The Istanbul Convention: “New" legal instrument against "gender violence"?

Categories: Family Law
Typology: Articles

Summary

1. Introduction
2. The Istanbul Convention
3. Examples of «gender violence»: Opuz v. Turchia and Valiulene v. Lituania
4. Conclusions


1. Introduction

The present study intends to address a theme that has acquired paramount importance in today’s human rights’ discourse- especially in light of the significant increase in the number of cases in which it has become relevant.

The theme in question is violence against women and domestic violence. The most comprehensive international instrument designed to curb this phenomenon - which has as its objective the prevention of fight - is the Istanbul Convention[1], approved by the Council of Europe on 11 May 2011.

The concept of violence against women as a «violation of human rights and discrimination» had already been used in the past, most notably when the initiatives taken by the Council of Europe in 2002 - when it approved Recommendation - Rec 2002(5)[2], which calls Member States to adopt a series of measures including: revising their national policies, ensure the protection of victims and develop action plans for their defense and the prevention of such crimes.

The recommendation’s implementation was then followed by the The Council of Europe’s Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV), whose results are contained in the Final Activity Report (EG - TFV (2008) 6), which recommends the adoption of a Convention aimed precisely at preventing and combating violence against women.

Therefore, protection against women has become part of the fundamental framework of the protection of human rights[3].

This subject is still sparkling lively debates.

«Today the language of human rights, if not human rights themselves, is nearly universal. Governments everywhere, including the government of the People's Republic of China, claim to believe in and respect the dignity of their citizens, even if they do not endorse the brand of human rights to which President Clinton would have theme adhere. This is not to say that everyone agrees on the meaning of human rights or what they entail»[4].

Ultimately, «the allure of human rights persist because they can, and do, mean many things at once. Human rights can be sources of empowerment and protection for persons against the societies in which they live, or they can constrain those same persons. Additionally, they can liberate or limit the imagination of the possible; they can revolutionize or conserve. Like all rights, international human rights authorize action and yet undermine authority's claims. They are, by definition, mandatory claims, yet they are fecund with interpretive possibilities. They both constitute us as subjects and provide a language through which we can resist that constitution and forge new identities»[5].

2. The Istanbul Convention

The Convention - which address in separate chapters prevention, the protection of victims and prosecution - certainly is a legal instrument which stands in «continuity» with the principles[6] enunciated by the extensive case law of the European Court of Human Rights - which will be explored later.

The Member States of the Council of Europe and the other signatories of the Convention «condemn all forms of violence against women and domestic violence, recognize that the achievement of equality[7] kind of de jure and de facto is a key element in preventing violence against women is a manifestation of relationships of historically unequal power between the sexes, which have led to domination and over and discrimination against women[8] against them by men and prevented their full emancipation; recognize the structural nature of violence against women as a gender - baby which women are forced into a subordinate position compared with men recognize with deep concern that women and girls are often exposed to serious forms of violence, including domestic violence, sexual harassment, rape, forced married, crimes committed in the name of so called "honor" and female genital mutilation, which are a serious violation of human rights of woman and girls and the main obstacle to achieving gender equality, note the repeated violations of human rights violations in armed conflicts affecting the civilian population, particularly women, subjected to widespread rapes and or systematic sexual violence and the potential aggravation of gender - based violence during and after conflict; recognize that woman and girls are at greater risk of being subjected to gender - based violence than men; recognize that domestic violence affects women so disproportionate and that men can also be victims of domestic violence as witnesses of violence within the family [...][9]».

States agree, therefore - with a desire to set Europe free from violence against women and from domestic violence - to protect women from all forms of violence and to prevent, prosecute and eliminate violence against women and domestic violence; to promote the elimination of all forms of discrimination against women and promote real sex equality, including strengthening the autonomy and self-determination of women; to set up an overall framework of policies, protection and assistance measures to all victims of such crimes; to promote international protection in order to eliminate these forms of violence; and to support and assist organizations and law enforcement agencies so that they can collaborate effectively to adopt an integrated approach to their elimination.

Turning now to the detailed examination of the Istanbul Convention, it is first of all necessary to analyse the definition of «violence against women» provided in art. 3.

The use of this terms refers to a «violation of human rights and a form of discrimination against women, including all acts of violence based on gender, which cause or are likely to cause harm or suffering physical, sexual, psychological or economic, including threats of such acts, coercion, or arbitrary deprivation of of liberty, whether occurring in public life, in private life», while defining the «like» the Istanbul Convention refers to «roles, behaviors, activities and attributes that a particular socially constructed society considers appropriate for men and women», as specified in paragraph (a).

