EMERGENCE OF DOMESTIC VOILENCE AS AN ISSUE OF

VOILATION OF HUMAN RIGHTS OF WOMEN

VARUNENDRA PANDEY
AMITY LAW SCHOOL,DELHI
1st YEAR ( 2017-2022)

The paper pertains on the subject of domestic voilence, that has gained a a
great concern over decades still entangles our society. Even today in the era
of globalisation and increasing modernistion we can see how physical
agresssion and domestic voilence against women has highly effected and
enchroached the human rights of entire fraternity of women.

The paper is devided into five procedural parts,as follows -:

 ABSTRACT
 INTRODUCTION
 RESEARCH ELABORATION
 RESULTS OR FINDING
 CONCLUSION

Based on this method and procedure the paper presents the views on
enchroachment of rights of women.
ABSTRACT

Domestic violence has been one among most burning and pertaining topic of voilation of
human rights of the entire woman fraternity.
The issue, until redressed properly will some or the other way keep the society’s growth
stagnant. It’s we “men and women” who constitute our society with some indistinct elements
that are impossible to find somewhere else, be it the reproductional aspect or the cooperation.
In a community where every element hold their own attributes, why isn’t like the two are
treated equally. Thus, is how the deploration of status of women traced feminism as a
movement which furthur got its intoxicated form called ‘feminazi’. This has also laid an
strong foundation of gender inequality and has sown the seeds of a distinction between men
and women.
Most of the human rights are also the fundamental rights that are guaranteed to every men
and women under the constitution of India;
 Right to life.
 Right to equality.
 Right to liberty and security of person.
 Right to protection under law.
 Right against any type of exploitation.

Some of these rights are also covered under the directive principles of state policy,
policies that are deep incorporated into the heart and soul the document.

 Attainable mental and physical health to all the citizens.

 Just and favourable conditions of the work.
 The right of not to be subjected under any state of torture or cruelty.
 To create just and humane conditions at work.

These rights are subsets of fundamental rights, while some comes under the directive
principles of state policy. The rights of women are growing concern across the globe,
somehow the fundamentality of these fundamental rights has failed to neutralise the gender
gap and has also failed at putting down the effects of voilation of the rights of women. It was
mid of 20th century whether rights of women started to become a great subject of concern.
We have seen that in the last of 18th and early 19th century was the time when the
reproductional rights was given to women as their sole right.
It has been a tough way towards the gender neutrality which is yet to be attained.

The following paper puts light on the subject of how the violation of rights of women is also
a subject of enchroachment of their human rights. To every human, these rights are
something that are bestowed upon them subsequent to their existence in the world. If we go
deep into the strands of both the misdemeanor , we find that both the things are two sides of
the same coin ,if one happens other is deemed to occur itself .

Today in the world of modernization and globalization, where every individual is capable of
adding something to the society nothing would likely be more evil than snatching away the
rights of any fraternity ,precisely women.

Rights are something that gaurantees human that his existence in not mere for the sake of
formality but he/she has some duties, obligation and also an opportunity to gaurantee his
good for a genuine price. Also our constitution incorporates a great sense of rights and duties
in citizens.

In the last decade the subject of domestic violence has gained much of swift because of the
upliftment program of women from years. The fraternity has now understood that keeping
quiet brings no good and relief to the miserable state of life they live. The paper look forward
to bring the violation of human rights of women and domestic abuse on them into a parallel
state.

INDEX TERM
United Nations declaration of Human Rights as UNDHR, Convention on the Elimination of
All Forms of Violence against Women as CEDAW, UN General Assembly as UNGA,
Council for Europe as CoE , European Convcention Human Rights as ECHR.
 INTRODUCTION

