By Saadiya Chaudary, a Solicitor and Legal Project Manager at the AIRE Centre
It has been 69 years since the Universal Declaration on Human Rights was proclaimed by the United Nations General Assembly in Paris, on 10 December 1948, as a common standard of achievement for all peoples and all nations. The Declaration set out, for the first time, fundamental human rights to be universally protected. In the intervening period since 1948, there has been a proliferation of ‘specialist’ human rights treaties and monitoring bodies, including the establishment of the Committee on the Elimination of Discrimination against Women, set up under Article 17 of the Convention of the same name (‘CEDAW’).
General Recommendations of the CEDAW Committee
The Committee is empowered to receive information on violations of the Convention through several mechanisms including individual complaints, and has driven forward a global agenda for the elimination of discrimination against women through country-specific monitoring reports and recommendations, and more widely applicable ‘General Recommendations’. The most relevant General Recommendation for the purposes of tackling the issue of gender based and domestic violence is General Recommendation No.19 in which the Committee unequivocally recognised that:
‘The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty…[and] that discrimination under the Convention is not restricted to action by or on behalf of Governments… States may also be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation’.
As noted by the Committee, violence against women takes many forms. It is often cloaked behind cultural traditions, religious beliefs and social structures in which women are ‘lawfully’ discriminated against, and authorities take the view that acts occurring within a family home and behind closed doors are private matters in which the State cannot interfere. Traditional attitudes under which women are regarded as subordinate to men, perpetuate practices involving violence within the family, and women and girls from rural areas are at particular risk of this. The Committee has recognised the additional complications common in domestic abuse:
‘Family violence is one of the most insidious forms of violence against women. It is prevalent in all societies. Within family relationships women of all ages are subjected to violence of all kinds… Lack of economic independence forces many women to stay in violent relationships. The abrogation of their family responsibilities by men can be a form of violence, and coercion. These forms of violence put women’s health at risk and impair their ability to participate in family life and public life on a basis of equality’.
In July of this year, in recognition of 25 years since the adoption of General Recommendation No.19, the Committee adopted General Recommendation No.35 on gender-based violence against women, which updates and effectively replaces General Recommendation No.19. The latter Recommendation, however, remains the main catalyst for global developments in the prohibition of violence against women, and for recent changes in European legislation. In addition to being applied by the Committee when considering individual complaints, the provisions of CEDAW and General Recommendation No.19 have also been used by the European Court of Human Rights (‘the Court’) when determining cases relating to domestic violence or discrimination against women.
The European Court of Human Rights
One of the earliest cases in which the Court was seized with the issue of a State’s obligations to combat domestic violence was the case of Bevacqua and S. v Bulgaria (Application no. 71127/01). The Applicant in this case was regularly beaten by her husband including after their separation and divorce. She had reported the incidents to the police and sought a criminal prosecution against her husband however this had been rejected by the police on the ground that it was a private matter, as the alleged injuries fell into the category of light bodily injuries requiring a private prosecution. The Court found that ‘the possibility for the first applicant to bring private prosecution proceedings and seek damages was not sufficient as such proceedings obviously required time and could not serve to prevent recurrence of the incidents complained of… the authorities’ failure to impose sanctions or otherwise enforce Mr N’s obligation to refrain from unlawful acts was critical in the circumstances of this case, as it amounted to a refusal to provide the immediate assistance the applicants needed’ (§83). The Court concluded that the authorities’ view that they did not need to provide any assistance, as it was a “private matter” was incompatible with the Applicants’ rights under Article 8 (right to respect for private and family life).
The key case concerning domestic violence as a form of gender-based discrimination is the case of Opuz v Turkey (Application no. 33401/02), and it is a clear example of the increased vulnerability of women who are part of a society in which they face discrimination based on both gender and culture. The Applicant in this case was married to H.O. who was the son of the Applicant’s mother’s second husband. The Applicant and her mother were subjected to severe violence and death threats by H.O. over a number of years, as a result of which both had suffered life-threatening injuries. They had made complaints against H.O. but had subsequently withdrawn these following further threats from him. Both the Applicant and her mother had also informed the police that reason for withdrawing the complaints had been due to intimidation. On one occasion H.O. ran both women down with his car and on another the Applicant was stabbed seven times by H.O. as a result of which he was charged with knife assault and given a fine amounting to approximately 385 Euros. Finally, in 2002, the Applicant and her mother decided to move away and were travelling in the removal van when H.O. forced the van to pull over and then shot the Applicant’s mother who died instantly. H.O. was convicted for murder and sentenced to life imprisonment in 2008, but was released pending the appeal proceedings. The Applicant requested the authorities to take measures to protect her from her ex-husband who had started to threaten her again following his release. No measures were taken by the authorities and the Applicant filed a complaint to the European Court of Human Rights.
