C Explanatory memorandum by Ms Rojhan
Gustafsson, rapporteur for opinion
1 I can only congratulate Ms Fresko-Rolfo
on her report, which provides an excellent analysis of the influence
and consequences of forced marriages in Council of Europe member
States. I was very concerned to read that these harmful practices
affect above all women and girls, but that they also affect men
and boys, as well as lesbian, gay, bisexual, transgender and intersex
(LGBTI) people or people with an intellectual disability. This report
demonstrates how important it is to have knowledge and collect data
on forced marriages and proposes pertinent solutions to prevent,
detect and facilitate the annulment of such marriages.
I welcome in particular the inclusion of child marriage, where
one or both of the parties is under 18 years of age and thus not
capable of personally expressing their full, free and informed consent,Note
within the definition of forced
marriage. As mentioned by Ms Fresko-Rolfo, the Parliamentary Assembly
in its Resolution 1468 (2005)
on forced marriages and child marriages has previously
urged national parliaments of the Council of Europe to adapt their
domestic legislation, so as to “fix at or raise to 18 years the
minimum statutory age of marriage for women and men”. I also believe
that a child is not capable of making decisions that affect her
or his life, otherwise it would open the door to serious risks of
recurrent violations of these persons’ human rights. The assimilation
of forced marriage with child marriage is in my opinion possible.
I welcome in particular the call to recognise forced marriage
as a ground of international protection in line with the existing
international standards and principlesNote
and the call to criminalise
conduct which may amount to forced marriage as adequately defined
by the report.
4 I recall that a report on the “Compatibility of Sharia law
with the European Convention on Human Rights: can States Parties
to the Convention be signatories of the ‘Cairo Declaration’?” is
being prepared by the Committee on Legal Affairs and Human Rights
which “resolves to investigate the compatibility of Sharia law, including
its informal application, with the [European Convention on Human
Rights (ETS No. 5)] and the implications for State Parties of adherence
to the Cairo Declaration”. The Cairo Declaration stipulates in particular
that “there are no other crimes or punishments than those mentioned
in the Sharia”. This could be problematic with regard to the criminalisation
of forced marriage.
5 However, I should like to propose a few amendments to the
draft resolution in order to enhance, from a legal point of view,
certain proposals concerning forced marriages in Europe. Before
providing some explanatory details on these amendments, I take this
opportunity to add some brief comments on the report.
1 Additional comments
to the report
I would like to take note in
particular of the judgment of the European Court of Human Rights
in the 2015 case of Z.H. and R.H. v.
this case, the Court held that “Article 8 (on family life) of the
[European Convention on Human Rights] could not be interpreted as
imposing on a member State an obligation to recognise a marriage,
religious or otherwise, contracted by a 14-year old child”. It noted
in this connection that “Article 12 expressly provides for regulation
of marriage by national law, and given the sensitive moral choices concerned
and the importance to be attached to the protection of children
and the fostering of secure family environments, this Court must
not rush to substitute its own judgment in place of the authorities
who are best placed to assess and respond to the needs of society”.
This implies that member States enjoy a certain margin of appreciation
in this area.
7 I was nevertheless concerned to read in Ms Fresko-Rolfo’s
report that by 2013, less than half of the member States of the
Council of Europe had policy addressing forced or early marriage.
The Istanbul Convention requires its States Parties to take the
necessary legislative or other measures to ensure that the intentional
conduct of forcing an adult or a child to enter into a marriage
is criminalised. By signing, ratifying and/or implementing the Istanbul
Convention, member States take a firm stand against forced marriage (Article 37
of the Istanbul Convention).
Moreover, the Court in the case of Z.H.
and R.H. v. SwitzerlandNote
considered that the “fact that the applicants had not yet taken
any steps to seek recognition of their religious marriage in Switzerland”
provided additional justification to considering that the applicants
were not married. Guarantees for civil registration of marriages
and births, as mentioned in the discussed resolution, should be
adequately applied in European democratic societies. This is particularly
relevant where religious marriages are not necessarily accompanied by
civil registrations. Indeed, where the authorities tolerate non-registration
of religious marriages, this may create a situation in which forced
marriages occur more easily, since they need not be brought to the authorities’
This situation also raises the question of forced marriages
or child marriages contracted abroad, in person. In the case of Z.H. and R.H. v. SwitzerlandNote
a religious marriage
took place when the applicants were in Iran. In this regard, I would
like to recall in particular the Assembly’s position in Resolution 1468 (2005)
where it urged national parliaments of Council of Europe
member States to “adapt their domestic legislation, if appropriate,
so as to refrain from recognising forced marriages and child marriages
contracted abroad except where recognition would be in the victims’
best interests with regard to the effects of the marriage, particularly
for the purpose of securing rights which they could not claim otherwise” (paragraph 14.2.4).
2 Explanatory notes
2.1 Amendment A (to
the draft resolution)
This amendment aims to clarify the definition of forced marriage,
in line with the United Nations CEDAWNote and paragraph 14 of Ms Fresko-Rolfo’s
report, as a marriage in which one of the parties is not permitted
to end or leave it, including as a result of duress or intense social
or family pressure.Note Each
party should have access to adequate information on his or her rights,
and be in a capacity to put an end to an abusive situation, or a situation
that is against the will of one of the parties. If this is not the
case, the situation should be assimilated to a forced marriage,
where one or both of the parties become trapped in their own marriage.
2.2 Amendment B (to
the draft resolution)
This amendment aims to criminalise forced marriage as an independent
criminal offence, as suggested by Assembly Resolution 1468 (2005) (paragraph 14.4) and Ms Fresko-Rolfo in her explanatory
report (paragraph 57) when explaining that the establishment of
a “specific criminal offence makes it possible to prosecute the perpetrators
of forced marriages independently of whether other offences have
been committed”. It aims also to insert the word “intentional” to
describe the conduct according to the definitions prescribed by
Article 37 of the Istanbul Convention.
2.3 Amendment C (to
the draft resolution)
This amendment aims to ensure that the resolution recommends
the prosecution of everyone who should be considered criminally
liable in relation to forced marriages, in accordance with Article
41 of the Istanbul Convention. Someone who conducts a marriage ceremony
knowing that it amounts to a forced marriage could be considered
as aiding or abetting the commission of an offence.
2.4 Amendment D (to
the draft resolution)
This amendment aims to ensure that civil law measures such
as travel bans and protection orders do not impose undue restrictions
on people’s freedom of movement, autonomy and right to family life.
An adequate balance shall be found between the necessity to protect
the physical integrity and mental health of the person, while ensuring
these protective measures are guaranteed by the court and are complemented
with proper time restrictions, in order to avoid undue interferences
with the affected person’s rights.