FOR THE IMPLEMENTATION

Transcription

1 AGREEMENT BETWEEN THE MINISTRY OF JUSTICE, THE MINISTRY OF THE INTERIOR, THE MINISTRY OF EQUALITY, THE GENERAL COUNCIL OF THE JUDICIARY AND THE PUBLIC PROSECUTION MINISTRY AS FOR THE IMPLEMENTATION OF THE ACTION PROTOCOL TO TELEMATICALLY MONITOR RESTRAINING ORDERS ON GROUNDS OF GENDER VIOLENCE MEETING Madrid, July 8, 2009 Mr. Don Francisco Caamaño Dominguez, Minister of Justice, appointed by Royal Decree 240/2009 of 23 February in name and representation of that Ministry, in accordance with provisions of art of Act 6 / 1997 of 14 April, on Organization and Functioning of the General State Administration, Mr. Don Alfredo Perez Rubalcaba, Minister of the Interior appointed by Royal Decree 436/2008 of 12 April on behalf and representation of that Ministry, in accordance with the provisions of art 13.3 of Act 6 / 1997 of 14 April, on Organization and Functioning of the General State Administration, Ms. Dona Bibiana Aido Almagro, Minister for Equality, appointed by Royal Decree 436/2008 of 12 April (BOE day 14) in behalf of the Ministry of Equality, in accordance with provisions of art of Act 6 / 1997, dated 14th April, on Organization and Functioning of the General State Administration, Your Hononour Ms. Inmaculada Montalbán Huertas, Member of the General Council of the Judiciary, representing the same, expressly appointed for this act by the President of the General Council of the Judiciary, Your Honour Ms. Soledad Cazorla Prieto, Public Prosecutor of the Public Prosecution Department against violence on women, representing the Public Prosecution Service, 1

2 expressly appointed for this act by the Chief of Public Prosecutions or Attorney General. THEY STATE: First. That the Organic Act 1 / 2004 of 28 December, on comprehensive protective measures against gender violence (thereafter called "Comprehensive Act") has the objective of acting against the violence which, as manifestation of discrimination, inequality and the power relations of men over women is exercised over the latter by those who are or have been their spouses or those who are or have been linked to them by similar affective relationships, even without cohabitation. Second. That the Comprehensive Act provides in article 32.1 that "the authorities will develop collaboration plans in order to guarantee the order of their actions on prevention, assistance and persecution of gender violence, which must involve Health authorities, the Administration of Justice, the Armed and Security Forces and the social services and equality bodies." Third. That article 48.4 of the Criminal Code provides that in case that a judge or court orders the prohibition to approach to the victim, may also provide that such control measures be carried out through "those electronic means which allow such monitoring". Article 57 of the legislation provides the same possibility as for cases in which approaching is banned as a penalty for having committed an offence or misdemeanour. Fourth. Article 64.3 of the Comprehensive Act foresees that the use of appropriate technology tools may be agreed in order to verify immediate breach of the restraining measures. Thus, the possibility to use such mechanisms which were initially and solely planned for those convicted, is extended to control restraining orders imposed as precautionary measures in the procedures processed on the grounds of gender violence in the area of the Comprehensive Act. Fifth. That on 21 November 2008, the Council of Ministers agreed to entrust to the Minister for Equality, and the Ministers of Justice and Interior so that they took the necessary measures for the implementation of the electronic devices for detecting proximity of offenders on grounds of gender violence, to ensure the restraining measures agreed by judges under the provisions of the article 64.3 of Organic Act 1 / 2004 of 28 December on comprehensive protective measures against gender violence. 2

