Human Rights Law and Domestic Violence

by Rory OConnell on September 19, 2011

We are delighted to welcome this guest post by Dr. Ronagh McQuigg. Ronagh is a lecturer in QUB Law School and has published extensively on the topic of domestic violence and human rights law. Her book International Human Rights Law and Domestic Violence has just appeared with Routledge. Ronagh’s web page is at http://www.qub.ac.uk/schools/SchoolofLaw/Staff/DrRonaghMcQuigg/

Human Rights Law and Domestic Violence.

Domestic violence is an issue that affects vast numbers of women throughout the world, however it has only been recognised as being a human rights issue relatively recently.  For example, although it has now been established that domestic violence constitutes a clear violation of several of the rights contained in the European Convention on Human Rights, it was not until 2007 that the European Court of Human Rights dealt substantively with a case involving this issue.

Nevertheless, in a series of cases in recent years, the European Court has now clearly established that domestic violence can constitute a violation of the right to life (article 2); the right to be free from torture or inhuman or degrading treatment (article 3); the right to respect for private and family life (article 8); and the prohibition of discrimination (article 14).  One example of this jurisprudence is the case of Opuz v Turkey, in which the applicant alleged that the authorities had failed to protect herself and her mother from domestic violence on the part of her husband, which had resulted in the death of her mother and her own ill-treatment.  The Court held that there had been a violation of article 2, due to the failure of the authorities to safeguard the right to life of the applicant’s mother.  The applicant had been subjected to violence, injury and death threats and she alleged that the authorities were negligent towards her situation, which caused her pain and fear in violation of article 3 of the Convention.  She argued that the injuries she had suffered amounted to torture within the meaning of article 3.  The Court held that the violence suffered was sufficiently serious to amount to ill-treatment within the meaning of article 3, although it did not specify whether it amounted to torture, as opposed to inhuman or degrading treatment.  The Court concluded that there had been a violation of article 3 ‘as a result of the State authorities’ failure to take protective measures in the form of effective deterrence against serious breaches of the applicant’s personal integrity by her husband.’ (at para. 176).  In addition, the applicant claimed that there had been a breach of article 14 of the Convention, an argument which was also upheld by the Court.  The applicant demonstrated through statistical data that domestic violence affected mainly women, and established that judicial passivity in Turkey created a climate conducive to domestic violence.  Other important cases of the European Court which address the issue of domestic violence include Kontrova v Slovakia ; Bevacqua and S v Bulgaria; E.S. and Others v Slovakia; A v Croatia; and Hajduova v Slovakia.

In July 2011 the Inter-American Commission on Human Rights referred extensively to the jurisprudence of the European Court in its decision in the case of Jessica Lenahan (Gonzales) v United States.   The facts of this case involved the abduction of Ms Lenahan’s three daughters by her estranged husband (Simon Gonzales).  Ms Lenahan had a domestic violence restraining order against her estranged husband and called the police on numerous occasions following her daughters’ disappearance.  Despite the existence of the restraining order, the police refused to act.  Simon Gonzales then arrived at the police station and opened fire.  The police returned fire, resulting in his death.  They later found the bodies of the three children in the back of his truck.  The Inter-American Commission held that the failure of the police to protect Jessica Lenahan and her children constituted a violation of various provisions of the American Declaration of the Rights and Duties of Man, specifically article I (the right to life), article II (the right to equality), Article VII (relating to the special protection of children), and Article XVIII (the right to judicial protection).  In its decision the Commission recommended that a range of reforms be implemented on the federal and state levels in order to protect women and children from domestic violence.

The European Court of Human Rights is certainly to be commended for its jurisprudence in this area, which is having an important impact on the international level, as evidenced by the Jessica Lenahan case.  Nevertheless, there are difficulties with the case law of theEuropean Court.  In these cases, particular attention has been paid to the responses of police forces, however various commentators working in the area of combating domestic violence have made the point that it is measures of social support, such as financial resources, refuge accommodation and housing, that are most needed by victims.  To date, the Court has not placed positive obligations on states as regards these issues.  Another problem lies in the fact that violence against women taking place in the home constitutes an “unseen” crime, which victims are often too frightened or ashamed to report.  The test of standing found in the European Convention is very narrow – under article 34 the person wishing to bring a case must be a victim.  This test of standing is thus problematic when dealing with an “unseen crime” such as domestic violence, where a high percentage of victims simply may not wish to engage in litigation.

Another method of using human rights law in relation to the issue of domestic violence involves using the statements made by international human rights bodies to place pressure on governments to take further steps to combat domestic violence.  Although the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) does not explicitly mention domestic violence, the CEDAW Committee has nevertheless interpreted the Convention’s provisions in such a manner as to bring this issue within its scope.  The UN human rights bodies have made a wide range of statements on the issue of domestic violence and have thus placed a broad range of obligations on states as regards this area.  These duties include improving the responses of states’ criminal justice systems; ensuring that civil law measures are effective; implementing public awareness campaigns; and, crucially, providing social support measures such as housing, refuge accommodation and child care facilities to victims.  It must however be remembered that the UN human rights treaty body system as a whole suffers from very substantial difficulties in relation to  implementation and enforcement.

The CEDAW Committee has also produced important jurisprudence on the issue of domestic violence.  Article 2 of the Optional Protocol to CEDAW allows individuals or groups of individuals who are victims of any breaches of CEDAW to submit complaints to the Committee.  Crucially, communications may also be submitted on behalf of individuals with their consent, unless acting on their behalf without their consent may be justified.  This is a much wider test of standing than that which is contained in the European Convention on Human Rights.  To date, three communications on the issue of domestic violence have been considered by the Committee – AT v Hungary; Goekce v Austria; and Yildirim v Austria.  Notably, both the Goekce and the Yildirim communications were brought by the Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice, on behalf of the family members of victims of domestic violence who had been killed by their husbands.  Violations of CEDAW were found by the Committee in all three instances and the Committee set out the duties which states should fulfil in relation to victims of domestic violence, such as the provision of a safe home, child support and legal assistance.  All allegations of domestic violence should be investigated in a thorough manner and victims provided with sufficient access to justice.

One of the most recent developments in the area of human rights law and domestic violence is the adoption by the Committee of Ministers of the Council of Europe of the Convention on Preventing and Combating Violence against Women and Domestic Violence in April 2011.  The Convention was opened for signature inIstanbul on 11 May 2011 and was signed by 13 states.   The provisions of the Convention are comprehensive in nature, encompassing not only criminal justice responses, but also areas such as awareness raising and the provision of social support measures to victims.  The Convention relies primarily on a reporting mechanism to monitor implementation, a strategy similar to that which is used as regards the UN human rights treaties such as CEDAW.  However, the problems surrounding the implementation and enforcement of these treaties are well-known, and it could well transpire that similar difficulties will emerge as regards the enforcement of the new Council of Europe Convention.  Nevertheless, this Convention certainly constitutes an important development, as it sets new legally binding standards in the area of domestic violence.

Domestic violence has now been clearly recognised as a human rights issue, the European Court’s jurisprudence being extremely significant in this regard.  The decision of the Inter-American Commission in the Jessica Lenahan case is certainly very much to be welcomed, as is the adoption of the new Council of Europe Convention.  The challenge must now lie in ensuring that human rights law is used to its full potential in contributing to the movement to combat domestic violence.

 

 

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