Domestic violence affects vast numbers of women in every state around the globe. Although
it seems clear that the practice of domestic violence constitutes a breach of internationally
recognized rights such as the right to be free from torture and inhuman or degrading
treatment; the right to private and family life; and, in some circumstances, the right to life
itself, it is only relatively recently that domestic violence has been analysed through the lens
of human rights law. There have been important developments at the United Nations (UN)
level and within the Inter-American and African regional systems in regard to the
recognition of domestic violence as a human rights issue, and this article will begin with an
overview of these developments in order to provide the context for the discussion.
However, the focus of this article is on the recent developments in regard to domestic
violence within the context of the Council of Europe. In research carried out by the European
Union’s (EU) Agency for Fundamental Rights, it was found that just over one in five women
have experienced physical and/or sexual violence from a current or former
partner. 2 Although this research was carried out only in the 28 states that make up the EU, as
opposed to all 47 states that constitute the Council of Europe, the results of the research can
nevertheless be said to be indicative of levels of domestic violence across Europe as a whole.
Beginning in 2007, the European Court of Human Rights (ECHR) has issued a series of
important judgments in cases involving domestic violence. The most recent of these cases
is Rumor v. Italy , in which the Court issued its judgment on 27 May 2014. 3 This case will
be analysed in the context of the Court’s previous case law on domestic violence. In
addition, on 1 August 2014, the Council of Europe’s Convention on Preventing and
Combating Violence against Women and Domestic Violence (Istanbul Convention) entered
into force. 4 The article will therefore include a number of reflections on the potential held by
this Convention. No violation of the European Convention on Human Rights (ECHR) was
found in Rumor ; however, had the Istanbul Convention been in force in Italy at the time of
the events in question, would the state have been in breach of its provisions.

 HUMAN RIGHTS COLLATERAL TO VOILENCE AGAINST WOMEN

Although domestic violence constitutes a clear violation of a number of well-established

human rights, it was not until relatively recently that this issue was recognized as falling
within the ambit of international human rights law. The UN Convention on the Elimination
of All Forms of Violence against Women (CEDAW) 5makes no express mention of domestic
violence; however, in 1992, the UN Committee on the Elimination of Discrimination against
Women (CEDAW Committee) issued its immensely import ant General Recommendation
19, which interpreted CEDAW as prohibiting violence against women in both the public and
private contexts. 6 In its concluding observations on the periodic reports submitted by states
parties to CEDAW, the Committee regularly makes recommendations on the measures that
states should adopt to address the issue of domestic violence. In addition, a number of the
individual complaints that have been taken under the Optional Protocol to CEDAW have
involved domestic violence. 7

In 1993, the UN General Assembly (UNGA) issued its Declaration on the Elimination of
Violence against Women. This instrument places a duty on states to ‘[e]xercise due diligence
to prevent … acts of violence against women, whether these acts are perpetrated by the State
or by private persons.’ 8 In 1994, a special rapporteur on violence against women, its causes
and consequences, was appointed by the UN Commission on Human Rights, and in 1996 the
special rapporteur produced a framework for model legislation on domestic violence. 9 In
addition, the Platform for Action, which resulted from the Fourth World Conference on
Women held in 1995 in Beijing, contained detailed recommendations on the measures that
states should adopt in response to violence against women, including domestic violence.

 DOMESTIC VOILENCE AS THREAT TO UNITS AND BASIC STRUCTURE OF

SOCIETY
Domestic violence against women means any act of violence that is directed against
women in a domestic setting. It may be physical, sexual, psychological or economic
violence or the threat of such violence inflicted against her – by a person intimately
connected to her through marriage or family relations with the intention of subduing
her or controlling her. Earlier, it was often considered to be a private/individual matter,
but it is actually a social disease – the consequence of the established gender inequality
within the society, buttressed by existing structures of power in gender relations,
entrenched by traditional educational systems, ingrained by religious and dogmatic
beliefs and media influences.
Domestic violence shakes the very foundation of society, and stands as an obstacle to
the achievement of equality, development and peace. It is not merely a physical form of
violence, which leaves behind only physical injuries. It is also an emotional,
psychological pattern of violence which devastates and destroys the identity and
person-hood of a woman. It eats at her dignity and erodes her self-worth in the long
term. Domestic violence by an intimate partner has harmful effects on a woman’s
sexual and reproductive health – like unwanted pregnancies, gynaecological disorders,
physical injury to private parts and large-scale impacts on mental health.

Measures against domestic violence are implicitly mentioned in each and every global
convention and declaration that seeks an end to violence against women and exhorts equality
among humans. It is implicit in:
1. Articles 1, 5, 16 and 23 of the Universal Declaration of Human Rights, 1948
2. Article 12(1) of the International Covenant on Economic, Social and Cultural Rights, 1966
3. Article 7 of the International Covenant on Civil and Political Rights (ICCPR), 1966
4. Article 4(c) of the Declaration on the Elimination of Violence against Women (DEVAW)
Domestic violence violates a woman’s right to a dignified life, her rights against torture and
inhuman treatment, her right to liberty and security, and her right against all forms of
discrimination. Now, it is widely treated as a human rights issue which violates the basic
rights of women.