The Court found that the way the Applicant and her mother’s complaints had been dealt with in this case was “manifestly inadequate” (§170). The authorities were at fault for discontinuing the proceedings considering them to be a “family matter” which they could not interfere in, and they had ignored the reasons why the complaints had been withdrawn. There had been a violation of Article 2 (failure to protect the Applicant’s mother’s right to life) and Article 3 (prohibition on inhuman and degrading treatment) of the Convention. The most significant statements of the Court in this case however relate to Article 14 (prohibition of discrimination) as the Court found, for the first time in such a case, that Article 14 had been violated, as the violence that the Applicant and her mother had suffered had clearly been gender-based. The Court relied on the CEDAW Committee’s General Recommendation No.19 when formulating its reasoning in this case.
This principle has since been extended by the Court to cases where there is a risk of gender-based violence in a country of return; in N v Sweden (Application no. 23505/09) the Applicant was an Afghan national who had claimed asylum in Sweden with her husband. They subsequently separated and the Applicant began living with another man. The Applicant then claimed asylum on the basis that if returned, she would be at risk of social exclusion and possibly death due to the breakdown of her marriage and the extra-marital affair. Her asylum application and appeals were rejected by the Swedish courts, however the European Court of Human Rights held that as women were at a ‘particular risk of ill treatment in Afghanistan if perceived as not conforming to the gender roles ascribed to them by society, tradition and even the legal system’ (§55), N’s return to Afghanistan would constitute a violation of Article 3 of the Convention.
The application of the ‘Istanbul Convention’
The most recent development at the Council of Europe has been the entry into force of the Convention on preventing and combating violence against women and domestic violence (also known as ‘the Istanbul Convention’). The drafters of this Convention took close account of the jurisprudence of the European Court of Human Rights in cases concerning gender-based violence in women and in the Court’s reasoning in Opuz in particular. As a result, the Istanbul Convention is the ‘first instrument in Europe to set legally binding standards to specifically prevent violence against women and girls, protect its victims and punish perpetrators’.
The Convention is explicit in stating that violence against women is a form of discrimination against women. In particular, the Convention’s preamble recognises the need for equality between men and women in order to prevent violence, and in Article 3(a) defines ‘violence against women’ as:
‘…all acts of gender-based violence that result in, or are likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life;’ (emphasis added)
Article 3(C) defines “gender” as ‘the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’. Very much in line with the Council of Europe Convention on Action against Trafficking in Human Beings, the Istanbul Convention sets out in detail the obligations of State parties to take measures to prevent all forms of discrimination against women, including through legislation, awareness raising, education and training of professionals, and to protect victims of violence. In this regard, the Convention covers the general support services, including legal and psychological counselling, financial assistance, housing, education, training and assistance in finding employment that should be provided to a victim of violence, and also provides for the right of victims to claim compensation from perpetrators.
It remains to be seen how effectively compliance with the Convention will be achieved, particularly by States which have yet to ratify the Convention (including the UK), however the broad principles contained therein have already been referenced by the European Court of Human Rights. In a recent judgment delivered in the case of Bălşan v Romania (Application No. 49645/09) the Applicant suffered repeated domestic abuse at the hands of her partner and sought help from the Romanian police several times. They largely ignored her pleas and did not provide her with adequate protection, finding that she had provoked the abuse and her injuries were not serious enough to invoke criminal law. The Court found that this was evidence of discrimination against women in Romania and referencing the Istanbul Convention, found that the authorities had violated Article 14 of the European Convention of Human Rights.
There is now scope for the Court to continue to refer to the Istanbul Convention in other cases, including when considering the extent of the positive obligations owed to victims of domestic and gender-based violence under Article 3 of the ECHR. For many victims, the inability to get safe housing, financial assistance, legal help and medical assistance compel them to remain with the perpetrator and continue to put themselves at risk. The Istanbul Convention envisages a basic standard of assistance, which should be made available to victims across Council of Europe Member States, and the European Court of Human Rights could be one of the mechanisms through which much of this is achieved.
The AIRE Centre provides legal assistance in cases involving victims of domestic violence and human trafficking. While The AIRE Centre mostly deals with the legal aspect of domestic and gender-based violence, it also recognises the importance of the sociopsychological aspect. This is why The AIRE Centre is also a partner in a European project – Project FIRST: Capacity Building for First Points of Contact for Victims of Domestic and Gender-based Violence aiming to establish a national network of organisations that may find themselves in a position as a first point of contact for victims of domestic violence.
 Individual complaints can be submitted to the Committee under the Optional Protocol to CEDAW, which entered into force on 22 December 2000. The Optional Protocol also establishes an enquiry procedure through which the Committee can, on receipt of information, investigate any gross or systemic violations taking place in a State.
 CEDAW Committee General Recommendation No.19, paragraphs 6-9.
 CEDAW Committee General Recommendation No. 19, paragraphs 11 and 21.
 CEDAW Committee General Recommendation No.19, paragraph 23.
 The Istanbul Convention was adopted by the Council of Europe on 6 April 2011 and it entered into force on 1 August 2014.
 European Commission, Roadmap: (A possible) EU Accession to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) (Oct. 2015), http://ec.europa.eu/smart-regulation/roadmaps/docs/2015_just_010_istanbul_convention_en.pdf, page 1.
 Article 4
 Article 13
 Article 14
 Article 15
 Article 18
 Article 20
 Article 30