Requested by: Kyrgyzstan, Minister of Justice

Recommended Measures:

The Venice Commission makes the following recommendations (in summary): 
(a) Amending the draft legislation in order to enhance the quality of the law and the foreseeability of its application, including as concerns in particular the qualification of domestic violence as a criminal or an administrative offence; the clarification of the hierarchy between the Law on domestic violence, the Code on offences and he Criminal Code; the streamlining of definitions, especially as concerns the technology; the clarification of the difference between the pre-trial and the post-trial phases, and whether measures may be cumulative; prohibition of discrimination; clarification of whether the police or the courts have the power to issue an electronic monitoring order when a temporary protection order is issued and the procedure for same; clarification as to the possibility to make an electronic monitoring order in respect of an order under Article 32 of the Law on Domestic Violence; the possibility to issue an emergency barring order and whether prohibition and/or restrictions may be used without electronic monitoring, as outlined in Section V.B.2; 
(b) Enshrining the principle of proportionality, hence necessity in a democratic society, explicitly in the draft law in general terms, providing for the need to apply it in specific provisions, as outlined in Section V.B.4.; 
(c) Providing in the law that the decisions on a temporary protection order, a potential barring order and eventual electronic monitoring measures are based on a specific risk assessment, including the possibility of detention of an alleged offender (subject to judicial review) where there is a risk of serious injury or death, as outlined in Section V.B.4., 
(d) That effective penalties for breach of temporary protection orders are introduced, including consideration of making breaches of such orders a criminal offence, as outlined in Section V.B.; 
(e) Providing the (alleged) offender as well as the victim with a possibility of judicial review of the decision of issuing a temporary protection order, a potential barring order and eventual electronic monitoring measures, as outlined in Section V.C.; 
(f) Adding provisions on the processing of collected data according to the relevant international standards, as outlined in Section V.D.; 
(g) Providing for adequate mechanisms for the enforcement and monitoring of the application of the law before proceeding with adopting the amendments, as outlined in Section V.E.; 
(h) Elaborating on the central monitoring agency through: providing for the role, mandate and limitations of the central monitoring agency, including any private actors involved in monitoring, in the draft law; considering implementing best practice concerning monitoring agencies; providing for non-discrimination in the imposition or execution of electronic monitoring; and considering the issue of the consent of the victim and the seeking of the cooperation of the offender to electronic monitoring, including any dissuasive consequences for the offender if refused, as outlined in Section V.E. and V.F.