Secondly, paragraph (c) clarifies that the term «violence against women based on gender» is to be intended as «any violence directed against a woman as such, or that affects woman  disproportionally».

The subsequent provisions, which address “fundamental rights” –especially the “right of everyone, particularly of women, to live free from violence”-, the principle of equality and the obligation of Member States to prevent gendered violence, to promote non-discrimination, due diligence and gender-sensitive policies, are followed by Chapter II of the Convention, which regulates the integrated policies and data collection[10], Chapter III, which concerns prevention[11], and Chapter IV , which relates to protection and support measures[12].

The core of the Istanbul Convention, i.e. «substantive law», is examined in Chapter V.

With regards to this latter - and in particular in relation to the procedural rules and the appeal procedures in civil matters - the opening of this chapter (art. 29) states that the «Parties shall take the necessary legislative or other measures to provide victims with adequate civil remedies in respect of the offender» (I paragraph).
            The next paragraph goes on to provide that « Parties shall take the necessary legislative or other measures to provide victims, in accordance with the general principles of international law, with adequate civil remedies against State authorities that have failed in their duty to take the necessary preventive or protective measures within the scope of their powers.».
            The following provision (article 30) refers to «compensation», and provides that the parties must adopt the necessary (legislative or other) measures to ensure that victims have the right to seek pecuniary redress from the authors of any offense under the Convention. To this end, Member States shall grant adequate compensation to those who have suffered serious injuries to the body or health, if redress is not otherwise available from the offender or from insurance or medical and social services funded by the state; Member States may, however, seek a reimbursement of such compensation from the offender, provided that the safety of the victim is adequately taken into account. Finally, such compensation must also be granted within a reasonable time.

3. Examples of «gender violence»: Opuz v. Turkey and Valiulene v. Lituania

Among the numerous existing rulings that address the theme of gender and domestic violence, two recent ECHR decisions appear to be particularly significant. These are Opuz v. Turkey (Application 33401/02, judgment of 09.06.2009) and Valiulene v. Lithuania (Application 33234/07, judgment of 26.03.013).

In the first case, Ms. Opuz, a Turkish national, had married Mr. H.O. in 1995. Between 1995 and 2001, the applicant and her mother were the victims of violent acts perpetrated by Mr. H.O., which were regularly reported to the Turkish authorities. However, criminal proceedings, that were commenced following each of these episodes, were also systematically discontinued because Mr. H.O. would always place the two women under psychological threat, so that they would eventually withdraw their claims. In 2001, Mr. H.O., having murdered Ms. Opuz’s mother, was tried and sentenced to life imprisonment; the penalty was, however, reduced by the Turkish Court of Appeals to 15 years’ imprisonment, in reason of the convict’s “good behavior”. Nevertheless, Ms Opuz filed a complaint with the ECHR, alleging a breach of Articles 2 and 3 of the European Convention on Human Rights, given that the Turkish authorities had not been able to protect the life of her mother, let alone intervened to prevent the repeated acts of physical and psychological violence that she herself had suffered. Also, the applicant complained there had been a breach of Articles 6 and 13 of the ECHR, given the ineffectiveness of the criminal proceedings in Turkey against her husband.

Finally, the last complaint concerned an alleged breach of Article 14 ECHR in conjunction with Article 2 and 3, as Turkish law affords a lesser consideration to women as opposed to men, thus legitimizing discriminatory treatment against them.

In the present case, the European Court of Human Rights found violations of Articles 2 and 3 ECHR, given that the national authorities had not fulfilled their positive obligations to protect the right of life and not have avoided inhuman and degrading treatment.

The second-mentioned case is innovative because the of the peculiar assessment of the facts made by the Court. The case concerned a series of episodes of violence perpetrated by a Belgian citizen against a Lithuanian woman with whom he had lived for five years.

Following a private prosecution initiated by the woman at the District Court of Panevėžys for the crime of “minor personal injury”, in 2005 filing was arranged by the prosecutor against the applicant's husband. That claim, however, was rejected because of the limitation period of the crime in question.

The victim then appealed to the European Court, assuming that the behavior of state authorities had infringed Articles 6 and 13 of the ECHR. The Court itself, however, raised an ex officio question, assuming that the appeal should be examined in light of Articles. 3 and 8 of the ECHR.

In relation to the present case, the Court considered that the mistreatment of women reached the threshold of severity required for the purposes of Article 3 ECHR and also held that the positive obligations -procedural in nature- stemming from art. 3 of the ECHR absorbed the complaint concerning Article. 8 of the ECHR.

