Draft Council of Europe Convention on preventing and combating violence against women and domestic violence
Draft explanatory memorandum
Request for an opinion
| Doc. 12472 Addendum
| 28 September 2015
- Author(s):
- Committee of Ministers
- Thesaurus
Draft explanatory memorandum
Ad hoc Committee on Preventing and Combating Violence against
Women and Domestic Violence (CAHVIO)
CAHVIO (2011) 7 FIN
28 January 2011
1 I. Introduction
1. Violence against women, including domestic violence,
is one of the most serious forms of gender-based violations of human
rights in Europe that is still shrouded in silence. Domestic violence
– against other victims such as children, men and the elderly –
is also a hidden phenomenon which affects too many families to be ignored.
2. Prevalence rates for Europe do not exist, but many member
states have increasingly conducted surveys to measure the extent
of violence against women nationally. Although methodologies vary,
an overview of these surveys suggests that across countries, one-fifth
to one-quarter of all women have experienced physical violence at
least once during their adult lives and more than one-tenth have
suffered sexual violence involving the use of force. Figures for
all forms of violence, including stalking, are as high as 45%. The
majority of such violent acts are carried out by men in their immediate
social environment, most often by partners and ex-partners.
3. Secondary data analysis support a conservative estimate that
about 12% to 15% of all women have been in a relationship of domestic
abuse after the age of 16. Many more continue to suffer physical
and sexual violence from former partners even after the break-up,
indicating that, for a large number of women, ending an abusive
relationship does not necessarily mean physical safety.
4. Domestic violence against children is widespread and studies
have revealed the link between domestic violence against women and
child physical abuse as well as the trauma that witnessing violence
in the home causes in children. For other forms of domestic violence,
such as elderly abuse and domestic violence against men, reliable
data is relatively scarce.
5. Violence against women is a worldwide phenomenon. The Committee
on the Elimination of Discrimination against Women (CEDAW Committee)
of the United Nations Convention on the Elimination of All Forms
of Discrimination Against Women (hereafter CEDAW) in its general
recommendation on violence against women No. 19 (1992) helped to
ensure the recognition of gender-based violence against women as
a form of discrimination against women. The United Nations General
Assembly, in 1993, adopted a Declaration on the Elimination of Violence
against Women that laid the foundation for international action
on violence against women. In 1995, the Beijing Declaration and
Platform for Action identified the eradication of violence against
women as a strategic objective among other gender equality requirements.
In 2006, the UN Secretary-General published his In-depth study on
all forms of violence against women, in which he identified the manifestations
and international legal frameworks relating to violence against
women, and also compiled details of "promising practices" which
have shown some success in addressing this issue.
6. As a regional instrument open for ratification and accession
to non-member states, the Council of Europe Convention on preventing
and combating violence against women and domestic violence complements
and expands the standards set by other regional human rights organisations
in this field. The Inter-American Convention on the prevention,
punishment and eradication of violence against women, adopted in
1994 by the Organisation of American States, and the Protocol to
the African Charter on Human and Peoples’ Rights on the Rights of
Women in Africa, adopted in 2003 by the African Union, both address
the issue of violence against women. More comprehensive in nature,
the Council of Europe Convention significantly reinforces action
to prevent and combat violence against women and domestic violence
at world level.
1.1 Action of the Council of Europe
7. One of the primary concerns of
the Council of Europe, representing 47 member states and their 800 million
citizens, is to safeguard and protect human rights. Violence against
women, including domestic violence, undermines the core values on
which the Council of Europe is based.
8. Since the 1990ies, the Council of Europe, in particular its
Steering Committee for Equality between Women and Men (CDEG), has
undertaken a series of initiatives to promote the protection of
women against violence. In 1993, the 3rd European Ministerial Conference
on Equality between Women and Men was devoted to Strategies for
the elimination of violence against women in society: the media
and other means.
9. An Action Plan to Combat Violence against Women which had
subsequently been developed provided the first comprehensive policy
framework for national administrations. This was followed up in
2002 by the adoption of Council of Europe Recommendation Rec(2002)5
of the Committee of Ministers to member states on the protection
of women against violence. It represents a milestone in that it
proposes, for the first time in Europe, a comprehensive strategy
for the prevention of violence against women and the protection
of victims in all Council of Europe member states. Since 2002, it
has served as the most important reference text for member states
in combating violence against women. Its implementation is regularly
monitored by means of a monitoring framework to evaluate progress.
Several monitoring cycles were completed and their outcome assessed
and published. They showed that, in particular in the areas of legislation,
police investigation and prosecution much had been done to enhance
the criminal law response to violence against women. Nonetheless,
many gaps remain. In other areas, notably the provision of services
for victims, signs of progress are scarce.
10. To give new impetus to the eradication of violence against
women, and to reaffirm their commitment to this aim, the Heads of
State and Government of the Council of Europe member states decided
at their Third Summit (Warsaw, 16-17 May 2005) to carry out a large-scale
campaign on the issue, devised and closely monitored by the Council
of Europe Task Force to Combat Violence against Women, including
Domestic Violence, whose members were appointed by the Secretary
General of the Council of Europe.
11. The Campaign was conducted at three levels: intergovernmental,
parliamentary and local. Member states were asked to make significant
progress in four main areas: legal and policy measures, support
and protection for victims, data collection and awareness-raising.
They were also invited to carry out national campaigns to lobby
for stronger implementation of Recommendation Rec (2002)5 on the
protection of women against violence, which more than half the member
states did.
12. Thanks to the unique role of the Parliamentary Assembly of
the Council of Europe, comprising delegations from all 47 national
parliaments, there was a strong parliamentary dimension to the Campaign. Many
parliamentarians have, individually and jointly, pushed for changes
in legislation to protect women from gender-based violence. By organising
parliamentary debates and hearings on violence against women, but also
in interviews and public statements, parliamentarians have greatly
contributed to raising awareness of this topic. Parliamentarians
in many member states continue to actively lobby for change and
have created a “Network of Contact Parliamentarians” who are committed
to combating violence against women at national level.
13. The campaign revealed the magnitude of the problem in Europe,
but it also brought to light examples of good practice and initiatives
in many different member states. It increased awareness among key
actors and helped place the various forms of violence against women
on the political agenda.
14. Furthermore, the assessment of national measures to address
violence against women carried out by the Task Force showed the
need for harmonised legal standards and the collection of relevant
data to ensure that victims across Europe benefit from the same
level of protection and support. The Task Force therefore recommended
in its Final Activity Report (EG-TFV (2008) 6), that the Council
of Europe develop a human rights convention to prevent and combat
violence against women.
15. Moreover, the European Ministers of Justice decided during
their 27th Conference (Yerevan, Armenia, 12-13 October 2006) to
assess the need for a Council of Europe legal instrument on violence
against the partner and be aware that such violence can be based
on discriminating prejudices in terms of inequalities resulting
from gender, origins and economic dependency. Following the results
of the “Feasibility study for a convention on against domestic violence”
(CDPC (2007)09 rev) it was concluded by the European Committee for
Crime Problems (CDPC) that such an instrument would be necessary.
16. The Parliamentary Assembly has long taken a firm political
stance against all forms of violence against women. It has adopted
a number of resolutions and recommendations on the various forms
of violence against women. In particular, it has addressed the issue
of female genital mutilation (Resolution 1247 (2001) on female genital
mutilation), domestic violence (Resolution 1582 (2002) on domestic
violence), so-called “honour crimes” (Resolution 1327 (2003) on
so-called “honour crimes”), forced and child marriages (Recommendation 1723
(2005) on forced marriages and child marriages), date rape (Recommendation
1777 (2007) on sexual assaults linked to “date-rape drugs”) and,
more recently, the issues of feminicides (Resolution 1654 (2009)
on Feminicides) and marital rape (Resolution 1691 (2009) on rape
of women, including marital rape).
17. The Parliamentary Assembly has repeatedly called for legally-binding
standards on preventing, protecting against and prosecuting the
most severe and widespread forms of gender-based violence and has expressed
its support to the drafting of the Council of Europe Convention
on preventing and combating violence against women and domestic
violence.
1.2 The Council of Europe Convention on preventing
and combating violence against women and domestic violence
18. In response to the recommendations
by the Task Force to develop a convention on violence against women
and the results of the feasibility study on a convention on violence
against the partner, the Committee of Ministers decided to set up
a multi-disciplinary committee mandated to develop legally-binding
standards that would cover both these areas: violence against women
and domestic violence.
19. As a result, the Ministers’ Deputies of the Council of Europe
adopted, at their 1044th meeting on 10 December 2008, the terms
of reference for the Ad Hoc Committee on Preventing and Combating
Violence against Women and Domestic Violence (CAHVIO) to prepare
one or more legally binding instrument[s] “to prevent and combat
domestic violence, including specific forms of violence against
women, other forms of violence against women, and to protect and
support the victims of such violence as well as prosecute the perpetrators”.
The Deputies also requested that CAHVIO “present, by 30 June 2009,
an interim report on its position on the subjects and contents of
the proposed instrument(s), its working methods and the time table
for its work, in order to allow the Committee of Ministers to take
a decision, where necessary, on these matters”. The interim report
reflected the opinion of the Committee that the focus of the Convention
was to be on the elimination of violence against women. Furthermore,
the Convention would deal with domestic violence which affects women
disproportionately, while allowing for the application of its provisions
to all victims of domestic violence. At its 1062nd meeting of 1st
July 2009, the Deputies “took note of the interim report (…)” and
“invited the CAHVIO to continue its work in accordance with the
work programme and timetable set out in the interim report and,
in particular, to prepare the instruments proposed in the report”.
On that basis, in December 2009, CAHVIO started negotiations on
the Convention on preventing and combating violence against women
and domestic violence. CAHVIO held six meetings, in December 2009
and February, June/July, September, November and December 2010 to
finalise the text.
20. The text of the draft convention was approved by the CAHVIO
during its meeting in December 2010 and transmitted to the Committee
of Ministers for submission to the Parliamentary Assembly for opinion.
In … 2011 the Parliamentary Assembly gave its opinion on the draft
convention.
21. Building on Recommendation Rec(2002)5 on the protection of
women against violence, the Convention sets, for the first time
in Europe, legally-binding standards to prevent violence against
women and domestic violence, protect its victims and punish the
perpetrators. It fills a significant gap in human rights protection
for women and encourages Parties to extend its protection to all
victims of domestic violence. It nonetheless frames the eradication
of violence against women in the wider context of achieving substantive
equality between women and men and thus significantly furthers recognition
of violence against women as a form of discrimination.
2 II. Commentary on the provisions of the
Convention
2.1 Preamble
22. The Preamble reaffirms the commitment
of the signatories to human rights and fundamental freedoms. It
recalls only the most important international legal instruments
which directly deal with the scope of this Convention in the framework
of the Council of Europe and the United Nations.
23. During the negotiation process of this Convention, other international
legal instruments, in particular those prepared by the Council of
Europe, have been taken into account. In addition, the drafters
bore in mind the following recommendations of the Council of Europe
Parliamentary Assembly: Recommendation 1450 (2000) on Violence against
women in Europe, Recommendation 1582 (2002) on Domestic violence
against women, Recommendation 1723 (2005) on Forced marriages and
child marriages, Recommendation 1759 (2006) on Parliaments united
in combating domestic violence against women, Recommendation 1777
(2007) on Sexual assaults linked to ''date-rape drugs'', Recommendation
1817 (2007) on Parliaments united in combating domestic violence
against women: mid-term assessment of the Campaign, Recommendation
1847 (2008) on Combating violence against women: towards a Council
of Europe convention, Recommendation 1873 (2009) on Sexual violence
against women in armed conflict, Recommendation 1868 (2009) on Action
to combat gender-based human rights violations, including abduction
of women and girls, Recommendation 1861 (2009) on Feminicides, Recommendation
1881 (2009) on the urgent need to combat so-called ‘honour crimes’, Recommendation
1887 (2009) on Rape of women, including marital rape, Recommendation
1891 (2009) on Migrant women: at particular risk from domestic violence
and Recommendation 1905 (2010) on Children who witness domestic
violence. Similarly, the drafters took into consideration Recommendation
260(2009) Combating domestic violence against women and Resolution
279(2009) Combating domestic violence against women of the Congress
of Local and Regional Authorities of the Council of Europe.
24. Furthermore, the negotiations were inspired by the following
political declarations:
a the Declaration
and Programme of Action adopted at the 5th European Ministerial
Conference on Equality between Women and Men (Skopje, 22-23 January
2003);
b the Action Plan adopted at the 3rd Summit of the Heads
of State and Government of the Council of Europe (Warsaw, 16-17
May 2005);
c the Declaration “Making gender equality a reality” adopted
by the Committee of Ministers of the Council of Europe (Madrid,
12 May 2009);
d the Resolution no. 1 on preventing and responding to domestic
violence adopted at the 29th Council of Europe Conference of Ministers
of Justice (Tromsø, Norway, 18 -19 June 2009);
e the Action Plan and Resolution adopted at the 7th Council
of Europe Conference of Ministers responsible for Equality between
Women and Men (Baku, 24-25 May 2010);
f the Beijing Declaration and Platform for Action adopted
at the Fourth World Conference of Women in 1995, the report of the
Ad Hoc Committee of the whole of the 23rd special session of the
United Nations General Assembly (Beijing + 5 political declaration
and outcome document) as well as the political declaration from
the 49th session of the United Nations Commission on the Status
of Women in 2005 (Beijing + 10) and 54th session of the United Nations
Commission on the Status of Women in 2010 (Beijing + 15) and Women
2000: Gender Equality, Development and Peace for the Twenty-first
Century.
25. The Preamble sets out the basic aim of the Convention: the
creation of a Europe free from violence against women and domestic
violence. To this end, it firmly establishes the link between achieving
gender equality and the eradication of violence against women. Based
on this premise, it recognises the structural nature of violence
against women and that it is a manifestation of the historically
unequal power relations between women and men. Consequently, the
Preamble sets the scene for a variety of measures contained in the
Convention that frame the eradication of violence against women
within the wider context of combating discrimination against women
and achieving gender equality in law and in fact. It should also
be noted that the term "discrimination against women" should be
interpreted as constituting “any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women, irrespective
of their marital status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field” as provided in Article
1 of CEDAW. At the same time the drafters wished to acknowledge
that violence against women and domestic violence may be explained
and understood in various manners at structural, group and individual
levels. Violence against women and domestic violence are complex
phenomena and it is necessary to use a variety of approaches in
combination with each other in order to understand them.
26. The drafters wished to emphasise that violence against women
seriously violates and impairs or nullifies the enjoyment by women
of their human rights, in particular their fundamental rights to
life, security, freedom, dignity and physical and emotional integrity,
and that it therefore cannot be ignored by governments. Moreover, they
recognised that violence affects not only women adversely, but society
as a whole and that urgent action is therefore required. Finally,
they stressed the fact that some groups of women such as women and
girls with disabilities are often at greater risk of experiencing
violence, injury, abuse, neglect or negligent treatment, maltreatment
or exploitation, both within and outside the home.
27. In addition to affirming that violence against women, including
domestic violence against women, is a distinctly gendered phenomenon,
the signatories clearly recognise that men and boys may also be
victims of domestic violence and that this violence should also
be addressed. Where children are concerned, it is acknowledged that
they do not need to be directly affected by the violence to be considered
victims but that witnessing domestic violence is also traumatising
and therefore sufficient to victimise them.
28. The drafters wished to stress that the obligations contained
in this Convention do not require Parties to take measures that
run counter to constitutional rules or fundamental principles relating
to the freedom of the press and the freedom of expression in other
media.
29. It is important to note that the measures contained in the
Convention are without prejudice to the positive obligations on
states to protect the rights recognised by the European Convention
for the Protection of Human Rights and Fundamental Freedoms (hereafter
ECHR). Measures should also take into account the growing body of
case law of the European Court of Human Rights which sets important
standards in the field of violence against women, and which provided
guidance to the drafters for the elaboration of numerous positive obligations
and measures needed to prevent such violence.
2.2 Chapter I – Purposes, definitions, equality and
non-discrimination, general obligations
2.2.1 Article 1 – Purposes of the Convention
30. Paragraph 1 sets out the purposes
of the Convention. Paragraph 1 (a) states as the specific purpose
of the Convention the protection of women against all forms of violence,
as well as the prevention, prosecution and elimination of violence
against women and domestic violence.
31. In line with the recognition contained in the preamble that
there is a link between eradicating violence against women and achieving
gender equality in law and in fact , paragraph 1 (b) specifies that
the Convention will contribute to the elimination of all forms of
discrimination against women and promote substantive equality between
women and men. The drafters considered it essential to clearly state
this as one of the purposes of the Convention.
32. Paragraph 1 (c) reflects the need for a comprehensive approach
to the protection of and assistance to all victims of violence against
women and domestic violence. The forms of violence covered by the
scope of this Convention have devastating consequences on victims.
It is necessary to design a comprehensive framework to not only
ensure their further safety, re-establish their physical and psychological
health but to also enable them to re-build their lives. This framework
should be grounded on a human-rights based approach.
33. Paragraph 1 (d) deals with international co-operation, about
which Chapter VIII contains details. International co-operation
is not confined to legal co-operation in criminal and civil matters
but extends to the exchange of information to prevent criminal offences
established under the Convention and to ensure protection from immediate
harm.
34. Eliminating violence against women and domestic violence requires
extensive multi-agency co-operation as part of an integrated approach.
Ensuring this approach to preventing and combating violence is stated
as the final purpose of the Convention in Paragraph 1 (e). It is
further developed in Chapter II and other sections of the Convention.
35. Paragraph 2 underlines that, in order to ensure the effective
implementation of its provisions by the Parties, the Convention
sets up a special monitoring mechanism. This is a means of ensuring
Parties’ compliance with the Convention and is a guarantee of the
Convention’s long-term effectiveness (see comments on Chapter IX).
2.2.2 Article 2 – Scope of the Convention
36. Paragraph 1 states that the focus
of this Convention is on all forms of violence against women which includes
domestic violence committed against women. The drafters considered
it important to emphasise that the majority of victims of domestic
violence are women.
37. The provision contained in paragraph 2 on the scope of the
Convention encourages Parties to apply this Convention also to domestic
violence committed against men and children. It is therefore up
to the Parties to decide whether to extend the applicability of
the Convention to these victims. They may do so in the manner they
consider the most appropriate, taking notably account of the specific
national situation and of the developments in their society. However,
with a view to keeping the focus on the various forms of gender-based violence
committed against women, paragraph 2 requires Parties to pay particular
attention to victims of this form of violence when implementing
the Convention. This means that gender-based violence against women, in
its various manifestations, one of which is domestic violence, must
lie at the heart of all measures taken in implementation of the
Convention.
38. The basic principles of international humanitarian law and
the Rome Statute of the International Criminal Court, which are
referred to in the Preamble to the Convention, affirm individual
criminal responsibility under international law for violence that
occurs primarily (but not exclusively) during armed conflict. Article
7 of the Rome Statute (crimes against humanity committed as part
of a widespread or systematic attack directed against any civilian
population) and Article 8 (war crimes) include crimes of violence
committed largely against women such as rape and sexual violence.
However the forms of violence covered by the present Convention do
not cease during armed conflict or periods of occupation. Paragraph
3 therefore provides for the continued applicability of the Convention
during armed conflict as complementary to the principles of international humanitarian
law and international criminal law.
2.2.3 Article 3 – Definitions
39. Article 3 provides several definitions
which are applicable throughout the Convention.
2.2.3.1 Definition of “violence against women”
40. The definition of “violence against
women” makes clear that, for the purpose of the Convention, violence against
women shall be understood to constitute a violation of human rights
and a form of discrimination. This is in line with the purpose of
the Convention set out in Article 1 (b) and needs to be borne in
mind when implementing the Convention. The second part of the definition
is the same as contained in Council of Europe Recommendation Rec
(2002) 5 of the Committee of Ministers to member states on the protection
of women against violence, the CEDAW Committee General Recommendation
No. 19 on violence against women (1992), as well as in Article 1
of the United Nations Declaration on the Elimination of All Forms
of Violence against Women. The drafters have, however, expanded
it to include the notion of “economic harm” which can be related
to psychological violence.
2.2.3.2 Definition of “domestic violence”
41. Article 3 (b) provides a definition
of domestic violence that covers acts of physical, sexual, psychological or
economic violence between members of the family or domestic unit,
irrespective of biological or legal family ties. In line with what
is mentioned in paragraph 40, economic violence can be related to
psychological violence. Domestic violence includes mainly two types
of violence: intimate-partner violence between current or former
spouses or partners and inter-generational violence which typically
occurs between parents and children. It is a gender neutral definition
that encompasses victims and perpetrators of both sexes.
42. Domestic violence as intimate-partner violence includes physical,
sexual, psychological or economic violence between current or former
spouses as well as current or former partners. It constitutes a
form of violence which affects women disproportionately and which
is therefore distinctly gendered. Although the term “domestic” may
appear to limit the context of where such violence can occur, the
drafters recognised that the violence often continues after a relationship
has ended and therefore agreed that a joint residence of the victim and
perpetrator is not required. Inter-generational domestic violence
includes physical, sexual, psychological and economic violence by
a person against her or his child or parent (elderly abuse) or such
violence between any other two or more family members of different
generations. Again, a joint residence of the victim and perpetrator
is not required.
2.2.3.3 Definition of “gender”
43. As the Convention places the
obligation to prevent and combat violence against women within the
wider framework of achieving equality between women and men, the
drafters considered it important to define the term “gender”. This
definition explains that there are socially constructed roles and
behaviours that any given society considers appropriate for women
and men. Research has shown that certain roles or stereotypes reproduce
unwanted and harmful practices and contribute to make violence against
women acceptable. To overcome such gender roles, Article 12 (1)
frames the eradication of prejudices, customs, traditions and other practices
which are based on the idea of the inferiority of women or on stereotyped
gender roles as a general obligation to prevent violence. Elsewhere,
the Convention calls for a gendered understanding of violence against
women and domestic violence as a basis for all measures to protect
and support victims. This means that these forms of violence need
to be addressed in the context of the prevailing inequality between
women and men, existing stereotypes, gender roles and discrimination
against women in order to adequately respond to the complexity of
the phenomenon.
2.2.3.4 Definition of “gender-based violence against women”
44. The term “gender-based violence
against women” is used throughout the Convention and refers to violence
that is directed against a woman because she is a woman or that
affects women disproportionately. It differs from other types of
violence in that the victim’s gender is the primary motive for the
acts of violence described under lit.a. In other words, gender-based
violence refers to any harm that is perpetrated against a woman
and that is both the cause and the result of unequal power relations
based on perceived differences between women and men that lead to
women’s subordinate status in both the private and public spheres.
This type of violence is deeply rooted in the social and cultural
structures, norms and values that govern society, and is often perpetuated
by a culture of denial and silence. The use of the expression “gender-based
violence against women” in this Convention is understood as equivalent
to the expression “gender-based violence” used in the CEDAW Committee
General Recommendation No. 19 on violence against women (1992),
the United Nations General Assembly Declaration on the Elimination
of Violence against Women (1993) and Recommendation Rec(2002)5 of
the Committee of Ministers of the Council of Europe to member states
on the protection of women against violence (2002).
2.2.3.5 Definition of “victim”
45. The Convention contains a large
number of references to victims. The term “victim” refers to both
victims of violence against women, and victims of domestic violence,
as defined in Article 3 (a) and Article 3 (b) respectively. While
only women, including girls, can be victims of violence against
women, victims of domestic violence may include men and women as
well as children. In line with other international human rights
treaties, the term “child” shall mean any person under the age of
eighteen years. The term “victim” should be understood in accordance
with the scope of the Convention.
2.2.3.6 Definition of “women”
46. Conscious of the fact that many
of the forms of violence covered by the Convention are perpetrated against
both women and girls, the drafters did not intend to limit the applicability
of the Convention to adult victims only. Lit.f. therefore clearly
states that the term “women” includes girls under the age of eighteen
years.
2.2.4 Article 4 – Fundamental rights, equality and non-discrimination
47. Paragraph 1 states the principle
deriving from international human rights law that every person has
the right to live free from violence in the public and the private
sphere. With a view to the focus of the Convention, the drafters
considered it important to emphasise the particular obligation to
promote and protect this right for women which are predominantly
victims of gender-based violence.