These violations threats and breaks the very foundation of the society which furthur leads to
the disntegration of society and its biological and ecological order. Whenever any sector of
the society is exploited or gets humiliated in any way its not only that particular fraternity
that gets affected but the entire strands that ae deep tied to it that gets affected. Domestic
violence violates a woman’s right to a dignified life, her rights against torture and inhuman
treatment, her right to liberty and security, and her right against all forms of discrimination.
Now, it is widely treated as a human rights issue which violates the basic rights of
women.furthur we will look on the aspect that hoe this matter of concern has gathered the
spotlight of human rights agencies.

RESEARCH ELABORATION

The paper goes by several methods and elaborations, examples across the world that
illuminated the subject of do,estic voilence, eve teasing and other haressment issues of
women also as a human right issue.
We will loook forward to some factual elaborations to furthur clearify thr existing
similarities brtween them and that voilence against women is nothing but a subset of
violation of human rights of entire women fraternity.

REMARKABLE CASE- RUMOR v. ITALY

 FACTS

In Rumor , the applicant’s then partner (referred to in the ECtHR’s judgment as J.C.N.)
attacked her in November 2008, hitting her several times and threatening her with a knife
and a pair of scissors. J.C.N. then locked the applicant in their flat. One of the couple’s two
children witnessed part of the aggression. The police were alerted, and the applicant was
taken to hospital, where she was diagnosed with a concussion, head injuries and bruising.
J.C.N. was arrested and charged with attempted murder, kidnapping, aggravated violence
and threatening behaviour. In April 2009, he was convicted and given an initial prison
sentence of four years and eight months, which was reduced in December 2009 to three
years and four months. After the sentence became final, J.C.N. applied to serve the
remainder of his sentence under house arrest at a reception centre located approximately 15
kilometres from the applicant’s home. This request was granted in June 2010. J.C.N. then
applied for permission to work outside the centre, a request that was granted in September
2010. J.C.N. completed his sentence in August 2011; however, he decided to continue
residing at the centre. In May 2009, the applicant had been granted sole custody of the
couple’s two children, and in February 2010, the Juvenile Court prohibited any form of
contact between J.C.N. and the children.

The applicant claimed that following the violence inflicted upon her by J.C.N., she lived in
a state of constant fear. She had undergone psychological support therapy, as had her son,
who had witnessed the violence. The applicant argued that there had been a violation of her
right to be free from torture and inhuman or degrading treatment under Article 3 of the
ECHR and also a breach of the Article 14 prohibition of discrimination when taken in
conjunction with Article 3. She argued that the Italian authorities had failed to protect and
support her following the violence that she had suffered. The applicant claimed that these
omissions, together with the inadequacy of the Italian legislative framework in combating
domestic violence, proved that she had been discriminated against on the ground of gender.
The applicant stated that she had not been informed when J.C.N. had been granted house
arrest and that she had only become aware of this when she had received a telephone call
from J.C.N. himself. In addition, at the beginning of J.C.N.’s detention, she had received
several letters from him that she viewed as being of a threatening nature. The applicant was
of the opinion that J.C.N. continued to pose a threat both to her life and to the lives of her
children. In addition, she argued that the proximity to her home of the facility hosting
J.C.N. had contributed to her fear of a re-occurrence of the violence. She also alleged that
she had been contacted by a worker at the facility for the purposes of setting up a telephone
conversation between J.C.N. and their son in August 2010. As any form of contact between
J.C.N. and the children had been prohibited, the applicant viewed this incident as casting
doubt on the appropriateness of the facility. She maintained that she was in a position of
vulnerability and that the state authorities had failed to assist her as they had omitted to put
in place sufficient measures to protect her from further violence at the hands of J.C.N.

