Violence against Women and Domestic Violence

The European Tribunal of Human Rights is the main judicial organ which is tasked with ensuring member states are compliant with the European Agreement on Human rights and its additional arrangements. This court hears and solves cases alleging that member states have violated one or more of the human rights agreements based on its conventions and protocols . However, the decisions made by the court can be appealed to the Grand Chamber of the European Tribunal of Human Rights. The convention of the court has been adopted by 47 countries. The European Tribunal on Human Rights has various councils which are aimed at ensuring that different aspects of human rights such as the right to privacy and the freedom of speech are withheld by the member states . The Istanbul Convention also known as the Council of Europe Agreement on combating and preventing domestic brutality is aimed at implementing measures to prevent violence against women while at the same time prosecute the perpetrators and protect the victims. The council understands that domestic violence is a form of gender-based brutality which is illegal and against the law . As such, it is the obligation of the state to address all forms of gender-based violence. This will enhance real equality among men and women in the society. The essay reviews and analyses the case law of the European Court on Human Rights based on domestic violence.

Introduction to Article 3

The Istanbul convention has been responsible for implementing various initiatives aimed at preventing and combating domestic violence. The council has run various Europe-wide campaigns to prevent domestic violence concentrating on violence against women as they are the most affected. This has enabled Europe to take political stance against all forms of domestic violence by adopting resolutions and recommendations that prevent, protect and prosecute perpetrators of domestic violence . There has been the formation of the CAHVIO which is an Ad Hoc committee for combating domestic violence. However, the Istanbul Convention provides a legal framework approach to combat and prevent domestic violence and concentrates on protecting the victims and prosecuting the offenders.

According to the convention, domestic violence is a breach of basic human rights and a type of prejudice . As such, member states should exercise due diligence in a bid to prevent domestic violence. Member states are required to criminalize all forms and offences of brutality against women such as sexual violence, stalking, rape, female genital mutilation among others in a bid to strengthen their approach against domestic violence . In order to prevent bias and ensure accuracy in prosecution of offenders, the convention has mandated a group of professionals known as the Group of Experts on Actions against Violence against Women and Domestic Violence (GREVIO) . The members of the task force are elected by the member states and are required to monitor the actualization of the deals of the agreement.

The Istanbul agreement is structured based on the normal composition of the most recent Europe conventions. It has 81 Articles which are subdivided into 12 chapters. They are based on 4ps: Prevention of victims, Protection and Support, Prosecution of the perpetrators and Integrated Policies. Each of this area has specific measures and obligations with regards to the collection of information and support of research regarding domestic violence. The convention has also provided extensive measures to care support and provide legal aid to victims subject to private and penal law . There are various case laws which highlight the effort and initiative of the European Tribunal of Human Rights on the issue of domestic brutality.

Opuz vs. Turkey, Application no. 33401/02, Judgment, June 9 2009

Once such case is the Opuz vs. Turkey case in which the court ruled against Turkey. In the lawsuit, Turkey was found guilty as it failed to guard the victim and her parent from domestic brutality which also amounted to gender-based prejudice . In the case, the victim and together with her mother were constantly threatened and assaulted by the offender on numerous occasions to the extent that he tried to run them over with a vehicle. The women reported to the police and the man was arrested and prosecuted to a jail term of three months which was later overturned to a fine . This led to the continuation of the domestic violence and ended with the death of the victim’s mother. According to the European Tribunal on Human Rights, Turkey had failed to offer sufficient protection against domestic violence to the victim . The court also found Turkey to have violated the right to life due to the death of the mother because the victim had reported the earlier incidents to the relevant law-enforcers on numerous occasions .

The European Court found the country to be in violation of failure to take preventive and protective actions to avoid the breach in the victim’s personal integrity by her husband. As per the court, the authorities were clearly aware of the danger posed by the husband to the victim but failed to take effective action to prevent her against further violence . This amounted to violation of prohibition against gender-based prejudice. The judgment offered by the European Tribunal in Human Rights in this situation was accurate and efficient. Turkey failed to protect the victim who was a woman against domestic violence despite reporting the matter to the relevant authorizes on numerous occasions . This was a breach of the right of the victim to equal protection of the law . The victim provided accurate and unchallenged evidence. The presence of prima facie shows that domestic brutality affected the victim who was a woman. The discriminatory nature of the country’s authority together with judicial passivity established a climate which was conducive for domestic violence . It is clear that the violence faced by the victim and her mother were gender-based violence and were escalated by the laxity of the country’s authority. The unresponsiveness of Turkey’s judicial system together with impunity posed by the relevant authority indicates insufficient commitment from the relevant stakeholders to take the necessary action to address domestic violence .

