How does the european court of human rights tackle violence against women?

How does the European Court of Human Rights tackle violence against women?

The European Court of Human Rights (the ‘Court’) is the core judicial organ of the CoE responsible for evaluating state compliance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and/or its additional Protocols. It consists of 47 independent and full-time judges “of high moral character” (the same number of judges to High Contracting Parties to the Convention), supported by a Registry of legal and administrative staff. Each judge is elected by the Parliamentary Assembly for a non-renewable term of 9 years.

Individuals, groups of individuals, or one or more of the contracting states who believe a state party has violated their civil or political rights guaranteed under the ECHR can file an application with the Court for review. If the Court decides a state has violated the relevant applicant’s human rights, the final ruling is transmitted to the Committee of Ministers to oversee compliance with the Court’s recommendations. The Court also has the power to issue advisory opinions, which provide guidance on the ECHR through practical interpretations of the rights contained in the agreement.

The European Court of Human Rights is responsible for (European Convention on Human Rights, Section II, Articles 29, 33, 34, 41, 47):

  • Considering the admissibility and merits of applications for alleged violations of the Convention and its Protocols
  • Hearing inter-state applications put forward by any High Contracting Party against another
  • Hearing individual applications from a person, group of people, or non-governmental organization who claim their rights have been violated by a contracting state
  • Suggesting just satisfaction or compensation for the applicant, if the Court finds a state has violated the Convention
  • Providing advisory opinions on the legal interpretations of the Convention and its Protocols

How does it help tackle violence against women?

Through the Court’s decisions, the European Convention on Human Rights and Fundamental Freedoms (ECHR) becomes a living instrument. This means that the Court has the opportunity to interpret the right and freedoms outlined in the ECHR and apply these interpretations contextually, giving practical application of rights in specific contexts. Because violence against women exists on a continuum, taking many different forms and pervading all spheres of life, the Court’s decisions on VAW-related issues are highly important in the fight to end it. Through the Court’s decisions, violence has been recognized as a form of discrimination, torture (i.e. rape and sexual violence) and a violation of the right to life, among many other interpretations.

In practice, the Court has interpreted VAW-related offences through the lens of the ECHR’s human rights provisions. Some of the offences considered have included:

  • Domestic violence
  • Sex and reproductive health
  • Ill-treatment in detention
  • Police violence
  • Rape and sexual abuse
  • Female genital mutilation
  • Risk of ill-treatment in case of expulsion
  • Crimes committed in the name of so-called ‘honor’
  • Social exclusion
  • Trafficking in human beings

When the Court delivers a judgement finding human rights violations, it is binding on the state concerned. This means that states are obliged to implement the judgement of the Court, whether it requires compensation be paid to the applicant or specific actions are required (e.g. through law, establishment of services). There is also a larger impact of the Court’s case law on violence against women. When a Court delivers a judgment, it not only identifies which rights were violated but defines the practical application of human rights in a specific context. For example, in Aydin v. Turkey (1997, see case study below) the Court ruled that rape at the hands of public officials amounts to torture under Article 3 of the ECHR. This means that any state can be held responsible for violating a person’s Article 3 rights if one of its public officials commits rape, given that rape under these circumstances amounts to torture.

Civil Society Engagement: Individual Complaints

The Court can accept complaints from individuals, groups and/or organizations to protect women’s rights against a state. Before lodging, certain ‘admissibility’ requirements must be satisfied. These determine whether the Court has the authority to investigate the complaint. Very broadly, these requirements are:

  • The complaint must be lodged against a CoE member state that has ratified the ECHR (Article 32, 35; ECHR). The rights violation(s) must have taken place after the state had ratified the ECHR.
  • The complaint must be concerned with one or more rights protected by the ECHR and its Protocols (Article 32, 35; ECHR) – no other rights outside of the ECHR may be claimed
  • The applicant must be the victim of a rights violation
  • Significant disadvantage. The applicant must have suffered a significant disadvantage as a result of the rights violation (Protocol 14 to the ECHR).
  • Exhaustion of domestic remedies. The applicant must have pursued and exhausted available remedies under domestic law (Article 35).
    • Note: there are exceptions to this rule. According to the Court’s ‘Practical Guide on Admissibility Criteria‘ the “…exhaustion rule may be described as one that is golden rather than cast in stone.” For example, if more than one effective remedy is available, applicants are only required to have pursued one of them (Moreira Barbosa v. Portugal). Furthermore, the existence of a remedy must exist formally and in practice. The Court will evaluate the general political context in which formal remedies exist and evaluate if the applicant had done everything that could be reasonably expected of her given the circumstance. For more information on exceptions, we recommend reading through the Court’s Practical Guide.
  • The complaint must be submitted within 6 months of the final judgment that exhausted domestic remedies (Article 35, ECHR)

If the state is found to have violated a person’s rights, the Court determines what that state must do to repair the damage and prevent the recurrence of a similar situation. These rulings not only define specific obligations for the state concerned, but for all states parties who are bound by the Convention concerned. Each ruling is an interpretation and application of the Convention which defines what human rights treaties mean in certain circumstances.

Case Study: Aydin v. Turkey (1997)

Aydin v. Turkey (1997) was the first time the Court recognized that an act of rape by public officials or another person acting in an official capacity constitutes a form of torture. This landmark ruling fundamentally changed the way European human rights law interpreted acts of rape and sexual abuse and has significantly contributed to No longer were these acts considered private or social crimes, they were a violation of a human being’s right to be freedom from torture and other cruel, inhuman and degrading punishment or treatment.