Domestic Violence: The Role of the Universal Declaration of Human Rights
This essay focuses on domestic violence as a human rights issue and also focuses on the role of the state against this type of violence. In recent years, ECHR has started to use article 3, article 8 and article 14 more frequently in cases of domestic violence. This study will demonstrate the obligations for states in regards to domestic violence under article 3, 8 and 14. We will investigate deeply the Court’s domestic violence judgements of last years. In this study, we will examine various cases of domestic violence in regards to article 3, article 8 and article 14. We will take a closer look at which substances are used in these cases and in what ways. Furthermore, this study will focus on the recent developments related to domestic violence and distinct outcomes which are born from these developments will be shown.
In general term, domestic violence is a human rights issue, it is a social problem of our time; it is not only physical violence which usually applied against women. “According to the United States Department of Justice Office on Violence Against Women, the definition of domestic violence is a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain control over another intimate partner.”. Many types of abuse are included in the definition of domestic violence. These are; physical abuse, sexual abuse, emotional abuse, economic abuse, psychological abuse, threats, stalking, cyberstalking. Abuse is a learned behavior; it is not caused by anger, mental problems, drugs or alcohol, or other common justifications. Another definition of domestic violence is the “definition of Woman’s Aid which defines domestic abuse as physical, sexual, psychological or financial violence that takes place within an intimate or family-type relationship and forms a pattern of cohesive and controlling behaviour.”. In the families with domestic violence, the victims of this violence are parents and children. Even in some cases, relatives of married or divorced couples are the direct victims of the violence. In the cases of Obuz v. Turkey, the mother of the targeted woman who was subjected to violence by the male witnessed more ill-treatment than the actual victim of the violence and died as a result.
This paper is divided into four parts. First, I provide an overview of domestic violence and I evaluate domestic violence within the framework of human rights law. Second, I examine the positive obligations which are necessary for states to combat domestic violence and recent developments in the area of domestic violence. I state the Istanbul Convention and its legal obligations for states. Third, I use case studies of recent times. Facts of the case, the Court’s judgement, use of article 3, 8 and 14 in the cases, and states’ failures to protect women against domestic violence will be mentioned. Finally, I draw a conclusion in regards to domestic violence and obligations of states.
Domestic Violence within the Framework of Human Rights Law
Tan Lin, head of The All China Women’s Federation, said that 'Domestic violence is illegal and affects family members physically and psychologically. It is not a private issue but a social problem '. Domestic violence is not something which starts and ends in the border of family. It is a severe problem for almost every states, a problem of humanity. As Tan Lin said, seeing it as a social problem can be a more useful method to overcome. Because as we mentioned, the issue of domestic violence are not belonged to borders of house anymore, it came out of the house. “It is estimated that 35 percent of women worldwide have experienced either physical and / or sexual intimate partner violence or sexual violence by a non-partner at some point in their lives. Some national studies show that this figure is close to 70 percent.”. The real tragic part is that most cases of domestic violence are never reported to the police. Compared to women, men who are victims are very reluctant to report their situation to the police. At this point, it is quite difficult for the experts to overcome such violence.
In the last two decades, international human rights bodies have developed the understanding of domestic violence. Once it was considered as a private issue, restricted to private sphere but it is now seen as international human rights violation that states have obligations to address. While traditional gender roles make men more free in society, these roles impose restrictions on women such as lack of education, violence in the family, working restriction. As much as states reject such gender-based prejudices in justice systems, the role distribution affects the system intensively and causes violence in the society. These gender roles imposed by society are based on the fact that men cross their boundaries within the family and violate women's rights. “In 1989, the United Nations prepared a report on violence against women. In this report, the violence was not without any reason, it said, stemming from inequality in the family.” .
International human rights law is the body of international law to promote human rights. The international human rights law, which is always in force, including the state of emergency and conflict, provides the basic protection that all individuals deserve. International human rights law is ensured by treaties, declarations and customary international law in the global area and between states. IHRL is also ,specifically, very practical in combating domestic violence. Some types of domestic violence cases are the violation of international human rights law which gives states the obligations to ensure the prohibition of inhuman and degrading treatment, the prohibition of discrimination and rights to respect for private and family life. The violation of states’ responsibility show that they has failed to adhere the rules of IHRL. In recent years, human rights judicial mechanisms have shown the importance of these rights and prohibitions in the fight and in protection of women and children against domestic violence. The European Court has recently addressed domestic violence under these articles of the Convention. In cases of domestic violence, it is often witnessed ill-treatment and torture of women and children. “In 2008, both the CAT Committee, as well as the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, recognized that domestic violence could constitute torture.”
Gender based domestic violence is the result of discrimination against women. It should therefore be sorted as a violation of human rights for equality not an occasional internal issue in the society. Domestic violence which also affetcs the role of women in the society. It may cause permanent changes in private and family life; in economonic, social and cultural spheres. The person who is exposed to violence may be forced to get out of his or her life routines which he or she has to move away from family or friends, get psychological or physical recovery.
Ratifying a convention makes it legally binding under international human rights law for a state. As regards to international human rights law that sets out the basic protection for each individual, domestic violence in a family or in a relationship is a human rights problem that states have to protect and fulfill the rights of women against any external threat. The urgency of protection that provided to the person exposed to violence may even save a person's life in some cases. Therefore, states that guarantees life and security should protect people against abuse by anyone.