 IN THE LIGHT OF ARTICLE 3 OF ECHR

In examining the merits of the case under Article 3, the ECtHR stated it considered the
applicant to be a ‘vulnerable individual’ due to the physical injuries that she had suffered as
a result of being attacked by her partner and to her fear of further violence. The Court held
that the violence and the ensuing psychological consequences were sufficiently serious to
constitute ill treatment within the meaning of Article 3. The Court then considered whether
the state had complied with its positive obligations to ensure that individuals within its
jurisdiction were protected against all forms of ill treatment encompassed by Article 3,
including cases in which such treatment was administered by private individuals. The Court
stated that:
[t]his obligation should include effective protection of, inter alia , an identified individual or
individuals from the criminal acts of a third party, as well as reasonable steps to prevent ill-
treatment of which the authorities knew or ought to have known … Children and other
vulnerable individuals, in particular, are entitled to State protection, in the form of effective
deterrence, against such serious breaches of personal integrity.
However, it was not the role of the Court ‘to replace the national authorities and to choose
in their stead from among the wide range of possible measures that could be taken to ensure
compliance with their positive obligations under Article 3 of the Convention’.
In applying these principles to the facts of the case, the ECtHR stated that the Italian police,
prosecutors and courts had not remained passive, as J.C.N. had been arrested and charged
with attempted murder, kidnapping, aggravated violence and threatening behaviour. He had
been convicted and ultimately sentenced to detention for three years and four months. The
Court noted that having J.C.N. living at a distance of only 15 kilometres from her home had
had ‘a negative impact’ on the applicant. However, the Court was of the view that prior to
the application for house arrest having been granted, the post-sentencing judge seemed to
have carefully assessed the suitability of the facility. In regard to the applicant’s assertion
that she had not been kept informed regarding the criminal proceedings against J.C.N., the
Court stated that ‘the Convention may not be interpreted as imposing a general obligation
on States to inform the victim of ill-treatment about the criminal proceedings against the
perpetrator, including about possible release on parole from prison or transfer to house
arrest. The Court concluded that ‘the authorities had put in place a legislative framework
allowing them to take measures against persons accused of domestic violence and that that
framework was effective in punishing the perpetrator of the crime of which the applicant
was victim and preventing the recurrence of violent attacks against her physical
integrity’. The Court therefore held that there had been no violation of Article 3, either
taken alone or in conjunction with Article 14.

 USE OF ARTICLE 14 OF ECHR IN DOMESTIC VIOLENCE CASES

In Rumor , the ECtHR stated that in the light of its finding that there had been no violation
of Article 3 of the ECHR, it concluded for the same reasons that there had been no breach
of Article 3 taken in conjunction with Article 14. It is important to remember, however, that
a violation of Article 14 can be found, even though no breach of the article with which the
Article 14 claim is being taken in conjunction has been found. Although Article 14 was not
specifically addressed by the Court, it is nevertheless noteworthy that the applicant chose to
make an argument based on the Article 14 prohibition of discrimination. This serves to
highlight the fact that there has been a recent upsurge in the use of Article 14 in cases
involving domestic violence. This increased use of Article 14 in such cases is reflective of
the way in which the Court’s jurisprudence has been marked generally by a stronger use of
Article 14 than was once the case. As Rory O’Connell, writing in 2009, comments,
although ‘Article 14 is sometimes regarded as a Cinderella provision; the European Court
of Human Rights … not developing it to have significant “bite”, nevertheless the Court has
taken ‘huge strides in its understanding of Art 14 in recent years’.

The first domestic violence case in which the applicant chose to make an argument based
on Article 14 was Opuz v. Turkey . In this case, the applicant demonstrated through
statistical data that domestic violence affected mainly women and that judicial passivity in
Turkey created a climate that was conducive to domestic violence. In finding violations of
Article 14 taken in conjunction with Articles 2 and 3, the ECtHR stated that:

[b]earing in mind ... that the general and discriminatory judicial passivity in Turkey, albeit
unintentional, mainly affected women, the Court considers that the violence suffered by the
applicant and her mother may be regarded as gender-based violence which is a form of
discrimination against women.

An argument based on Article 14 was again raised in A. v. Croatia. However, the Court
declared in this case that the applicant’s complaint under Article 14 was inadmissible, as
she had not given sufficient evidence, such as reports or statistics, to prove that the
practices adopted in Croatia in regard to domestic violence were discriminatory.