48. Discrimination against women provides a breeding ground for
tolerance towards violence against women. Any measures taken to
prevent and combat violence against women need to promote equality between
women and men as only substantive equality will prevent such violence
in the future. In the Opuz v. Turkey judgment,
the European Court of Human Rights has discussed the interconnection
between discrimination and violence against women and has held that
gender-based violence constitutes a form of discrimination because
it mainly affects women and women were not protected by the law
on an equal footing with men.
49. For these reasons, paragraph 2 affirms the principle of substantive
equality between women and men by requiring Parties to not only
condemn all forms of discrimination against women, but to enshrine
the principle of equality in law, ensure its practical realisation
as well as prohibit discrimination by law and abolish any discriminatory
legislation and practices. It recognises that the enjoyment of the
right to be free from violence is interconnected with the Parties’
obligation to secure equality between women and men to exercise
and enjoy all civil, political, economic, social and cultural rights
as set out in the human rights instruments of the Council of Europe,
particularly the ECHR and its Protocols and the European Social
Charter, and other international instruments, particularly CEDAW,
to which they are Parties.
50. It is important to note that this paragraph provides Parties
with two options to meet the requirement of enshrining in law the
principle of equality between women and men: a constitutional amendment
or its embodiment in other legislative act. Furthermore, the obligation
to ensure the practical realisation of equality between women and
men addresses the fact that enshrining it in law is often insufficient
and that practical measures are required to implement this principle
in a meaningful way.
51. Paragraph 3 prohibits discrimination in Parties’ implementation
of the Convention. The meaning of discrimination is identical to
that given to it under Article 14 of the ECHR. The list of non-discrimination
grounds draws on that in Article 14 ECHR as well as the list contained
in Protocol No. 12 to the ECHR. It is worth pointing out that the
European Court of Human Rights has applied Article 14 to discrimination
grounds not explicitly mentioned in that provision (see, for example,
as concerns the ground of sexual orientation, the judgment of 21
December 1999 in Salgueiro da Silva Mouta
v. Portugal).
52. In light of this case law, the drafters wished to add the
following non-discrimination grounds which are of great relevance
to the subject-matter of the Convention: gender, sexual orientation,
gender identity, age, state of health, disability, marital status,
and migrant or refugee status or other status, meaning that this
is an open-ended list. Research into help-seeking behaviour of victims
of violence against women and domestic violence, but also into the
provision of services in Europe shows that discrimination against
certain groups of victims is still wide-spread. Women may still
experience discrimination at the hands of law enforcement agencies
or the judiciary when reporting an act of gender-based violence.
Similarly, gay, lesbian and bisexual victims of domestic violence
are often excluded from support services because of their sexual
orientation. Certain groups of individuals may also experience discrimination
on the basis of their gender identity, which in simple terms means
that the gender they identify with is not in conformity with the
sex assigned to them at birth. This includes categories of individuals
such as transgender or transsexual persons, cross-dressers, transvestites
and other groups of persons that do not correspond to what society
has established as belonging to “male” or “female” categories. Furthermore,
migrant and refugee women may also be excluded from support services
because of their residence status. It is important to point out
that women tend to experience multiple forms of discrimination as
may be the case of women with disabilities or/and women of ethnic
minorities, Roma, or women with HIV/AIDS infection, to name a few.
This is no different when they become victims of gender-based violence.
53. The extent of the prohibition on discrimination contained
in paragraph 3 is much more limited than the prohibition of discrimination
against women contained in paragraph 2 of this article. It requires
Parties to refrain from discrimination in the implementation of
the provisions of this Convention, whereas paragraph 2 calls on Parties
to condemn discrimination in areas beyond the remit of the Convention.
54. Paragraph 4 refers to special measures which a Party to the
Convention may wish to take to enhance the protection of women from
gender-based violence – measures which would benefit women only.
Drawing on Article 4 of CEDAW, this paragraph stipulates that special
measures which aim at preventing and protecting women from gender-based
violence and which do not address men do not constitute a form of
discrimination. This is in line with the concept of discrimination
as interpreted by the European Court of Human Rights in its case
law concerning Article 14 ECHR. In particular, this case law has
made clear that not every distinction or difference of treatment
amounts to discrimination. As the Court has stated, for example
in the Abdulaziz, Cabales and Balkandali
v. the United Kingdom judgment, “a difference of treatment
is discriminatory if it has no objective and reasonable justification,
that is, if it does not pursue a legitimate aim or if there is not
a reasonable relationship of proportionality between the means employed
and the aim sought to be realised”. The fact that women experience
gender-based violence, including domestic violence, to a significantly
larger extent than men can be considered an objective and reasonable
justification to employ resources and take special measures for
the benefit of women victims only.
2.2.5 Article 5 – Principles of state responsibility,
including due diligence
55. Under international law a state
is responsible for the commission of an internationally wrongful
act which is attributable to it, through the conduct of their agents
such as the police, immigration officials and prison officers. This
principle is set out in the International Law Commission's Articles
on the Responsibility of States for Internationally Wrongful Acts
(2001) which are widely accepted as customary international law.
Under international human rights law the state has both negative
duties and positive duties: state officials must both respect the
law and refrain from the commission of internationally wrongful
acts and must protect individuals from their commission by other
non-state actors. Article 5 (1) addresses the state obligation to
ensure that their authorities, officials, agents, institutions and
other actors acting on behalf of the state refrain from acts of violence
against women, whereas paragraph 2 sets out Parties’ obligation
to exercise due diligence in relation to acts covered by the scope
of this Convention perpetrated by non-state actors. In both cases
failure to do so will incur state responsibility.
56. A requirement of due diligence has been adopted in a number
of international human rights instruments, interpretations, and
judgments with respect to violence against women. These include
CEDAW Committee General Recommendation No. 19 on violence against
women (1992), Article 4 of the United Nations General Assembly Declaration
on the Elimination of Violence against Women (1993), the Convention
on the Prevention of Violence against Women (Convention of Belém do Pará, 1994) adopted by
the Organisation of American States as well as the Council of Europe
Recommendation Rec(2002)5 of the Committee of Ministers to member
states on the protection of women against violence (2002). In its
case law on domestic violence, the European Court of Human Rights
has adopted the obligation of due diligence (see the judgment of Opuz v. Turkey, 2009). It has established
that the positive obligation to protect the right to life (Article
2 ECHR) requires state authorities to display due diligence, for
example by taking preventive operational measures, in protecting an
individual whose life is at risk.
57. Against the backdrop of these developments in international
law and jurisprudence, the drafters considered it important to enshrine
a principle of due diligence in this Convention. It is not an obligation
of result, but an obligation of means. Parties are required to organise
their response to all forms of violence covered by the scope of
this Convention in a way that allows relevant authorities to diligently
prevent, investigate, punish and provide reparation for such acts
of violence. Failure to do so incurs state responsibility for an
act otherwise solely attributed to a non-state actor. As such, violence
against women perpetrated by non-state actors crosses the threshold
of constituting a violation of human rights as referred to in Article
2 insofar as Parties have the obligation to take the legislative
and other measures necessary to exercise due diligence to prevent, investigate,
punish and provide reparation for acts of violence covered by the
scope of this Convention, as well as to provide protection to the
victims, and that failure to do so violates and impairs or nullifies
the enjoyment of their human rights and fundamental freedoms.
58. The term “reparation” may encompass different forms of reparation
under international human rights law such as restitution, compensation,
rehabilitation, satisfaction, and guarantee of non-repetition. As
regards compensation, it is important to note that this form of
reparation shall only be provided by a Party under the conditions
set out in Article 30 (2) of this Convention. Finally, term “non-state
actor” refers to private persons, a concept which is already expressed
in point II of Council of Europe Recommendation Rec (2002)5 on the protection
of women against violence.
2.2.6 Article 6 – Gender-sensitive policies
59. Since Article 6 is placed under
Chapter I which also deals with general obligations of Parties,
it application extends to all other articles of this Convention.
The nature of this obligation is two-fold. On the one hand, it requires
Parties to ensure a gender perspective is applied not only when
designing measures in the implementation of the Convention, but
also when evaluating their impact. This means that a gender impact assessment
needs to be carried out in the planning stage of any measure which
a Party takes in the implementation of this Convention. It further
means that during the evaluation stage, Parties are required to determine
whether there is a gender differential in the impact of the provisions.
60. On the other hand, this article calls on Parties to promote
and implement policies aimed at achieving equality between women
and men and at empowering women. This obligation complements the
obligation to condemn and prohibit discrimination contained in Article
4 paragraph 2. Convinced of the need to achieve equality between
women and men and to empower women in order to put an end to all
forms of violence covered by the scope of this Convention, the drafters
believed it essential to place an obligation on Parties that goes
beyond the specific measures to be taken to prevent and combat such
violence in order to achieve this goal. This ties in with the purposes
of the Convention listed in Article 1, in particular the promotion
of substantive equality between women and men, including by empowering
women, as expressed in Article 1 (b).
2.3 Chapter II – Integrated policies and data collection
61. Similar to other recent conventions
negotiated at the level of the Council of Europe, this Convention follows
the “3 P structure” of “Prevention”,
“Protection”, and “Prosecution”. However, since an
effective response to all forms of violence covered by the scope
of this Convention requires more than measures in these three fields,
the drafters considered it necessary to include an additional “P”
(integrated Policies).
2.3.1 Article 7 – Comprehensive and co-ordinated policies
62. Paragraph 1 requires Parties
to devise and implement policies which would comprise a multitude
of measures to be taken by different actors and agencies and which,
taken as a whole, offer a holistic response to violence against
women. This obligation is further developed in paragraph 2. It requires
Parties to ensure that the adopted policies are implemented by way
of effective multi-agency co-operation. Good practice examples in
some member states show that results are enhanced when law enforcement
agencies, the judiciary, women’s non-governmental organisations,
child protection agencies and other relevant partners join forces
on a particular case, for example to carry out an accurate risk
assessment or devise a safety plan. This type of co-operation should
not rely on individuals convinced of the benefits of sharing information
but requires guidelines and protocols for all agencies to follow,
as well as sufficient training of professionals on their use and
benefits.
63. To ensure that the expertise and perspective of relevant stakeholders,
agencies and institutions contribute to any policy-making in this
field, paragraph 3 calls for the involvement of “all relevant actors,
such as government agencies, the national, regional and local parliaments
and authorities, national human rights institutions and civil society
organisations”. This is a non-exhaustive list of actors, which the
drafters intended to cover, in particular, women’s non-governmental
organisations and migrant organisations, but also religious institutions.
National human rights institutions refer to those established in
accordance with the UN principles for national institutions for
the promotion and protection of human rights, adopted by United
Nations General Assembly Resolution 48/134, 1993. As national human
rights institutions exist in many member states of the Council of
Europe, the drafters considered it important to include these in
the list of relevant actors, where they exist. This provision does
not contain the obligation to set up such institutions where they
do not exist. By including national, regional and local parliaments
in this provision, the drafters wished to reflect the different levels
of law-making powers in Parties with a federal system. One way of
ensuring the elements of comprehensive and co-ordinated policies
on the one hand and the involvement of all relevant institutions
and agencies on the other would be by drawing up national action
plans.
2.3.2 Article 8 – Financial resources
64. This article aims at ensuring
the allocation of appropriate financial and human resources for
both activities carried out by public authorities and those of relevant
non-governmental and civil society organisations. Across Council
of Europe member states, different practice exists when it comes
to government funding for non-governmental organisations (hereinafter
NGOs) involved in preventing and combating all forms of violence
covered by the scope of this Convention. The obligation placed on
Parties is therefore that of allocating financial and human resources
for activities carried out by NGOs and civil society.
65. In view of the different economic circumstances of member
states, the drafters chose to limit the scope of this obligation
to the allocation of appropriate resources. This means that the
resources allocated need to be suitable for the target set or measure
to be implemented.
2.3.3 Article 9 – Non-governmental organisations and
civil society
66. In many member states, the overwhelming
majority of services for victims of domestic violence, and also services
for victims of other various forms of violence against women, are
run by non-governmental or civil society organisations. They have
a long tradition of providing shelter, legal advice, medical and
psychological counselling as well as of running hotlines and other
essential services.
67. The purpose of this article is to emphasise the important
contribution these various organisations make to preventing and
combating all forms of violence covered by the scope of this Convention.
It therefore requires Parties to the Convention to recognise their
work by, for example, tapping into their expertise and involving them
as partners in multi-agency co-operation or in the implementation
of comprehensive government policies which Article 7 calls for.
Beyond such recognition, this article requires Parties to the Convention
to actively encourage and support the work of these dedicated NGOs
and civil society organisations. This means enabling them to carry
out their work in the best possible way. Although Article 9 refers
only to NGOs and civil society active in combating violence against
women, this should not prevent Parties from going further and supporting the
work that is carried out by NGOs and civil society focusing on domestic
violence in its wider scope.
2.3.4 Article 10 – Co-ordinating body
68. Paragraph 1 entails the obligation
to entrust one or more official government bodies with four specific tasks:
co-ordinating, implementing, monitoring and evaluating the policies
and measures which the respective Party to the Convention has devised
to prevent and combat all forms of violence covered by the scope
of this Convention. This can be done by setting up new official
bodies or mandating official bodies already in existence with these
tasks. The term “official body” is to be understood as any entity
or institution within government. It may be a body set up or already
in existence either at national or regional level. Size, staffing
and funding are to be decided by the Parties, as well as which entity
it shall be answerable to and any reporting obligations it shall
have. Regarding the tasks of implementation, monitoring and evaluation
this body should be in existence on the respective level of a Party’s
structure which is responsible for the carrying out of the measures.
This means that in a federal government structure it may be necessary
to have more than one body.
69. The four tasks which this body or bodies are mandated to undertake
aim at ensuring that the various measures taken by the Party in
implementation of this Convention are well co-ordinated and lead
to a concerted effort of all agencies and all sectors of government.
Moreover, they aim at ensuring the actual implementation of any
new policies and measures. The monitoring task bestowed upon these
bodies is limited to the monitoring of how and how effectively policies
and measures to prevent and combat all forms of violence covered
by the scope of this Convention are being implemented at the national
and/or regional and local level. It does not extend to monitoring
compliance with the Convention as a whole which is a task performed
by the independent, international monitoring mechanism set up in
Chapter IX of the Convention (see comments on Chapter IX). Lastly,
the evaluation of policies and measures which these bodies are mandated
to carry out comprises the scientific evaluation of a particular
policy or measure in order to assess whether it meets the needs
of victims and fulfils its purpose as well as to uncover unintended
consequences. This will require robust administrative and population-based
data, which Article 11 obliges Parties to the Convention to collect.
For this reason, bodies created under this article are also assigned
the task of co-ordinating the collection of the necessary data and
to analyse and disseminate its results. Some member states have
set up observatories on violence against women which already collect
a vast variety of data. While these may serve as examples, the drafters
decided to leave to the Parties the decision on how to ensure the
co-ordination, analysis and dissemination of data by the bodies
in question.
70. Paragraph 2 of this article authorises these bodies to receive
information within the framework of this Convention which the respective
Party has taken in compliance with Chapter VIII (see comments on
Chapter VIII). It is important to note that, for data protection
reasons, the authorisation is limited to receiving information of
a general nature (see comments on Article 65). The obligation is
therefore confined to ensuring that bodies created under this article
are kept informed, in a general manner and without references to
individual cases, of international co-operation activities, including
mutual legal assistance in civil and criminal matters. The purpose is
to allow them to fulfil its role.
71. The information and knowledge acquired through the exchange
of experiences and practice is of great value in preventing and
combating all forms of violence covered by the scope of this Convention.
Paragraph 3 therefore equips bodies created under this article with
the ability to seek contact with and set up working relations with
its counterparts created in other Parties to the Convention. This
will allow for important cross-fertilisation that is mutually productive
and will lead to further harmonisation of practice.
2.3.5 Article 11 – Data collection and research
72. Systematic and adequate data
collection has long been recognised as an essential component of effective
policy-making in the field of preventing and combating all forms
of violence covered by the scope of this Convention. Despite this
recognition, examples of systematically collected administrative
or population-based data in Council of Europe member states are
rare. Additionally, available data are seldom comparable across
countries nor over time, resulting in a limited understanding of
the extent and the evolution of the problem. Preventing and combating
violence against women and domestic violence requires evidence-based policy-making.
This implies effectively documenting the magnitude of violence by
producing robust, comparative data in order to guide policy and
to monitor the implementation of measures to address the problem.
This chapter contains the obligation to address the importance of
regularly collecting representative and comparable data to the devising
and implementation of policies to prevent and combat all forms of
violence covered by the scope of this Convention. It establishes
the type of data that will need to be collected, analysed and prepared
for dissemination by the co-ordinating body or bodies created under
Article 10 and provided to the Group of independent experts (GREVIO)
responsible for the monitoring of the implementation of the Convention
(see Chapter IX). Additionally, it highlights the need to support
research in the field of violence against women and domestic violence.
73. The nature of the obligation contained in paragraph 1 is twofold.
First, in order to design and implement evidence-based policies
and assess whether they meet the needs of those exposed to violence,
lit.a requires Parties to collect disaggregated relevant statistical
data at regular intervals on cases of all forms of violence covered
by the scope of this Convention. Accurate statistical information
specifically designed to target victims and perpetrators of such
violence is not only important in efforts to raise awareness among
policy-makers and the public on the seriousness of the problem,
but can also encourage reporting by victims or witnesses. Relevant
statistical data may include administrative data collected from
statistics compiled by health care services and social welfare services,
law enforcement agencies and NGOs, as well as judicial data recorded by
judicial authorities, including public prosecutors. Appropriately
collected statistical administrative and judicial data can contribute
to Parties’ national response to all forms of violence covered by
the scope of this Convention by seeking information about the performance
of government institutions as well as information on crimes that
authorities are dealing with within the criminal procedure. Service-based
administrative data includes for instance the systematic recording
of data on how victims of such violence are using services and how
government agencies as well as the public (and private) health sector,
in return, are serving them in their plight to seek justice, medical
care, counselling, housing or other support. Agency-based client
data on service use is not only limited to assessing the effectiveness
of policies in place, but can also provide a basis for estimating
the administrative cost of such violence. Furthermore, judicial
data can provide information on the sentences and characteristics
of convicted persons, as well as on conviction rates.
74. Consequently, public authorities such as the judiciary, the
police and social welfare services will need to set-up data systems
in place that go beyond the internal recording of the needs of the
agency. Again, in order to show if there has been an improvement
or a decline in the effectiveness of prevention, protection and prosecution
measures and policies, relevant statistical administrative and judicial
data should be collected at regular intervals. The usefulness and
relevance of such data depend above all on the quality of its recording. Although,
the drafters felt it best to leave to the Parties the choice of
data categories used, as a minimum requirement, recorded data on
victim and perpetrator should be disaggregated by sex, age, type
of violence as well as the relationship of the perpetrator to the
victim, geographical location, as well as other factors deemed relevant
by Parties such as disability. Recorded data should also contain
information on conviction rates of perpetrators of all forms of
violence covered by the scope of this Convention, including the
number of protection orders issued. The Council of Europe study
on “Administrative data collection on domestic violence in Council of
Europe member states” (EG-VEW-DC(2008)Study) identifies these and
other categories and designs a model approach containing recommendations
on the collection of administrative data beyond current practices.
75. Secondly, lit.b creates the obligation for Parties to support
research in the field of all forms of violence covered by the scope
of this Convention. It is essential that Parties base their policies
and measures to prevent and combat such forms of violence on state-of-the
art research and knowledge in this field. Research is a key element
of evidence-based policy-making and can thus contribute greatly
to improving day-to-day, real-world responses to violence against
women and domestic violence by the judiciary, support services and
law enforcement agencies. This provision therefore requires Parties
to undertake to support research efforts in order to pursue further
knowledge of the root causes and effects of the problem, incidences
and conviction rates, as well as of the efficiency of measures taken
in implementation of the Convention.
76. Paragraph 2 details Parties’ obligation to endeavour conducting
population-based surveys. This implies collecting data that are
statistically representative of the target population so that they
can be easily generalised to the larger population. Population-based
surveys can provide more general sociologically oriented insights into
the prevalence, nature, determinants and consequences of all forms
of violence covered by the scope of this Convention. They can also
provide reliable data on victims’ experiences of violence, on the
reasons for not reporting, on the services received, as well as
victims’ opinions of and attitudes towards such violence. Parties are
additionally obliged to conduct such surveys at regular intervals
in order to make a pertinent and comparative assessment of the prevalence
and the trends in all forms of violence covered by the scope of
this Convention by tracking developments longitudinally. In this
case, the choice of population sample size and the regularity of
such studies is left to the Parties. Depending on the Party, the
scope of the surveys may be national, regional or local. It is however
important to note that the combination of these levels can provide
a macroscopic view of the phenomenon while also highlighting local
or regional specificities. When designing population-based surveys,
Parties may refer to the World Health Organisation (WHO) Multi-country
Study on Women’s Health and Domestic Violence against Women as well
as to the International Violence Against Women Survey (IVAWS).
77. The drafters considered it important to highlight the distinction
between population-based surveys and statistical administrative
and judicial data for they serve different purposes and answer different
questions. While the first can shed light on the level of severity
and frequency as well as on the socio-economic and cultural factors
leading to violence against women and domestic violence, the second
can contribute to address capacity issues of government agencies
and evaluate the effectiveness of services provided for victims
of such violence. Using both types of data collection methods in
conjunction can help gain an in-depth picture of the problem. Due
to a lack of shared definitions and common indicators for evaluating
the prevalence and trends of violence against women and domestic
violence, data that are available rarely allow for cross-country comparison.
Consequently, it would be beneficial for Parties to align the collection
of data with standardised indicators and methods already in existence
or currently under development. Parties should take into account existing
developments or initiatives to provide reliable and comparable data
such as the European Union Agency for Fundamental Rights violence
against women survey.
78. As laid out in Article 65 the process of collecting, storing
and transforming collected data should comply with standards on
data protection as contained in the Council of Europe Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data (ETS No. 108), to ensure confidentiality and respect
for the privacy of victims, perpetrators and other persons involved.
The standards laid out in Article 65 do not only apply in cases
of transnational data exchange, but to all processes of collecting,
storing and transforming of collected data.
79. Complementing Article 68 (7), the third paragraph of this
article entails the obligation of Parties to provide the independent
Group of experts referred to in Chapter IX with the information
collected in order to stimulate international co-operation and enable
international benchmarking. This not only allows the identification
of existing good practice but also contributes to its harmonisation
across the Parties to the Convention.
80. Finally, paragraph 4 contains the obligation to ensure that
the information collected pursuant to Article 11 is available to
the public. It is however left to the Parties to determine the form
and means, as well as the type of information that is to be made
available. In making information collected pursuant to Article 11
available to the public, Parties shall pay special attention to
the privacy rights of persons affected.
2.4 Chapter III - Prevention
81. This chapter contains a variety
of provisions that come under the heading of prevention in the wide
sense of the term. Preventing violence against women and domestic
violence requires far-reaching changes in attitude of the public
at large, overcoming gender stereotypes and raising awareness. Local
and regional authorities can be essential actors in implementing
these measures by adapting them to specific realities.
2.4.1 Article 12 – General obligations
82. This article comprises a number
of general preventive measures which lay the foundation and represent over-arching
principles for more specific obligations contained in the subsequent
articles of this chapter.
83. The obligations contained in paragraph 1 are based on the
conviction of the drafters that existing patterns of behaviour of
women and men are often influenced by prejudices, gender stereotypes
and gender-biased customs or traditions. Parties to the Convention
are therefore required to take measures that are necessary to promote
changes in mentality and attitudes. The purpose of this provision
is to reach the hearts and minds of individuals who, through their
behaviour, contribute to perpetuate the forms of violence covered by
the scope of this Convention. As a general obligation, this paragraph
does not go into detail as to propose specific measures to take,
leaving it within the discretion of the Party.
84. Paragraph 2 requires Parties to the Convention to take the
necessary legislative and other measures to prevent all forms of
violence covered by the scope of this Convention by any natural
or legal person. Depending on the national legal system, some of
these measures may require the passing of a law while others may
not.