With the decision in question, therefore, once again, the European Court of Human Rights tackled the delicate phenomenon of violence against women, but - most importantly - introduced a new element when it subsumed the facts under art. 3 of the ECHR, which had to be distinguished as being objectively different from those of the precedent Opuz v. Turkey.

What clearly emerges from both judgments is that «cases of domestic violence require a peculiar and particular attention and protection by the State».
            This, then, shows how «women's rights are violated in a variety of ways [...]. Most women's experiences of human rights violations are gendered, and many forms of discriminations or abuse occur because the victim is female [...]. The women's human rights movement has focused primarily on abuses where gender is a primary or related factor because these have been the most invisible and offer the greatest challenge to the human rights movements»[13].

4. Conclusions

The Istanbul convention is an example of how the human rights discourse has succeeded in enhancing the condition of vulnerable individuals, specifically of women.

In this context, it should be reminded that the Preamble of the Universal Declaration of Human Rights of 1948 states that if one « … …is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression…[then] human rights should be protected by the rule of law», and that, consequentially the General Assembly proclaimed that the Universal Declaration of Human Rights should be held as a common standard of achievement for all peoples and all nations.

The Istanbul Convention, therefore, is a hallmark in the promotion of this objective, which is made possible by the fact that «the language of rights is ubiquitous. It shapes the way we construct our debates over issues such as abortion, affirmative action, and sexual freedom. This provocative new study challenges the very concept of rights, arguing that the jeopardize our liberty and undermine democratic debate. By re-conceptualizing our ideas about limited government, it suggests that we can limit the reasons or rationales on which the polity may act. Whereas we once used the language of rights to thwart democratic majorities, Bedi argues that we should now turn our attention to the democratic state's reason for actin. This will permit greater democratic flexibility and discretion while ensuring genuine liberty. Deftly employing political theory and constitutional law to state its case, the study radically rethinks the relationship between liberty and democracy, and will be essential reading for scholars and students of political legal philosophy»[14].

(Altalex, 18 June 2014. Article by Ina Dhimgjini)

________________

sources

Bibliography: authors mentioned in notes

Recommendation - Rec 2002(5)

Task Force of the CoE campaign's

Opuz v. Turkey (application 33401/02; judgment of 09.06.2009) ECHR

Valiulene v. Lithuania (application 33234/07; judgment of. 26.03.2012) ECHR

Istanbul Convention (following text)

*Il presente contributo è stato presentato all’interno dell’ Interdisciplinary PhD Workshop «Human Rights, Democracy, Diversity and Gender», tenutosi a Lido di Venezia (VE) i giorni 10-11 April 2014 ed organizzato dall’Università di Graz.

[1] To read the text of the Convention (in italian) see: www.coe.int/t/dghl/standardsetting/convention-violence/convention/Convention2010 Italian.pdf, website consulted on 11 march 2014. «By the law of 27 June 2013, n. 77 Parliament approved the ratification of the Convention of the Council Europe Convention on preventing and combating violence against women and domestic violence, made in Istanbul on 11 May 2011. The Council of Europe Convention on preventing and combating violence against women and domestic violence is the first legally binding international instrument aimed at creating a comprehensive regulatory framework for the protection of every forms of violence against women. The Convention also operates specifically in the context of domestic violence, which affect not only women, but also other subjects, such as children and the elderly, which equally apply the same standards of protection. To enter into force, the Convention requires ratification by al least 10 states, including eight members of the Council of Europe; at the moment, there are 32 signatory states, and the ratifications 8 (Albania, Austria, Bosnia and Herzegovina, Serbia, Italy, Montenegro, Portugal and Turkey). Italy has signed the Convention on 20 September 2012, after approval by the Chamber (see Senate hearing on 20 September 2012) of motions and orders aimed at such daily starting end: after parliamentary approval for ratification (Law 77/2013), our country has deposited its instruments dated September 10, 2013 [...]», in www.camera.it/leg17/465?area=2&tema=873&La+Convenzione+di+Istanbul+e+la+lotta+contro+la+violenza+sulle+donne, site consulted on 12 March 2014.

[2] The application of Recommendation is regularly observed by monitoring cycles, the last of which dates back to 2010 - when it was established the Ad Hoc Committee (Ad Hoc Committee on Preventing and Combating Violence Against women and Domestic Violence - CAHVIO) for the preparation of the Istanbul Convention.