Valiuliene vs. Lithuania, Application no.33234/07, Judgment, June 26 2013

Another case law that can be used to evaluate and understand the stance of the European Tribunal on domestic violence is the Valiuliene vs. Lithuania case. In this lawsuit, the victim provided that Lithuania failed to protect her appropriately from domestic violence . Base on Valiuliene accounts, the criminal case she had presented before her country turned futile. She was physical abused on more than five separate occasions in a span of one month between January and February 2001 by J.H.L who was her partner with whom they were living together . According to Valiuliene, the physical abuse entailed hitting, hair pulling and hard kicking to her body which led to a lot of pain and internal injuries .

However, every time she reported the matter to the police, the forensic expert claimed that the injuries she sustained were minor and cannot result to any short or long term health problems. Since the local police seemed to be bribed by her partner J.H.L, she decided to file her case in the City District court and hire a private prosecutor . She filed for acts of violence which constituted to minor body harm under Article 116 of the Criminal Charter of the Lithuania law . Valiuliene provided a list of individuals whom she wished to call as witness for the case and provided the medical reports on her injuries. However, the case was marred due to inconsistent law enforcement officers and the failure of J.H.L to appear in court for the case. The case was dragged on for four years until June 2005 where the attorney dropped the case because the law had been changed in 2003 . This forced her to bring the issue to the European Tribunal on human rights in order to prosecute J.H.L for all the physical and verbal abuse sustained over the years.

Valiuliene relied on Article 6 and Article 13 of the European Agreement on Human Rights. In her case, Valiuliene argued that Lithuania had failed to investigate and hold J.H.L accountable for the acts of violence. Valiuliene provided that the criminal proceedings in her country were extremely lengthy in a bid to led the perpetrator free . On evaluation of the case, the court provided that the Articles to be used in the case were Article 3; right to be free from abuse and inhumane treatment and Article 8; right to regard privacy and family life. On its defense, Lithuania stated that the treatment of Valiuliene had not attained the severity level to be within the provisions of Article 3 of the European Agreement . Lithuania argued that Valiuliene had sustained minor injuries that could not result in any short or long-term health effects.

The country referred to the injuries as trivial in nature and as such, Valiuliene needed to approach the women’s crisis center or a family support group for assistance rather than relying on criminal law . Lithuania also stated that the victim could have leveled for compensation from the offender through civil law. However, the country recognized that the investigations to the case were long and necessarily lengthy which marred the entire lawsuit by making it time-barred. On the contrary, the European Tribunal reiterated that all forms of abuse must attain the least level of severity status to be under the provisions of Article 3 . The assessment of the least level is relative based on the nature and the context of the treatment. In this lawsuit, the European Tribunal decided that the ill-treatment of Valiuliene was inhuman as it was premeditated and lasted for a long period of time.

The victim was degraded by the perpetrator as the violence was aimed at instilling fear, inferiority and anguish. On relying on their medial report, the court determined that Valiuliene had sustained hypodermic bruising on her left thing ad hip . She also sustained a bruise on her right eye and cheek and also had a hypodermic bruising on her face. The five incidents that lasted for a month also had a psychological impact on the victim which is a vital aspect of domestic brutality. The court provided that the abuse of the victim was sufficient severe to reach the severity level required by Article 3 provisions .

The facts were also admissible for use under Article 8. Article 3 requires states to implement effective criminal law requirements to prevent offenses against the personal integrity of its citizens prevented by law enforcement for the purposes of preventing, suppressing and punishing all breaches of such provisions . However, according to the European court, for a county to be held responsible, there must be proof that the local legal system particularly the criminal charter must fail to provide real and actual protection of the rights provided by Article 3 . In this case, the court found out that the domestic judicial system of Lithuania provides an adequate legal framework to purse the crimes committed by the perpetrator. However, the court found out that Lithuania’s national law had not been implemented sufficiently to protect the rights of the victim under Article 3 . As such, this was a serious flaw from the country since the practices of the case coupled with the manner in which the criminal law proceedings were implemented did not provide sufficient protection to the victim against acts of brutality . This amounts to the breach of Article 3 of the European agreement on human rights and the victim was awarded 5,000 euros for non-pecuniary payment as opposed to the initial 20,000 claim presented by the victim.

Kontrova vs. Slovakia, Application no.7510/04, Judgment, May 31 2007

The Kontrova vs. Slovakia case study also provides an analysis on the stand of the European Tribunal on human rights on domestic violence. In the case, the victim was assaulted and beaten regularly with an electric cable . She filed a case under the Slovakia criminal law seeking the punishment of her husband for the physical abuse. However, after unknown circumstances she was accompanied by her husband to court where she withdrew all charges leveled against him. The complaint was modified to the extent where the alleged abuse by the husband was treated as a minor offense which required no further action . However, following the incident the same year, the husband shot dead their two children. Since she had earlier withdrawn the charges of her husband, police and the court did not take her seriously this time.

