C Explanatory memorandum by Ms Err,
rapporteur for opinion
1 General comments
1. I wish to congratulate Mr Cilevičs on his excellent
report, dealing with an issue which is highly relevant to the current
situation of human rights in Europe. As the financial crisis leads
governments to cut budgets and carefully select their priorities,
equality and non-discrimination policies are often given a secondary
place in the political agenda. This is in contrast with the social
reality of our continent, where inequalities persist and disadvantaged
groups face the consequences of the economic situation disproportionately.
2. Mr Cilevičs’ report is in line with the positions consistently
adopted by the Committee on Equal Opportunities for Women and Men,
in particular as regards the issue of multiple discrimination, as
well as the need to adopt effective anti-discrimination legislation
and policies, including positive discrimination measures.
2 The principle of gender equality in the jurisprudence
of the European Court of Human Rights
3. The principle of gender equality occupies a prominent
position in human rights law. This certainly applies to the Council
of Europe human rights protection system, as clearly expressed by
the European Court of Human Rights (“the Court”) in its jurisprudence.
The Court has dealt with discrimination against women on a number
of occasions and has contributed significantly to shaping their
rights in Europe by progressively applying the principle of equality.
4. A number of judgments rendered in the last few years are relevant
to matters in which our committee and the Parliamentary Assembly
have consistently been involved. In M.C.
v. Bulgaria (2003), the Court considered that states
have a positive obligation to enact criminal law provisions effectively
punishing rape and to enforce them effectively through legislation
and prosecution. The interest of this case also lies in the fact
that general provisions such as Articles 3 (right not to be subjected
to torture, inhuman or degrading treatment or punishment) and 8
(right to private life) of the European Convention on Human Rights
(ETS No. 5, “the Convention”) are interpreted in such a way as to
enhance the protection of women’s rights, by ensuring that issues
which affect women disproportionately are covered.
5. The Court has also delivered judgments in cases of trafficking
of human beings: recently, in Rantsev
v. Cyprus and Russia (2010), it affirmed, inter alia, that a violation of
Article 4 (prohibition of slavery and forced labour) had arisen
from the failure to create an appropriate legal and administrative
framework to combat trafficking. It is clear that the jurisprudence
of the Court is in line with (and paves the way for) the work of
the other bodies of the Council of Europe, each of them making a
substantial contribution to the fight against trafficking in human
Besides the individual cases and the principles reaffirmed
in matters such as the protection of the physical integrity of women,
discrimination against single mothers, the right of women to use
their maiden name and other issues relating to the situation of
women, the Court has increasingly underlined the crucial importance
of equality between women and men as a pillar of the Council of
Europe system. As early as 1985, the Court stated that “equality
of sexes is one of the major goals in the Member States of the Council
More recently, it went
even further by defining gender equality as “one of the underlying
principles of the Convention”.Note
In other words,
while the principles of equality and non-discrimination are an essential
part of the Council of Europe’s system for the protection of human
rights, gender equality is one of the main aspects of these principles.
3 Discrimination and violence: gender-based violence
as a violation of equality
The European Court of Human Rights also recognised
in a recent judgmentNote
gender-based violence is a form of discrimination against women.
In this case, arising from a situation of domestic violence, the
Court found a violation of the right to life and the prohibition
of torture or ill-treatment, but also a form of discrimination under
Article 14, since the applicant had shown that domestic violence
affected mainly women and the general and discriminatory judicial
passivity contributed to the emergence of domestic violence.
8. I believe that gender-based violence is a consequence of gender
inequality, as it is rooted in the unequal power relations between
women and men. The relative impunity that male perpetrators have
traditionally enjoyed is a sign of women’s subordinate position,
while violence is often intended to maintain the inequalities and
reinforce gender roles.
