favourable legal aid available under the law of the member state of recognition in any proceedings relating to the enforceability of the protection measure. This is a standard provision in international instruments of a civil nature.
Given that enforcement in Ireland would take place under the Domestic Violence Acts, it is unlikely that it will lead to legal aid costs for the Exchequer as the Garda is empowered to act on a breach of an order under the Act and a victim should not generally require legal representation.
The proposal is an important development for victims of domestic violence or intimidation. It means that where a protection order is in place, the protected person can move to another member state in the confidence that the local police can, and where necessary will, act on the basis of that protection measure. A protected person need not avoid going on holiday to another member state, or give up the opportunity of a temporary move for work or study purposes, for fear that they will be at risk or because the processes for obtaining similar protection are too drawn out and perhaps too daunting working through a foreign language and an unfamiliar legal system.
Just as this will work to the benefit of Irish residents when travelling in the EU, it will provide the same protection to people travelling here from other member states. Protection measures which are not quite the same as ours will be converted into the nearest equivalent under our law. The Garda will have the same powers in dealing with a breach of an order as it does under the Domestic Violence Acts.
This proposal shows how the EU can work for the citizen by facilitating freedom of movement. The ideal is that European citizens should be entitled to the same level of legal protection wherever they are in the Union. Vulnerable persons, such as victims of domestic violence, should be entitled to the same enhanced protection throughout the Union. That is a laudable aim, and one which this Government is happy to support. I commend the proposal to the committee.