Determined to find justice for her children, she filled the lawsuit under the European Tribunal on human rights. In the European Tribunal, the court provided that there was a breach of Article 2; right to life as the law enforcement failed to protect the victim’s children lives . According to the court, the situation of the victim’s family was well known among the local police base on the previous criminal complaint against the husband and the emergency call made prior to the incident. The court provided that the police were obliged to register the victim’s criminal complaint’ launch the investigation and keep the criminal proceedings against the perpetrator . The police were required to keep a proper record of the emergency call received from the victim and act on it sufficiently as the victim’s husband was said to have a shotgun which he threatened to use . The Slovakian government acknowledged the failure of its police in their obligations to and these failures are liable for the death of the two children. The European court concluded that there was a breach of Article 13; right to a productive remedy. According to the court, the victim was supposed to apply for payment for non-pecuniary damage, a remedy which wasn’t available for her .

Branko Tomasic & Others vs. Croatia, Application no.46598/06, Judgment, January12 2009

The European Tribunal on Human rights has been known to make proper decisions in situations where a member state has failed to protect its citizens properly either through lack of adequate law or incompetent law enforcement . One such case is the Branko Tomasic & Others vs. Croatia. In the case, the applicants are the relatives of a woman and her baby; both were murdered by a man considered to her husband and the father of the baby. The man later killed himself after the incident . The man was initially sent to jail for making death threats against his family. While in jail, the domestic court provided that he needed to undergo compulsory psychiatric treatment while in jail and after his release until he fully recovers. On appealing the case, the court of appeal deiced that the compulsory psychiatric treatment needs to stop after his release from prison . A month after his release, the man went ahead and killed his wife and child and later ended his life. The applicants who were the family of the wife and the child complained that the domestic law failed to offer sufficient security to the women despite knowing very well the danger posed by the man.

According to the applicants, the withdrawal of compulsory psychiatric treatment was responsible for the death of the woman and the child . They felt that the Croatian authority did not conduct sufficient investigation on the health of the man prior to stopping the compulsory psychiatric treatment. They provided that the state should take responsibility of their deaths an allegation which the Croatian government categorically refused . The family of the woman forwarded the case to the European court on human rights hoping to find justice for one of their own. In the European court, the court provided that there was a violation of Article 2; right to life .

According to the court, the Croatian government failed to undertake the necessary steps in preventing the deaths of the child and the mother. On evaluation of the domestic court ruling on concluding the compulsory psychiatric treatment prior to adequate examination of the man meant that they were liable for all the damage caused by the man . The authorities were well aware of the threats made against the lives of the wife and the child before the man was taken to custody. The domestic court needed to take all the important and actual steps to guide them after his release . There were also various shortcomings from the authorities since the psychiatric report for the purpose of the criminal proceedings indicated that the husband had to undergo continued compulsory psychiatric treatment but they decided to end it upon his release.

The authority also failed to confirm whether the husband received adequate treatment while custody . According to the psychiatric treatment report presented by the court, the psychiatric treatment received by the husband consisted on several conversational sessions with the prison medical staff none of which was a psychiatrist . Another shortcoming from the state was that the court judgments ordering the compulsory psychiatric treatment failed to provide adequate details on how the treatment should be administered to the patient. The state also failed to examine the husband prior to his liberation from prison in order to determine whether he was still a risk to his wife and their child . As such, the court agreed that the Croatian enforcers failed to take appropriate measures to protect the lives of the child and the woman murdered by the man.

Bibliography

Opuz vs. Turkey, Application no. 33401/02, Judgment, June 9 2009
Valiuliene vs. Lithuania, Application no.33234/07, Judgment, June 26 2013
Kontrova vs. Slovakia, Application no.7510/04, Judgment, May 31 2007
Branko Tomasic & Others vs. Croatia, Application no.46598/06, Judgment, January12 2009
Legislation
European Convention on Human Rights, 4 November 1950
Secondary Sources
Academic Journals and Articles
Amirthalingam K, ‘Women’s Rights, International Norms, And Domestic Violence: Asian Perspectives’ (2005) 27 Human Rights Quarterly
Ciuca A, ‘Domestic Violence: The European Court Of Human Rights And The Court Of Justice Of The European Communities’ [2008] SSRN Electronic Journal
Hillebrecht C, ‘Implementing International Human Rights Law At Home: Domestic Politics And The European Court Of Human Rights’ (2012) 13 Human Rights Review
Londono P, ‘Developing Human Rights Principles In Cases Of Gender-Based Violence: Opuz V Turkey In The European Court Of Human Rights’ (2009) 9 Human Rights Law Review
McQuigg R, ‘The European Court Of Human Rights And Domestic Violence’ (2010) 5 The International Journal of Interdisciplinary Social Sciences: Annual Review
Miltner B, ‘The European Court Of Human Rights: Implementing Strasbourg’S Judgments On Domestic Policy Ed. By Dia Anagnostou’ (2015) 37 Human Rights Quarterly