Article 14 was also raised in three recent domestic violence cases against Moldova.
In Mudric v. Moldova , the applicant had been living in a house next to that of her former
husband, A.M. However, A.M. then moved into the applicant’s house and stayed there
against her will. The applicant was subjected to violence from A.M. on a number of
occasions, and the ECtHR observed that the authorities had been well aware of this
situation. A.M. was allowed to live in the applicant’s house for more than a year. The
domestic courts made three protection orders; however, these orders were not enforced.
Police officers and a social worker visited the applicant’s house and talked with her and
A.M.; however, the latter refused to leave the house or to sign a document stating that he
had been warned not to commit acts of violence against the applicant. Despite the existence
of several domestic legal provisions that would have allowed the authorities to initiate
criminal proceedings against A.M. and to subject him to a psychiatric examination with a
view to deciding on the need to order compulsory psychiatric treatment, it nevertheless took
the authorities almost a year to adopt such a course of action.

The ECtHR found that there had been a violation of Article 3. The Court then proceeded to
state that ‘the authorities’ actions were not a simple failure or delay in dealing with violence
against the applicant, but amounted to repeatedly condoning such violence and reflected a
discriminatory attitude towards her as a woman’. The Court referred to a report of the UN
special rapporteur on violence against women, its causes and consequences, which
highlighted the high levels of domestic violence in Moldova and which stated that
discriminatory attitudes among society as a whole constituted a major contributory factor to
the high prevalence of violence against women in the home. The Court was of the view
that the findings of the special rapporteur supported ‘the impression that the authorities do
not fully appreciate the seriousness and extent of the problem of domestic violence and its
discriminatory effect on women’. It was therefore held that there had been a violation of
Article 14 taken in conjunction with Article 3. Likewise, in Eremia and Others v.
Moldova , the Court found that the authorities’ attitude had amounted to condoning
violence and had been discriminatory towards Ms. Eremia as a woman. Therefore, in
addition to a violation of Article 3, the Court also found a violation of Article 14 taken in
conjunction with Article 3 in respect of the violence that she had suffered.

In T.M. and C.M. v. Moldova , the applicants were a mother and daughter who had been
subjected to violence by their husband and father, who is referred to in the judgment of the
ECtHR as M.M. Again, the Court found that there had been a breach of the applicants’
rights under Article 3 of the ECHR. In relation to the argument that there had also been a
violation of Article 14, the Court pointed out that ‘the State’s failure to protect women
against domestic violence breaches their right to equal protection of the law and that this
failure does not need to be intentional’. The Court noted that the first applicant was
subjected to violence from her husband on a number of occasions and that the authorities
had been well aware of these attacks. A prosecutor had refused to begin a criminal
investigation as the injuries on the first applicant’s body were not regarded as being of
sufficient severity to merit such an investigation. The Court was of the view that this
underlined ‘the failure to realise, or to explain to the law-enforcement authorities, the
specific nature of domestic violence, which does not always result in physical injury’. In
addition, the authorities took a considerable length of time to consider the first applicant’s
request for a protection order and then failed to send the order for enforcement. Thereafter,
the police failed to take resolute action to remove the abuser from the common residence,
and the domestic court then suspended enforcement of the order. Ultimately, the first
applicant was forced to leave her home and move into refuge accommodation. The ECtHR
stated that:

The authorities’ passivity in the present case is also apparent from their failure to consider
protective measures before a formal application to that end was made, or to initiate a
criminal investigation against M.M. before an official complaint about that was made …
Considering the particular vulnerability of victims of domestic violence, who often fail to
report incidents, it was for the authorities to verify whether the situation warranted a more
robust reaction of the State and to at least inform the first applicant of the existing
protective measures.

The ECtHR is to be commended for its recognition of the fact that domestic violence is a
crime that victims are often too frightened or too ashamed to report and that domestic
violence may therefore require a somewhat different response from state authorities than
that which is required in regard to other forms of violence. Indeed, this recognition,
together with the Court’s previous comment that the nature of domestic violence is such
that it does not always result in physical injury, seems to indicate that the Court is
attempting to engage with a ‘gender-sensitive interpretation and application of [the
ECHR’s] provisions which takes in account the factual inequalities between women and
men and the way they impact on women’s lives’, as was recommended by Judge Pinto de
Albuquerque in his concurring opinion in Valiuliene.