85. In addition to the prohibition of discrimination contained
in Article 4 (3), paragraph 3 requires positive action to ensure
that any preventive measures specifically address and take into
account the needs of vulnerable persons. Perpetrators often choose
to target such persons because they know that they are less likely
to be able to defend themselves, or seek prosecution of the perpetrator
and other forms of reparation, because of their situation. For the
purpose of this Convention, persons made vulnerable by particular circumstances
include: pregnant women and women with young children, persons with
disabilities, including those with mental or cognitive impairments,
persons living in rural or remote areas, substance abusers, prostitutes,
persons of national or ethnic minority background, migrants – including
undocumented migrants and refugees, gay men, lesbian women, bi-sexual
and transgender persons as well as HIV-positive persons, homeless
persons, children and the elderly.
86. Paragraph 4 underlines that all members of society can make
an important contribution to the prevention of violence and should
be encouraged to do so. As many of the forms of violence covered
by the scope of this Convention are perpetrated primarily by men
and boys, the drafters considered it important to emphasise their particular
role in the prevention of such violence. Bearing in mind the fact
that the majority of men and boys are not perpetrators, the drafters
wanted to point out that their contribution can take on many forms
in particular as role models, agents of change and advocates for
equality between women and men and mutual respect. By speaking out
against violence, engaging other men in activities to promote gender
equality and acting as role models by actively taking on a caring
role and family responsibilities men have an important contribution
to make.
87. Paragraph 5 clearly states that culture, custom, religion,
tradition or so-called “honour” shall not be invoked to justify
any act of violence covered by the scope of this Convention. Parties
to the Convention are therefore obliged to ensure that their national
laws do not contain loopholes for interpretations inspired by such convictions.
Moreover, this obligation extends to the prevention of any official
statements, reports or proclamations that condone violence on the
basis of culture, custom, religion, tradition or so-called “honour”. This
provision also establishes a key principle according to which the
prohibition of any of the acts of violence set out in the Convention
can never be invoked as a restriction of the perpetrator’s cultural
or religious rights and freedoms. This principle is important for
societies where distinct ethnic and religious communities live together
and in which the prevailing attitudes towards the acceptability
of gender-based violence differ depending on the cultural or religious
background.
88. Rounding off the list of general preventive measures, paragraph
6 calls for the promotion of specific programmes and activities
for the empowerment of women. This means empowerment in all aspects
of life, including political and economic empowerment. This obligation
is a reflection of the greater aim of achieving gender equality
by increasing women’s agency and reducing their vulnerability to
violence.
2.4.2 Article 13 – Awareness-raising
89. The purpose of this article is
to ensure that the general public is fully informed of the various
forms of violence that women experience on a regular basis as well
as of the different manifestations of domestic violence. This would
help all members of society to recognise such violence, speak out
against it and support its victims as neighbours, friends, relatives
or colleagues, where possible and appropriate. The obligation entails
the running of public awareness-raising campaigns or programmes
on a regular basis that address and explain these issues in a gender-sensitive
manner. Awareness-raising activities should include the dissemination
of information on equality between women and men, non-stereotyped
gender roles, and non-violent conflict resolution in interpersonal
relationships. Moreover, the drafters considered it important that
any campaign highlight the harmful consequences for children which
violence against women and domestic violence may have in its direct
or indirect form.
90. Many NGOs have a long tradition of carrying out successful
awareness-raising activities – at local, regional or national level.
This provision therefore encourages the co-operation with national
human rights institutions and equality bodies, civil society and
NGOs, in particular women’s organisations, where appropriate, in
order to reach out to the general public. This however, is a non-exhaustive
list of actors, which the drafters intended to cover. Furthermore,
the inclusion of “where appropriate” in the provision means that Parties
are not obliged to set up such bodies or institutions where they
do not exist. Finally, it should be noted that the term women’s
organisations refers to women’s NGOs working in the area of protection
and support for women victims of violence against women.
91. Paragraph 2 extends the obligation to the dissemination of
concrete information on available government or non-government preventive
measures. This means the wide dissemination of information leaflets
or posters or on-line information material on services which the
police or the local community offers, contact information of local,
regional or national services such as helplines or shelters and
much more.
2.4.3 Article 14 – Education
92. Attitudes, convictions and behavioural
patterns are shaped very early on in life. The promotion of gender equality,
mutual respect in interpersonal relationships and non-violence must
start as early as possible and is primarily a responsibility of
parents. Educational establishments, however, have an important
role to play in enhancing the promotion of these values.
93. In paragraph 1, this article addresses the need to design,
where Parties deem appropriate, teaching material for all levels
of education (primary, secondary and tertiary education) that promotes
such values and enlightens learners with respect to the various
forms of violence covered by the scope of this Convention. Where
Parties deem teaching material appropriate, it needs to be adapted
to the capacity of learners, which would, for example, require primary
school teaching material to meet the intellectual capacity of primary
school students. Teaching material means any type of formally developed
and approved material that forms part of the curriculum and that,
where appropriate, all teachers at a particular school have access
to and are required or requested to use in class. As the words “where
appropriate” indicate, the drafters did not want to impose a specific
model on the Parties. Rather, this provision leaves it to the Parties
to decide which type of schooling and which age group of learners
they consider such teaching material to be appropriate for. The
drafters decided on this wording to allow for a maximum of flexibility
in the implementation of this provision also taking into account
different possibilities between Parties in determining teaching
materials. Some states for instance determine the teaching aims
in their formal curriculum while leaving it to the schools to decide
on the proper working methods and teaching materials to be used
to reach these aims. The term “formal curriculum” refers to the
planned programme of objectives, content, learning experiences,
resources and assessment offered by a school where appropriate.
It does not refer to incidental lessons which can be learnt at school
because of particular school policies.
94. Paragraph 2 extends the obligation to promote the principles
of equality between women and men, non-stereotyped gender roles,
mutual respect, non-violent conflict resolution in interpersonal
relationships in all informal educational facilities as well as
any sports, cultural and leisure facilities as well as the media.
Across Council of Europe member states, many different forms of
informal education exist and are often referred to in many different
ways. Generally, the term “informal educational facilities” refers
to organised education activity outside formal systems, such as
community or religious education facilities, activities, projects
and institutions based on social pedagogy, and any other type of
educational activity offered by community groups and other organisations
(such as boy scouts or girl scouts, summer camps, after school activities,
etc.). Sports, cultural and leisure facilities refer to facilities
which offer leisure activities in the areas of sports, music, arts
or any other field and which contribute to the lifelong process
of learning from everyday experience.
95. Furthermore, this paragraph requires Parties to the Convention
to include the media in its measures to promote the above principles.
It is important to note that the drafters clearly indicated that
any measures taken in this regard shall have due regard to the fundamental
principle of the independence of the media and the freedom of the
press.
2.4.4 Article 15 – Training of professionals
96. The training and sensitisation
of professionals to the many causes, manifestations and consequences of
all forms of violence covered by the scope of this Convention provides
an effective means of preventing such violence. Training not only
allows to raise awareness among professionals on violence against
women and domestic violence, but contributes to changing the outlooks
and the conduct of these professionals with regard to the victims.
Furthermore, it significantly improves the nature and quality of
the support provided to victims.
97. It is vital that professionals in regular contact with victims
or perpetrators have appropriate knowledge of the issues associated
with these kinds of violence. For this reason, paragraph 1 places
an obligation on Parties to provide or strengthen appropriate training
for the relevant professionals dealing with victims or perpetrators of
all acts of violence covered by the scope of this Convention on
issues such as the prevention and detection of such violence, equality
between women and men, the needs and rights of victims, as well
as on how to prevent secondary victimisation. Initial vocational
training and in-service training should enable the relevant professionals
to acquire the appropriate tools for identifying and managing cases
of violence, at an early stage, and to take preventive measures
accordingly, by fostering the sensitivity and skills required to
respond appropriately and effectively on the job. The drafters felt
it best to leave to the Parties how to organise the training of
relevant professionals. However, it is important to ensure that
relevant training be on-going and sustained with appropriate follow-up
to ensure that newly acquired skills are adequately applied. Finally,
it is important that relevant training should be supported and reinforced
by clear protocols and guidelines that set the standards staff are
expected to follow in their respective fields. The effectiveness
of these protocols where relevant, should be regularly monitored,
reviewed and, where necessary, improved.
98. The relevant professionals may include professionals in the
judiciary, in legal practice, in law enforcement agencies and in
the fields of health care, social work and education. When providing
training for professionals involved in judicial proceedings (in
particular judges, prosecutors and lawyers), Parties must take account
of requirements stemming from the independence of the judicial professions
and the autonomy they enjoy in respect of the organisation of training
for their members. The drafters wished to stress that this provision
does not contravene the rules governing the autonomy of legal professions
but that it requires Parties to ensure that training is made available
to professionals wishing to receive it.
99. The content of paragraph 2 is linked to the greater aim of
the Convention to establish a comprehensive approach to prevent
and combat all forms of violence covered by its scope. This provision
requires Parties to encourage that the training referred to in paragraph
1 also includes training on coordinated multi-agency cooperation,
complementing in this way the obligations laid out in Article 7
of this Convention. Consequently, professionals should also be taught
skills in multi-agency working, equipping them to work in cooperation
with other professionals from a wide range of fields.
2.4.5 Article 16 – Preventive intervention and treatment
programmes
100. Preventive intervention and treatment
programmes have been developed to help perpetrators change their
attitudes and behaviour in order to prevent further acts of domestic
violence and sexual violence.
101. Paragraph 1 requires Parties to the Convention to establish
or support the establishment of programmes, where they do not exist,
or support any existing programmes, for perpetrators of domestic violence.
Many different models for working with perpetrators exist and the
decision on how they should be run rests with the Parties or service
providers. However, the following core elements should be respected
in all models.
102. Domestic violence intervention programmes should be based
on best practice and what research reveals about the most effective
ways of working with perpetrators. Programmes should encourage perpetrators
to take responsibility for their actions and examine their attitudes
and beliefs towards women. This type of intervention requires skilled
and trained facilitators. Beyond training in psychology and the
nature of domestic violence, they need to possess the necessary
cultural and linguistic skills to enable them to work with a wide
diversity of men attending such programmes. Moreover, it is essential
that these programmes are not set up in isolation but closely co-operate
with women’s support services, law enforcement agencies, the judiciary,
probation services and child protection or child welfare offices
where appropriate. Participation in these programmes may be court-ordered
or voluntary. In either case, it may influence a victim’s decision
to stay with or leave the abuser or provide the victim with a false
sense of security. As a result, priority consideration must be given
to the needs and safety of victims, including their human rights.
103. The second paragraph of this article contains the obligation
to set up or support treatment programmes for perpetrators of sexual
assault and rape. These are programmes specifically designed to
treat convicted sex offenders, in and outside prison, with a view
to minimising recidivism. Across Council of Europe member states, many
different models and approaches exist. Again, the drafters felt
it best to leave to the Parties and/or service providers how to
run such programmes. Their ultimate aim must be preventing re-offending
and successfully reintegrating perpetrators into the community.
2.4.6 Article 17 – Participation of the private sector
and the media
104. Paragraph 1 contains two different
obligations. First, it requires Parties to the Convention to encourage the
private sector, the information and communication technology sector
(hereafter ICT sector), and the media, to participate not only in
the development of local, regional or national policies and efforts
to prevent violence against women, but also to take part in their
implementation. If and what type of action is taken is left to the individual
company. The importance of this as regards media is such that the
text specifically signals that the Parties’ encouragement has to
respect freedom of expression and media’s independence; the latter
should be seen in particular from the perspective of editorial independence.
105. Secondly, it requires Parties to encourage the private sector,
the ICT sector, and the media, to set guidelines and self-regulatory
standards to enhance respect for the dignity of women and thus contribute
to preventing violence against them. However, the reference in Article
17 (1), to policies, guidelines and self-regulatory standards to
prevent violence against women should be construed as encouraging
more private companies to establish protocols or guidelines on,
for example, how to deal with cases of sexual harassment in the
workplace. It is also intended to encourage the ICT sector and the
media to adopt self-regulatory standards to refrain from harmful
gender stereotyping and spreading degrading images of women or imagery which
associates violence and sex. Moreover, it means encouraging these
actors to establish ethical codes of conduct for a rights-based,
gender-sensitive and non-sensationalist media coverage of violence
against women. All these measures must be taken with due respect
for the fundamental principles relating to the freedom of expression,
the freedom of the press and the freedom of the arts.
106. The Council of Europe, through its Committee of Ministers
and its Parliamentary Assembly, have long called for an end to gender
stereotyping and inequality between women and men by issuing the
following recommendations:
- Recommendation
No. R (84)17 of the Committee of Ministers to member states on equality
between women and men in the media
- Recommendation 1555 (2002) by the Parliamentary Assembly
of the Council of Europe on the image of women in the media
- Recommendation 1799 (2007) by the Parliamentary Assembly
of the Council of Europe on the image of women in advertising
- Resolution 1751 (2010) and Recommendation 1931 (2010)
by the Parliamentary Assembly of the Council of Europe on combating
sexist stereotypes in the media
107. The aim of this article is to give these efforts new impetus
to achieve the long-term goal of preventing and combating all forms
of violence covered by the scope of this Convention. As the Steering
Committee on the Media and New Communication Services (CDMC) indicated
in comments to the above-mentioned Recommendation 1931 (2010), “Dealing
with gender stereotypes will contribute to reducing inequality, including
gender violence which is one of its most unacceptable expressions.
Given that addressing this issue effectively will inevitably have
to take account of the fundamental principle of media’s independence,
purely regulatory measures may not provide a satisfactory response.
The task therefore falls largely to the media themselves which have
to incorporate the principle of equal presentation and fair treatment
of various persons with their specific identities in their professional
codes and self-regulatory mechanisms and to combat stereotypes as
an everyday practice. It may be even more effective to consider
solutions through governance models and approaches.”
2.5 Chapter IV – Protection and support
108. While the ultimate aim of the
Convention is the prevention of all forms of violence covered by
its scope, victims require adequate protection from further violence,
support and assistance to overcome the multiple consequences of
such violence and to rebuild their lives. This chapter contains
a range of obligations to set up specialised as well as more general
support services to meet the needs of those exposed to violence.
2.5.1 Article 18 – General obligations
109. This article sets out a number
of general principles to be respected in the provision of protective
and supportive services.
110. Paragraph 1 contains the general obligation of taking legislative
or other measures for the protection of all victims within their
territory from any further acts of violence covered by this Convention.
111. In line with the general multi-agency and comprehensive approach
promoted by the Convention, paragraph 2 requires Parties to the
Convention to ensure that, in accordance with internal law, there
are appropriate mechanisms in place that provide for effective co-operation
among the following agencies which the drafters have identified
as relevant: the judiciary, public prosecutors, law enforcement
agencies, local and regional authorities and NGOs. By adding “other
relevant organisations” the drafters have ensured that this list is
non-exhaustive to allow for co-operation with any other organisation
a Party may deem relevant. The term “mechanism” refers to any formal
or informal structure such as agreed protocols, round-tables or
any other method that enables a number of professionals to co-operate
in a standardised manner. It does not require the setting up of
an official body or institution.
112. The emphasis placed on co-operation among these actors stems
from the conviction that the forms of violence covered by the Convention
are best addressed in a concerted and co-ordinated manner by a number of
agencies. Law enforcement agencies who are often the first to be
in contact with victims when called to a crime scene need to be
able to refer a victim to specialist support services, for example
a shelter or a rape crisis centre often run by NGOs. These support
services will then support the victim by providing medical care,
the collection of forensic evidence if required, psychological and
legal counselling. They will also help the victim in taking the
next step, which often requires dealing with the judiciary. It is
important to note that this obligation is not limited to victims
but extends to witnesses as well, bearing particularly in mind child
witnesses.
113. Paragraph 3 lists a number of aims and criteria which protective
and support services should pursue or be based on. First, all measures
taken shall be based on a gendered understanding of violence against
women and domestic violence. This means that services offered need
to demonstrate an approach, relevant to their users, which recognises
the gendered dynamics, impact and consequences of these forms of
violence and which operates within a gender equality and human rights
framework.
114. Secondly, this paragraph requires any such measures to take
into account the relationship between victims, perpetrators, children
and their wider environment to avoid the risk of addressing their
needs in isolation or without acknowledging their social reality.
The drafters considered it important to ensure that the needs of
victims are assessed in light of all relevant circumstances to allow
professionals to take informed and suitable decisions. The term
“integrated approach” refers to the integrated human rights based
approach addressed as the “three P approach”, aiming to integrated
prevention, protection and prosecution.
115. Thirdly, measures and services that mean well but do not adequately
take into consideration the devastating effects of violence and
the length of the recovery process or that treat victims insensitively
run the risk of re-victimising service users.
116. Furthermore, paragraph 3 requires all measures to aim at the
empowerment and economic independence of women victims of such violence.
This means ensuring that victims or service users are familiar with
their rights and entitlements and can take decisions in a supportive
environment that treats them with dignity, respect and sensitivity.
At the same time, services need to instil in victims a sense of
control of their lives, which in many cases includes working towards
financial security, in particular economic independence from the
perpetrator.
117. Some examples in which services, including branches of law
enforcement agencies, are located in the same building or in close
proximity to one another and co-operate have shown to significantly
increase levels of satisfaction with services and have, in some
cases, increased the willingness of victims to press charges or go
through with a case. These examples are known as “One-stop-shops”
and have been tried and tested for domestic violence services but
can easily be adapted to other forms of violence. For this reason,
paragraph 3 calls on Parties to strive to locate services in the
same building.
118. Lastly, paragraph 3 requires Parties to the Convention to
ensure that the available support services are made available to
vulnerable persons and address their specific needs. The term “vulnerable
persons” refers to the same list of persons as explained in the
comments under Article 12. Parties should make these services available
to victims independently of their socio-economic status and provide
them free of charge, where appropriate.
119. The purpose of paragraph 4 is to point to a serious grievance
which victims often encounter in seeking help and support. Many
services, public and private, make their support dependent on the
willingness of the victim to press charges or testify against the
perpetrator. If, for reasons of fear or emotional turmoil and attachment
the victim is unwilling to press charges or refuses to testify in
court, he or she will not receive counselling or accommodation.
This goes against the principle of empowerment and a human rights-based approach
and must be avoided. It is important to note that this provision
refers first and foremost to general and specialist support services
referred to in Articles 20 and 22 of the Convention – with the exception
of legal aid services.
120. Some of the forms of violence covered by the scope of this
Convention may have an international dimension. Victims of violence
such as forced marriages or domestic violence, but also women or
girls threatened with being genitally mutilated and who are outside
of their country of nationality require consular protection and,
possibly, medical and financial assistance. Paragraph 5 requires
Parties to take appropriate measures to provide the necessary consular
assistance and if appropriate other protection and assistance, which
includes assistance to victims of violent crime, assistance in the
event of arrest or detention, relief and repatriation of distressed
nationals, issuance of new identity documentation and other consular
support.
121. This obligation is not limited to nationals of a Party to
the Convention but extends to all other victims who, in accordance
with their obligations under international law, are entitled to
national protection by that Party, for example nationals of a member
state of the European Union which does not itself offer protection
through a permanent representation (embassy, general consulate or
consulate) as provided for by Article 20 (2) lit. c of the Treaty
on the Functioning of the European Union.
2.5.2 Article 19 – Information
122. In the immediate aftermath of
violence, victims are not always in a position to take fully informed
and empowered decisions and many lack a supportive environment.
This provision lays particular emphasis on the need to ensure that
victims are provided with information on the different types of
support services and legal measures available to them. This requires
providing information on where to get what type of help, if necessary in
a language other than the national language(s), and in a timely
manner, meaning at a time when it is useful for victims. This, however,
does not oblige Parties to the Convention to offer information in
any language but to concentrate on the languages most widely spoken
in their country and in accessible form. The term “adequate information”
refers to information that sufficiently fills the victim’s need
for information. This could include, for example, providing not
just the name of a support service organisation, but handing out
a leaflet that contains its contact details, opening hours and information
on the exact services it offers.
2.5.3 Article 20 – General support services
123. In the provision of services
for victims, a distinction is made between general and specialist
support services. General support services refer to help offered
by public authorities such as social services, health services,
employment services, which provide long-term help and are not exclusively
designed for the benefit of victims only but serve the public at
large. By contrast, specialist support services have specialised
in providing support and assistance tailored to the – often immediate
– needs of victims of specific forms of violence against women or
domestic violence and are not open to the general public. While
these may be services run or funded by government authorities, the
large majority of specialist services are offered by NGOs.
124. The obligation contained in Article 20 (1) requires public
welfare services such as housing services, employment or unemployment
services, public education and training services, public psychological
and legal counselling services, but also financial support services
to address, when necessary, the specific needs of victims of the
forms of violence covered by the scope of this Convention. While
many victims can already be found among the clients of such services,
their particularly difficult situation and trauma is not necessarily sufficiently
or systematically addressed or taken into account. Parties to the
Convention are thus required to ensure victims are granted access
to such services, treated in a supportive manner and that their
needs are properly addressed.
125. Health and social services are often the first to come in
contact with victims. Paragraph 2 seeks to ensure that these services
are adequately resourced to respond to their long-term needs. Furthermore,
it places an emphasis on the importance of training staff members
on the different forms of violence, the specific needs of victims
and how to respond to them in a supportive manner.
2.5.4 Article 21 – Assistance in individual/collective
complaints
126. This provision sets out the obligation
of Parties to ensure that victims have information on and access
to applicable regional and international complaints mechanisms.
The term "applicable" refers only to those regional and international
complaints mechanisms that have been ratified by the Parties to
this Convention. Council of Europe member states are state parties
to a significant number of regional and international human rights
treaties, and most have accepted the jurisdiction of the corresponding
treaty bodies and complaints mechanisms. Upon exhausting national
remedies, victims of all forms of violence covered by the scope
of this Convention therefore have recourse to a number of existing
regional and international complaints mechanisms. These can be open
to individuals, who can, for example, turn to the European Court
of Human Rights or the CEDAW Committee for further legal redress.
They can also be of a collective nature, meaning that they are available
to groups of victims – an example would be the collective complaints
mechanism under the European Social Charter.
127. By ensuring that victims have "information on and access to"
these mechanisms, the drafters wished to stress that victims should
be provided with information on the admissibility rules and procedural
requirements relating to the applicable regional and international
complaint mechanisms, and that, upon exhaustion of national remedies,
Parties should not impede in any way access to these mechanisms.
128. The provision also aims at promoting the availability of sensitive
and knowledgeable assistance to victims in presenting such complaints,
which may be provided by the state, bar associations, relevant NGOs or
other possible actors. "Assistance" may consist of the provision
of information and legal advice. The assistance provided should
be well informed and adapted to the needs of the victim, so as to
facilitate the access to applicable complaint mechanisms by the
victim.
2.5.5 Article 22 – Specialist support services
129. Complementing the obligation
contained in Article 20, this and the following provisions require
Parties to the Convention to set up or arrange for a well-resourced
specialist support sector.
130. The aim of such specialised support is to ensure the complex
task of empowering victims through optimal support and assistance
catered to their specific needs. Much of this is best ensured by
women’s organisations and by support services provided, for example,
by local authorities with specialised and experienced staff with
in-depth knowledge of gender-based violence. It is important to
ensure these services are sufficiently spread throughout the country
and accessible for all victims. Moreover, these services and their staff
need to be able to address the different types of violence covered
by the scope of this Convention and provide support to all groups
of victims, including hard-to-reach groups. The types of support
that such dedicated services need to offer include providing shelter
and safe accommodation, immediate medical support, the collection
of forensic medical evidence in cases of rape and sexual assault,
short and long-term psychological counselling, trauma care, legal
counselling, advocacy and outreach services, telephone helplines
to direct victims to the right type of service and specific services
for children as victims or witnesses.
2.5.6 Article 23 – Shelters
131. This article requires Parties
to provide for the setting up of appropriate, easily accessible
shelters in sufficient numbers as an important means of fulfilling
the obligation to provide protection and support. The purpose of
shelters is to ensure immediate, preferably around-the-clock, access
to safe accommodation for victims, especially women and children,
when they are no longer safe at home. Temporary housing alone or general
shelters such as those for the homeless, are not sufficient and
will not provide the necessary support or empowerment. Victims face
multiple, interlocking problems related to their health, safety,
financial situation and the well-being of their children. Specialised
women’s shelters are best equipped to address these problems, because
their functions go beyond providing a safe place to stay. They provide
women and their children with support, enable them to cope with
their traumatic experiences, leave violent relationships, regain their
self-esteem and lay the foundations for an independent life of their
own choosing. Furthermore, women’s shelters play a central role
in networking, multi-agency co-operation and awareness-raising in
their respective communities.
