Domestic Violence against Women and European Human Rights Law

Inhaltsverzeichnis

1. Introduction

2. A Justification of Human Rights Interference with Traditional Attitudes towards Women

3. The Right to Life

4. The Right to Health

5. Conclusions

Literature:

1. Introduction

Domestic violence against women remains a major problem which often is off the radar screen of public authorities as dismissive attitudes towards women persist among those working for local security forces (which often are male-dominated) and - for a wide range of reasons, including in particular fear of further violence against the victim or children - many cases are not reported. The risk of underreporting makes it necessary for authorities to be particularly vigilant and sensitive to situations which are threatening for women.

Even in a region with a strong regional human rights system, “[w]omen are frequently subjected to violence within the home.” (Smith 2014:374) But while “most domestic abuse is directed towards women and girl children [and] those [who] are subjected to abuse and routinely degraded and belittled are less likely to enjoy the full range of universal rights. They are often less able to enjoy the freedom to choose their own destiny and the education to render dreams a reality.” (ibid.)

Education on human rights requires a widespread awareness of human rights, including the rights of women and the corresponding obligations of public authorities. Among these obligations is the duty to protect women against domestic abuse.

That said, it should go without saying that violence against women is not acceptable in any way but the reality in the everyday lives of women around the world, in rich, democratic countries as well as in countries which lack in political and / or economic development, is very different. Violence against women is still an everyday occurrence. This is also the case in Europe. On 1 August 2014, the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (Istanbul Convention 2011), commonly referred to as the Istanbul Convention, has entered into force. Nevertheless does violence against women remain a major challenge. Is is particularly so, if fears expressed by women are not taken seriously by the authorities who are tasked with protecting women. In this article it will be shown that the European Convention on Human Rights (ECHR 1950) provides women with a right to positive action by the relevant authorities, including the police.

A case which is currently pending at the European Court of Human Rights, Halime Kılıç v Turkey, is concerned with the failure of the authorities to protect a woman - the daughter of the applicant - who had been murdered by her husband. (Halime Kılıç v Turkey 2014:660)Prior to the murder she had been beaten on several occasions and three court orders had been issued against her husband, ordering him to move out of the family home and to stay away from the home, his wife and her workplace. (ibid.) The husband - and later murderer - of the applicant’s daughter violated these court orders. In fact, the court orders had never really been enforced. (ibid.) Just a few days before her eventual murder, the wife had approached the authorities in a failed bid to secure their help; at this time, she was already fearing for her life. (ibid.) She was denied access to a shelter for abused women due to the fact that she had seven children. (ibid.) A few days after seeking help, she was murdered by her husband who afterwards took his own life. (ibid.) The victim’s mother has brought a case against Turkey at the European Court of Human Rights and is arguing that her daughter’s human rights had been violated due to the failure of the authorities to protect her effectively. (ibid.)

This case has been communicated to the respondent state but has not yet been decided. (ibid.) It will be shown in this text that the European Convention on Human Rights imposes on states an obligation to protect women against domestic violence in such situations.

2. A Justification of Human Rights Interference with Traditional Attitudes towards Women

International Human Rights Law often faces the challenge that it is seen as an imposition of values which are perceives as foreign. In particular in Globalization has been accused of an “erosion of culture” (Huber 2009:249). In this generality, this is not true but in case of cultures which actually encourage or condone violence against women, international influences can contribute greatly to the improvement of human rights. An interconnected world needs more solidarity (Marx 2009:268) - and it actually can supply solidarity and can contribute to changing attitudes. Globalization does have an impact on local cultures - and this can be a good thing. In Europe, despite a focus on economic integration, also the protection of human rights has been a major factor in the post-World War II integration of the continent. (Schorkopf 2005:5) World views have to be taken into account when attempting to create a truly free society which is based on the rule of law. (Dabrock 2004:33) But that does not mean that one cannot attempt to change them in order to achieve a just an society - which should share interests based on justice and equality. (Augustine 2005:33) Such a society can lead to more safety. (cf. Montesquieu 2003:15). Although cultures in principle can claim some respect, this claim is not without limits. Changing hearts and minds in order to achieve a more just society in which human rights receive more respect is justified because human rights are universal and apply to everybody. (Menke / Pollmann 2007:53) It is therefore not possible to claim any form of cultural relativism in an attempt to justify human rights abuses. This also applies to traditional attitudes against women which might be seen as ‘normal’ but which result in discrimination against women and ultimately in human rights violations. From sex-selective abortion and infanticide to murder, rape and slavery, violence against women is often only one point in a development which is based on a fundamental lack of belief in the equal rights of men and women. Effective human rights advocacy for women therefore requires human rights advocacy not only on behalf of women but also more generally, thus enabling the emergence of attitudes which allow women to be seen as having equal rights.

3. The Right to Life

In Rantsev, a case involving a young woman, Ms Rantseva, the daughter of the applicant (Rantsev v. Cyprus and Russia 2010:para. 13), born in 1980 (ibid.) and died in 2001 (ibid.:para. 25), who appears to have been forced into prostitution (cf. ibid.:para. 69)and died apparently as the result of failed attempt to escape, (ibid.: para. 25) the European Court of Human Rights found that the right to life includes positive obligations to protect human life (ibid.:paras. 214 et seq.; see also Rainey et al. 2014:158 et seq.) But the obligations of the state begin much earlier:

The right to life under Article 2 ECHR obliges states to take positive measures, (ibid.:153 et seq.) including “preventive operational measures” (Grabenwarter 2014:22) for the purpose of “protect[ing] an individual or individuals whose lives are at risk from the criminal acts of an other individual.” (ibid.; see also Van Dijk et al. 2006:358 et seq.; R.R. and others v. Hungary 2012:para. 32; Osman v. United Kingdom 1998:para. 115; Kılıç v. Turkey 2000:paras. 62 et seq.; Van Colle v. United Kingdom 2012:paras. 88 et seq.) This requires “that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life” (Grabenwarter 2014:22) of the persons in question. (Grabenwarter 2014:22; see also in a more general context Albekov and others v. Russia 2008:paras. 89)

This approach includes a number of presumptions which show that additional steps are necessary: first of all, it assumes that all actions (or omissions) which put the life of an individual at risk are criminal under domestic law. If this is the presumption on which the European Court of Human Rights operates, it follows that Article 2 ECHR requires states to put in place domestic legislation which makes such actions or omissions crimes. This is not necessarily the case under all circumstances. In particular the possibility in some legal systems to allow for euthanasia in case of persons who are unable to make life and death decisions for themselves (cf. Kirchner 2014:9) but also shortcomings in legislation protecting women or children can lead to situations in which risks exist which are not covered by legislation. The extent of the states’ obligations, though, cannot depend on their earlier efforts - or shortfalls - in terms of law-making. The obligation to protect human life therefore also includes cases in which the threat to life comes from an action or omission which is not (yet) covered by domestic criminal law. Indeed, the state is obliged to ensure that such threatening behavior is outlawed under its criminal law.

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