As in its judgment in Mudric , the ECtHR again stated in T.M. and C.M. that ‘the
authorities’ actions were not a simple failure or delay in dealing with violence against the
first applicant, but amounted to condoning such violence and reflected a discriminatory
attitude towards her as a woman’. In addition to citing the findings of the UN special
rapporteur on violence against women, its causes and consequences in regard to attitudes
towards domestic violence in Moldova, the Court also referred to statistical data that had
been gathered by the National Bureau of Statistics. In a report en titled Violence against
Women in the Family in the Republic of Moldova, the National Statistics Bureau indicated
that violence against women was deeply rooted and widespread in Moldovan society and
was repeated down through generations. The report stated that violence against women
was rooted in their inequality with men and that there was widespread social acceptance of
such violence. In T.M. and C.M. , the Court ultimately held that there had been a breach of
Article 14, taken in conjunction with Article 3, in respect of the first applicant.

The findings of violations of Article 14 by the ECtHR in the above cases is certainly to be
welcomed, as this demonstrates a recognition on the part of the Court that one of the
principal causes of domestic violence is the structural inequalities within society. It is
interesting to note that there are also currently two applications pending before the Court –
Kilic v. Turkey and Munteanu v. Moldova – which relate to domestic violence and in
which the applicants are making arguments based, inter alia , on Article 14. It is therefore
likely that the Court’s jurisprudence on the use of Article 14 in domestic violence cases will
continue to develop in the near future.

Viewing domestic violence as a form of gender-based discrimination is not, of course, a

new approach. Within the UN context, domestic violence was officially re cognized by the
CEDAW Committee as constituting a form of gender-based discrimination as far back as
1992 when the Committee issued its General Recommendation 19. This document asserted
that:

The definition of discrimination includes gender-based violence, that is, violence that is
directed against a woman because she is a woman or that affects women disproportionately
… Gender-based violence may breach specific provisions of the Convention, regardless of
whether those provisions expressly mention violence.

It was emphasized:

that discrimination under the Convention is not restricted to action by or on behalf of

Governments … Under general international law and specific human rights covenants,
States may be responsible for private acts if they fail to act with due diligence to prevent
violations of rights or to investigate and punish acts of violence, and for providing
compensation.

The view of domestic violence as constituting a form of gender-based discrimination is

therefore well established within the UN context, and the fact that this approach is now
gaining an increased level of recognition within the context of the Council of Europe is
certainly to be welcomed. In addition, this recognition is not only limited to the case law of
the ECtHR, as will be seen in the following section.
 ISTANBUL CONVENTION

The developments within the Council of Europe on the issue of domestic violence are not
restricted to the jurisprudence of the ECtHR. The Istanbul Convention on gender-based
violence entered into force on 1 August 2014. Interestingly, the Court’s recognition of
domestic violence as constituting a form of gender-based discrimination is reflected in this
instrument. Article 1(b) of the Convention states that one of its purposes is ‘to contribute to
the elimination of all forms of discrimination against women and promote substantive
equality between women and men, including by empowering women’. This statement is
reinforced by Article 4(2), which asserts that ‘[p]arties condemn all forms of discrimination
against women and shall take, without delay, the necessary legislative and other measures to
prevent it’. Since Italy is one of the 18 states that have ratified the Convention to date, it is
interesting to speculate on whether the response of the state to the situation in Rumor would
have complied with the obligations that Italy now has under the new Convention.

Under Article 45(1) of the Istanbul Convention, ‘[p]arties shall take the necessary legislative
or other measures to ensure that the offences established in accordance with this Convention
are punishable by effective, proportionate and dissuasive sanctions, taking into account their
seriousness’. Applying this provision to the situation that arose in Rumor , it is debatable
whether a sentence of three years and four months’ detention – a substantial part of which
was spent in a reception centre with permission to work outside the facility – would
constitute an ‘effective, proportionate and dissuasive’ sanction, given the seriousness of the
offence and the injuries that were suffered by the applicant. Article 46(a) of the Convention
states that it should be regarded as an aggravating factor if an offence is committed against a
former or current spouse or partner or by a person cohabiting with the victim. This would
clearly apply to the situation in Rumor . Article 46(d) states that the offence being committed
in the presence of a child is another aggravating factor. In Rumor , the violence was
witnessed by the applicant’s son. Under Article 46(f) and (h), aggravating factors also
include the offence being ‘accompanied by extreme levels of violence’ and the offence
resulting in ‘severe physical or psychological harm for the victim’. Both of these factors
would be applicable since the violence in Rumor was so extreme that the applicant ended up
with a concussion and other head injuries and also required psychological support therapy.
Finally, Article 46(g) of the Convention lists the offence being committed with the use or
threat of a weapon as being an aggravating factor. In Rumor , the applicant was threatened
with a knife.