132. To fulfil their primary task of ensuring safety and security
for women and children, it is crucial that all shelters apply a
set of standards. To this end, the security situation of each victim
should be assessed and an individual security plan should be drawn
up on the basis of that assessment. The technical security of the building
is another key issue for shelters as violent attacks by the perpetrators
are a threat not only to the women and their children, but also
to the staff and other people in the surrounding area. Moreover,
effective co-operation with the police on security issues is indispensable.
133. This provision calls for shelters to be set up in sufficient
numbers to provide appropriate temporary accommodation for all victims.
Each type of violence requires a different kind of support and protection,
and staff need to be trained to provide these. The term “sufficient
numbers” is intended to ensure that the needs of all victims are
met, both in terms of shelter places and specialised support. The
Final Activity Report of the Council of Europe Task Force to Combat
Violence against Women, including Domestic Violence (EG-TFV (2008)6)
recommends safe accommodation in specialised women’s shelters, available
in every region, with one family place per 10 000 head of population.
However, the number of shelter places should depend on the actual
need. For shelters on other forms of violence, the number of places
to be offered will again depend on the actual need.
2.5.7 Article 24 – Telephone helplines
134. Helplines are one of the most
important ways of enabling victims to find help and support. A helpline
with a widely advertised public number that provides support and
crisis counselling and refers to face-to-face services, such as
shelters, counselling centres or the police, forms the cornerstone
of any support and advice service in relation to all the forms of
violence covered by the scope of this Convention. This article therefore contains
the obligation to set up state-wide telephone helplines which are
available around the clock and which are free of charge. Many victims
find themselves without documentation and resources and would find
it difficult to buy a telephone card or find the necessary change
to pay for a phone call. Having to pay even a very small amount
of money can present a burden to many seeking help, hence the requirement
to offer the call to a helpline free of charge. Furthermore in many
telephone systems non-toll free calls can be traced via the telephone
bill, thus indicating to the perpetrator that the victim is seeking
help and therefore possibly endangering the victim further. The
Final Activity Report of the Council of Europe Task Force to Combat Violence
against Women, including Domestic Violence (EG-TFV (2008)6) recommends
the establishment of at least one free national helpline covering
all forms of violence against women operating 24 hours a day 7 days
a week and providing crisis support in all relevant languages.
135. Many victims find it difficult to actively seek help and the
threshold for making a call and sharing intimate and personal details
is high. It is therefore important that callers may remain anonymous,
are counselled by persons who are trained in dealing with such situations
and that helplines provide information and support confidentially
if callers so wish. In some countries, it is equally important to
provide assistance in several languages to ease the language barrier
that some callers might face.
2.5.8 Article 25 – Support for victims of sexual violence
136. The traumatic nature of sexual
violence, including rape, requires a particularly sensitive response
by trained and specialised staff. Victims of this type of violence
need immediate medical care and trauma support combined with immediate
forensic examinations to collect the evidence needed for prosecution.
Furthermore, there is often a great need for psychological counselling
and therapy – often weeks and months after the event.
137. Article 25 therefore lays particular emphasis on providing
this type of specialised support by obliging Parties to provide
for the setting up of accessible rape crisis or sexual violence
referral centres in sufficient numbers. It is important to note
that Parties are provided with an alternative, not with the obligation
to set up both types of centres.
138. Rape crisis centres may take on many different forms. Typically,
these centres offer long-term help that centres on counselling and
therapy by offering face-to-face counselling, support groups and
contact with other services. They also support victims during court
proceedings by providing woman-to-woman advocacy and other practical
help.
139. Sexual violence referral centres, on the other hand, specialise
in immediate medical care, high-quality forensic practice and crisis
intervention. They can be set up in a hospital setting to respond
to recent sexual assault by carrying out medical checks and referring
the victim to specialised community-based organisations for further
services. Research has shown that it is good practice to carry out
forensic examinations regardless of whether the matter will be reported
to the police, and to offer the possibility of having samples taken
and stored so that the decision as to whether or not to report the
rape can be taken at a later date.
140. The requirement to provide for the setting up of such centres
places an obligation on Parties to the Convention to ensure that
this is done in sufficient numbers, but also to ensure their easy
access and that their services are carried out in an appropriate
manner. The Final Activity Report of the Council of Europe Task Force
to Combat Violence against Women, including Domestic Violence (EG-TFV
(2008)6) recommends that one such centre should be available per
every 200.000 inhabitants and that their geographic spread should make
them accessible to victims in rural areas as much as in cities.
The term “appropriate” is intended to ensure that the services offered
are suitable for the needs of victims.
2.5.9 Article 26 – Protection and support for child
witnesses
141. Exposure to physical, sexual
or psychological violence and abuse between parents or other family members
has a severe impact on children. It breeds fear, causes trauma and
adversely affects their development.
142. For this reason, Article 26 sets out the obligation to ensure
that, when providing services and assistance to victims with children
who have witnessed violence, the latter’s rights and needs are taken
into account. The term “child witnesses” refers not only to children
who are present during the violence and actively witness it, but
to those who are exposed to screams and other sounds of violence
while hiding close by or who are exposed to the long term consequences
of such violence. It is important to recognise and address the victimisation
of children as witnesses of all forms of violence covered by the
scope of this Convention and their right to support. Paragraph 2
therefore calls for age and developmentally appropriate best evidence-based psychosocial
interventions that are specifically tailored to children to cope
with their traumatic experiences where necessary. All services offered
must give due regard to the best interests of the child.
2.5.10 Article 27 – Reporting
143. With the requirement of encouraging
the reporting by any person who witnesses or has reasonable grounds
to suspect that an act of violence covered by the scope of this
Convention may be committed, the drafters wished to highlight the
important role that individuals – friends, neighbours, family members, colleagues,
teachers or other members of the community – can play in breaking
the silence that often closes in around violence. It is the responsibility
of each Party to determine the competent authorities to which such suspicions
may be reported. These can be law enforcement agencies, child protection
services or any other relevant social services. The term “reasonable
grounds” refers to an honest belief reported in good faith.
2.5.11 Article 28 – Reporting by professionals
144. Under this article Parties to
the Convention must ensure that professionals normally bound by
rules of professional secrecy (such as, for example, doctors and
psychiatrists) have the possibility to report to competent organisations
or authorities if they have reasonable grounds to believe that a
serious act of violence covered by the scope of this Convention
has been committed and that further serious acts of such violence
are to be expected. These are cumulative requirements for reporting
and cover, for example, typical cases of domestic violence where
the victim has already been subjected to serious acts of violence
and further violence is likely to occur.
145. It is important to note that this provision does not impose
an obligation for such professionals to report. It only grants these
persons the possibility of doing so without any risk of breach of
confidence. While confidentiality rules may be imposed by legislation,
issues of confidentiality and breach of such may also be governed
by codes of ethics or professional standards for the different professional
groups. This provision seeks to ensure that neither type of confidentiality
rule would stand in the way of reporting serious acts of violence.
The aim of this provision is to protect life and limb of victims
rather than the initiation of a criminal investigation. It is therefore
important to enable those professionals who, after careful assessment,
wish to protect victims of violence.
146. The term “under appropriate conditions” means that Parties
may determine the situations or cases to which this provision applies.
For instance, Parties may make the obligation contained in Article
28 contingent on the prior consent of the victim, with the exception
of some specific cases such as where the victim is a minor or is
unable to protect her or himself due to physical or mental disabilities.
Moreover, each Party is responsible for determining the categories
of professionals to which this provision applies. The term “certain
professionals” is intended to cover any number of professionals
whose functions involve contact with women, men and children who
may be victims of any of the forms of violence covered by the scope
of this Convention. Additionally, this article does not affect the
rights, in conformity with Article 6 ECHR, of those accused of acts to
which this Convention applies, whether in civil or criminal proceedings.
2.6 Chapter V – Substantive law
147. As is the case in other Council
of Europe conventions on combating specific forms of violence, abuse
or ill-treatment, substantive law provisions form an essential part
of the instruments. It is clear from research on national legislation
currently in force on violence against women and domestic violence
that many gaps remain. Therefore, it is necessary to strengthen
legal protection and reparation and to take into account existing
good practice when introducing changes into the legislative systems
of all member states in order to effectively prevent and combat
these forms of violence. The drafters examined the appropriate criminal,
civil and administrative-law measures to be introduced, to ensure
that the Convention covers the various situations associated with
the acts of violence concerned. As a result, this chapter contains
a range of preventive, protective and compensatory measures for
victims and introduces punitive measures against perpetrators of those
forms of violence which require a criminal law response.
148. This chapter sets out the obligation to ensure a variety of
civil law remedies to allow victims to seek justice and compensation
– primarily against the perpetrator, but also in relation to state
authorities if they have failed in their duty to diligently take
preventive and protective measures.
149. Chapter V also establishes a number of criminal offences.
This type of harmonisation of domestic law facilitates action against
crime at the national and international level, for several reasons.
Often, national measures to combat violence against women and domestic
violence are not carried out in a systematic manner or remain incomplete
due to gaps in legislation.
150. The primary aim of criminal law measures is to guide Parties
in putting into place effective policies to rein in violence against
women and domestic violence – both of which are still, unfortunately,
widespread crimes in Europe and beyond.
151. The drafters agreed that, in principle, all criminal law provisions
of the Convention should be presented in a gender-neutral manner;
the sex of the victim or perpetrator should thus, in principle,
not be a constitutive element of the crime. However, this should
not prevent Parties from introducing gender-specific provisions.
152. The drafters decided that this Convention should avoid covering
the same conduct already dealt with in other Council of Europe conventions,
in particular the Convention on Action against Trafficking in Human Beings
(ETS No.197) and the Convention on the Protection of Children against
Sexual Exploitation and Sexual Abuse (ETS No. 201).
153. The obligations contained in Articles 33 to 39 require Parties
to the Convention to ensure that a particular intentional conduct
is criminalised. The drafters agreed on this wording to oblige Parties
to criminalise the conduct in question. However, the Convention
does not oblige Parties to necessarily introduce specific provisions
criminalising the conduct described by the Convention. With regard
to Article 40(sexual harassment) and taking account of the specific
nature of this conduct, the drafters considered that it could be
subject to remedy either under criminal law sanctions or other legal
sanctions. Finally, the offences established in this chapter represent
a minimum consensus which does not preclude supplementing them or
establishing higher standards in domestic law.
154. In conformity with general principles of criminal law a legally
valid consent may lift criminal liability. Furthermore, other legally
justifiable acts, for example, acts committed in self-defence, defence
of property, or for necessary medical procedures, would not give
rise to criminal sanctions under this Convention.
2.6.1 Article 29 – Civil lawsuits and remedies
155. Paragraph 1 of this provision
aims at ensuring that victims of any of the forms of violence covered
by the scope of this Convention can turn to the national legal system
for an adequate civil law remedy against the perpetrator. On the
one hand, this includes civil law remedies which allow a civil law
court to order a person to stop a particular conduct, refrain from
a particular conduct in the future or to compel a person to take
a particular action (injunctions). A civil law remedy of this type
can be used, for example, to help girls and boys faced with the
prospect of being married against their will to have their passport
or other important documentation handed to them from anybody withholding
it against their will (parents, guardians or any family members).
Such injunctions help to provide protection against acts of violence.
156. On the other hand, and depending on the national legal order
of the Party, civil law remedies offered under this provision may
also include court orders that deal more specifically with acts
of violence covered by the scope of this Convention, such as barring
orders, restraining orders and non-molestation orders as referred to
in Article 53. These are particularly relevant in cases of domestic
violence and complement the immediate and often short-term protection
offered by emergency protection orders as referred to in Article
52.
157. Moreover, civil law should provide for legal remedies against
defamation and libel in the context of stalking and sexual harassment,
in case where such acts are not covered by the criminal legislation
of the Parties.
158. All civil law orders are issued following an application by
the victim or - depending on the legal system - a third party and
cannot be issued ex officio.
159. While paragraph 1 aims at providing victims with civil remedies
against the perpetrator, paragraph 2 ensures that victims are provided
with remedies against state authorities which have failed in their
duty to take the necessary preventive or protective measures.
160. It reiterates the principle of liability of state authorities,
who, in accordance with Article 5 of this Convention are under the
obligation to diligently prevent, investigate and, punish acts of
violence covered by the scope of this Convention. Failure to comply
with this obligation can result in legal responsibility and civil
law needs to offer remedies to address such failure. These remedies
include, inter alia, civil
law action for damages which need to be available for negligent
and grossly negligent behaviour. The extent of state authorities’
civil liability remains governed by the internal law of the Parties
which have the discretion to decide what kind of negligent behaviour
is actionable.
161. The obligation contained in paragraph 2 is in line with case
law of the European Court of Human Rights concerning the failure
of public authorities to comply with their positive obligation under
Article 2 ECHR (right to life). In the Osman
v. the United Kingdom judgment, and again the Opuz v. Turkey judgment, the Court
has stated that “where there is an allegation that the authorities
have violated their positive obligation to protect the right to
life in the context of their above-mentioned duty to prevent and
suppress offences against the person, it must be established to
its satisfaction that the authorities knew or ought to have known
at the time of the existence of a real and immediate risk to the
life of an identified individual or individuals from the criminal
acts of a third party and that they failed to take measures within
the scope of their powers which, judged reasonably, might have been
expected to avoid that risk.” The Court explicitly stated that responsibility
for such failure is not limited to gross negligence or wilful disregard
of the duty to protect life.
162. In the event of death of the victim, the available remedies
shall be accessible to her or his descendants.
2.6.2 Article 30 – Compensation
163. This article sets out the right
to compensation for damages suffered as a result of any of the offences established
by this Convention. Paragraph 1 establishes the principle that it
is primarily the perpetrator who is liable for damages and restitution.
164. Compensation can also be sought from insurance companies or
from state-funded health and social security schemes. Paragraph
2 establishes a subsidiary obligation for the state to compensate.
The conditions relating to the application for compensation may
be established by internal law such as the requirement that the
victim has first and foremost sought compensation from the perpetrator.
The drafters emphasised that state compensation should be awarded
in situations where the victim has sustained serious bodily injury
or impairment of health. It should be noted that the term "bodily
injury" includes injuries which have caused the death of the victim,
and that "impairment of health" encompasses serious psychological
damages caused by acts of psychological violence, as referred to
in Article 33. Although the scope of state compensation is limited to
"serious" injury and impairment of health, this does not preclude
Parties from providing for more generous compensation arrangements,
nor from setting higher and/or lower limits for any or all elements
of compensation to be paid by the state. In particular, this provision
is without prejudice to the obligations of the Parties to the European
Convention on the Compensation of Victims of Violent Crimes (ETS
No. 116).
165. The subsidiary obligation for the state to compensate does
not preclude Parties from claiming regress for compensation awarded
from the perpetrator as long as due regard is paid to the victim's
safety. The reference to the "victim's safety" requires Parties
to ensure that any measures taken to claim regress for compensation
from the perpetrator give due consideration to the consequences
of these measures for the safety of the victim. This covers in particular
situations where the perpetrator may want to avenge her or himself against
the victim for having to pay compensation to the state.
166. This provision does not preclude an interim state contribution
to the compensation of the victim. A victim urgently needing help
may not be able to await the outcome of often complicated proceedings.
In such cases, the Parties can provide that the state or the competent
authority may subrogate in the rights of the person compensated
for the amount of the compensation paid or, if later the person
compensated obtains reparation from any other source, may reclaim
totally or partially the amount of money awarded.
167. In the event that state compensation is paid to the victim
because the perpetrator is unwilling or unable although court-ordered
to do so, the state shall have recourse against the perpetrator.
168. To ensure compensation by the state, Parties may set up state
compensation schemes as specified in Articles 5 and 6 of the European
Convention on the Compensation of Victims of Violent Crimes.
169. It should be noted that paragraph 2 of this article is open
to reservations, pursuant to Article 78 (2) of this Convention.
This possibility of reservations is without prejudice to the obligations
of the Parties pursuant to other international instruments in this
field, such as the aforementioned European Convention on the Compensation
of Victims of Violent Crimes.
170. As many victims of the forms of violence covered by this Convention
may not have the nationality of the Party in whose territory the
crime was committed, subsidiary state compensation should extend
to nationals and non-nationals.
171. Paragraph 3 aims to ensure that compensation be granted within
reasonable time, meaning within an appropriate time-scale.
172. It is important to note that compensation may not only be
awarded under civil or administrative law but also under criminal
law as part of a criminal law sanction.
2.6.3 Article 31 – Custody, visitation rights and safety
173. This provision aims at ensuring
that judicial authorities do not issue contact orders without taking
into account incidents of violence covered by the scope of this
Convention. It concerns judicial orders governing the contact between
children and their parents and other persons having family ties
with children. In addition to other factors, incidents of violence
against the non-abusive carer as much as against the child itself
must be taken into account when decisions on custody and the extent
of visitation rights or contact are taken.
174. Paragraph 2 addresses the complex issue of guaranteeing the
rights and safety of victims and witnesses while taking into account
the parental rights of the perpetrator. In particular in cases of
domestic violence, issues regarding common children are often the
only ties that remain between victim and perpetrator. For many victims
and their children, complying with contact orders can present a
serious safety risk because it often means meeting the perpetrator
face-to-face. Hence, this paragraph lays out the obligation to ensure
that victims and their children remain safe from any further harm.
2.6.4 Article 32 – Civil consequences of forced marriages
175. This article deals with the legal
consequences of a forced marriage and ensures that such marriages may
be "voidable, annulled or dissolved". For the purpose of this provision,
a "voidable" marriage is a marriage considered to be valid but which
may be rendered void if challenged by one of the parties; an "annulled" marriage
is deprived of its legal consequences, whether challenged by a party
or not. A "dissolved" marriage, such as in case of divorce, is deprived
of legal consequences only from the date of dissolution. The drafters bore
in mind that the concrete implementation of this article with regard
to the terms used (voidable, annulled, dissolved) may vary, depending
on the concepts provided for in Parties’ civil law.
176. It is important that legal action as required under this provision
is easily available and does not place an undue financial and administrative
burden on the victim. This means that any procedures set up for
the annulment or dissolution of a forced marriage shall not present
insurmountable difficulties or indirectly lead to financial hardship
on the part of the victim. Furthermore, the form of ending the marriage
should not affect the rights of the victim of forced marriage.
2.6.5 Article 33 – Psychological violence
177. This article sets out the offence
of psychological violence. The drafters agreed to criminally sanction
any intentional conduct that seriously impairs another person’s
psychological integrity through coercion or threats. The interpretation
of the word “intentional” is left to domestic law, but the requirement
for intentional conduct relates to all the elements of the offence.
178. The extent of the offence is limited to intentional conduct
which seriously impairs and
damages a person’s psychological integrity which can be done by
various means and methods. The Convention does not define what is
meant by serious impairment. Use must be made of coercion or threats
for behaviour to come under this provision.
179. This provision refers to a course of conduct rather than a
single event. It is intended to capture the criminal nature of an
abusive pattern of behaviour occurring over time – within or outside
the family. Psychological violence often precedes or accompanies
physical and sexual violence in intimate relationships (domestic
violence). However, it may also occur in any other type of setting,
for example in the work place or school environment. It is important
to stress that pursuant to Article 78 (3) of this Convention, any
state or the European Union may declare that it reserves the right
to provide for non-criminal sanctions, instead of criminal sanctions
in relation to psychological violence. The intention of the drafters
was to preserve the principle of criminalisation of psychological
violence in the Convention, while allowing flexibility where the
legal system of a Party provides only for non-criminal sanctions
in relation to these behaviours. Nevertheless, sanctions should be
effective, proportionate and dissuasive, regardless of whether Parties
chose to provide for criminal or non-criminal sanctions.
2.6.6 Article 34 – Stalking
180. This article establishes the
offence of stalking, which is defined as the intentional conduct
of repeatedly engaging in threatening conduct directed at another
person, causing her or him to fear for her or his safety. This comprises
any repeated behaviour of a threatening nature against an identified
person which has the consequence of instilling in this person a
sense of fear. The threatening behaviour may consist of repeatedly following
another person, engaging in unwanted communication with another
person or letting another person know that he or she is being observed.
This includes physically going after the victim, appearing at her
or his place of work, sports or education facilities, as well as
following the victim in the virtual world (chat rooms, social networking
sites, etc.). Engaging in unwanted communication entails the pursuit
of any active contact with the victim through any available means
of communication, including modern communication tools and ICTs.
181. Furthermore, threatening behaviour may include behaviour as
diverse as vandalising the property of another person, leaving subtle
traces of contact with a person’s personal items, targeting a person’s
pet, or setting up false identities or spreading untruthful information
online.
182. To come within the remit of this provision, any act of such
threatening conduct needs to be carried out intentionally and with
the intention of instilling in the victim a sense of fear.
183. This provision refers to a course of conduct consisting of
repeated significant incidents. It is intended to capture the criminal
nature of a pattern of behaviour whose individual elements, if taken
on their own, do not always amount to criminal conduct. It covers
behaviour that is targeted directly at the victim. However, Parties may
also extend it to behaviour towards any person within the social
environment of the victim, including family members, friends and
colleagues. The experience of stalking victims shows that many stalkers
do not confine their stalking activities to their actual victim
but often target any number of individuals close to the victim.
Often, this significantly enhances the feeling of fear and loss
of control over the situation and therefore may be covered by this
provision.
184. Finally, just as it is the case with psychological violence,
Article 78 (3) provides for the possibility of any state or the
European Union to declare that it reserves the right to provide
for non-criminal sanctions, as long as they are effective, proportionate
and dissuasive. Providing for a restraining order should be seen
as a non-criminal sanction within the possibility of a reservation.
Once more, the intention of the drafters was to preserve the principle
of criminalisation of stalking, while allowing flexibility where
the legal system of a Party provides only for non-criminal sanctions
in relation to stalking.
2.6.7 Article 35 – Physical violence
185. This article criminalises any
intentional act of physical violence against another person irrespective
of the context in which it occurs.
186. The term “physical violence” refers to a bodily harm suffered
as a result of the application of immediate and unlawful physical
force. It encompasses also violence resulting in the death of the
victim.
2.6.8 Article 36 – Sexual violence, including rape
187. This article establishes the
criminal offence of sexual violence, including rape. Paragraph 1
covers all forms of sexual acts which are performed on another person
without her or his freely given consent and which are carried out
intentionally. The interpretation of the word “intentionally” is
left to domestic law, but the requirement for intentional conduct
relates to all the elements of the offence.
188. Lit. a refers to the vaginal, anal or oral penetration of
another person’s body which that person has not consented to. The
penetration may be performed with a bodily part or an object. By
requiring the penetration to be of a sexual nature, the drafters
sought to emphasise the limits of this provision and avoid problems
of interpretation. The term “of a sexual nature” describes an act
that has a sexual connotation. It does not apply to acts which lack
such connotation or undertone. Lit b. covers all acts of a sexual
nature without the freely given consent of one of the parties involved
which fall short of penetration. Lastly, lit. c. covers situations
in which the victim is caused without consent to perform or comply
with acts of a sexual nature with or by a person other than the
perpetrator. In relationships of abuse, victims are often forced
to engage in sexual acts with a person chosen by the perpetrator.
The purpose of lit.c. is to cover scenarios in which the perpetrator
is not the person who performs the sexual act but who causes the
victim to engage in sexual activity with a third person; this act
has to be of some relevance in relation to the protected legal interests
in question.
189. When assessing the constituent elements of offences, the Parties
should have regard to the case-law of the European Court of Human
Rights. In this respect, the drafters wished to recall, subject
to the interpretation that may be made thereof, the M.C. v. Bulgaria judgment of 4 December
2003, in which the Court stated that it was “persuaded that any
rigid approach to the prosecution of sexual offences, such as requiring
proof of physical resistance in all circumstances, risks leaving
certain types of rape unpunished and thus jeopardising the effective
protection of the individual’s sexual autonomy. In accordance with
contemporary standards and trends in that area, the member states’
positive obligations under Articles 3 and 8 of the Convention must
be seen as requiring the penalisation and effective prosecution
of any non-consensual sexual act, including in the absence of physical
resistance by the victim” (§ 166). The Court also noted as follows:
“Regardless of the specific wording chosen by the legislature, in
a number of countries the prosecution of non-consensual sexual acts
in all circumstances is sought in practice by means of interpretation
of the relevant statutory terms (“coercion”, “violence”, “duress”,
“threat”, “ruse”, “surprise” or others) and through a context-sensitive assessment
of the evidence” (§ 161).
