Конфликты ценностей в правотворчестве: политико-правовая природа и эффективность охранных ордеров как инструмента профилактики семейно-бытового насилия

Abstract

The paper asserts the existence of a long-term political and legal conflict over the adoption of the law on the prevention of family and domestic violence in Russia. It is argued that this conflict reflects a discrepancy in values related to the limits of state intervention in the lives of citizens in order to ensure security. The protective order is currently considered to be a key object of conflict in the field of domestic violence law-making and criminal law policy. Analysis of the attitudes of the parties of this conflict towards this measure reveals that the initiators of the law are in the position of prioritizing the right to security and state protection for victims, while their opponents give priority to the value of the right to privacy. Based on a review of the literature on the political and legal nature of protection orders, their legislative regulation, as well as their validity, it is concluded that this measure is aimed to be coercive while its application is not accompanied by due process guarantees. Protective orders belong to the category of coercive preventive measures, the widespread use of which as solutions for crime control is of concern to lawyers and criminologists. A significant number of studies on the effectiveness of protective orders do not allow us to conclude unequivocally that this tool reduces the level of recidivism and provides needed protection to the victim. A protective order has a potential to enhance conflict and, in some instances, can lead to an escalation of violence. It is suggested that one of the possible solutions for the resolution of the ongoing law-making conflict is the option of abandoning the protective orders as a staple for preventing family conflicts and domestic violence. The reported study was funded by RFBR (project № 19–111–50667 «Expansion» «Protective order as an instrument of domestic violence prevention: legal nature and effectiveness»).