9. The work of our Assembly has contributed to disseminating
the idea that gender-based and domestic violence is a flagrant transgression
of human rights. It constitutes a barrier on many women’s path to
personal development and it prevents them from full enjoyment of
their rights. As gender-based violence affects women disproportionately,
it constitutes an apparent violation of equality between women and
10. The Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence (CETS No. 210) takes
into account the link that exists between violence against women
and gender inequality. Its Preamble reads: “the realisation of de jure and de
facto equality between women and men is a key element
in the prevention of violence against women”, and “violence against
women is a manifestation of historically unequal power relations
between women and men, which have led to domination over, and discrimination
against, women by men and to the prevention of the full advancement
11. Article 1 lists among the purposes of the convention the need
for it to “contribute to the elimination of all forms of discrimination
against women and promote substantive equality between women and
men, including by empowering women”, as well as to “protect women
against all forms of violence, and prevent, prosecute and eliminate
violence against women and domestic violence”. Under Article 4,
“Fundamental rights, equality and non-discrimination”, the states
parties must embody in their legislation the principle of equality
between women and men and prohibit discrimination against women.
Finally, Article 6 on “Gender-sensitive policies” requires the parties
to promote and effectively implement policies of equality between
women and men.
12. In other words, if the convention is based on “the Four Ps”,
three of them (protection of women, prevention of violence, prosecution
of perpetrators) are aimed at tackling gender-based violence, the
fourth one (“policies”) is aimed at fighting inequalities, which
are seen as the main cause of violence.
4 Equality of opportunities for women and men and
equality of outcomes
13. Mr Cilevičs’ report rightly underlines that the principle
of equality can be interpreted in different ways, ranging from “formal
equality” to equality of opportunity and equality of outcomes. As
far as women’s rights are concerned, equality of opportunity has
been our main objective for a long time.
14. Article 12 of the European Convention on Human Rights, its
Protocol No. 14 (CETS No. 194) and the other relevant texts are
not meant to create a situation where women and men are identical.
Equality of opportunity ensures that people have the same chances
to succeed regardless of their gender or any other ground of possible
discrimination, so that no arbitrary obstacle can prevent a person
from achieving those positions which correspond to their skills.
At the same time, equality of opportunity safeguards the individual’s qualities
and ambitions, and, ultimately, personal freedom. The difference
between individuals means that perfect equality of outcome is impossible.
15. However, equal opportunities have in some respects proved
insufficient. Cultural resistance and deeply rooted stereotypes
make it impossible for women to take advantage of the seemingly
equal opportunities that they are given. For this reason, in certain
areas where actual equality appears particularly difficult, such
as in political representation, measures inspired by the principle
of equality of outcomes may need to be considered. This is the orientation
that led our committee and the Assembly to advocate for quotas in
the political arena and in the top management of major public and
5 Gender equality and multiple discrimination
16. The right of all persons to equality before the law
and protection against discrimination constitutes a universal human
right recognised in one way or another in most human rights instruments,
including the Universal Declaration of Human Rights. These human
rights instruments either focus on several grounds of discrimination,
such as sex, ethnic or racial origin or disability, or on one of
them specifically. The underlying idea has been that people are,
or may be, discriminated against mainly on the grounds of one factor
at a time, and that these grounds can be treated separately in legal
instruments as well as in political action.
17. Lately, light has been shed on the situation of people suffering
from more than one form of discrimination. The discussion on the
subject remained predominantly academic in the first half of the
1990s, after which the importance and usefulness of the concept
became increasingly recognised also in different international human
rights fora, both governmental and non-governmental.
18. In the past, discrimination on the grounds of sex, ethnic
origin and all other grounds were understood as separate issues.
In other words, human rights instruments, including the European
Convention on Human Rights, focused on grounds of discrimination
such as sex, ethnic or racial origin and disability, considering
that victims of discrimination were likely to be victims because
of one of these factors. In some cases, an international legal instrument
focuses exclusively on one ground of discrimination: this is the
case of the International Convention on the Elimination of All Forms
of Racial Discrimination or the Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW).
19. In fact, particular situations may involve discrimination
on more than one ground at the same time, and as a consequence an
individual may suffer specific or aggravated forms of discrimination.
This situation is defined as “multiple discrimination”. The term
was coined in the late 1980s and the concept was introduced and
explored mainly by African American feminist scholars in the United
States, who discovered that African American women suffered specific
forms of discrimination suffered by neither African American men
nor white women in general. However, this concept obviously applies
also to situations which are widespread in Europe.
20. Women typically suffer from multiple discrimination. As they
represent a major share of each disadvantaged group, women systematically
face an intersection of discrimination on two or more different grounds.