190. Prosecution of this offence will require a context-sensitive
assessment of the evidence in order to establish on a case-by-case
basis whether the victim has freely consented to the sexual act
performed. Such an assessment must recognise the wide range of behavioural
responses to sexual violence and rape which victims exhibit and
shall not be based on assumptions of typical behaviour in such situations.
It is equally important to ensure that interpretations of rape legislation
and the prosecution of rape cases are not influenced by gender stereotypes
and myths about male and female sexuality.
191. In implementing this provision, Parties to the Convention
are required to provide for criminal legislation which encompasses
the notion of lack of freely given consent to any of the sexual
acts listed in lit.a to lit.c. It is, however, left to the Parties
to decide on the specific wording of the legislation and the factors
that they consider to preclude freely given consent. Paragraph 2
only specifies that consent must be given voluntarily as the result
of the person’s free will, as assessed in the context of the surrounding
circumstances.
192. Paragraph 3 spells out the obligation of Parties to the Convention
to ensure that the criminal offences of sexual violence and rape
established in accordance with this Convention are applicable to
all non-consensual sexual acts, irrespective of the relationship
between the perpetrator and the victim. Sexual violence and rape
are a common form of exerting power and control in abusive relationships
and are likely to occur during and after break-up. It is crucial
to ensure that there are no exceptions to the criminalisation and prosecution
of such acts when committed against a current or former spouse or
partner as recognised by internal law.
2.6.9 Article 37 – Forced marriage
193. This article establishes the
offence of forced marriage. While some victims of forced marriage
are forced to enter into a marriage in the country in which they
live (paragraph 1), many others are first taken to another country,
often that of their ancestors, and are forced to marry a resident
of that country (paragraph 2). For this reason, the drafters felt
it important to include in this provision two types of conduct:
forcing a person to enter into a marriage and luring a person abroad
with the purpose of forcing this person to enter into marriage.
194. The type of conduct criminalised in paragraph 1 is that of
forcing an adult or a child to enter into a marriage. The term “forcing”
refers to physical and psychological force where coercion or duress
is employed. The offence is complete when a marriage is concluded
to which at least one party has – due to the above circumstances
- not voluntarily consented to.
195. Paragraph 2 criminalises the act of luring a person abroad
with the intention of forcing this person to marry against her or
his will. The marriage does not necessarily have to be concluded.
The term “luring” refers to any conduct whereby the perpetrator
entices the victim to travel to another country, for example by
using a pretext or concocting a reason such as visiting an ailing
family member. The intention must cover the act of luring a person
abroad, as well as the purpose of forcing this person into a marriage
abroad. The drafters felt that this act should be covered by the
criminal law of the Parties so as to take into account the standards established
under other legally-binding international instruments in particular
the Council of Europe Convention on Action against Trafficking in
Human Beings (ETS No.197).
2.6.10 Article 38 – Female genital mutilation
196. Due to the nature of female genital
mutilation (FGM), this is one of the criminal offences that break
with the principle of gender neutrality of the criminal law part
of this Convention. It sets out the criminal offence of female genital
mutilation, the victims of which are necessarily women or girls.
It aims at criminalising the traditional practice of cutting away
certain parts of the female genitalia which some communities perform
on their female members. The drafters considered it important to
establish female genital mutilation as a criminal offence in this
Convention because this practice causes irreparable and lifelong
damage and is usually performed without the consent of the victim.
197. Lit.a criminalises the act of excising, infibulating or performing
any other mutilation to the whole or any part of the labia majora,
labia minora or clitoris including when performed by medical professionals,
as enshrined in the WHO World Health Assembly Resolution 61.16 on
accelerating actions to eliminate female genital mutilation. The
term “excising” refers to the partial or total removal of the clitoris
and the labia majora. “Infibulating”, on the other hand, covers
the closure of the labia majora by partially sewing together the
outer lips of the vulva in order to narrow the vaginal opening.
The term “performing any other mutilation” refers to all other physical
alterations of the female genitals.
198. Lit.b, on the other hand, covers the act of assisting the
perpetrator to perform acts in lit.a by coercing or procuring a
woman to undergo the excision, infibulation or mutilation of her
labia majora, labia minora or clitoris. This part of the provision
is limited to adult victims only.
199. Lit.c criminalises the act of assisting the perpetrator to
perform acts in lit.a by inciting, coercing or procuring a girl
to undergo the excision, infibulation or mutilation of her labia
majora, labia minora or clitoris. This part of the provision is
limited to girl victims only and includes situations in which anyone,
in particular parents, grandparents or other relatives coerce their
daughter or relative to undergo the procedure. The drafters felt
it important to differentiate between adult and child victims because
they did not wish to criminalise the incitement of women to undergo
any of the acts listed in lit.a.
2.6.11 Article 39 – Forced abortion and forced sterilisation
200. This article makes certain intentional
acts related to women’s natural reproductive capacity a criminal offence.
This is another provision that breaks with the principle of gender
neutrality of the criminal law part of this Convention.
201. Lit.a establishes the criminal offence of forced abortion
performed on a woman or girl. This refers to the intentional termination
of pregnancy without the prior and informed consent of the victim.
The termination of pregnancy covers any of the various procedures
that result in the expulsion of all the products of conception. To
come within the remit of this provision, the abortion must be carried
out without the prior and informed consent of the victim. This covers
any abortion that is performed without a fully informed decision
taken by the victim.
202. Lit.b on the other hand establishes the criminal offence of
forced sterilisation of women and girls. This offence is committed
if surgery is performed which has the purpose or effect of terminating
a woman’s or girl’s capacity to naturally reproduce if this is done
without her prior and informed consent. The term sterilisation refers
to any procedure which results in the loss of the ability to naturally
reproduce. As in lit.a, the sterilisation must be carried out without
the prior and informed consent of the victim. This covers any sterilisation
that is performed without a fully informed decision taken by the
victim in line with standards set in the Convention for the Protection
of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine: Convention on Human Rights
and Biomedicine (ETS No.164).
203. It is not the intention of this Convention to criminalise
any medical interventions or surgical procedures which are carried
out for example with the purpose of assisting a woman by saving
her life or for assisting a woman who lacks capacity to consent.
Rather, the aim of this provision is to emphasise the importance
of respecting women’s reproductive rights by allowing women to decide
freely on the number and spacing of their children and by ensuring
their access to appropriate information on natural reproduction
and family planning.
2.6.12 Article 40 – Sexual harassment
204. This article sets out the principle
that sexual harassment be subject to criminal or “other” legal sanction, which
means that the drafters decided to leaving to the Parties to choose
the type of consequences the perpetrator would face when committing
this specific offence. While generally considering it preferable
to place the conduct dealt with by this article under criminal law,
the drafters acknowledged that many national legal systems consider
sexual harassment under civil or labour law. Consequently, Parties
may choose to deal with sexual harassment either by their criminal
law or by administrative or other legal sanctions, while ensuring
that the law deals with sexual harassment.
205. The type of conduct covered by this provision is manifold.
It includes three main forms of behaviour: verbal, non-verbal or
physical conduct of a sexual nature unwanted by the victim. Verbal
conduct refers to words or sounds expressed or communicated by the
perpetrator, such as jokes, questions, remarks, and may be expressed
orally or in writing. Non-verbal conduct, on the other hand, covers
any expressions or communication on the part of the perpetrator
that do not involve words or sounds, for example facial expressions,
hand movements or symbols. Physical conduct refers to any sexual
behaviour of the perpetrator and may include situations involving
contact with the body of the victim. As in Article 36, any of these
forms of behaviour must be of a sexual nature in order to come within
the remit of this provision. Furthermore, any of the above conduct
must be unwanted on the part of the victim, meaning imposed by the
perpetrator. Moreover, the above acts must have the purpose or effect
of violating the dignity of the victim. This is the case if the conduct
in question creates an intimidating, hostile, degrading, humiliating
or offensive environment. It is intended to capture a pattern of
behaviour whose individual elements, if taken on their own, may
not necessarily result in a sanction.
206. Typically, the above acts are carried out in a context of
abuse of power, promise of reward or threat of reprisal. In most
cases, victim and perpetrator know each other and their relationship
is often characterised by differences in hierarchy and power. The
scope of application of this article is not limited to the field
of employment. However, it should be noted that the requirements
for liability can differ depending on the specific situation in
which the conduct takes place.
2.6.13 Article 41 – Aiding or abetting and attempt
207. The purpose of this article is
to establish additional offences relating to aiding or abetting
of the offences defined in the Convention and the attempted commission
of some.
208. Paragraph 1 requires Parties to the Convention to establish
as offences aiding or abetting the commission of any of the following
offences established in accordance with the Convention: psychological violence
(Article 33), stalking (Article 34), physical violence (Article
35), sexual violence, including rape (Article 36), forced marriage
(Article 37), female genital mutilation (Article 38 lit.a), and
forced abortion and forced sterilisation (Article 39).
209. The drafters wished to emphasise that the terms "aiding or
abetting" do not only refer to offences established by a Party in
its criminal law, but may also refer to offences covered by administrative
or civil law. This is of particular importance since, pursuant to
Article 78 (3), Parties may provide for non-criminal sanctions in
relation to psychological violence (Article 33) and stalking (Article
34).
210. With regard to paragraph 2, on attempt, the drafters felt
that treating certain offences as attempt gave rise to conceptual
difficulties. Moreover, some legal systems limit the offences for
which the attempt is punished. For these reasons, it requires Parties
to establish as an offence the attempt to commit the following offences
only: serious cases of physical violence (Article 35), sexual violence
including rape (Article 36), forced marriage (Article 37), female
genital mutilation (Article 38 lit.a), and forced abortion and forced
sterilisation (Article 39).
211. With regard to physical violence (Article 35) the drafters
acknowledged that the offence as established by the Convention has
a very broad scope. It also covers cases of simple assault for which
an attempt is difficult to construct. Parties therefore have the
discretion to establish as an offence the attempt to commit physical violence
only for serious cases of physical violence. The Convention also
does not preclude Parties to cover attempt by other offences.
212. As with all the offences established under the Convention,
aiding and abetting and attempt must be intentional.
2.6.14 Article 42 – Unacceptable justifications for crimes,
including crimes committed in the name of so-called “honour”
213. The drafters enshrined in this
Convention an important general principle: nobody under the jurisdiction of
the courts of one of the Parties to this Convention will be allowed
to validly invoke what he or she believes to be an element of his
or her culture, religion or other form of personal reason to justify
the commission of what is simply an element of a criminal offence,
i.e. violence against women. In order to address crimes committed in
the name of so-called “honour” the drafters intended to ensure that
crimes committed to punish a victim for her or his behaviour are
not justified. Consequently, this article sets out the obligation
for Parties, in paragraph 1, to ensure that culture, custom, religion,
tradition or so-called “honour”, are not regarded as justification
for any of the acts of violence covered by the scope of this Convention.
This means that Parties are required to ensure that criminal law
and criminal procedural law do not permit as justifications claims
of the accused justifying his or her acts as committed in order
to prevent or punish a victim’s suspected, perceived or actual transgression
of cultural, religious, social or traditional norms or customs of
appropriate behaviour.
214. In addition, this provision requires Parties to ensure that
personal convictions and individual beliefs of judicial actors do
not lead to interpretations of the law that amount to a justification
on any of the above-mentioned grounds. Paragraph 1 thus reinforces
for the particular area of criminal law the obligation contained in
Article 12 (5) of the Convention.
215. To avoid criminal liability, these acts are often committed
by a child below the age of criminal responsibility, which is instigated
by an adult member of the family or community. For this reason,
the drafters considered it necessary to set out, in paragraph 2,
the criminal liability of the instigator(s) of such crimes in order to
avoid gaps in criminal liability. Paragraph 2 applies to acts established
in accordance with this Convention where the child is the principal
perpetrator, it does not apply to offences established in accordance
with Articles 38 (b), 38 (c) and 41.
2.6.15 Article 43 – Application of criminal offences
216. A large number of the offences
established in accordance with this Convention are offences typically committed
by family members, intimate partners or others in the immediate
social environment of the victim. There are many examples from past
practice in Council of Europe member states that show that exceptions
to the prosecution of such cases were made, either in law or in
practice, if victim and perpetrator were, for example, married to
each other or had been in a relationship. The most prominent example
is rape within marriage, which for a long time had not been recognised
as rape because of the relationship between victim and perpetrator.
217. For this reason, the drafters considered it necessary to establish
the principle that the type of relationship between victim and perpetrator
shall not preclude the application of any of the offences established
in this Convention.
2.6.16 Article 44 – Jurisdiction
218. This article lays down various
requirements whereby Parties must establish jurisdiction over the
offences with which the Convention is concerned.
219. Paragraph 1 (a) is based on the principle of territoriality.
Parties are required to punish the offences established in accordance
with the Convention when they are committed on their territory.
220. Paragraph 1 (b) and (c) is based on a variant of the principle
of territoriality. These sub-paragraphs require Parties to establish
jurisdiction over offences committed on ships flying their flag
or aircraft registered under their laws. This obligation is already
in force in the law of many countries, ships and aircraft being frequently
under the jurisdiction of the state in which they are registered.
This type of jurisdiction is extremely useful when the ship or aircraft
is not located in the country’s territory at the time of commission
of the crime, as a result of which paragraph 1 (a) would not be
available as a basis for asserting jurisdiction. In the case of a
crime committed on a ship or aircraft outside the territory of the
flag or registry Party, it might be that without this rule there
would not be any country able to exercise jurisdiction. In addition,
if a crime is committed on board a ship or aircraft which is merely
passing through the waters or airspace of another state, there may
be significant practical impediments to the latter state’s exercising
its jurisdiction and it is therefore useful for the registry state
to also have jurisdiction.
221. Paragraph 1 (d) is based on the principle of nationality.
The nationality theory is most frequently applied by countries with
a civil law tradition. Under this principle, nationals of a country
are obliged to comply with its law even when they are outside its
territory. Under sub-paragraph (d), if one of its nationals commits
an offence abroad, a Party is obliged to be able to prosecute her
or him. The drafters considered this a particularly important provision
in combating certain forms of violence against women. Indeed, some
states in which women and girls are subjected to rape or sexual
violence, forced marriage, female genital mutilation, crimes committed
in the name of so-called “honour” and forced abortion and forced
sterilisation, do not have the will nor the necessary resources
to successfully carry out investigations or they lack the appropriate
legal framework. Paragraph 2 enables these cases to be tried even
where they are not criminalised in the state in which the offence
was committed.
222. Paragraph 1 (e) applies to persons having their habitual residence
in the territory of the Party. It provides that Parties shall establish
jurisdiction to investigate acts committed abroad by persons having
their habitual residence in their territory, and thus contributes
to the punishment of acts of violence committed abroad. Article 78
(2) on reservations allows Parties not to implement this jurisdiction
or only to do so in specific cases or conditions.
223. Paragraph 2 is linked to the nationality or residence status
of the victim. It is based on the premise that the particular interests
of national victims overlap with the general interest of the state
to prosecute crimes committed against its nationals or residents.
Hence, if a national or person having habitual residence is a victim of
an offence abroad, the Party shall endeavour to establish jurisdiction
in order to start proceedings. However, there is no obligation imposed
on Parties, as demonstrated by the use of the expression “endeavour”.
224. Paragraph 3 represents an important element of added value
in this Convention, and a major step forward in the protection of
victims. The provision eliminates, in relation to the most serious
offences of the Convention, the usual rule of dual criminality where
acts must be criminal offences in the place where they are committed.
Its aim is to combat in particular certain forms of violence against
women which may be – or are most frequently - committed outside
the territory of application of this Convention, such as forced
marriage, female genital mutilation, forced abortion and forced
sterilisation. Therefore, this paragraph applies exclusively to
the offences defined in Article 36 (sexual violence including rape),
Article 37 (forced marriage), Article 38 (female genital mutilation),
and Article 39 (forced abortion and forced sterilisation) and committed
by nationals of the Party concerned. Article 78 (2) on reservations
allows Parties not to implement this jurisdiction or only to do
so in specific cases or conditions.
225. In paragraph 4, the drafters wished to prohibit the subordination
of the initiation of proceedings of the most serious offences in
the state of nationality or of habitual residence to the conditions
usually required of a complaint of the victim or the laying of information
by the authorities of the state in which the offence took place. The
aim of this provision is to facilitate the prosecution of offences
committed abroad. As some states do not possess the necessary will
or resources to carry out investigations of certain forms of violence
against women and domestic violence, the requirement of a complaint
of the victim or the filing of charges by the relevant authorities
often constitutes an impediment to prosecution. This paragraph applies
exclusively to the offences defined in Article 36 (sexual violence
including rape), Article 37 (forced marriage), Article 38 (female
genital mutilation), and Article 39 (forced abortion and forced
sterilisation) and committed by nationals of the Party concerned.
Article 78 (2) on reservations allows Parties not to implement this
jurisdiction or only to do so in specific cases or conditions.
226. Paragraph 5 concerns the principle of aut
dedere aut judicare (extradite or prosecute). Jurisdiction established
on the basis of paragraph 5 is necessary to ensure that Parties
that refuse to extradite a national have the legal ability to undertake
investigations and proceedings domestically instead, if asked to
do so by the Party that requested extradition under the terms of
the relevant international instruments. Paragraph 4 does not prevent
Parties from establishing jurisdiction only if the offence is punishable
in the territory where it was committed, or if the offence is committed
outside the territorial jurisdiction of any state.
227. It may happen that in some cases of violence covered by the
scope of this Convention more than one Party has jurisdiction over
some or all of the participants in the offence. For example, a woman
may be lured into the territory of another state and forced to marry
against her will. In order to avoid duplication of procedures and
unnecessary inconvenience for victims and witnesses or to otherwise
facilitate the efficiency or fairness of proceedings, the affected
Parties are, in accordance with paragraph 6, required to consult
in order to determine the proper venue for prosecution. In some
cases it will be most effective for them to choose a single venue
for prosecution; in others it may be best for one country to prosecute
some alleged perpetrators, while one or more other countries prosecute
others. Either method is permitted under this paragraph. Finally,
the obligation to consult is not absolute; consultation is to take
place “where appropriate”. Thus, for example, if one of the Parties
knows that consultation is not necessary (e.g. it has received confirmation
that the other Party is not planning to take action), or if a Party
is of the view that consultation may impair its investigations or proceedings,
it may delay or decline consultation.
228. The bases of jurisdiction set out in paragraph 1 of this article
are not exclusive. Paragraph 7 permits Parties to establish other
types of criminal jurisdiction according to their domestic law.
2.6.17 Article 45 – Sanctions and measures
229. This article is closely linked
to Articles 33 to 41 which define the various offences that should
be made punishable under criminal law. However, it applies to all
types of sanctions, regardless of whether they are of a criminal
nature or not. In accordance with these obligations imposed by those
articles, Article 45 requires Parties to match their action with
the seriousness of the offences and lay down sanctions which are
“effective, proportionate and dissuasive”. This includes providing
for prison sentences that can give rise to extradition where this
is appropriate. The drafters decided to leave it to the Parties
to decide on the type of offence established in accordance with
the Convention that merits a prison sentence. It should be noted
that, under Article 2 of the European Convention on Extradition
(ETS No.24), extradition is to be granted in respect of offences
punishable under the laws of the requesting and requested Parties
by deprivation of liberty or under a detention order for a maximum
period of at least one year or by a more severe sanction.
230. In addition, paragraph 2 provides for other measures which
may be taken in relation to perpetrators. The provision lists two
examples: the monitoring or supervision of convicted persons and
the withdrawal of parental rights, if the best interests of the
child, which may include the safety of the victim, cannot be guaranteed
in any other way. The reference to the "best interest of the child"
in the latter example is in line with the ruling of the European
Court of Human Rights in the Zaunegger
v. Germany judgment of 3 December 2009, which stated that
in the majority of member states, "decisions regarding the attribution
of custody are to be based on the child's best interest" (§60).
In particular, measures taken in relation to parental rights should
never lead to endangering or causing harm to the child. Although
the granting of parental rights and contact with the child are often
related issues, the drafters bore in mind that some Parties may
distinguish these issues in their internal law, and thus allow a
parent to have contact with the child without granting her or him
parental rights. In particular in cases of domestic violence against
one parent and witnessed by a child, it may not be in the best interest
of the child to continue contact with the abusive parent. Ensuring
contact with the abusive parent may not only have a negative impact
on the child, but may also pose a serious risk to the safety of
the abuser’s victim, because it often gives the perpetrator a reason
to contact or see the victim and may not be in line with a restraining
or barring order in place. It is important to ensure that all legal
measures taken to protect victims are consistent and are not thwarted
by legal measures taken in other contexts.
2.6.18 Article 46 – Aggravating circumstances
231. Article 46 requires Parties to
ensure that the circumstances mentioned in sub-paragraphs a – i
may be taken into consideration as aggravating circumstances in
the determination of the penalty for offences established in the
Convention. These circumstances must not already form part of the
constituent elements of the offence. This principle applies to cases
where the aggravating circumstances already form part of the constituent
elements of the offence in the national law of the Party.
232. By the use of the phrase “may be taken into consideration”,
the drafters wished to highlight that the Convention places an obligation
on Parties to ensure that these aggravating circumstances are available
for judges to consider when sentencing perpetrators although there
is no obligation on judges to apply them. In addition, the reference
to “in conformity with the relevant provisions of internal law”
is intended to reflect the fact that the various legal systems in
Europe have different approaches to aggravating circumstances and therefore
permits Parties to retain some of their legal concepts. This gives
flexibility to Parties in implementing this provision without notably
obliging them to modify their principles related to the application
of sanctions in the criminal law systems.
233. The first of the aggravating circumstances, lit.a, is where
the offence was committed against a former or current spouse or
partner as recognised by internal law, by a member of the family,
a person cohabiting with the victim or a person having abused her
or his authority. This would cover various situations where the
offence was committed by the former or current marital partner or
non-marital partner as recognised by internal law. It would also
include members of the victim’s family, such as parents and grand-parents
and children or persons having a family related dependant relationship
with the victim. Any person cohabiting with the victim refers to persons
living within the same household other than family members. A person
having authority refers to anyone who is in a position of superiority
over the victim, including for example a teacher or employer. The common
element of these cases is the position of trust which is normally
connected with such a relationship and the specific emotional harm
which may emerge from the misuse of this trust when committing an
offence within such a relationship. In this paragraph the reference
to "partners as recognised by internal law" means that, as a minimum,
former or current partners shall be covered in accordance with the
conditions set out in internal law, bearing in mind that it is the
intimacy and trust connected with the relationship that makes it
an aggravating circumstance.
234. The second aggravating circumstance, lit.b, concerns offences
that are committed repeatedly. This refers to any of the offences
established by this Convention as well as any related offence which
are committed by the same perpetrator more than once during a certain
period of time. The drafters thereby decided to emphasise the particularly
devastating effect on a victim who is repeatedly subjected to the
same type of criminal act. This is often the case in situations
of domestic violence, which inspired the drafters to require the possibility
of increased court sentences. It is important to note that the facts
of an offence of a similar nature which led to a conviction of the
same perpetrator may not be considered as a repeated act referred
to under lit.b but constitute an aggravating circumstance of their
own under lit.i.
235. The third aggravating circumstance, lit. c, refers to offences
committed against a person made vulnerable by particular circumstances
(see paragraph 85 for the indicative list of possible vulnerable
persons).
236. The fourth aggravating circumstance, lit.d, covers offences
committed against a child or in the presence of a child, which constitutes
a form of victimisation of the child in itself. The drafters wished
to highlight the particularly culpable behaviour if any of the offences
established by this Convention are committed against a child.
237. The fifth aggravating circumstance, lit.e, is where the offence
was committed by two or more people acting together. This indicates
a collective act committed by two or more people.
238. The sixth aggravating circumstance, lit.f, refers to offences
preceded or accompanied by extreme levels of violence. This refers
to acts of physical violence that are particularly high in intensity
and present a serious risk to the life of the victim.