Under Article 56(1)(b) of the Istanbul Convention, ‘[p]arties shall take the necessary
legislative or other measures to protect the rights and interests of victims … at all stages of
investigations and judicial proceedings, in particular by … ensuring that victims are
informed, at least in cases where the victims and the family might be in danger, when the
perpetrator escapes or is released temporarily or definitively’. Article 56(1)(c) states that
victims should be informed of ‘the follow-up given to their complaint, the charges, the
general progress of the investigation or proceedings, and their role therein, as well as the
outcome of their case’. These provisions seem to differ significantly from the statement
made by the ECtHR in Rumor that ‘the Convention may not be interpreted as imposing a
general obligation on States to inform the victim of ill-treatment about the criminal
proceedings against the perpetrator’. It appears therefore that the response of the state
in Rumor may well have been insufficient to comply with the provisions of the Istanbul
Convention. This fact, in itself, demonstrates the potential value that the new Convention
holds. The ECHR was not designed to encompass an issue such as domestic violence within
its ambit. However, the new Istanbul Convention is tailor-made to address domestic violence
and other forms of violence against women. It places detailed obligations on states in these
areas, in contrast to the much more general duties placed on states by the ECtHR in regard to
domestic violence. Nevertheless, the coming into force of the Istanbul Convention does not
mean that there is no longer any need for the development of the ECtHR’s case law under
the ECHR on the issue of domestic violence. It must be remembered that currently only 18
states have ratified the new Convention. This is in contrast to the 47 states that are party to
the ECHR. In addition, there is no mechanism under the Istanbul Convention whereby
individuals can take cases or make complaints concerning violations of the Convention.
Under Article 66(1), the implementation of the Convention will be monitored by a group of
experts on action against violence against women and domestic violence, known as
‘GREVIO’. The main monitoring mechanism for the Convention is a reporting
procedure, similar to those of the UN human rights treaties such as CEDAW and also to
those of other Council of Europe treaties such as the European Social Charter and the
Framework Convention for the Protection of National Minorities.

By contrast, the enforcement of the ECHR depends primarily on litigation. A litigation

strategy can of course be problematic when dealing with an ‘unseen crime’ such as domestic
violence, which victims are often reluctant to report. In addition, judges must confine
themselves to dealing only with the specific question in the case that is before them. This
obviously places limits on the role that litigation can play in promoting change. In making
recommendations to states, a body such as GREVIO can take a much broader approach.
Nevertheless, litigation still has an important role to play. It is crucial that there is a
mechanism whereby a victim of domestic violence may take a case at the European level to
assert that her rights have been violated. The case law of the ECtHR will therefore remain of
substantial importance in this context.
 INSTANCES OF VIOLAENCE AGAINST WOMAN AS HUMAN RIGHT
VIOLATION
It would be pertinent to mention the case of Jessica Gonzales vs the US. Jessica’s case was
the first domestic violence survivor to initiate legal action against the US before an
international body. In the case, the Inter American Commission on Human Rights (IACHR)
held that the domestic violence is a violation of a woman’s basic human rights. Likewise, in
the case of Opuz vs Turkey, the European court has also held that domestic violence is a
human rights issue that violates the basic rights of an individual.
In 2004, the United Nations General Assembly also specifically addressed domestic violence
in Resolution 58/147, titled “Elimination of Domestic Violence Against Women”. In this
resolution, the General Assembly recognised that domestic violence is a human rights issue
with serious immediate and long-term consequences. It strongly condemned all forms of
domestic violence against women and called for an elimination of violence in families. One
of the recent developments in the area of human rights and domestic violence is the adoption
of the Convention on preventing and combating violence against women and domestic
violence by the Council of Europe in April 2011.
Domestic violence is now recognised as a human rights issue – the European Court’s
jurisprudence and the decision of the IACHR being very significant in this regard.
Conventions have called for an end to this menace.
Yet, there is a wide gulf between the articulation of these goals and their accomplishment.
Women continue to suffer in the confines of their homes and in the secrecy of their families.
The lives of these women are brutalised, and their rights are trampled upon. ‘Unremedied’
domestic violence essentially denies women equality before the law and reinforces their
‘subordinate’ social status.
Ending domestic violence is a long-term aim achievable only through individual daily efforts
for non-violent behavior and peaceful resolution of conflicts. An atmosphere of no tolerance
against this violence needs to be created. People need to be made aware of this menace by
properly educating and sensitising them about the issue.
Also, stringent action should be taken against culprits. Faster remedies need to be provided
to people who face such violence. Until a multi-faceted strategy is adopted, the prevention of
domestic violence will remain an elusive dream.
 CONCLUSION