3 Sixth. That, in pursuance of this agreement by the Council of Ministers, the Ministry Equality has initiated the implementation of a telematic monitoring system to ensure the compliance of restraining measures on grounds of gender violence. Seventh. That the full functionality of the system requires a protocol including the participation and performance of people involved in these situations as well as their know-how as for their functioning and virtuality in order to facilitate appropriate intervention in each particular case. In this sense, the efficiency of this new system and its proper establishment require the coordinated actions of various institutions involved in the process of adopting and controlling these protective measures. Eighth. For the above-mentioned purposes, all parties express their willingness to enter into this Agreement, subject to the following: First: Object CLAUSES This Agreement is to establish the framework for the combined action of the Ministry of Justice, Ministry of Interior, Ministry of Equality, the General Council of the Judiciary and the Public Prosecution Service for the implementation of a telematic monitoring system as for restraining measures on grounds of gender violence, according to the Protocol attached in the Annex. Second: Commitments of the parties The parties undertake to develop coordination in the field of their respective responsibilities, those actions and measures which are necessary for the effective implementation of the object of this Agreement. Third: The Monitoring Commission In order to boost the implementation of this Agreement and to carry out its monitoring and make the necessary arrangements for the establishment of the telematic monitoring system for as for restraining measures on grounds of gender, implemented by the "Protocol", a Commission will be constituted, which will consist of five members representing each of the signatory parties and designated by them. 3

4 This Commission will also be in charge of taking the appropriate coordination tools in order to guarantee the telematic control of the restraining orders agreed by court. The Commission shall establish its own rules of procedure, by being of supplementary application provisions for the Collegiate Bodies, Chapter II, Title II of Act 30/1992 of 26 November, on the legal framework for Public Administrations and Common Administrative Procedure. The monitoring Commission will ordinarily meet once a year and, apart from that, they will also meet in an extraordinary way at the request of either of the parties. Any disputes that might arise concerning the interpretation or implementation of the Protocol could be resolved by mutual agreement in the monitoring Commission. If no agreement is reached, disputes shall be resolved in accordance with provisions in current regulations. Fourth: Contributions of the Autonomous Communities The monitoring commission will consider suggestions that, for their eventual incorporation into the protocol, autonomous communities may make. Fifth: Effectiveness This Agreement shall enter into force the day after its signing, it will have an annual duration and will be automatically renewed for the same period, unless terminated by either party two months before the end of its effectiveness. Sixth: Legal Regime This Agreement has legal and administrative nature and it is governed by its own provisions and principles, criteria and regulations of administrative law. Seventh: Causes of Extinction This Agreement shall be terminated due to execution, resolution, mutual agreement, unexpected impossibility of execution or for reasons beyond control. And in witness thereof, this Agreement is signed by quintuplicate, at the place and date indicated above. 4

5 MINISTER OF JUSTICE MINISTER OF THE INTERIOR Francisco Caamaño Domínguez Alfredo Pérez Rubalcaba MINISTER OF EQUALITY BY THE GENERAL COUNCIL OF THE JUDICIARY Bibiana Aído Almagro Inmaculada Montalbán Huertas BY THE PUBLIC PROSECUTION SERVICE Soledad Cazorla Prieto 5

6 ACTION PROTOCOL FOR THE IMPLEMENTATION OF A TELEMATIC MONITORING SYSTEM TO ENSURE THE COMPLIANCE OF RESTRAINING MEASURES ON GROUNDS OF GENDER VIOLENCE Article 64.3 of Organic Act 1 / 2004 of 28 December, on comprehensive protective measures against gender violence provides the possibility that the courts agree on the use of appropriate technology tools to monitor the compliance of the restraining orders imposed as a precautionary measures in the procedures processed on the grounds of gender violence. The Ministry for Equality, in compliance with the Agreement by the Council of Ministers of 21 November 2008, has launched the " Telematic Monitoring System for as for restraining orders on the grounds of Gender Violence" (hereinafter called "the System"), whose main objective is to improve the safety and security of victims and regain their confidence in order to achieve their recovery. The System will verify compliance with the restraining orders imposed as precautionary in those proceedings on grounds of gender violence in which they are deemed appropriate, in according to the guidelines and regulations that, if any, the Judicial Authority has established and in accordance with the provisions of this Protocol. Similarly, the System provides permanent and up-to-date information about the incidents that affect compliance or violations of the measures imposed 6