239. The seventh aggravating circumstance, lit.g, concerns the
use or threat of a weapon. By including this, the drafters emphasise
the particularly culpable behaviour of employing a weapon, as it
may cause serious violence, including the death of the victim.
240. The eighth aggravating circumstance, lit.h, is where the offence
resulted in severe physical or psychological harm for the victim.
This indicates offences which cause particularly serious physical
or psychological suffering, in particular long-term health consequences
for the victim.
241. The last aggravating circumstance, lit.i, is where the perpetrator
has previously been convicted of offences of a similar nature. By
including this, the drafters draw attention to the particular risk
of recidivism for many of the offences covered by the Convention,
in particular domestic violence.
2.6.19 Article 47 – Sentences passed by another Party
242. Some of the offences established
in accordance with this Convention can have a transnational dimension
or may be carried out by perpetrators who have been tried and convicted
in another country or in more than one country. At the domestic
level, many legal systems provide for a different, often harsher,
penalty where someone has previous convictions. In general, only
convictions by a national court count as a previous conviction.
Traditionally, convictions by foreign courts are not necessarily
taken into account on the grounds that criminal law is a national
matter and that there can be differences of national law, and because
of a degree of suspicion of decisions by foreign courts.
243. Such arguments have less force today in that internationalisation
of criminal law standards – as a result of the internationalisation
of crime – is tending to harmonise the laws of different countries.
In addition, in the space of a few decades, countries have adopted
instruments such as the ECHR whose implementation has helped build
a solid foundation of common guarantees that inspire greater confidence
in the justice systems of all the participating states.
244. The principle of international recidivism is established
in a number of international legal instruments. Under Article 36(2)(iii)
of the New York Convention of 30 March 1961 on Narcotic Drugs, for
example, foreign convictions have to be taken into account for the
purpose of establishing recidivism, subject to each Party’s constitutional
provisions, legal system and national law. Under Article 1 of the
Council Framework Decision of 6 December 2001 amending Framework
Decision 2000/383/JHA on increasing protection by criminal penalties and
other sanctions against counterfeiting in connection with the introduction
of the Euro, European Union member states must recognise as establishing
habitual criminality final decisions handed down in another member
state for counterfeiting of currency.
245. The fact remains that at international level there is no standard
concept of recidivism and the laws of some countries do not include
the concept at all. The fact that foreign convictions are not always
brought to the courts’ notice for sentencing purposes is an additional
practical difficulty. However, Article 3 of the Council Framework
Decision 2008/675/JHA on taking account of convictions in the member
states of the European Union in the course of new criminal proceedings,
firstly establishes in a general way – without limitation to specific
offences – the obligation of taking into account a previous conviction
handed down in another (member) state.
246. Therefore, Article 47 provides for the possibility of taking
into account final sentences passed by another Party in assessing
a sentence. To comply with the provision Parties may provide in
their domestic law that previous convictions by foreign courts are
to result in a harsher penalty when they are known to the competent authority.
They may also provide that, under their general powers to assess
the individual’s circumstances in setting the sentence, courts should
take those convictions into account. This possibility should also
include the principle that the perpetrator should not be treated
less favourably than he would have been treated if the previous
conviction had been a national conviction.
247. This provision does not place any positive obligation on courts
or prosecution services to take steps to find out whether persons
being prosecuted have received final sentences from another Party’s
courts. It should nevertheless be noted that, under Article 13 of
the European Convention on Mutual Assistance in Criminal Matters
(ETS No.30), a Party’s judicial authorities may request from another
Party extracts from and information relating to judicial records,
if needed in a criminal matter.
2.6.20 Article 48 – Prohibition of mandatory alternative
dispute resolution processes or sentencing
248. The domestic law of many Council
of Europe member states provides for alternative dispute resolution processes
and sentencing – in criminal and in civil law. In particular in
family law, methods of resolving disputes alternative to judicial
decisions are considered to better serve family relations and to
result in more durable dispute resolution. In some legal systems,
alternative dispute resolution processes or sentencing such as mediation
or conciliation are also used in criminal law.
249. While the drafters do not question the advantages these alternative
methods present in many criminal and civil law cases, they wish
to emphasise the negative effects these can have in cases of violence
covered by the scope of this Convention, in particular if participation
in such alternative dispute resolution methods are mandatory and
replace adversarial court proceedings. Victims of such violence
can never enter the alternative dispute resolution processes on
a level equal to that of the perpetrator. It is in the nature of
such offences that such victims are invariably left with a feeling
of shame, helplessness and vulnerability, while the perpetrator exudes
a sense of power and dominance. To avoid the re-privatisation of
domestic violence and violence against women and to enable the victim
to seek justice, it is the responsibility of the state to provide
access to adversarial court proceedings presided over by a neutral
judge and which are carried out on the basis of the national laws
in force. Consequently, paragraph 1 requires Parties to prohibit
in domestic criminal and civil law the mandatory participation in
any alternative dispute resolution processes.
250. Paragraph 2 of this article aims at preventing another unintended
consequence which legal measures may have on the victim. Many of
the perpetrators of the offences established by the Convention are
members of the family of the victim. Moreover, they are often the
sole breadwinners of the family and therefore the only source of
a possibly limited/small family income. Ordering the perpetrator
to pay a fine will consequently have a bearing on the family income
or his ability to pay alimony and may result in financial hardship
for the victim. Such a measure may thus present an indirect punishment
of the victim. This provision therefore requires Parties to ensure
that any fine that a perpetrator is ordered to pay shall not indirectly
lead to financial hardship on the part of the victim. It is important
to note that it does not impinge on the independence of the judiciary and
an individual approach to sanctions.
2.7 Chapter VI – Investigation, prosecution, procedural
law and protective measures
251. This chapter contains a variety
of provisions that cover a broad range of issues related to investigation, prosecution,
procedural law and protection against all forms of violence covered
by the scope of this Convention, in order to reinforce the rights
and duties laid out in the previous chapters of the Convention.
2.7.1 Article 49 – General obligations
252. The drafters wanted to prevent
that incidents of violence against women and domestic violence are assigned
low priority in investigations and judicial proceedings, which contributes
significantly to a sense of impunity among perpetrators and has
helped to perpetuate high levels of acceptance of such violence.
In order to achieve this goal, paragraph 1 sets out the obligation
to ensure that investigations and judicial proceedings in relation
to all forms of violence covered by the scope of this Convention
are carried out without undue delay. This will help to secure vital
evidence, enhance conviction rates and put an end to impunity. It
is important to note that while it is essential to ensure swift
investigations and proceedings, it is equally important to respect the
rights of victims during these stages. Paragraph 1 therefore requires
Parties to avoid to the extent possible aggravating any harm experienced
by victims during investigations and judicial proceedings and to
provide them with assistance during criminal proceedings.
253. Paragraph 2 complements the obligation by establishing the
obligation to ensure that the investigation and prosecution of cases
of all forms of violence covered by the scope of this Convention
are carried out in an effective manner. This means, for example,
establishing the relevant facts, interviewing all available witnesses, and
conducting forensic examinations, based on a multi-disciplinary
approach and using state-of-the-art criminal investigative methodology
to ensure a comprehensive analysis of the case. The drafters considered
it important to spell out as part of this obligation the need to
ensure that all investigations and procedures are carried out in
conformity with fundamental principles of human rights and with
regard to a gendered understanding of violence. This means, in particular,
that any measures taken in implementation of this provision are
not prejudicial to the rights of the defence and the requirements
of a fair and impartial trial, in conformity with Article 6 ECHR.
2.7.2 Article 50 – Immediate response, prevention and
protection
254. Paragraph 1 requires law enforcement
agencies to promptly and appropriately react by offering adequate
and immediate protection to victims, while paragraph 2 calls for
their prompt and appropriate engagement in the prevention of and
protection against all forms of violence covered by the scope of
this Convention, including the employment of preventive operational
measures and the collection of evidence.
255. Compliance with this obligation includes, for example, the
following:
- the right of the
responsible law enforcement agencies to enter the place where a
person at risk is present;
- the treatment and giving advice to victims by the responsible
law enforcement agencies in an appropriate manner;
- hearing victims without delay by specially-trained, where
appropriate female, staff in premises that are designed to establish
a relationship of trust between the victim and the law enforcement
personnel; and
- provide for an adequate number of female law enforcement
officers, including at high levels of responsibility.
256. Effective measures should be taken to prevent the most blatant
forms of violence which are murder or attempted murder. Each such
case should be carefully analysed in order to identify any possible
failure of protection in view of improving and developing further
preventive measures.
2.7.3 Article 51 – Risk assessment and risk management
257. Concerns for the victim’s safety
must lie at the heart of any intervention in cases of all forms
of violence covered by the scope of this Convention. This article
therefore establishes the obligation to ensure that all relevant
authorities, not limited to the police, effectively assess and devise
a plan to manage the safety risks a particular victim faces on a
case-by-case basis, according to standardised procedure and in co-operation
and co-ordination with each other. Many perpetrators threaten their
victims with serious violence, including death, and have subjected
their victims to serious violence in the past. It is therefore essential
that any risk assessment and risk management consider the probability
of repeated violence, notably deadly violence, and adequately assess
the seriousness of the situation.
258. The purpose of this provision is to ensure that an effective
multi-agency network of professionals is set up to protect high-risk
victims. The risk assessment must therefore be carried out with
a view to managing the identified risk by devising a safety plan
for the victim in question in order to provide co-ordinated safety
and support if necessary.
259. However, it is important to ensure that any measures taken
to assess and manage the risk of further violence allow for the
rights of the accused to be respected at all times. At the same
time, it is of paramount importance that such measures do not aggravate
any harm experienced by victims and that investigations and judicial
proceedings do not lead to secondary victimisation.
260. Paragraph 2 extends the obligation to ensure that the risk
assessment referred to in the first paragraph of this article duly
takes into account reliable information on the possession of firearms
by perpetrators. The possession of firearms by perpetrators not
only constitutes a powerful means to exert control over victims,
but also increases the risk of homicide. This is particularly the
case in post-conflict situations or in countries with a tradition
of firearms ownership, which can provide perpetrators with greater
access to these weapons. However, very serious cases of violence
against women and domestic violence are committed with the use of firearms
in all other countries as well. For this reason, the drafters felt
it essential to place on Parties the obligation to ensure that any
assessment of the risks faced by a victim should systematically
take into consideration, at all stages of the investigation and
application of protective measures, whether the perpetrator legally
or illegally possesses or has access to firearms in order to guarantee
the safety of victims. For example, in issuing emergency barring
orders, restraining or protection orders, and when sentencing following
criminal convictions for any of the forms of violence covered by
the scope of this Convention, Parties may adopt, within their domestic
legal systems, such measures as may be necessary to enable immediate
confiscation of firearms and ammunition. Additionally, in order
to cover all weapons that could be used in serious cases of violence,
notably combat-type knives, Parties are encouraged to take into
account, as far as possible, the possession of or access to such
weapons.
2.7.4 Article 52 – Emergency barring orders
261. In situations of immediate danger,
the most effective way of guaranteeing the safety of a domestic violence
victim is by achieving physical distance between the victim and
the perpetrator. In many cases, this requires one of the two to
leave, for a certain period of time, the joint residence or the
perpetrator to leave the victim’s residence. Rather than placing
the burden of hurriedly seeking safety in a shelter or elsewhere
on the victim, who is often accompanied by dependant children, often
with very few personal affairs and for an indefinite period of time,
the drafters considered it important to ensure the removal of the
perpetrator to allow the victim to remain in the home. Therefore,
this provision establishes the obligation of equipping the competent authorities,
with the power to order, a perpetrator of domestic violence to leave
the residence of the victim and to bar him or her from returning
or contacting the victim. The immediate danger must be assessed
by the relevant authorities. The drafters decided to leave to the
Parties to decide on the length of period for such an order, but
the period should be sufficient to provide effective protection
to the victim. Existing examples of such orders in Council of Europe
member states range between 10 days and four weeks, with or without
the possibility of renewal. Equally, the drafters decided to leave
to the Parties to identify, in accordance with their national system,
the authority competent to issue such orders and the applicable
procedure.
262. The term “immediate danger” refers to any situations of domestic
violence in which harm is imminent or has already materialised and
is likely to happen again.
263. Lastly, this provision requires Parties to ensure that any
measures taken in its implementation give due consideration to the
safety of the victim or person at risk. This shows the protective
nature of this measure.
2.7.5 Article 53 – Restraining or protection orders
264. This provision sets out the obligation
to ensure that national legislation provides for restraining and/or protection
orders for victims of all forms of violence covered by the scope
of this Convention. Furthermore, it establishes a number of criteria
for such orders to ensure that they serve the purpose of offering
protection from further acts of violence.
265. Although this provision refers to restraining "or" protection
orders, the drafters bore in mind that the national legislation
of certain Parties may provide for the combined use of restraining
and protection orders. A restraining or protection order may be
considered complementary to a short-term emergency barring order.
Its purpose is to offer a fast legal remedy to protect persons at
risk of any of the forms of violence covered by the scope of this
Convention by prohibiting, restraining or prescribing a certain
behaviour by the perpetrator. This wide range of measures covered
by such orders means that they exist under various names such as
restraining order, barring order, eviction order, protection order
or injunction. Despite these differences, they serve the same purpose:
preventing the commission of violence and protect the victim. For
the purpose of this Convention, the drafters decided to use the
term restraining or protection order as an umbrella category.
266. The drafters decided to leave to the Parties to choose the
appropriate legal regime under which such orders may be issued.
Whether restraining or protection orders are based in civil law,
criminal procedure law or administrative law or in all of them will
depend on the national legal system and above all on the necessity for
effective protection of victims.
267. Paragraph 2 contains a number of specifications for restraining
and protection orders. The first indent requires these orders to
offer immediate protection and to be available without undue financial
or administrative burdens placed on the victim. This means that
any order should take effect immediately after it has been issued and
shall be available without lengthy court proceedings. Any court
fees levied against the applicant, most likely the victim, shall
not constitute an undue financial burden which would bar the victim
from applying. At the same time, any procedures set up to apply
for a restraining or protection order shall not present insurmountable difficulties
for victims.
268. The second indent calls for the order to be issued for a specified
or a determined period or until modified or discharged. This follows
from the principle of legal certainty that requires the duration
of a legal measure to be spelt out clearly. Furthermore, it shall
cease to be in effect if changed or discharged by a judge or other competent
official.
269. The third indent requires Parties to ensure that in certain
cases these orders may be issued, where necessary, on an ex parte basis with immediate effect.
This means a judge or other competent official would have the authority
to issue a temporary restraining or protection order based on the
request of one party only.
270. The fourth indent seeks to ensure the possibility for victims
to obtain a restraining or protection order whether or not they
choose to set in motion any other legal proceedings. For example,
where such orders exist, research has shown that many victims who
want to apply for a restraining or protection order may not be prepared
to press criminal charges (that would lead to a criminal investigation
and possibly criminal proceedings) against the perpetrator. Standing
to apply for a restraining or protection order shall therefore not be
made dependent on the institution of criminal proceedings against
the same perpetrator. Similarly, they should not be made dependent
on the institution of divorce proceedings, etc. At the same time,
the fact that criminal or civil proceedings concerning the same
set of facts are underway against the same perpetrator shall not
prevent a restraining or protection order from being issued.
271. The fifth indent requires Parties to take measures to ensure
that the existence of a restraining or protection order may be introduced
in any other legal proceedings against the same perpetrator. The
aim of this provision is to allow for the fact that such an order
has been issued against the perpetrator to be known to any other
judge presiding over legal proceedings against the same person.
272. Paragraph 3 aims at ensuring respect for restraining and protection
orders by requiring “effective, proportionate and dissuasive” sanctions
for any breach of such orders. These sanctions may be of a criminal law
or other legal nature and may include prison sentences, fines or
any other legal sanction that is effective, proportionate and dissuasive.
273. Lastly, since establishing the truth in domestic violence
cases may, at times, be difficult, Parties may consider limiting
the possibility of the adversary/the perpetrator to thwart attempts
of the victim to seek protection by taking the necessary measures
to ensure that, in cases of domestic violence, restraining and protection
orders as referred to in paragraph 1 may not be issued against the
victim and perpetrator mutually. Also, Parties should consider banning
from their national legislation any notions of provocative behaviour
in relation to the right to apply for restraining or protection
orders. Such concepts allow for abusive interpretations that aim
at discrediting the victim and should be removed from domestic violence
legislation. Finally, Parties may also consider taking measures
to ensure that standing to apply for restraining or protection orders
referred to in paragraph 1 is not limited to victims. These measures
are of particular relevance in relation to legally incapable victims,
as well as regarding vulnerable victims who may be unwilling to
apply for restraining or protection orders for reasons of fear or
emotional turmoil and attachment.
2.7.6 Article 54 – Investigations and evidence
274. In judicial proceedings evidence
relating to the sexual history and sexual conduct of a victim is sometimes
exploited in order to discredit the evidence presented by the victim.
The defence sometimes uses previous sexual behaviour history evidence
in order to challenge the respectability, the credibility and the
lack of consent of victims. This particularly regards cases of sexual
violence, including rape. Presenting this type of evidence may reinforce
the perpetuation of damaging stereotypes of victims as being promiscuous
and by extension immoral and not worthy of the protection provided
by civil and criminal law. This may lead to de
facto inequality, since victims, who are overwhelmingly
women, are more likely to be provided with this protection if they
are judged to be of a respectable nature.
275. The drafters felt it essential to emphasise that a victim’s
past sexual behaviour should not be considered as an excuse for
acts of violence against women and domestic violence allowing to
exonerate the perpetrator or to diminish his liability. However,
they were conscious of the fact that, in some Parties to the Convention,
the admissibility and consideration of evidence lies within the
discretion of the judge, whereas in others, it is strictly pre-determined
by the rules of criminal procedural law. Article 54 entails the
obligation for Parties to take the necessary legislative or other
measures to ensure that evidence relating to the sexual history
and sexual conduct of the victim shall be permitted or considered
only when it is relevant and necessary. This means that the provision
restricts the admissibility of such evidence, in both civil or criminal
proceedings, to cases where it is relevant to a specific issue at
trial and if it is of significant probative value. Therefore, it
does not rule out the admissibility of such evidence. Where judges
admit previous sexual history evidence, it should only be presented
in a way that does not lead to secondary victimisation. Victims
should have access to legal recourse without suffering additional
trauma because of their sexual history and conduct.
2.7.7 Article 55 – Ex parte and ex officio proceedings
276. Conscientious of the particularly
traumatising nature of the offences covered by this article, the
drafters sought to ease the burden which lengthy criminal investigations
and proceedings often place on the victims while at the same time
ensuring that perpetrators are brought to justice. The aim of this
provision is therefore to enable criminal investigations and proceedings
to be carried out without placing the onus of initiating such proceedings
and securing convictions on the victim.
277. Paragraph 1 places on Parties the obligation to ensure that
investigations into a number of categories of offences shall not
be “wholly dependant” upon the report or complaint filed by a victim
and that any proceedings underway may continue even after the victim
has withdrawn her or his statement or complaint. The drafters decided
to use the terms "wholly dependant" in order to address procedural
differences in each legal system, bearing in mind that ensuring
the investigations or prosecution of the offences listed in this
article is the responsibility of the state and its authorities.
In particular, the drafters were of the opinion that acts resulting
in severe bodily harm or deprivation of life must be addressed promptly
and directly by competent authorities.The fact that many of the
offences covered by this Convention are perpetrated by family members,
intimate partners or persons in the immediate social environment
of the victim and the resulting feelings of shame, fear and helplessness
lead to low numbers of reporting and, subsequently, convictions.
Therefore, law enforcement authorities should investigate in a proactive
way in order to gather evidence such as substantial evidence, testimonies
of witnesses, medical expertise, etc., in order to make sure that
the proceedings may be carried out even if the victim withdraws
her or his statement or complaint at least with regard to serious
offences, such as physical violence resulting in death or bodily
harm.
278. Paragraph 1 of this article is open to reservations in respect
of Article 35 regarding minor offences, pursuant to Article 78 (2)
of this Convention. The drafters wished to make a clear distinction
between serious offences of physical violence resulting in severe
bodily harm or deprivation of life which would be then excluded by
this possibility of reservation and other, minor, offences of physical
violence which do not lead to such consequences. However, it is
left to Parties to determine what constitutes “minor offences” of
physical violence.
279. With a view to empowering victims and to encouraging them
to go through with criminal proceedings, paragraph 2 requires Parties
to ensure that victim organisations, specifically trained domestic
violence counsellors or other types of support/advocacy services
may assist and support victims during investigations and judicial
proceedings. Good practice examples have shown that victims who
are supported or assisted by a specialist support service during
investigations and proceedings are more likely to file a complaint
and testify and are better equipped to take on the emotionally challenging
task of actively contributing to the outcome of proceedings. The
type of service which this paragraph refers to is not of a legal,
but a practical/psychological nature. It includes psychologically/emotionally
preparing victims to endure testifying in front of the accused, accompanying
victims to court and/or assisting them in any other practical and
emotional way.
2.7.8 Article 56 – Measures of protection
280. This provision is inspired by
Article 31 (1) of the Convention on the Protection of Children against
Sexual Exploitation and Sexual Abuse (ETS No. 201). Paragraph 1
contains a non-exhaustive list of procedures designed to protect
victims of all forms of violence covered by the scope of this Convention
during proceedings. These measures of protection apply at all stages
of the proceedings, both during the investigations, whether they
are carried out by law enforcement agencies or judicial authorities,
and during trial proceedings. Although there is no legal necessity
to do so, as it is always open to Parties to adopt measures more
favourable than those provided for in any part of the Convention,
the drafters wished to make it clear that the measures of protection
referred to are indicative. Parties are thus free to grant additional
measures of protection. It is important to highlight that throughout
Article 56 (1), where there is mention that measures need to be
taken in accordance with internal law or “where possible”, it underlines
that Parties are at liberty to employ whatever means they consider
best to achieve the provision’s objectives. This is the case of
lit.c, d, g, and i.
281. First of all, lit.a contains the obligation for Parties to
take the necessary legislative or other measures in order to provide
for the protection of victims, as well as that of their families
and witnesses. Parties must ensure that victims are safe from intimidation,
retaliation and repeat victimisation.
282. In relation to lit.b, the drafters stressed the importance
of the obligation to inform victims when the perpetrator is released
temporarily or definitely or escapes, at least in cases where the
victims and the family might be in danger. This does not prevent
Parties to inform victims in other circumstances where this seems necessary
(for instance, in cases where there is a risk of retaliation or
intimidation or when, because the victim and the perpetrator live
near each other, they might accidentally find themselves face to
face with each other). Some legal systems require the prior application
by the victim to receive this information. In these cases Parties shall
inform the victim of this possibility.
283. Furthermore, lit.c sets out the right of victims (and their
families or legal representatives in the case of child victims)
to be informed of developments in the investigations and proceedings
in which they are involved as victims. In this respect, the provision
provides that victims should be informed of their rights and of
the services at their disposal and the follow-up given to their
complaint, the charges, the general progress of the investigations
or proceedings, and their role as well as the outcome of their cases.
Although this is not included in the provision, Parties should ensure
that this information be provided in a language that they understand (see
comments on Article 19).
284. With regard to lit.d, this provision aims at enabling victims
to be heard, to supply evidence and to choose the means of having
their views, needs and concerns presented and considered. Parties
shall take the necessary measures to ensure that the presentation
and consideration of the victims’ views, needs and concerns is assured
directly or through an intermediary.
285. Lit.e deals more specifically with general assistance to victims
to ensure that their rights and interests are duly presented and
taken into account at all stages of investigations and judicial
proceedings.
286. The obligation contained in lit.f, entails taking the necessary
measures in order to ensure that the victims’ privacy is protected.
This requires taking measures, where appropriate and in accordance
with internal law, to prevent the public dissemination of any information
that could lead to the identification of victims. The drafters wished
to stress, however, that the protection of the victim's image and
privacy extends to the risk of "public" disclosure, and that these
requirements should not prevent this information being revealed
in the context of the actual proceedings, in order to respect the
principles that both parties must be heard and the inherent rights
of the defence during a criminal prosecution.