[3] See on this point: A. Sarat - T. R. Kearns, Human Rights. Concepts, Contests, Contingencies, The University of Michigan Press, 2005; S. Bedi, Rejecting Rights, Cambridge University Press, 2009. And in particular, on women's rights: J. Peters - A. Wolper, Women's rights, human rights. International feminist perspective, Routledge, New York, 1995, where we read (p. 11) that «the transformation of human rights from a feminist perspective is crucial to addressing global challenges to human rights in the twenty-first century. This should be seen in the context of the growth and evolution of women's movements internationally in the past two decades. Women are taking leading roles in redefining social concepts and global policy issues in areas such as development, democracy, human rights, world security, and the environment. This means not just looking at what have been called "women's issues"- a ghetto, or separate sphere that remains on the margins to the center by questioning the most fundamental concepts of our social order that they better account of women's lives» e C. Bunch, «Women's Rights as Human Rights: Toward a Re-Vision of Human Rights», Human Rights Quarterly 12 (1990): 491.

[4] A. Sarat - T. R. Kearns, Human Rights. Concepts, Contests, Contingencies, The University of Michigan Press, 2005, pp. 2-3.

[5] A. Sarat - T. R. Kearns, Human Rights. Concepts, Contests, Contingencies, The University of Michigan Press, 2005, pp. 6-7.

[6] The «Convention of the Council of Europe Convention on preventing and combating violence against women and the violation about the women» refers, in the Preamble, to other regulatory instruments such as: European Convention for the protection of Human Rights and Fundamentals Freedoom (ETS, no. 5, 1950) and its protocols, the European Social Charter (ETS, no. 35, 1961, as revised in 1996, ETS no. 163), the Convention of the Council of of Europe Convention on Actions against Trafficking in human Beings (CETS no. 197, 2005) and the Convention Council of Europe Convention on protection of Children against sexual Exploitation and sexual Abuse (CETS no. 201, 2007); Recommendation Rec(2002)5 on the protection woman against violence, Recommendation CM/Rec(2007)17 on the rules and mechanism for equality between women and men; Recommendation CM/Rec(2010)10 on the role of women and men in the prevention and resolutions conflicts and in peacebuilding, and other relevant recommendation; the International Covenant on Civil and political Rights (1966), International Covenant on economic, Social and cultural Rights (1966), United Nations Convention on the elimination of all forms of discriminations against women (CEDAW 1979) and its Optional Protocols (2000), the United Nations Convention on the Rights of Persons with disabilities (2006) and the Rome Statute of the International Criminal Courts (2002); Geneva Convention (IV) relative to the protection of Civilian Persons in Time of War (1949) and its additional Protocols I e II (1979).

[7] On the principle of equality see: P. Rescigno, Il princpio di eguaglianza nel diritto privato (a proposito di un libro tedesco), in Riv. trim., dir. proc. civ., 1959; Id, Persona e Comunità, Bologna, Il mulino, 1966; Id, Sul cosiddetto principio di d'uguaglianza nel diritto privato, in Foro it., 1960, I. Per quanto attiene all'evoluzione del principio di eguaglianza si veda: D. La Rocca, Eguaglianza e libertà contrattuale nel diritto europeo, Le discriminazioni nei rapporti di consumo, Torino, Giappichelli, 2008. Above the principle of equality in constitution read: C. Esposito, Eguaglianza e giustizia nell'art. 3 della Costituzione italiana, in La Costituzione italiana, Saggi, Padova, Cedam, 1953; L. Paladin, Il principio costituzionale d'eguaglianza, Milano, Giuffré, 1965; D. Carusi, Principio di eguaglianza, immunità e privilegio: il punto di vista del privatista, in Studi in onore di Pietro Rescigno, Milano, Giuffré, 1998.

[8] On the concept of «discrimination» read: M. Barbera, Il nuovo diritto antidiscriminatorio: innovazione e continuità, in Il nuovo diritto antidiscriminatorio, ( a cura di), Milano, Giuffré, 2007.

[9] In Convention's Preamble.

[10] Art. 7: global policies and coordinates; art. 8: financial resources; art. 9: non-governmental organizations and civil society; art. 10: coordinating body; art. 11: data collection and research.

[11] Art .12: General requirements; art. 13: awareness; art. 14: Education; art. 15: training of professionals; art. 16: intervention programs for prevention and treatment and art. 17: involvement of the private sector and the media.

[12] Art 18: General requirements; art. 19: information; art. 20: General support services; art. 21: Assistance to individual complaints / collective; art. 22: Support Services Specialist; art. 23: shelters; art. 24: hotlines support; art. 25: support to victims of sexual violence; art. 26: protection and support to children who witness violence; art. 27: reports; art. 28: reports by professionals.

[13] J. Peters - A. Wolper, Women's rights, human rights. International feminist perspective, Routledge, New York, 1995, pp. 12-13.

[14] S. Bedi, Rejecting Rights, Cambridge University Press, 2009.

 

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