7 and the potential incidents, both accidental and expressly provoked, in the operation of the elements of surveillance. Improving the security context through this System aims at three basic consequences: To implement the right of victims to safety To report the possible breach of the restrictive measure To deter the offender This Protocol, approved by the Technical Committee of the National Coordinating Committee of the Judicial Police, at its meeting of 6 July 2009, aims to ensure and homogenise full operation of the system, by establishing general guidelines for action and communication of people involved in these situations, as well as their know-how as for their functioning and virtuality in order to facilitate appropriate intervention in each particular case. 1. ACTIONS FOR THE INSTALLATION OF PROXIMITY DETECTION EQUIPMENTS. 1.1 Actions prior to installation: Court resolution ordering that the restraining precautionary measure imposed be controlled by the system. The Centre of Control will have a procedure in order to be able to verify at any time the availability of devices Communication of the court resolution ordering the measure to the Security Forces: The Judicial Secretary will immediately communicate the resolution, within maximum 24 hours, to the Security Forces who have territorial jurisdiction and also to the centralised reception points designed in each territory, either telematically or by fax, and there must be acknowledgement of receipt. 7

8 Communication of the court resolution ordering the measure to the Centre of Control: The Judicial Secretary will immediately communicate the Centre of Control the court resolution that orders the implementation of the technological system which detects proximity of the aggressor, as well as the victim's contact details and other data which are essential to implement this measure, and there must be acknowledgement of receipt as for the resolution and its contents. The Centre of Control will introduce and register in the system the data of both victim and accused, as well as those of the police force responsible for protecting the victim and the stipulated period of effectiveness of the measure, according to the information given by the court. Once the prior notice has been received, the Centre of Control will immediately communicate the installation company so that they prepare the corresponding devices which are to be installed. Then the Centre of Control will establish personal contact with the victim, arrange for the moment and place so as to install the device for the victim (Spanish short DLV), ask for information about other persons to contact (family, etc..) and will solve any doubt about the operation of the system. If it is necessary in order to comply with the measure, the Centre of Control will require other complementary data as for the police force responsible for protecting the victim. 1.2 Installing the proximity detection equipment Within 24 hours since the Centre of Control receives the notice of the court resolution that orders the implementation of the proximity detection system, the staff of the company which installs those devices will install and deliver the corresponding equipment for the victim, they will explain its operation and basic rules for its maintenance, and they will provide the victim with the relevant documentation as for the use of the equipment. They will always provide DLV to the victim rather than the installation of the device for the defendant (DLI in Spanish). DLV will be delivered mainly in the home of the user. If this is not possible, it will be given in court or in the nearest police 8

9 station to her home, by bearing in mind the user's possible suggestions. The user shall indicate in writing that she has been given the DLV, that she has been informed about its operation and basic rules for its maintenance and that she has understood everything and gives her consent for the purposes specified in the regulations as for the protection of personal data The placement of DLI for the defendant will take place at the headquarters of judicial body that ordered the measure once he has been notified and within the term agreed by the judge. In the same place, the staff of the company which installs those devices will appear in order to proceed to its placement. For this purpose, the court will notify the Centre of Control the expected time for the DLI installation. The defendant shall indicate in writing that she has been given the DLV, that she has been informed about its operation and basic rules for its maintenance and that she has understood everything Once the above-mentioned actions have been performed, the Centre of Control will immediately report the police force responsible for the protection of the victim, either by electronic means or by fax, that the system has been installed, enclosing the signed copy of the explanation and understanding of the DLV by the victim, and of the DLI by the accused. 2. NOTICES MANAGEMENT The warnings generated by the system are of two types: alarm, alert, graduated from high to low risk. 2.1 Alarms: Serious technical incidence: any incidence that affects any of the system components and results in the suspension of its operation Entry of the accused in the exclusion zone Approach to the victim and the exclusion zone with loss of coverage as for the tracking system. 9