21. A number of categories have been elaborated to describe situations
in which different grounds of discrimination interact: multiple,
intersectional, compound and overlapping discrimination. A distinction between
multiple and intersectional, in particular, has been proposed in
the following terms. Multiple discrimination would describe the
phenomenon in which one person is discriminated against on several different
grounds at different times. For example, a disabled woman may be
discriminated against on the basis of her gender in access to highly
skilled work, and on the basis of her disability in a situation
in which a public office building is not accessible to persons with
wheelchairs. Intersectional and compound discrimination, on the
other hand, would happen when one individual is discriminated against
on two or more different grounds at the same time (the case of disabled
women who are forced to undergo sterilisation could constitute an example
of this kind of discrimination, as this kind of discrimination is
neither typical of women in general nor of disabled men).
22. In my opinion, the concept of multiple discrimination can
be used as a comprehensive one that covers all the situations in
which discrimination takes place on more than one ground. I believe
that, as politicians committed to promote equality, we should be
focused on achieving our objective rather than on theoretical details.
23. Multiple discrimination should not be underestimated because
it has serious consequences. The intersection of discrimination
based on race and gender, for instance, is among the most widespread,
and its impact is devastating. The situation of migrant women, which
the Assembly has recently focused on, is a clear example of discrimination
on two, three or more grounds. Migrant women in Europe may find
themselves discriminated against on the basis of gender, national
or ethnic origin, race or social origin. In cases like this we have
to make sure that the principles of equality and non-discrimination
are effectively applied, by means of adequate legislation and policies.
6 The importance of positive measures
The Committee on Equal Opportunities for Women and
Men has consistently supported the idea that positive measures are
useful and necessary to improve the situation of women in today’s
society. The Assembly has advocated the adoption of positive measures,
including quotas aimed at promoting access to political life for
women. I myself was rapporteur on this matterNote
and promoted the view that
gender quotas are a transitional but necessary exception to the
principle of equality, as equal participation of women and men in political
life is “one of the foundations of democracy and one of the goals
of the Council of Europe”. Quotas create an exceptional, temporary
situation which in the longer term should bring about a change in
attitudes and allow for de jure
and de facto
Previously, the Assembly had focused on the need to achieve
a gender balance in decision-making processes and had set an initial
target of a critical mass of at least 40% of women in all governmental
and elected bodies.Note
On the same occasion, back in 2006, the
Assembly stated that the experience of quotas could be advantageously
transposed to the private sector and socio-economic domain. A number
of Council of Europe member states had already introduced or were
considering introducing quotas to improve the representation of
women on the governing boards of major firms. In some cases, large
companies had taken similar initiatives without any legal obligation.
We insisted on this matter and reaffirmed earlier this year
that quotas reserved for women should be introduced in the private
Several European countries, including
Iceland, Norway and Spain, have introduced quotas either in public
or private major companies or both, while other countries are discussing similar
proposals. The results in pioneering Norway are encouraging: between
2003 and 2010, female participation on the governing boards of almost
400 state-owned and listed companies increased from 7% to 40%.
The Assembly is clearly committed to positive measures even
when regulating its own functioning, as shown by the objective of
a minimum of 30% of representatives of the under-represented sex
in Assembly national delegations, foreseen by Resolution 1781 (2010)
7 Explanation of the proposed amendments
Women must be mentioned in this resolution. It is necessary
to include an explicit reference to them in a text dealing with
equality and non-discrimination. However, it would be inappropriate
to define them as a vulnerable group. Women can rather be defined
as disadvantaged, as they suffer from multiple discrimination. In
addition, the notion of group is reductive and not acceptable, since
women represent more than 50% of the overall population.
The idea of positive measures to protect disadvantaged persons
is not easily accepted by policy makers. Suggesting that the measures
are temporary would make them more likely to be accepted.
We support the principle, enshrined in the current text of
paragraph 2.2, that co-operation with relevant international organisations
and specialised bodies is desirable and necessary, as it strengthens
the impact of the actions taken by the different parties. In this
respect, alongside other specialised agencies of the United Nations
involved in the fight against discrimination, it is useful to mention
explicitly the bodies dealing with the situation of women, in particular
UN Women and the CEDAW Committee.