Combating Domestic Violence against Women According to the Judicial Precedent of the European Court of Human Rights

Document Type : Original Independent Original Article

Authors

1 MA in Law Department, Lahijan Branch, Islamic Azad University, Lahijan, Iran.

2 Assistant Professor, Department of Jurisprudence and Law, Lahijan Branch, Islamic Azad University, Lahijan, Iran.

Abstract

General recommendation no. 19 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) acknowledged and incorporated violence against women into the system of eliminating discrimination against women as a gender-based discrimination, which previously was not explicitly included. Governments are obligated to fight violence against women, a gender-based discrimination in international human rights law. The European Convention on Human Rights has adopted rules to combat domestic violence against women. In addition to requiring governments to protect victims and punish perpetrators of violence, these commitments also eliminate the root causes of violence. The question concerns the representation of these provisions in the judicial precedent of the European Court of Human Rights. Therefore, this theoretical and descriptive-analytical study sought to explain the judicial precedent of the European Court of Human Rights in tackling domestic violence against women. Analysis of domestic violence against women within the framework of international human rights law in the judicial precedent of the European Court of Human Rights shows that these verdicts also consider this form of violence incompatible with European human rights laws and acknowledge that member states have practical commitments in this regard. 

Highlights

Introduction

Domestic violence is a common form of violence against women that governments and international organizations have tried to prevent and fight. However, it has been specifically dealt with within the supervisory framework of the European Convention on Human Rights and the judicial precedent of the European Court of Human Rights, which is different in form and substance from all preceding preventive measures. Therefore, there is a need to investigate the complex aspects of the type, nature, and form of action against violence, the alignment of international institutions, and the overlapping of international laws in dealing with domestic violence against women. Therefore, this study examined domestic violence against women specifically in terms of definition, forms, and state obligations while considering the precedent of international human rights law in the European Court of Human Rights. Given the specific impact of each concept with a different perspective, this was a lexical and idiomatic study.

This study seeks to discover how the provisions of the European Convention on Human Rights prohibiting domestic violence against women applied in the judicial precedent of the European Court of Human Rights and its verdicts in such cases. Seemingly, when dealing with cases of domestic violence against women, the precedent of the European Court of Human Rights suggests that it is especially attentive to state obligations for preventing and combating domestic violence (regardless of how it is perpetrated) and supporting victims, and has condemned governments in proven cases. The European Court of Human Rights’ attitude and approach to cases of domestic violence against women points up differences between measures to prohibit violence against women in accordance with the European Convention on Human Rights and the previous measures taken around the world.

 

Methodology

This theoretical study has a descriptive-analytical approach with library research analysis.

 

Findings

Nowadays, domestic violence against women is an issue that affects the entire human society. It is difficult to qualify and quantify the incidence of violence typically perpetrated in secret. However, the rule of law requires that such cases be criminalized, and there have been several preventative measures employed. The territoriality principle of criminal law requires applying the law of the country where violence has occurred, which also applies to domestic violence. However, after the adoption of the European Convention on Human Rights, the judicial precedent of violence against women, especially domestic violence, has entered a new stage. Citizens of European Union (both members and non-members states) have the right to refer to the European Court of Human Rights for complementary jurisdiction of domestic violence against women and assert their rights. How citizens refer to this court, its proceedings, and the form and nature of the court’s verdicts are unique. In addition to the novel approach of processing domestic violence against women, this court can pave the way for other organizations dealing with violence against women. The novelty of this study is in its feasibility analysis of applying such proceedings to domestic violence against women by other unions.

 

Results

The general recommendations of the Committee on the Elimination of Discrimination against Women and the standards its decisions have established on individual complaints are guidelines for the European Court of Human Rights in processing claims of domestic violence against women. There has not been sufficient emphasis on the judicial precedent of the European Court of Human Rights on violence against women, parameters of equality of men and women, non-discrimination, and women’s human rights. Furthermore, the importance of economic and social factors, which are undeniable in countering violence against women, has been neglected. The European Court of Human Rights still has a poor record on domestic violence against women given the incomprehensive and ineffective conceptualization of violence against women.

Since victims of domestic violence are vulnerable, it is notable that the judicial precedent of the European Court of Human Rights emphasizes the obligation of member states of the Human Rights Convention to exercise caution in cases of violence. However, the implementation of sanctions issued after conviction of governments in claims is neglected.

Examining the precedent of the European Court of Human Rights on violence against women reveals its inability to identify causes of violence. Specifically, compared to the Committee’s decision on eliminating all forms of violence against women, the European Court of Human Rights does not put sufficient emphasis on preventative measures in its decisions. Meanwhile, despite significance of the adoption of the Istanbul Convention on eliminating violence against women, there is a lack of specific international binding documents on this issue. Despite the effort to address this deficiency with two general recommendations by the Committee on the Elimination of Discrimination against Women, it seems reasonable given the subject’s importance to adopt an international convention on violence against women or add a protocol to modify this subject.

Therefore, the hypotheses put forth in response to the main question is confirmed based on the results since it was determined, in the precedent of the European Court of Human Rights regarding cases of domestic violence against women, that the Court is especially attentive to state obligations for facilitating the prevention of domestic violence, regardless of how it is perpetrated, and supporting victims, and has condemned governments in proven cases.