10 Serious technical incident Communication to the Forces and Security Forces The Centre of Control will communicate the incidence to the police force responsible for the protection of the victim. The Centre of Control will keep communication with the competent police unit in order to inform about the developments and the resolution of the incident. The police operative for protection will be activated whenever necessary and, in any case, whenever the bracelet gets broken, extracted without being broken, separated from the unit 2Track or discharged of the battery of DLI. When the resolution of the incident requires a meeting with the accused, the Centre of Control will contact the competent police unit in order to determine whether it is necessary that the accused be moved to a police station to solve the incident. In this case, the Centre of Control will inform the defendant about the agency that he should head for. If the accused refused to cooperate in resolving the incidence the competent police unit shall immediately notify the court which ordered the measure or, if that is not possible, the court on duty, so that they take the most appropriate decision, by activating in any case all corresponding police measures to guarantee the victim's protection. Notice to the victim The Centre of Control will inform the user about the system failure and about the fact that it has been communicated to Security Forces. Once the incidence has been solved, the Centre of Control will acknowledge the victim and, in the case that the incidence had been communicated to other entities, the Centre of Control will also inform them Entry of the accused in the exclusion zone Communication to Security Forces The Centre of Control will communicate the incident to security forces which have territorial jurisdiction on the matter by means of the corresponding emergency phones (091, 062 and those of the corresponding 10

11 regional or local police) as well as to the police unit responsible for the protection of the victim. The Centre of Control will keep permanent communication with the corresponding police unit in order to help them find both the accused and the victim. Subsequent police protection operation will be immediately activated. Notice to the victim The Centre of Control will contact the user in order to know her state and location and provide adequate guidance as for her situation, without prejudice to the information on self-protection that the corresponding police unit must explain. In order to be able to provide the user appropriate guidelines, the police unit shall inform the Centre of Control about the situation of the accused Approximation of the victim to the exclusion zone with loss of coverage of her location system. In cases of temporary loss of coverage of the location system when the particular circumstances of the situation so guarantee, the Centre of Control will communicate the incident to security forces which have territorial jurisdiction on the matter by means of the corresponding emergency phones (091, 062 and those of the corresponding regional or local police) as well as to the police unit responsible for the protection of the victim in order to activate the security police operation. As soon as coverage is restored, the Centre of Control will immediately contact the same police units and will inform them about the location of both the victim and the aggressor Alerts: Mild technical incidence: any incidence that affects any component of the system involving an abnormal functioning of the system, but not interruption Approximation of the accused to the exclusion zone Pressure to alleviate panic button of the victim. 11

12 Mild technical incidence In general, the existence of a mild technical incidence does not lead to any immediate communication by the Centre of Control. However, when deemed that there is any risk, the procedure for serious technical incidents will be implemented if considered and agreed so Approximation of the accused to the exclusion zone The Centre of Control will communicate with the accused when the approximation of the latter to the exclusion zone is such that imminent may be presumed; the aim is to avoid that entry. If the accused finally enters, the situation will be described as that of alarm the procedure will be that in accordance with provisions under section Pressure of the panic button by the victim The Centre of Control will contact the user to determine whether the call has been accidental or due to a dangerous situation. Whether communication is not achieved or if it is evidenced that there is a dangerous situation, the procedure will be that in accordance with provisions under section Provisions which are common to all types of alarms: In the event of an alarm, the Centre of Control will prepare a report to be submitted to the competent police unit, the Judicial Authority and the Public Prosecution Service, without the prejudice to the corresponding police report that the police unit will undertake, where appropriate. 3. CESSATION OF THE MONITORING MEASURE AND WITHDRAWAL OF THE TECHNOLOGICAL MONITORING DEVICE The judicial resolution ordering the end of the will be communicated by the Court Secretary with immediate effect and within 24 hours to the territorially competent Security Forces and centralised reception points designed in each territory, either telematically or by fax and with acknowledgement of receipt 3.2. The Court Secretary will also immediately inform the Centre of Control about the court resolution which had ordered to cease 12