287. Lit.g is designed to protect victims, in particular by preventing
their being further traumatised through contact, on the premises
of the investigation services and in court, with the alleged perpetrator
of the offence. This provision applies to all stages of the criminal
proceedings (including the investigation), with certain exceptions:
the investigation services and the judicial authority must be able
to waive this requirement for example when the victim wishes to
attend the hearing or when contact between the victim and the alleged perpetrator
is necessary or useful for ensuring that the proceedings take place
satisfactorily (for example, when a confrontation appears necessary).
288. Lit.h lays out the obligation of providing victims, where
necessary, with independent and competent interpreters. Some legal
systems require a sworn-in interpreter to establish independence.
Due to the difference in status of victims in the different judicial
systems, the drafters considered it important, to make it clear
in the text of the Convention that this applies when victims are
parties to the proceedings or when they are giving evidence. Many
victims do not speak, or barely speak, the language of the country
where they were subject to acts of violence against women and domestic
violence. Ignorance of the language adds to their isolation and
is one of the factors preventing them from claiming their rights.
In such cases access to interpreters is needed to help them during
investigations and judicial proceedings. This is an essential measure for
guaranteeing access to rights, which is a prerequisite for access
to justice and Parties should envisage providing victims with interpreters
free of charge.
289. Finally, lit.i places an obligation on Parties to ensure that
victims are enabled to testify in the courtroom without being present
or at least without the presence of the alleged perpetrator. The
law in some countries provides for audiovisual recording of hearings
of victims and safeguarding such hearings by such means as: limiting
the people allowed to attend the hearing and view the recording;
allowing the victim to request a break in recording at any time
and making a full, word-for-word transcription of the hearing on
request. Such recordings and written records may then be used in
court instead of having the victim appear in person. Some legal
systems likewise allow victims to appear before the court by videoconference.
The victim is heard in a separate room, possibly in the presence
of an expert and technicians. To limit as far as possible the psychological
impact on the victim of being in the same room as the perpetrator
or being with them by videoconference, the sightlines of both can
be restricted so that the victim cannot see the perpetrator and/or vice versa. If, for instance, the
victim were to appear at the hearing, she or he could give evidence
from behind a screen or give evidence where the perpetrator does
not appear in the court room. Parties must therefore ensure the
obligation laid out in this provision, where available, through
the use of appropriate communication technologies.
290. In the case of child victims and child witnesses, paragraph
2 states that Parties must take special care of their needs and
ensure their rights to special protection measures as a child will
usually be more vulnerable than an adult and likelier to be intimidated.
Consequently, special protection measures must give due regard to
the best interests of the child, which may include measures such
as not obliging a child to testify in the presence of the perpetrator.
With regard to the term “child witness” see also comments on Article
26.
2.7.9 Article 57 – Legal aid
291. In the immediate aftermath of
violence many victims of violence against women and domestic violence may
be forced to leave all their belongings or jobs behind on a moment's
notice. Judicial and administrative procedures are often highly
complex and victims need the assistance of legal counsel to be able
to assert their rights satisfactorily. In these cases, it might
be difficult for victims to effectively access legal remedies because of
the high costs which can be involved in seeking justice. For this
reason the drafters believed it essential to place an obligation
on Parties to provide for the right to legal assistance and to free
legal aid for victims under the conditions provided by their internal
law. This provision is inspired by Article 15 (2) of the Council
of Europe Convention on Action against Trafficking in Human Beings
(ETS No.197).
292. Article 57 does not give the victim an automatic right to
free legal aid. It is for each Party to decide the requirements
for obtaining such aid. In addition to this provision, Parties must
take account of Article 6 ECHR. Even though Article 6 paragraph
3 (c) ECHR provides for free assistance from an officially appointed
lawyer only in criminal proceedings, European Court of Human Rights
case-law (Airey v. Ireland judgment,
9 October 1979) also recognises, in certain circumstances, the right
to free legal assistance in a civil matter on the basis of Article
6 paragraph 1 ECHR, interpreted as establishing the right to a court
for determination of civil rights and obligations (see Golder v. the United Kingdom, judgment
of 21 February 1975). The Court’s view is that effective access
to a court may necessitate free legal assistance. Its position is
that it must be ascertained whether appearance before a court without
the assistance of a lawyer would be effective in the sense that
the person concerned would be able to present their case properly
and satisfactorily. Here the Court has taken into account the complexity
of procedures and the emotional character of a situation - which
might be scarcely compatible with the degree of objectivity required
by advocacy in court - in deciding whether someone was in a position
to present her or his own case effectively. If not, he or she must
be given free legal assistance. Thus, even in the absence of legislation
granting free legal assistance in civil matters, it must be assessed
whether, in the interest of justice, an applicant who is without
financial means should be granted legal assistance if unable to
afford a lawyer.
2.7.10 Article 58 – Statute of limitation
293. This provision provides that
the limitation period for initiating legal proceedings continues
to run for a sufficient period of time to allow prosecutions to
be effectively initiated after the victim has reached the age of majority.
The obligation therefore applies in relation to child victims only,
who are often unable, for various reasons, to report the offences
perpetrated against them before reaching the age of majority. The
expression “for a period of time sufficient to allow the efficient
initiation of proceedings” means, firstly, once these children become
adults, they must have a sufficiently long time to overcome their
trauma, thus enabling them to file a complaint and, secondly, that
the prosecution authorities must be in a position to bring prosecutions
for the offences concerned.
294. In order to meet the requirements of proportionality that
apply to criminal proceedings, however, the drafters restricted
the application of this principle to the offences provided in Articles
36, 37, 38 and 39, in respect of which there is justification for
extending the limitation period. Nevertheless, Article 78 (2) on reservations
allows future Parties to declare that they reserve the right not
to apply this principle or to apply it only in specific cases or
conditions in respect of Articles 37, 38 and 39.
2.8 Chapter VII – Migration and asylum
295. Migrant women, including undocumented
migrant women, and women asylum-seekers form two subcategories of
women that are particularly vulnerable to gender-based violence.
Despite their difference in legal status, reasons for leaving their
home country and living conditions, both groups are, on the one
hand, at increased risk of experiencing violence against women and,
on the other hand, face similar difficulties and structural barriers
in overcoming violence.
296. This chapter contains a number of obligations that aim at
introducing a gender-sensitive understanding of violence against
migrant women and women asylum-seekers. For example, it introduces
the possibility of granting migrant women who are victims of gender-based
violence an independent residence status. Furthermore, it establishes
the obligation to recognise gender-based violence against women
as a form of persecution and contains the obligation to ensure that
a gender-sensitive interpretation be given when establishing refugee
status. In addition, this chapter establishes the obligation of
introducing gender-sensitive procedures, guidelines and support
services in the asylum process. Finally, it contains provisions
pertaining to the respect of the non-refoulement principle
with regard to victims of violence against women
2.8.1 Article 59 - Residence status
297. Research has shown that fear
of deportation or loss of residence status is a very powerful tool
used by perpetrators to prevent victims of violence against women
and domestic violence from seeking help from authorities or from
separating from the perpetrator. Most Council of Europe member states
require spouses or partners to remain married or in a relationship
for a period ranging from one to three years for the spouse or partner
to be granted an autonomous residence status. As a result, many
victims whose residence status is dependant on that of the perpetrator
stay in relationships where they are forced to endure situations
of abuse and violence for long periods of time.
298. The drafters considered it necessary to ensure that the risk
of losing their residence status should not constitute an impediment
to victims leaving an abusive and violent marriage or relationship.
The obligation contained in paragraph 1 requires Parties to the
Convention to take the necessary legislative or other measures to
ensure that migrant victims whose residence status is conditional
on marriage or on being in a relationship are granted an autonomous
residence permit of a limited validity in the event of the dissolution
of the marriage or the relationship.
299. Paragraph 1 specifies that an autonomous residence permit
should be granted in the event of particularly difficult circumstances.
Parties should consider being a victim of the forms of violence
covered by the scope of this Convention committed by the spouse
or partner or condoned by the spouse or partner as a particularly difficult
circumstance. The drafters felt it best to let Parties establish,
in accordance with internal law, the conditions relating to the
granting and duration of the autonomous residence permit, following
an application by the victim. This includes establishing which public
authorities are competent to decide if the relationship has dissolved
as a consequence of the violence endured by the victim and what
evidence is to be produced by the victim. Evidence of violence may
include, for example, police records, a court conviction, a barring
or protection order, medical evidence, an order of divorce, social
services records or reports from women’s NGOs, to name a few.
300. Moreover, paragraph 1 highlights the fact that independent/autonomous
permits should be granted irrespective of the duration of the marriage
or the relationship. It contains the obligation to ensure that victims of
all forms of violence covered by the scope of this Convention be
granted autonomous residence permits in her or his own right, even
if the marriage or the relationship ceases before the end of the
probationary period. This will allow victims to obtain the necessary
protection from authorities without fearing that the perpetrator will
retaliate by withdrawing or threatening to withdraw residence benefits
under the perpetrator’s control. This is also particularly important
in cases of forced marriages, where victims are forced to remain
married for the probationary period unless they are prepared to
be deported upon divorce.
301. Furthermore, paragraph 1 applies to spouses or partners as
recognised by internal law. Unmarried partners are included in the
provision to the extent that several Council of Europe member states
grant residence permits to partners who are able to demonstrate,
under the conditions laid down by internal law, that they have been
living in a relationship analogous to marriage or that the relationship
is of a permanent nature.
302. The second paragraph refers to cases where victims who have
joined their spouses or partners under a family reunification scheme,
face repatriation because of expulsion proceedings initiated against
their abusive and violent spouse or partner. In most Council of
Europe member states, the residence status of spouses or partners
is connected to that of the sponsor spouse or partner. This means
that the victim continues to be subjected to abuse in her or his
country of origin, resulting in de facto denial
of protection. This is particularly relevant in cases where the
country of origin has lower prevention, protection and prosecution
standards in the field of violence against women and domestic violence
than the host country. The expulsion of such victims does not only
have negative implications for their lives, but can also constitute
an obstacle to law enforcement authorities endeavouring to combat
violence against women and domestic violence. As a result, paragraph
2 requires Parties to take appropriate measures to ensure that victims
that find themselves in such situations be given the possibility
to obtain the suspension of expulsion proceedings against themselves
to apply for a residence status on humanitarian grounds. Paragraph
2 is applicable to cases where the sponsor spouse or partner is
a perpetrator of domestic violence, in these cases, her or his spouse
or partner, the victim, will be expelled together with the perpetrator.
The purpose of this paragraph is to provide protection from expulsion; it
does not constitute a residence permit in itself.
303. Paragraph 3 is inspired by Article 14 (1) of the Council of
Europe Convention on Action against Trafficking in Human Beings
(ETS No.197). The paragraph places the obligation on Parties to
issue victims of domestic violence with renewable residence permits.
It lays down two requirements for issuing a residence permit. Firstly,
it covers situations where the victim’s personal circumstances are
such that it would be unreasonable to compel them to leave the national
territory (lit.a). Whether the victim meets the personal situation
requirement is to be decided on account of factors such as the victim’s
safety, state of health, family situation, or the situation in their
country of origin among others. Secondly, it establishes the requirement
of the cooperation with the competent authorities in cases where
investigation or criminal proceedings have been initiated against
the perpetrator (lit.b). This means that a residence permit may
be granted to the victim if the cooperation and testimony of the
victim are necessary in investigation and criminal proceedings.
The duration of the residence permit is to be decided by the Parties,
though the established length should be compatible with the provision’s
purpose. Moreover, Parties to the Convention have the obligation
to provide renewable permits. The non-renewal or the withdrawal
of a residence permit are subject to the conditions provided for
in the internal law of the Party.
304. Paragraph 4 covers situations where a victim of forced marriage
in possession of a residence permit for a Party to the Convention
is brought into another country resulting in a loss of residence
status in the country where he or she habitually reside. In most
Council of Europe member states, a residence permit becomes invalid
if the holder leaves the country for more than a stipulated number
of consecutive months. However, this condition only bears in mind
persons that leave the country voluntarily. If victims of forced
marriages are taken abroad involuntarily and thus overstay the guaranteed
or expiry period of time outside the Party in which they habitually
reside, their residence status will become invalid. For this reason,
this paragraph obliges Parties to the Convention to provide for
the possibility for such victims to regain their residence status
on account of them being forced to leave the country where they
habitually reside.
305. Finally, it should be noted that Article 78 (2) on reservations
allows future Parties to this Convention to reserve the right not
to apply or to apply only in specific cases or conditions the provisions
laid down in Article 59.
2.8.2 Article 60 – Gender-based asylum claims
306. Asylum law has long failed to
address the difference between women and men in terms of why and
how they experience persecution. This gender blindness in the establishment
of refugee status and of international protection has resulted in
situations where claims of women fleeing from gender-based violence
have gone unrecognised. In the past decade, however, developments
in international human rights law and standards as well as in case
law, have led an increasing number of Council of Europe member states
to recognise some forms of violence against women as a form of gender-related
persecution within the meaning of Article 1 A(2) of the 1951 Convention
relating to the Status of Refugees. There is no doubt that rape
and other forms of gender-related violence, such as female genital
violence, dowry-related violence, serious domestic violence, or
trafficking, are acts which have been used as forms of persecution,
whether perpetrated by state or non-state actors.
307. Although paragraph 1 consecrates what is already being undertaken
in practice, the drafters considered it important to include the
obligation of Parties to take the necessary legislative or other
measures to ensure that gender-based violence against women may
be recognised as a form of persecution within the meaning of Article
1 A(2) and as a form of serious harm. In other words, Parties to
the Convention are required to recognise that gender-specific violence
may amount to persecution, and lead to the granting of refugee status.
The recognition of gender-based violence as a form of persecution
within the meaning of Article 1 A(2) implies recognising that a
woman may be persecuted because of her gender, i.e. because of her
identity and status as a woman. Parties also have the obligation
to ensure that gender-based violence against women may be recognised
as a form of serious harm giving rise to complementary/subsidiary
protection. This means that international protection may be granted
to women who are third country nationals or who are stateless and
who have not qualified as a refugee, but if returned to their country
of origin or where they previously resided would face gender-based
violence, which would amount to inhuman or degrading treatment or
seriously threaten the life of the individual. Consequently, the
right to international protection is not limited to protection under
the 1951 Convention, but can also be derived from other well established
international and regional standards such as the ECHR or the European
Union Qualification Directive.
308. Paragraph 2 complements the obligation laid out in paragraph
1. The obligation contained in this provision is two-fold. On the
one hand, it requires Parties to ensure that a gender-sensitive
interpretation is given to each of the 1951 Convention grounds.
The well-founded fear of persecution must be related to one or more
of the 1951 Convention grounds. In the examination of the grounds
for persecution, gender-based violence is often seen to fall within
the ground of “membership of a particular social group”, overlooking
the other grounds. Ensuring a gender-sensitive interpretation implies
recognising and understanding how gender can have an impact on the
reasons behind the type of persecution or harm suffered. On the
other hand, paragraph 2 requires Parties to allow for the possibility
of granting refugee status should it be established that the persecution
feared is for one of these grounds. It is important to note that
adopting a gender-sensitive interpretation does not mean that all
women will automatically be entitled to refugee status. What amounts
to a well-founded fear of persecution will depend on the particular
circumstances of each individual case.
309. Regarding persecution on the grounds of race or on the grounds
of nationality, women may face certain types of persecution that
specifically affect them. Examples are sexual violence and control
of reproduction in cases of racial and ethnic “cleansing”. Concerning
persecution on the grounds of religion, women may be persecuted
for not conforming to religious norms and customs of acceptable
behaviour. This is particularly true in cases of crimes committed
in the name of so-called “honour” which affect women disproportionately. Persecution
on the grounds of membership of a particular social group has increasingly
been put forward in gender-related claims and has gradually acquired
international support. In considering women fleeing from gender-related
persecution such as female genital mutilation, forced marriage and
even serious domestic violence as forming a “particular social group”,
women may be granted asylum. Some women can thus be identified as
a particular group and that shares a common innate, unchangeable
or otherwise fundamental characteristic other than the common experience
of fleeing persecution. Finally, persecution on the ground of political
opinion can include persecution on the grounds of opinions regarding
gender roles. Some women may be persecuted, for example, for not
conforming to society’s roles and norms of acceptable behaviour
and for speaking out against traditional gender roles. When taking
the necessary measures in order to ensure a gender-sensitive interpretation
of the refugee definition, Parties may refer to the UNHCR Guidelines
on International Protection: Gender-Related Persecution within the
context of Article 1A(2) of the 1951 Convention and/or its 1967
Protocol relating to the Status of Refugees, May 2002. Additionally,
when ensuring that a gender-sensitive interpretation is given to
each of the convention grounds, Parties may if they wish, extend
the interpretation to individuals who are gay, lesbian, bisexual
or transgender, who may also face particular forms of gender-related
persecution and violence.
310. Paragraph 3 contains several obligations. The first obligation
placed on Parties is that of developing gender-sensitive reception
procedures that take into account women’s and men’s differences
in terms of experiences and specific protection needs to ensure
their right to safety when considering standards of treatment for
the reception of asylum-seekers. Examples of gender-sensitive reception
procedures include inter alia :
the identification of victims of violence against women as early
in the process as possible; the separate accommodation of single
men and women; separate toilet facilities, or at a minimum, different timetables
established and monitored for their use by males and females; rooms
that can be locked by their occupants; adequate lighting throughout
the reception centre; guard protection, including female guards, trained
on the gender-specific needs of residents; training of reception
centre staff; code of conduct applying also to private service providers;
formal arrangements for intervention and protection in instances
of gender-based violence; and provision of information to women
and girls on gender-based violence and available assistance services.
311. Paragraph 3 also places the obligation to develop support
services for asylum-seekers that provide assistance in a gender-sensitive
manner and that cater to their particular needs. This could include
taking measures such as providing additional psycho-social and crisis
counselling, as well as medical care for survivors of trauma since
for example, many female asylum-seekers have been exposed to sexual
or other forms of abuse and are therefore particularly vulnerable.
Support services should also aim at empowering women and enable
them to actively rebuild their lives.
312. Developing and implementing gender guidelines is essential
for the relevant actors to understand how they can include gender-sensitive
elements into their policies and practice. Guidelines provide an
essential reference point in order to enhance awareness of special
protection needs for women asylum-seekers that have been victims
or are at risk of gender-based violence. Parties must however bear
in mind that in order to ensure their success, specific measures
should be taken to ensure that such guidelines are implemented. Guidelines
should cover the enhancement of awareness and responsiveness to
cultural and religious sensitivities or personal factors as well
as the recognition of trauma.
313. In order to properly examine asylum claims by women and girls
who are victims of gender-based violence, paragraph 3 entails the
obligation to develop gender-sensitive asylum procedures. It encompasses inter ali a: the provision to women
of information on asylum procedures; the opportunity for women dependents to
have a personal interview separately and without the presence of
family members; the opportunity for women to raise independent needs
for protection and gender-specific grounds leading to a separate application
for international protection; the elaboration of gender guidelines
on the adjudication of asylum claims, and training. It also encompasses
gender-sensitive interviews led by an interviewer, and assisted
by an interpreter when necessary; the possibility for the applicant
to express a preference for the sex of their interviewer and interpreter
which the Parties will accommodate where it is reasonable to do
so; and the respect of confidentiality of the information gathered
through interviews. For further guidance, Parties may refer to the work
of the Parliamentary Assembly in this field, and in particular to
Resolution 1765 (2010) and Recommendation 1940 (2010) on gender-related
claims for asylum.
2.8.3 Article 61 – Non-refoulement
314. Enshrined in Article 33 of the
1951 Convention relating to the Status of Refugees, the principle
of non-refoulement constitutes
a pillar of asylum and of international refugee protection and has
acquired the status of customary international law. This means that
the principle applies to all states, irrespective of whether they are
bound or not by the 1951 Convention.
315. The principle of non-refoulement is
of particular relevance to asylum-seekers and refugees. According to
this principle, subject to certain exceptions and limitations as
laid down in the 1951 Convention, states shall not expel or return
an asylum seeker or refugee to any country where their life or freedom
would be threatened. Article 3 of the ECHR also prevents a person
being returned to a place where they would be at real risk of being subjected
to torture or inhuman or degrading treatment or punishment. Expelling
or returning a person to persecution contravenes the commitment
of the international community to ensure the enjoyment of human rights
of all persons. The non-refoulement principle
also includes not prohibiting access to the territory of a country
to asylum-seekers who have arrived at its borders or who are prevented
to access its borders.
316. The protection against refoulement applies to any person who
is a refugee under the terms of the 1951 Convention. It also applies
asylum-seekers whose status has not formally been determined and
who may be subjected to persecution if returned to their country
of origin or of habitual residence. Paragraph 1 entails the obligation
under international law for states to respect the principle of non-refoulement in relation to victims
of gender-based violence who may fear persecution if returned.
317. Paragraph 2 confirms that the obligation to respect the non-refoulement principle applies
equally to victims of violence against women who are in need of
protection complementing in this way the first paragraph. More specifically,
paragraph 2 reiterates the obligation for Parties to take the necessary
legal or other measures to ensure that victims of violence against
women and in need of protection, shall not be returned under any
circumstances if there were a real risk, as a result, of arbitrary
deprivation of life or torture or inhuman or degrading treatment
or punishment. It is important to ensure that these obligations
are complied with irrespective of the status or residence of the
women concerned. This means that this protection against return applies
to all victims of violence against women that have not yet had their
asylum claim determined as refugees under the 1951 Convention regardless
of their country of origin or residence status, and who would face
gender-based violence amounting to the ill-treatment described above
if expelled/deported. Even if their claim for asylum is refused,
states should ensure that these persons will not be expelled/deported
to a country where there is a real risk to that they will be subject
to torture or inhuman or degrading treatment or punishment.
2.9 Chapter VIII – International cooperation
318. Chapter VIII sets out the provisions
on international cooperation between Parties to the Convention.
The provisions are not confined to judicial cooperation in criminal
and civil matters but are also concerned with cooperation in preventing
all forms of violence covered by the scope of this Convention and
assisting victims of that violence.
319. As regards judicial cooperation in general and more specifically
in the criminal sphere, the Council of Europe already has a substantial
body of standard-setting instruments. Mention should be made here
of the European Convention on Extradition (ETS No.24), the European
Convention on Mutual Assistance in Criminal Matters (ETS No.30),
their Additional Protocols (ETS No. 86, 98, 99 and 182), European
Convention on the International Validity of Criminal Judgments (ETS
No.70), the Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime (ETS No.141) and the Council of Europe
Convention on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime and on the Financing of Terrorism (ETS No.198). These
treaties are cross-sector instruments applying to a large number
of offences, and can be implemented to permit judicial cooperation
in criminal matters in the framework of procedures aiming at the
offences established in the Convention. As all member states of
the Council of Europe are parties to the European Convention on
Extradition and the European Convention on Mutual Legal Assistance,
drafters are generally advised not to reproduce provisions on mutual
legal assistance and extradition in specialised instruments, but to
include the aforementioned general provision and otherwise refer
to the horizontal instruments in the explanatory memorandum accompanying
the convention being drafted.
320. For this reason, the drafters opted not to reproduce, in this
Convention, provisions similar to those included in cross-sectoral
instruments such as those mentioned above. For instance, they did
not want to introduce separate mutual assistance arrangements that
would replace the other instruments and arrangements applicable,
on the grounds that it would be more effective to rely, as a general
rule, on the arrangements introduced by the mutual assistance and
extradition treaties in force, with which practitioners were fully
familiar. This chapter therefore includes only provisions that add
something over and above the existing conventions.
2.9.1 Article 62 – General principles
321. Article 62 sets out the general
principles that should govern international co-operation.
322. First of all, it obliges the Parties to co-operate widely
with one another and in particular to reduce, as far as possible,
the obstacles to the rapid circulation of information and evidence.
323. Article 62 then makes it clear that the obligation to co-operate
is general in scope: it covers preventing, combating and prosecuting
all forms of violence covered by the scope of this Convention (lit.a),
protecting and providing assistance to victims (lit.b), investigations
or procedures concerning criminal offences established in accordance
with the Convention (lit.c) and enforcement of relevant of civil
and criminal judgments issued by Parties (lit.d).
324. Paragraph 2 is based on Article 11, paragraphs 2 and 3, of
the Council of the European Union Framework Decision of 15 March
2001 on the standing of victims in criminal proceedings. It is designed
to make it easier for victims to file a complaint by enabling them
to lodge it with the competent authorities of the state of residence.