Keywords

Main Subjects

References

  1. Arslan Oncu, (2011). Investigation Procedure in Supranational Human Rights Law, Public and Private International Law Bulletin, Vol. 31(1), 29-90. (In Turkish)
  2. Arslan Oncu, G. (2011). The Right to the Protection of Private Life in the European Convention on Human Rights, Beta, Istanbul. (In Turkish)
  3. Arslan Oncu, G. (2018). The Case of Domestic Violence Against Women in the European Convention on Human Rights and Tools to Combat It, Public and Private International Law Bulletin, 32(2), 1-37. (In Turkish)
  4. Aydin v. Turkey, (App. No. 23178/94), Judgment of the ECtHR of 23 September 1997.
  5. Branko Tomasic and Others v. Croatia, (App. No. 46598/06), Judgment of the ECtHR of 15 January 2009.
  6. Convention on the Elimination of All Forms of Discrimination against Women. (1979). 18/12
  7. Croatia (2010). (App. No. 55164/08), Judgment of the ECtHR of October 14.
  8. S. and Others v. Slovakia, (App. No. 8227/04), Judgment of the ECtHR of 15.09.2009.
  9. Ending Violence against Women from Words to Action. (2006). Study of the Secretary- General of the United Nations, United Nations Publication, and Sales No. E.06.IV.8.
  10. Eskandari, S., Aliverdinia, A., Riahi, M., Memar, R. (2021). Sociological explanation of the attitude towards violence against women among male university students in Mazandaran Province, Social psychological studies of women, 19(2), 119-164. (In Persian)
  11. Ezazi, Sh. (2001). Domestic violence: battered women, Tehran: Sali Publishing. (In Persian)
  12. Ezazi, Sh. (2004). Society structure and violence against women, Social Welfare, 4(14), 59-96. (In Persian)
  13. Freeman, M. Chinkin, Ch. Rudolf, B. (2012). The UN Convention on the Elimination of All Forms of Discrimination against Women- A Commentary, Oxford University Press.
  14. General Recommendation No.19: Violence against women, 11th Session, 1992.
  15. Goldscheid, J. (2006). Domestic and Sexual Violence as Sex Discrimination: Comparing American and International Approaches, Thomas Jefferson Law Review, 28(3), 355-398.
  16. Hajduova v. Slovakia. (2010). (App. No. 2660/03), Judgment of the ECtHR of November 30.
  17. Irene Wilson v. the United Kingdom. (2012). (App. No. 10601/09), Decision of the ECtHR of October 23.
  18. Karami, M., Mashhadi, A., Shakibnezhad, A. (2021). A review of the prohibition of violence against women in the United Nations World Conferences on Women's Issues: A Narrative of Fears and Hopes, Legal Thought Journal, 2(7), 21-46. (In Persian)
  19. Koolaee, A., Abedi, A. (2016). A Glance on Iranian Women Political Participation in 2001-2011, International Studies Journal, 13(2), 29-48. (In Persian)
  20. Martín-Fernández, M., Gracia, E., Lila, M. (2019). Psychological intimate partner violence against women in the European Union: A crossnational invariance study. BMC Public Health, 19.
  21. Meyersfeld, B. (2010). Domestic Violence and International Law, Hart Publishing.
  22. Parvin, Kh., Shabani, S. (2021). Domestic violence against women with disabilities and access to justice in the international human rights system, public law studies, 51(3), 1049-1068. (In Persian)
  23. Rahkeshay, H. (2016). The role of government intervention in domestic violence against women from the perspective of human rights, study journal for the protection of women's rights, 2(4), 121-149. (In Persian)
  24. Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights resolution 1995/85, E/CN.4/1996/53.
  25. Report of the Special Rapporteur on violence against women, its causes and consequences, Yakin Ertürk, 15 Years of the United Nations Special Rapporteur on violence against women, its causes and consequences (1994-2009)- A Critical Review, A/HRC/11/6/Add.5, 27 May 2009.
  26. Sadeghi fasaei, S. (2010). Family violence and women's strategy in facing it, examining Iran's social issues, 1(1), 107-142. (In Persian)
  27. Safarinia, M. (2019). European Union human rights system in transnational interactions from concept to practice, Public law studies, 49(3), 859-879. (In Persian)
  28. Salarifar, M. (2009). Explaining the causes and contexts of domestic violence, Islamic studies and psychology, 3(4), 7-41. (In Persian)
  29. Salarifar, M. (2010). Domestic violence against women, investigation of causes and treatment, Tehran: Studies office and women's research publishing. (In Persian)
  30. Sapkota, D., Baird, K., Saito, A., Anderson, D. (2019). Interventions for reducing and/or controlling domestic violence among pregnant women in low- and middle-income countries: a systematic review. Syst Rev. Apr 02; 8(1), 2019.
  31. Shadmani, M. (2017). Analysis and investigation of violence against women (case study of women in Europe), study journal of the protection of women's rights, 3(9), 61-86. (In Persian)
  32. Sharifi sadr, M. (2018). Universal Periodic Review of the Human Rights Council and the Status of Women in Iran, International Studies Journal, 15(2), 43-68. (In Persian)
  33. Taghavi, S. (2013). The human rights regime in the European Union lacks inclusion and integration, Iranian research paper on international politics, 2(1), 24-45. (In Persian)
  34. Thomas, D., Beasley, M. (1995). Domestic Violence as a Human Rights Issue, Albany Law Review, Vol. 58, 1119-1147.
  35. Van Leeuwen, F. (2010). Women’s Rights Are Human Rights, The Practice of the United Nations Human Rights Committee and the Committee on Economic, Social and Cultural Rights, Intersentia.
  36. Vojdik, Valorie K. (2007). Conceptualizing Intimate Violence and Gender Equality: A Comparative Approach, Fordham International Law Journal, 31(2), 487-527.
  37. Yukselbaba, U. (2012), Habermas and the Public Sphere: Transition from the Bourgeois Public Principle to the Communicative Public, Plate XII, Istanbul. (In Turkish)
International Studies Journal (ISJ)
Volume 19, Issue 2 - Serial Number 74
September 2022
Pages 55-75

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