Legal instruments to combat stalking, based on international experience

This publication is devoted to an overview of legal mechanisms designed to protect the right to privacy of persons who have suffered or may suffer from stalking

Article 8 of the European Convention of Human Rights states, "Everyone has the right to respect for his private and family life, his home and correspondence." In other words, the boundaries of a person's private social life must be defined and protected by law. Here and there, some legislative uncertainty of the personal boundaries of a person gives rise to offenses such as stalking.

Therefore, Stalking (English "stalking" from the stalk — "pursue," "sneak up") — is the unwanted persecution of someone, imposing oneself on someone, harassment, and mental pressure.

For the first time, the concept of "stalking" appeared at the legislative level as an offense for which criminal liability was established at the end of the twentieth century in the USA (in the state of California). Under the provisions of the State Penal Code, "stalking" is defined as deliberate, malicious intent, harassing and causing distress to another person.

Henceforth, many countries at the legislative level have established legal responsibility for actions that fall under the definition of "stalking." In this context, it should be noted that the initially delineated boundaries of the relevant offense were somewhat limited and mainly related to women's rights and possible violations against the background of family conflicts. The Istanbul Convention of the Council of Europe on Preventing and Combating Violence against Women and Domestic Violence of 2011 provided for the establishment of criminal liability for specific criminal offenses, particularly for an intentional act of repeatedly carried out threatening behavior directed at another person that forces him or her to fear for their safety. By Article 34 of the Convention, Parties shall take the necessary legislative or other measures to ensure that intentional conduct consisting of repeated threatening actions directed at another person and causing him or her to fear for their safety is criminalized. States parties are obliged to ensure that there are restrictive or protective orders for all victims of violence covered by the Convention, including persecution.

Criminal legislation in the fight against surveillance in the 28 EU member states comes down to separate articles added to the current criminal codes.

However, in some countries, the legislation provides broader guarantees for protecting citizens' rights in a particular context by expanding the boundaries of the objective side of the relevant offense, not focusing only on illegal acts subject to family law norms.

For example, in 2023 Ireland's law "On Criminal Justice" came into force, which significantly strengthened the responsibility for committing acts of stalking and introduced new types of criminal penalties. A person is found guilty of stalking if, without legal authority or reasonable justification, they continuously interfere with the peace and privacy of another person by their actions intentionally or negligently or their actions cause harm, alarm, or distress; continuously monitor or spy on a person; physically molest a person; disclose private information about an individual; interfere with human property (including pets); damaged property; try to contact a person without their consent; use electronic communication or information systems without a person's consent to monitor him. If the persecution did not have serious consequences, the punishment includes summary conviction, imprisonment for a term not exceeding twelve months, and a fine.

The maximum penalty for stalking causing harm in cases of domestic violence has also been increased to ten years in prison. The objective side of this type of criminal offense also includes harassment, that is, any aggressive behavior that provokes interference in a person's private life and causes anxiety, distress, concern, fear, or offense.

In Ukraine, on December 7, 2017, the Verkhovna Rada of Ukraine adopted the Law of Ukraine "On Prevention and Combating Domestic Violence." The Law of Ukraine defines the organizational and legal principles of prevention and counter measures against domestic violence.

On June 20, 2022, Ukraine ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence.

On October 2, 2024, the Draft Law on Amendments to the Law of Ukraine "On Prevention and Combating Domestic Violence" regarding establishing liability for criminal prosecution (stalking) was registered. The relevant draft law proposes amending the Law of Ukraine "On Prevention and Combating Domestic Violence" and supplementing the relevant law with definitions of stalking and cyberstalking. However, the legal analysis of the norms of the specified draft law indicates the need for a particular distinction between stalking and offenses against the background of family conflicts. After all, the first is possible not only in the field of family legal relations. For example, electronic stalking is a common phenomenon closely related to the constant progress of technology. Easier and faster access to cyberspace also means a greater risk of misusing or abusing the environment to attack or invade the lives of others, taking advantage of the anonymity and lack of restrictions present in a real-world context.

In recent years, many illegal acts have been committed by criminals in the field of cyberstalking in Ukraine. Given this, there is a need to provide relevant articles in the Code of Administrative Offenses and the Criminal Code of Ukraine, which would contain a detailed description of the relevant illegal acts and corresponding sanctions.