13 the monitoring, with acknowledgement of receipt and the contents of the resolution Once that notice has been received, the staff of the company which installs those devices shall withdraw the implanted device, according with the mentioned court resolution The withdrawal of the device that the accused has will be made in court. In the case of the victim, it will done at her home, in court or at the police station which is nearest to her home, bearing in mind, as far as it is possible, the suggestions of the user After removing the device, the Centre of Control shall immediately notify the judicial authority and the police unit responsible for protecting the victim. 4. TEMPORAL WITHDRAWAL OF THE TECHNOLOGICAL MONITORING DEVICE 4.1. The temporary removal of the device for medical reasons, security and imprisonment or in jail will be agreed by the judicial authority and conducted by the staff of the company which installs those devices in accordance with the provisions of the court resolution that authorises it. For their subsequent installation, the procedure will be in accordance with the decisions reached by the judicial authority In previous cases, where there are urgent reasons requiring the immediate withdrawal of the device, the police unit involved or that which is aware of the fact shall communicate, at the earliest, the court that passed the measure, the withdrawal of the device and the reasons thereof, as well as inform the Centre of Control. When the reasons for this withdrawal have ceased, the competent police unit shall notify the court that passed the measure or, in its failure, the court on duty, so that they agree what they deem appropriate. In the latter case, the unit will report what the court on duty has agreed to the court that had ordered the measure In any case, the competent police body shall take the necessary measures for the protection of the victim. 13

14 ANNEX. COMPONENTS OF THE SYSTEM 1. DEVICES for the defendant (DLI) The defendant is equipped with a transmitter attached to his body and a GPS tracking unit. 1.1 Transmitter Radio frequency (RF) adjusted to the body The transmitter is securely fitted to the defendant's wrist or ankle by means of a chain which detects manipulations. The transmitter is paired with the tracking device and repeatedly emits radio frequencies (RF) which are used in order to verify that the GPS tracking device is actually being carried by the accused. The transmitter is powered by lithium batteries, which have a lifespan of 6 months in full operation. The state of "low battery" is established and transmitted approximately 7 to 10 days before the full battery is exhausted. Once the transmitter reaches this state, the GPS tracking unit detects and records a message "TX low battery", which is sent to the Centre of Control. The transmitter is made of hypoallergenic material and is water resistant. 14

15 1.2. 2Track-unit (GPS tracking unit) The defendant carries a GPS tracking unit, which tracks his constant movement and location by using GPS technology. The GPS tracking unit is equipped with an RF receiver, which receives signals from the transmitter of the accused and verifies his proximity to the GPS tracking unit. 2. DEVICE FOR THE VICTIM (SLD) Track - movement warning device The victim is equipped with a GPS device movement warning alert that provides an alert in form of sound, visual and/or vibration when the transmitter of the accused is within the range which has been set. When the RF signal transmitter of the accused is found in the victim's device, it delivers a panic alert to the Centre of Control. In a situation of panic the victim may use the emergency button to generate an outgoing call to a predefined emergency number. 15

16 3. 2TRACK UNITS COMMON FEATURES - The 2 Track unit provides global positioning location (GPS). - The 2 Track unit allows bidirectional communication by text (SMS) and voice with the user. - The 2 Track unit generates alarm messages if the restraining order is violated. Alarm messages as well as location, are transmitted to the Centre of Control through the GPRS mobile network - GSM Location: in cases where the monitoring unit loses the GPS signal, it automatically switches. 4. CENTRE OF CONTROL The tasks of monitoring, tracking and control of the alarms that are produced will be carried out by the operational posts during 24 hours a day, 365 days a year. 16