States’ Attitudes in Domestic Violence Cases
After the Second World War, there was a huge need for a peaceful World. Drafting and ratifying in 1948, Universal Declaration of Human Rights opened up a new era in humanity. And ,the following, ECHR which was signed in 1950 by newly formed Council of Europe and entered into force in 1953. All members of the Council are party to the Convention, this makes it a Convention with 47 members. After five years, in 1959, European Court of Human Rights was established. Any individual who believes his / her right has been violated under Convention may apply to the Court. In the following years, developments for peace has accelerated, states has became parts of many agreements, treaties and covenants to ensure human rights. Under these treaties, states are obligated to respect, protect and promote human rights. The state must respect rights and avoid interference under any circumstances except vital situations for state administration. “The obligation to protect rights requires states to prevent, investigate, punish and ensure redress for the harm caused by abuses of human rights by third parties.”
Especially in the cases of domestic violence, it is the primary duty of the state to protect the victims against the attackers. Judges, probation forces, policemen and other civil officers are the main protective actors. During the last decade, ECtHR has taken very strict steps in combating with domestic violence. Violation of article 2, article 3, article 8 and article 14 were found in several domestic violence cases. The uses of these articles have considerably increased compared to the past. . Women's rights movements and the evolution of international women's rights over time have revealed that domestic violence is essentially based on gender and discrimination against women. The main reason for this discrimination is traditional gender roles in societies. With the Opuz v. Turkey case which concluded in 2009 and the first use of Article 14, there has been a great progress in domestic violence cases and the Court's linking violence to discrimination against women has also opened a new perspective. In the Opuz case, the Court held that state had amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the aplicant as a woman. Article 14 of the Convention guarentees that people’ rights should be secured without any discrimination based on sex, colour, religion, gender etc.
At this point, states should also pay attention and have to be more careful in protecting or in court proceedings since they know that such cases of violence are usually against women and alson they must give every citizens the right to non-discrimination. One of the main tasks of states is to protect the people they host and to prevent them from being abused. In the domestic violence cases, the Court especially finds the violation of article 3. In most cases, it is observed that the violence continues after it is reported to the judiciary or regulatory authorities by the victims whom states have failed to protect against their partners. In the case of Eremia and Others v. Repuclic of Moldova, the aplicant and two daughters complained about Moldovan authoritie’s failure to protect them from their husband , father who was serving the state as a police officer. Unsurprisingly, due to the profession of the perpetrator, the state was very weak in protecting the applicant. In the case Court held that there had been a violation of article 3 of Convention taken in conjuction with article 14. “Human rights judicial bodies have provided extremely clear jurisprudence on how these rights interact with the state’s positive obligations to protect women and children from known perpetrators of domestic violence, and the circumstances in which a state will be imbued to have violated these rights.” As seen in the Eremia case, Moldovan authorities has failed to provide immediate protection to applicant and her children and failed to treat everyone equally without any kind of discrimination. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is an international treaty of rights for women has 189 ratifying states was signed in 1979 and put into the force in 1981. Its main principle is the equality between men and women and trying to eliminate prejudice and gender roles. CEDAW requires to “due diligence” obligations for states. It is a kind of investigation or detection report. Convention orders that “states exercise due diligence to prevent, investigate and punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.”
Thus, in any case of domestic violence, states should ensure the need to investigate, prevent and punish acts of abuse. This obligation imposed by the Convention can be said as a positive obligation for the states to fulfill. One of the recent major development in the field of domestic violence is the Istanbul Convention. It is a Council of Europe convention against any kind of violence and domestic violence against women. It was presented for signature on 11 May 2011 in Istanbul and entered into force on 1 August 2014. Turkey was the first ratifying country. It is currently signed by 46 countries and the European Union. The Istanbul Convention is a legally binding document which struggle with any kind of violence against women and try to prevent domestic violence by imposing obligations on states. Article 1 (b) of the Convention declare that ‘one of its purpose is to contribute to the elimination of all forms of discrimination against women and promote equality between women and men, including by empowering women’. It contains articles such as article 4, article 45, article 56 (b) which point out that states should take necessary legislative or other measures to prevent discrimination or to protect the rights and insterests of victims, ensure effective punishment to abusers. When we compare the Istanbul Convention with the European Convention, we can say that some points are more comprehensive and explained more detailed. Convention also states that victims should be informed in cases if they or their relatives are in danger or there may be a dangerous situation for them in the article 56. In the case of Rumor v. Italy, the applicant stated that she has not been informed about her former partner’s house arrest situation and she said that she has learnt it by a telephone call from him. She thought that he has continued to disturb her despite the punishment and complained Italian authorities about these points. But the Court has not found no violation of article 3. It found that Italian authorities took measures by punishing him and they didn’t have to inform the applicant about his detention status. Even though the court considers that it is as it is supposed to be and that there is no negligence, it seems that violence has continued.
We can say that European Convention is missing at some critical points when it is compared to Istanbul Convetion. Article 56 of the Istanbul Convention obligated states to inform victims at least in dangerous situations.
Also that should be noted. Although the contract is more detailed about domestic violence, the absence of a judicial body under it is a feature that keeps it one step behind the European Court. The monitoring function is provided by the reporting process which controlled by a group of experts, GREVIO. In this respect, we can say that the Court will continue to be the main actor, which imposes obligations on governments about domestic violence and which they have to account for.
