Council of Europe - European Convention on Human Rights
Updated February 8, 2013
In 1950, the Council of Europe adopted the European Convention on Human Rights (ECHR).[1] The Convention is a treaty that requires members to protect human rights and fundamental freedoms, including the right to life, prohibition of torture, and prohibition of discrimination based on gender.[2] As these provisions are binding on states that have ratified the treaty, which currently includes all members of the Council of Europe, a means for ensuring compliance was needed. Section II of the Convention, therefore, established the European Court of Human Rights (ECtHR).[3] The Court was given jurisdiction over all matters concerning the interpretation and application of the Convention,[4] including applications from individuals or groups who claim that their rights, as protected by the Convention, were violated by one of the state parties and that they have exhausted domestic remedies.[5] The Court held its first session in 1959, and has since delivered over 10,000 judgments.[6]
Many of the cases heard by the Court over the years have involved violence against women, including issues of domestic violence. The following highlights some of the more recent decisions by the ECtHR that concerned domestic violence. The first case to hold that gender-based violence is a form of discrimination under the European Convention was Opuz v. Turkey in 2009. In that case, the failure of authorities to protect two women after years of domestic abuse was found to be a violation of ECHR Article 14 (prohibition of discrimination), Article 2 (right to life), and Article 3 (prohibition of torture).[7] Highlighting the “overall unresponsiveness of the judicial system” and passivity of the police, the Court recognized domestic violence as an issue of public interest that demanded effective state action.[8]
Although the facts of Maresti v. Croatia (Maresti) (2009) did not involve violence against a woman, the court’s decision drastically altered the legal landscape – and protections – for domestic violence victims.[9] Maresti is a decision that concerns, among other things, a violation of the right not to be tried or punished twice for the same offense under the ECHR. As a result of Maresti the government cannot prosecute an offense under both the misdemeanor and criminal codes. It must choose one or the other in domestic violence cases. If a prosecutor charges an offender under the criminal code, the victim is precluded from obtaining protective remedies under the misdemeanor law. Conversely, if the victim seeks a protective measure, the maximum penalty the offender could face for his violence is a misdemeanor sentence or fine.[10]
In the Case of E.S. and others v. Slovakia (2009), the Court held that the failure to protect women against domestic violence could be a violation of ECHR Article 8 (right to respect for private and family life) as well as Article 3.[11] In 2010, in the Case of Hajuova v. Slovakia, the Court also awarded compensation under Article 8 when Slovak authorities failed to protect the applicant from her former husband’s abusive and threatening behavior.[12] Similarly, in the Case of A. v. Croatia (2010), the Court awarded compensation to the applicant for Croatian authorities’ failure to protect her against domestic violence by her mentally-ill husband, in violation of Article 8 of the Convention.[13]
Other noteworthy decisions by the ECHR pertaining to domestic violence include:
- Case of Branko Tomašic and others v. Croatia, 2009 (failure to intervene in domestic violence, which resulted in the death of a woman and her child, was a violation of Article 2 (right to life)).[14]
- Case of Bevacqua and S. v. Bulgaria, 2008 (failure to provide appropriate interim custody provisions during divorce proceedings where father is abusive violates Article 8).[15]
- Case of Kontrova v. Slovakia, 2007 (the failure to intervene after reports of abuse and death threats, which culminated in the death of applicant’s two children, was a violation of Article 2 and Article 13 (right to effective remedy)).[16]
In 2009, a summary of cases pertaining to violence against women was compiled for the Council’s Ad Hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO).[17] A full database of the Court’s decisions can be found at the Court’s website.[18] In addition, the Netherlands Institute of Human Rights has compiled summaries of all ECtHR cases in a database that can be searched by title/application number, country, keyword, or article of the Convention violated.[19] The Court has also produced a Summary Report of its work from 1959 to 2011.[20]
[1] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 Nov. 1950, ETS 5, [hereinafter European Convention on Human Rights].
[2] Ibid., at Art. 2, 3, 14.
[3] Ibid., at Art. 19.
[4] Ibid.,at Art. 32
[5] Ibid., at Art. 34, 35.
[6] “The Court in Brief,” Council of Europe, European Court of Human Rights, 2, http://www.echr.coe.int/NR/rdonlyres/DF074FE4-96C2-4384-BFF6-404AAF5BC585/0/ENG_Court_in_brief.pdf.
[7] Opuz v. Turkey, Application no. 33401/02, Council of Europe, European Court of Human Rights, 9 June 2009, http://www.unhcr.org/refworld/docid/4a2f84392.html.
[8] Ibid. See also “Opuz v. Turkey,” INTERIGHTS, http://www.interights.org/opuz/index.html (providing commentary on the case).
[9] Maresti v. Croatia, Application no. 55759/07, Council of Europe, European Court of Human Rights, 25 June 2009.
[10] See “Implementation of Croatia’s Domestic Violence Legislation,” The Advocates for Human Rights at 15 – 18, 2012, http://www.theadvocatesforhumanrights.org/uploads/croatia_final_report_2012.pdf.
[11] E.S. and others v. Slovakia, Application no. 8227/04, Council of Europe, European Court of Human Rights, 15 Sept. 2009, http://menneskeret.dk/files/DoekerPDF/CASE_OF_E._S._AND_OTHERS_v._SLOVAKIA.pdf. See also “E.S. and others v. Slovakia: Summary,” Netherlands Institute of Human Rights, (providing commentary on the case).
[12] Hajduova v. Slovakia, Application no. 2660/03, Council of Europe, European Court of Human Rights, 30 Nov. 2010, http://www.unhcr.org/refworld/pdfid/4d5bca992.pdf. See also “Hajduova v. Slovakia: Summary,” Netherlands Institute of Human Rights, (providing commentary on the case).
[13] A v. Croatia, Application no. 55164/08, Council of Europe, European Court of Human Rights, 14 Oct. 2010, http://www.pravo.unizg.hr/_download/repository/ESLJP_A._protiv_Hrvatske.pdf. See also “A v. Croatia: Summary,” Netherlands Institute of Human Rights, (providing commentary on the case).
[14] Branko Tomasic and others v. Croatia, Application no. 46598/06, Council of Europe, European Court of Human Rights, 15 Jan. 2009, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-90625
[15] Bevacqua and S. v. Bulgaria, Application no. 71127/01, Council of Europe, European Court of Human Rights, 12 June 2008, http://www1.umn.edu/humanrts/research/bulgaria/BEVACQUA.pdf.
[16] Kontrova v. Slovakia, Application no. 7510/04, Council of Europe, European Court of Human Rights, 31 May 2007, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-80696.
[17] “Case Law of the European Court of Human Rights on Violence against Women,” Council of Europe, CAHVIO, Doc. CAHVIO (2009) 10, 4 May 2009.
[18] “HUDOC Database,” Council of Europe, European Court of Human Rights, http://www.echr.coe.int/ECHR/EN/Header/Case-Law/Decisions+and+judgments/HUDOC+database/.
[19] “ECHR Full Text Search,” Netherlands Institute of Human Rights, http://sim.law.uu.nl/SIM/CaseLaw/Hof.nsf/(Country)/$Searchform?SearchView.
[20] “Overview 1959-2011,” Council of Europe, European Court of Human Rights, http://www.echr.coe.int/NR/rdonlyres/8031883C-6F90-4A5E-A979-2EC5273B38AC/0/APERCU_19592011_EN.pdf.