In conclusion, therefore, it is clear that the ECtHR has now built up a substantial body of
jurisprudence in regard to the issue of domestic violence. There have been a number of very
positive recent developments within this case law, such as the firm establishment of the
principle that domestic violence falls within the ambit of Article 3 of the ECHR. The
increased use of Article 14 in domestic violence cases is also to be welcomed, as this serves
to highlight the principle that one of the key causes of domestic violence is the structural
inequalities within society.

However, the recent case of Rumor serves to highlight the limitations of human rights law
when applied to the issue of domestic violence. Even with a sophisticated doctrine of
positive obligations, there are limits to how far human rights law can reach to protect
individuals from violations occurring in the private sphere, such as domestic violence. Even
though the ill treatment that the applicant had suffered was certainly ‘inhuman and
degrading’, no breach of the ECHR was found, as it was held that the state had fulfilled its
obligations in the matter. However, had the state fulfilled its duties in reality? There are
indications in the judgment that it may not have done so, and it is at least arguable that the
Court itself failed to adopt a sufficiently gender-sensitive interpretation and application of
the Convention in this case.

The entry into force of the Istanbul Convention constitutes another important development in
regard to the issue of domestic violence in the context of the Council of Europe. The fact that
the response of the state in Rumor may well have been insufficient to comply with the
provisions of this Convention, even though no violation of the ECHR was found,
demonstrates the potential held by the new Convention. Essentially, the Istanbul Convention
places detailed obligations on states in regard to their responses to violence against women,
in contrast to the much more general duties placed on states by the ECtHR. Nevertheless, it
is arguable that the Court could, and should, develop the concept of positive obligations in
cases involving violence against women to encompass measures that are more in line with
what the new Convention requires, thereby adopting a more gender-sensitive interpretation
of the ECHR. This would involve a certain amount of ‘judicial creativity’; however, the
Court has already shown a substantial degree of creativity in producing the concept of
positive obligations in the first place. It is also noteworthy that the Court does refer to other
instruments in its judgments – for example, the provisions of the European Convention for
the Prevention of Torture and Inhuman or Degrading Treatment or Punishment have
influenced the development of the Court’s jurisprudence, and, indeed, the Court has begun to
use the Charter of Fundamental Rights of the European Union as a source of interpretation of
the ECHR. 67

The coming into force of the Istanbul Convention certainly does not mean that there is no
longer a need for the development of the ECtHR’s case law under the ECHR on the issue of
domestic violence. In particular, the Court’s jurisprudence is applicable to all 47 states that
are party to the ECHR and, therefore, this Convention currently has a much broader reach
than the new Convention. In addition, there is no mech anism under the Istanbul Convention
whereby individuals can make complaints concerning violations of this instrument. It will
certainly prove extremely interesting to observe the operation of the new Convention,
particularly when the first cycle of state reporting commences.

Likewise, it will prove equally interesting to observe how the case law of the ECtHR on the
issue of domestic violence develops in the near future. As mentioned earlier, there are
currently a number of applications pending before the Court that involve domestic
violence. 68 Interestingly, the applicants in three of these cases – Wasiewska v.
Poland , Khachatryan v. Belgium and D.M.D. v. Romania – are arguing that there have been
breaches, inter alia , of Article 6 of the ECHR, which is the right to a fair trial. An increased
use of Article 6 in domestic violence cases may constitute a future development in this area.
In addition, although it has now been established that domestic violence breaches Article 3,
there have been no judgments establishing whether domestic violence constitutes inhuman
and degrading treatment alone or if it may in some cases amount to torture. Certainly, there
are commentators who have likened domestic violence to torture, 69 and a finding by the
ECtHR that domestic violence may amount to torture would serve to emphasize the
deplorable nature of the practice. It remains to be seen whether the Court will take such a
step in the future.