325. These authorities may then either initiate proceedings if
their law permits, or pass on the complaint to the authorities of
the state in which the offence was committed, in accordance with
the relevant provisions of the co-operation instruments applicable
to the states in question.
326. Paragraph 3 authorises a Party that makes mutual assistance
in criminal matters, extradition or enforcement of civil and criminal
judgments conditional on the existence of a treaty to consider the
Convention as the legal basis for judicial co-operation with a Party
with which it has not concluded such a treaty. This provision, which
serves no purpose between Council of Europe member states as regards
mutual assistance in criminal matters and extradition because of
the existence of the European Conventions on Extradition and on
Mutual Assistance in Criminal Matters, dating from 1957 and 1959
respectively, and the Protocols thereto, is of interest because
of the possibility provided to third states to accede to the Convention.
327. Lastly, under paragraph 4, the Parties must endeavour to include
preventing and combating violence against women and domestic violence
in development assistance programmes benefiting third states. Many Council
of Europe member states carry out such programmes, which cover such
varied areas as the restoration or consolidation of the rule of
law, the development of judicial institutions, combating crime,
and technical assistance with the implementation of international
conventions. Some of these programmes may be carried out in countries
faced with substantial violence against women and domestic violence.
It seems appropriate, in this context, that action programmes should
take account of and duly incorporate issues relating mainly to the
prevention of these forms of crimes, including with a view to facilitating
the protection of victims in accordance with Article 18 (5).
2.9.2 Article 63 – Measures relating to persons at risk
328. The main objective pursued by
this provision is again to encourage Parties to this Convention
to enhance the exchange of information and, in addition in this
specific case, to prevent certain acts of violence against women
and domestic violence related to a number of offences established
by this Convention from happening. Some of the forms of violence
covered by the scope of this Convention may have a transnational
dimension. For this reason, the drafters identified some of the
offences established in this Convention, such as forced marriage
or female genital mutilation, and established the principle according
to which a Party that is in possession of information providing
reasonably evidence that a person is at immediate risk of being
subject to any of the acts of violence referred to should transmit
this information to the Party where these acts of violence could
happen. The information needs to be based on “reasonable grounds”
that an immediate risk exists. The drafters did not consider it
necessary to elaborate in the Convention criteria on what constitutes
reasonable grounds. It is therefore left to the Parties to establish,
according to the information collected on a case-by-case basis,
when to share this information in order to prevent such acts of
violence. This information includes details on protection orders
taken for the benefit of the persons at risk.
2.9.3 Article 64 – Information
329. Article 64 substantiates a principle
already present in the international cooperation field, and in particular in
the criminal field, which provides for an efficient and timely exchange
of information between states in order to either prevent a possible
offence as established in accordance with this Convention, to initiate
investigation on such an offence or to prosecute a perpetrator.
In particular, paragraph 1 requires the requested Party to communicate
to the requesting Party the outcome of any action undertaken. Paragraph
2 leaves to each Party the choice (wording used, may, clearly does not make this
action as compulsory) whether or not to forward to another Party
information related to its own investigations. This may be done
“without prior request” by the other Party.
330. Similarly, Paragraph 3 establishes the principle according
to which when a Party receives information (which concerns in general
a central administrative authority dealing with international cooperation
in criminal matters), this Party shall submit that information to
the relevant authorities which, according to its internal law, are
competent to deal with this information. In general, the relevant
authorities are for instance the police, prosecution service or
judge. The relevant authorities will then consider whether or not
that information is to appropriate for their investigations or judicial
proceedings. It is important to note that the exchange of information
required under this provision is not limited to criminal investigations
or proceedings but extends to civil law action, including protection
orders.
2.9.4 Article 65 – Data protection
331. This provision refers to the
question of personal data regarding all forms of violence covered
by the scope of this Convention. Because of the possible dangers
to individuals, in particular to victims, if data concerning them
were to circulate without any safeguards or checks, Article 65 specifically
refers to the Convention for the Protection of Individuals with
regard to Automatic Processing of Personal Data (ETS No.108) as
regards the storing and usage of data. The article states that this
provision applies pursuant to the obligations undertaken by the
Parties under the above-mentioned convention. However, this does
prevent Parties that are not Parties under Convention No. 108, to
ratify this Convention. Convention No.108 provides, in particular,
that personal data are to be stored only for specified lawful purposes
and are not to be used in any way incompatible with those purposes.
It also provides that such data are not to be stored in any form allowing
identification of the data subject or for any longer than is necessary
for the purposes for which the data are recorded and stored. Convention
No.108 likewise makes it compulsory to take appropriate security measures
preventing unauthorised access to and alteration or disclosure of
data.
2.10 Chapter IX – Monitoring mechanism
332. Chapter IX of the Convention
contains provisions which aim at ensuring the effective implementation
of the Convention by the Parties. In its interim report, the CAHVIO
stated that “The Committee is of the opinion that a strong and independent
monitoring mechanism is of utmost importance to ensure that an adequate response
to this problem is given in all Parties to the Convention.” Consequently,
the drafters considered that the monitoring system foreseen by the
Convention shall be one of its main strengths. The monitoring mechanism
is designed to cover the scope of this Convention. The Convention
sets-up a Group of experts on action against violence against women
and domestic violence (hereafter “GREVIO”) which is an expert body, composed
of independent and highly qualified experts in the fields of human
rights, gender equality, violence against women and domestic violence,
criminal law and in assistance to and protection of victims of violence against
women and domestic violence, with the task of “monitoring the implementation
of this Convention by the Parties”. The Convention also establishes
a Committee of the Parties, composed of the representatives of the
Parties to the Convention.
2.10.1 Article 66 – Group of experts on action against
violence against women and domestic violence (GREVIO)
333. As indicated above, GREVIO is
in charge of monitoring the implementation of the Convention by
the Parties. It shall have a minimum of 10 and a maximum of 15 members.
334. Paragraph 2 of this Article stresses the need to ensure geographical
and gender balance, as well as a multidisciplinary expertise, when
electing GREVIO’s members, who shall be nationals of Parties to
the Convention. Candidates to the GREVIO are nominated by the Parties
and elected by the Committee of the Parties.
335. Paragraph 3 establishes criteria of election of GREVIO’s members
in relation to the number of ratifications of the Convention.
336. Paragraph 4 underlines the main competences of the experts
sitting in GREVIO, as well as the main criteria for their election,
which can be summarised as follows: “independence and expertise”.
In particular, members of the GREVIO should represent relevant actors
and agencies working in the field of violence against women and
domestic violence. If nominated by the Parties, this may include
for instance NGO representatives.
337. Paragraph 5 indicates that the procedure for the election
of the members of GREVIO (but not the election of the members itself)
shall be determined by the Committee of Ministers. This is understandable
as the election procedure is an important part of the application
of the Convention. Being a Council of Europe Convention, the drafters
felt that such a function should still rest with the Committee of
Ministers and the Parties themselves will then be in charge of electing
the members of GREVIO. Before deciding on the election procedure,
the Committee of Ministers shall consult with and obtain the unanimous
consent of all Parties. Such a requirement recognises that all Parties
to the Convention should be able to determine such a procedure and are
on an equal footing.
338. Paragraph 6 states that GREVIO establishes its own rules of
procedure.
339. The purpose of paragraph 7 is to allow all members of country
visit delegations provided for in Article 68 paragraphs 9 and 14
to be on equal footing and benefit from the same privileges and
immunities. The General Agreement on Privileges and Immunities of
the Council of Europe is open to member states only. However, the Convention
is also open to non-member states. With regard to other Council
of Europe conventions providing for country visits, the usual procedure
is for the Committee of Ministers to ask for a bilateral agreement
to be signed by non-member states, resulting in a lengthy process
that can delay their accession to a convention. For this reason,
and as a precautionary step for the future, this provision is directly
included in the body of the Convention to avoid lengthy procedures
in order to negotiate bilateral agreements with non-member states.
2.10.2 Article 67 – Committee of the Parties
340. Article 67 sets up the other
pillar of this monitoring system, which is the political body (“Committee
of the Parties”), composed as indicated above.
341. The Committee of the Parties will be convened the first time
by the Secretary General of the Council of Europe, within a year
from the entry into force of the Convention, in order to elect the
members of GREVIO. It will then meet at the request of a third of
the Parties, of the Secretary General of the Council of Europe or
of the President of GREVIO.
342. The setting up of this body will ensure equal participation
of all the Parties alike in the decision-making process and in the
monitoring procedure of the Convention and will also strengthen
cooperation between the Parties and between them and GREVIO to ensure
the proper and effective implementation of the Convention.
343. Paragraph 3 states that the Committee of the Parties establishes
its own rules of procedure.
2.10.3 Article 68 – Procedure
344. Article 68 details the functioning
of the monitoring procedure and the interaction between GREVIO and the
Committee of the Parties.
345. Paragraphs 1 and 2 establish that GREVIO consider a report
on general legislative and other measures undertaken by each Party
to give effect to the provisions of this Convention with the representatives
of the Party concerned. This report is submitted by the Party and
it is based on a questionnaire developed by the GREVIO. The idea
is to have a baseline of legislative and other measures the Parties
have in place, when acceding to the Convention, with regard to the
concrete and general implementation of the Convention.
346. Paragraph 3 makes it clear that the evaluation procedure following
the first report and assessment as indicated in paragraphs 1 and
2 is divided into rounds and that GREVIO will select the provisions
the monitoring will concentrate on. The idea is that GREVIO will
autonomously define, at the beginning of each round, the provisions
for the monitoring procedure during the period concerned.
347. Paragraph 4 states that GREVIO will determine the most appropriate
means to carry out the evaluation. This may include a questionnaire
or any other request for information. The term “questionnaire” refers
to a set of written questions or guidelines to gain information
of a qualitative and quantitative nature on measures taken in implementation
of the Convention. It goes beyond the collection of statistical/numeric
data which the monitoring framework on the implementation of Recommendation
Rec (2002)5 on the protection of women against violence assured.
Moreover, this paragraph makes it clear that the Party concerned
must respond to GREVIO’s requests. Parties to the Convention should
not be required to answer on the implementation of Recommendation
Rec (2002)5 on the protection of women against violence.
348. Paragraph 5 establishes the important principle that GREVIO
may receive information by the NGOs, civil society as well as national
institutions for the protection of human rights.
349. Paragraphs 6, 7 and 8 introduce the principle that GREVIO
should make the best possible use of any existing source of information.
That is also in order to avoid unnecessary duplication of work and
activities already carried out in other instances.
350. Paragraph 9 underlines that, subsidiarily, GREVIO may organise
country visits. The drafters wanted to make it clear that country
visits should be a subsidiary means of monitoring and that they
should be carried out only when necessary, in two specific cases:
1) if the information gained is insufficient and there are no other feasible
ways of reliably gaining the information or 2) in case the GREVIO
receives reliable information indicating a situation where problems
require immediate attention to prevent or limit the scale or number
of serious violations of the Convention. These country visits must
be organised in cooperation with the competent authorities of the
Party concerned, meaning that they are established in advance and
that dates are fixed in co-operation with national authorities which
are notified in due time.
351. Paragraphs 10 and 11 describe the drafting phase of both the
report and the conclusions of GREVIO. From these provisions, it
appears clear that GREVIO has to carry out a dialogue with the Party
concerned when preparing the report and the conclusions. It is through
such a dialogue that the provisions of the Convention will be properly
implemented. GREVIO will publish its report and conclusions, together
with any comments by the Party concerned. This completes the task
of GREVIO with respect to that Party and the provisions concerned.
The reports and conclusions of GREVIO, which will be made public
as from their adoption, cannot be changed or modified by the Committee
of the Parties.
352. Paragraph 12 deals with the role of the Committee of the Parties
in the monitoring procedure. It indicates that the Committee of
the Parties may adopt recommendations indicating the measures to
be taken by the Party concerned to implement GREVIO’s conclusions,
if necessary setting a date for submitting information on their
implementation, and promoting cooperation to ensure the proper implementation
of the Convention. This mechanism will ensure the respect of the
independence of GREVIO in its monitoring function, while introducing a
“political” dimension to the dialogue between the Parties.
353. Paragraphs 13, 14 and 15 provide for a special procedure according
to which GREVIO is entitled to request the submission of a report
by the Party concerned related to measures taken by that Party to
prevent a serious, massive or persistent pattern of any of the acts
of violence covered by the Convention. The condition for requesting
a special report is that GREVIO receives reliable information indicating
a situation where problems require immediate attention to prevent
or limit the scale or number of serious violations of the Convention”.
On the basis of the information received (by the Party concerned
and by any other source of information), GREVIO may designate one
or more of its members to conduct an inquiry and to report urgently to
the GREVIO. In very exceptional cases, this inquiry could also include
a visit to the country concerned. The main role of the appointed
“rapporteur(s)” should be collecting all necessary information and
ascertaining the facts in relation to the specific situation. The
rules of procedure of GREVIO will establish the details of the functioning
of this “inquiry procedure”. However, the main objective is to allow
GREVIO to have a more precise explanation and understanding of situations
where, according to reliable information, a considerable number of
victims of the same acts of violence are involved. The findings
of the inquiry shall be transmitted to the Party concerned and,
where appropriate, to the Committee of the Parties and the Committee
of Ministers of the Council of Europe together with any comments
and recommendations.
2.10.4 Article 69 – General recommendations
354. Drawing inspiration from Article
21 (1) of CEDAW, this article provides for the possibility of GREVIO
to adopt, where appropriate, general recommendations on the implementation
of this Convention. General recommendations have a common meaning
for all Parties and concern articles or themes that are included
in this Convention. They are not country-specific. Although these
general recommendations are not legally-binding, they serve as an
important reference for Parties by developing a greater understanding
of the different themes in the Convention and offering clear guidance
that can contribute to an effective implementation of the provisions
contained in the Convention. These recommendations should also be
part of future monitoring rounds.
2.10.5 Article 70 – Parliamentary involvement in monitoring
355. This provision sets out the role
of national parliaments in monitoring the implementation of this Convention.
In paragraphs 1 and 2, it contains the obligation of Parties to
the Convention to invite national parliaments to participate in
the monitoring (paragraph 1) and to submit the reports of GREVIO
to them for consultation (paragraph 2). The drafters emphasised
the important role which national parliaments take on in implementing
the Convention, which, in many cases, requires legislative changes.
As a result, they considered it essential to involve national parliaments
in assessing the implementation of the Convention.
356. Paragraph 3 of this provision specifies the involvement of
the Parliamentary Assembly of the Council of Europe in the monitoring
of measures taken by Parties in the implementation of this Convention.
The first provision of this kind in a Council of Europe Convention,
it states that the Parliamentary Assembly shall be invited to regularly
take stock of the implementation of the Convention. With this provision,
the drafters wished to recognise the important role which the Parliamentary
Assembly played in placing the issue of violence against women on
the political agenda both of the Council of Europe and of its member
states. Following the Assembly’s longstanding commitment to this
issue and the high number of recommendations adopted in this field,
the Assembly’s participation in the monitoring of this Convention
significantly enhances its results.
2.11 Chapter X – Relationship with other international
instruments
2.11.1 Article 71 – Relationship with other international
instruments
357. Article 71 deals with the relationship
between the Convention and other international instruments.
358. In accordance with the 1969 Vienna Convention on the Law of
Treaties, Article 71 seeks to ensure that the Convention harmoniously
coexists with other treaties – whether multilateral or bilateral
– or instruments dealing with matters which the Convention also
covers. This includes for instance the European Convention for the
Protection of Human Rights and Fundamental Freedoms and its Protocols,
the European Social Charter (revised, ETS No. 163), the United Nations
Convention on the Elimination of All Forms of Discrimination Against
Women and its Optional Protocol, the Convention on the Rights of
the Child and its Optional Protocols on the involvement of children
in armed conflict, and on the sale of children, child prostitution
and child pornography, the International Convention on the Elimination
of All Forms of Racial Discrimination and its Optional Protocol,
the 1951 Convention relating to the Status of Refugees and its Optional
Protocol and the United Nations Convention on the Rights of Persons
with Disabilities.
359. This Convention is designed to strengthen the protection and
ensure the support for victims of violence against women and domestic
violence. For this reason, Article 71, paragraph 1 aims at ensuring
that this Convention does not prejudice the obligations derived
from other international instruments to which the Parties to this
Convention are also Parties or will become Parties, and which contain
provisions on matters governed by this Convention. This provision
clearly shows, once more, the overall aim of this Convention, which
is to protect the rights of victims of violence against women and
domestic violence and to assure them of the highest level of protection.
360. Article 71 (2) states positively that Parties may conclude
bilateral or multilateral agreements – or any other legal instrument
– relating to the matters which the Convention governs. However,
the wording makes clear that Parties are not allowed to conclude
any agreement which derogates from this Convention.
2.12 Chapter XI – Amendments to the Convention
361. Amendments to the provisions
of the Convention may be proposed by the Parties. They must be communicated
to the Secretary General of the Council of Europe and to all Council
of Europe member states, to any signatory, to any Party, to the
European Union and to any state invited to sign or accede to the Convention.
362. As a next step, the Committee of Ministers examines and adopts
the amendment. Before deciding on the amendment, the Committee of
Ministers shall consult and obtain the unanimous consent of all
Parties to the Convention. Such a requirement recognises that all
Parties to the Convention should be able to participate in the decision-making
process concerning amendments and are on an equal footing.
2.13 Chapter XII – Final clauses
363. With some exceptions, the provisions
in this chapter are essentially based on the Model Final Clauses for
Conventions and Agreements concluded within the Council of Europe,
which the Committee of Ministers approved at the Deputies’ 315th
meeting, in February 1980. Articles 73 to 81 either use the standard
language of the model clauses or are based on long-standing treaty-making
practice at the Council of Europe.
2.13.1 Article 73 – Effects of this Convention
364. Article 73 safeguards those provisions
of internal law and binding international instruments which provide
additional protection to persons against violence against women
and domestic violence; this Convention shall not be interpreted
so as to restrict such protection. The phrase "more favourable rights"
refers to the possibility of putting a person in a more favourable
position than provided for under the Convention.
2.13.2 Article 74 – Dispute settlement
365. The drafters considered it important
to include in the text of the Convention an article on dispute settlement,
which imposes an obligation on the Parties to seek first of all
a peaceful settlement of any dispute concerning the application
or the interpretation of the Convention.
366. The various types of peaceful settlement mentioned in the
first paragraph of this article (negotiation, conciliation and arbitration)
are commonly recognised under international law. These methods of
settlement are not cumulative, so that Parties are not obliged to
exhaust all of them before having recourse to other methods of peaceful
settlement. Any procedure for solving disputes shall be agreed upon
by the Parties concerned.
367. Paragraph 2 provides that the Committee of Ministers of the
Council of Europe may establish a non-judicial procedure which Parties
could use if a dispute arises in relation to the application or
the interpretation of the Convention. The drafters chose not to
refer to judicial procedures such as the one governing the International
Court of Justice, since several Parties to this Convention had not
accepted the mandatory competence of this judicial body and did
not wish to do so concerning this specific Convention. However,
this article does not preclude Parties in dispute from submitting
their case to the International Court of Justice if they should
so agree.
2.13.3 Article 75 – Signature and entry into force
368. Paragraph 1 states that the Convention
is open for signature not only by Council of Europe member states
but also the European Union and states not member of the Council
of Europe (Canada, the Holy See, Japan, Mexico and the United states)
which took part in drawing it up. Once the Convention enters into
force, in accordance with paragraph 3, other non-member states not
covered by this provision may be invited to accede to the Convention
in accordance with Article 76 (1).
369. Paragraph 2 states that the Secretary General of the Council
of Europe is the depositary of the instruments of ratification,
acceptance or approval of this Convention.
370. Paragraph 3 sets the number of ratifications, acceptances
or approvals required for the Convention’s entry into force at 10.
This figure reflects the belief that a significant group of states
is needed to successfully set about addressing the challenge of
preventing and combating violence against women and domestic violence.
The number is not so high, however, as to unnecessarily delay the
Convention’s entry into force. In accordance with the treaty-making
practice of the Organisation, of the ten initial states, at least
eight must be Council of Europe members.
2.13.4 Article 76 – Accession to the Convention
371. After consulting the Parties
and obtaining their unanimous consent, the Committee of Ministers
may invite any state not a Council of Europe member which did not
participate in drawing up the Convention to accede to it. This decision
requires the two-thirds majority provided for in Article 20.d of
the Statute of the Council of Europe and the unanimous vote of the
Parties to this Convention.
2.13.5 Article 77 – Territorial application
372. Paragraph 1 specifies the territories
to which the Convention applies. Here it should be pointed out that it
would be incompatible with the object and purpose of the Convention
for states Parties to exclude parts of their territory from application
of the Convention without valid reason (such as the existence of
different legal systems applying in matters dealt with in the Convention).
373. Paragraph 2 is concerned with extension of application of
the Convention to territories for whose international relations
the Parties are responsible or on whose behalf they are authorised
to give undertakings.
2.13.6 Article 78 – Reservations
374. Article 78 specifies that no
reservation may be made in relation to any provision of this Convention,
with the exceptions provided for in paragraphs 2 and 3 of this article.
The declarations of reservation made pursuant to paragraphs 2 and
3 should explain the reasons why a reservation was sought by a Party.
375. The articles listed in paragraph 2 of this article are provisions
for which unanimous agreement was not reached among the drafters
despite the efforts achieved in favour of compromise. These reservations
aim at enabling the largest possible ratification of the Convention,
whilst permitting Parties to preserve some of their fundamental
legal concepts. The provisions concerned are the following: Article
30, paragraph 2 (state compensation); Article 44, paragraphs 1 e,
3 and 4 (jurisdiction); Article 55, paragraph 1 (ex parte and ex
officio proceedings); Article 58 (statute of limitation);
Article 59 (residence status). It should be noted that the possibility
of reservation has been further restricted regarding Articles 55
and 58, since reservations to Article 55, paragraph 1 are permissible
only in respect of Article 35 regarding minor offences, in the same
way as reservations to Article 58 are permissible only in respect
of Articles 37, 38 and 39.
376. Paragraph 3 provides for a specific form of reservation in
relation to Articles 33 (psychological violence) and 34 (stalking).
Parties may reserve the right to provide for non-criminal sanctions,
instead of the criminal sanctions, for the behaviours referred to
in these articles. Consequently, this possibility of reservation
does not apply to the articles mentioned as a whole, but only to
the way they may be implemented by the Parties at the national level.
377. Paragraph 4, by making it possible to withdraw reservations
at any time, aims at reducing in the future divergences between
legislations which have incorporated the provisions of this Convention.
2.13.7 Article 79 – Validity and review of reservations
378. Reservations are exceptions to
the uniform implementation of the standards provided for by the Convention.
Therefore, the drafters considered it appropriate to provide for
a periodic review of the reservations in order to encourage Parties
to lift them or to indicate the reasons for maintaining them. Pursuant
to paragraph 1, reservations referred to in Article 78, paragraphs
2 and 3 have a limited validity of 5 years. This duration was settled
in order to strike a balance between on the one hand, the objective
of progressive elimination of existing reservations with the need,
on the other hand, to ensure that Parties have sufficient time to
re-examine their reservations at the national level. After this
deadline, reservations will lapse unless they are expressly renewed. In
any event, it is necessary for Parties to inform the Treaty Office
of the Council of Europe of their intentions regarding existing
reservations.
379. Paragraph 2 contains a procedure for the automatic lapsing
of non-renewed reservations. Finally, pursuant to Article 79 (3),
Parties shall provide to GREVIO, before its renewal or upon request,
an explanation on the grounds justifying the continuation of a reservation.
In cases of renewal of a reservation, there shall be no need of
a prior request by GREVIO. In all cases GREVIO will have the possibility
of examining the explanations provided by the Party to justify the
continuance of its reservations.
2.13.8 Article 80 – Denunciation
380. In accordance with the United
Nations Vienna Convention on the Law of Treaties, Article 80 allows
any Party to denounce the Convention.
2.13.9 Article 81 – Notification
381. Article 81 lists the notifications
that, as the depositary of the Convention, the Secretary General
of the Council of Europe is required to make, and it also designates
the recipients of these notifications (states and the European Union).
