The European Convention on Human Rights regarding State members’ obligation to counter domestic violence

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The European Convention on Human Rights regarding State

members

’ obligation to counter domestic violence

Célia DAUBAGNAN 12813265

celia.daubagnan@gmail.com

LLM in Public International Law: International and European Law Supervised by Dr. Nataša Nedeski

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Abstract

The interpretation of the European Court of Human Rights has evolved with the recognition of social realities and State practice. This development results from the developing European and international consensus regarding domestic violence.

The aim of this research is to examine how the European Convention on Human Rights provides for a positive obligation to protect women against domestic violence, through its interpretation of article 2 (right to life), article 3 (prohibition of torture, inhuman or degrading treatment) and article 14 (non-discrimination). Then, the research will focus on the threshold for this positive obligation to trigger State responsibility, with the study of the Osman test, of the different available standards.

Finally, the thesis will focus on the content of States’ positive obligations. Moreover, as the Convention can be read in conjunction with other relevant rules of international law, it is interest ing to examine how they influence the obligation to counter domestic violence and to tackle discriminatory behaviors.

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Introduction

Prevention is essential in order to counter discriminatory cultural beliefs. In 2019, the World Health Organization (WHO) published a report stating that 35% of women worldwide were victims of physical or sexual violence in their lifetime. 1_{This violence does not necessarily come from an} unknown partner but from an intimate partner as 30% of women that have been in a relationship have also experienced physical or sexual violence by their partner. 2_{In 2015, the UNGA adopted} “Transforming our world: the 2030 Agenda for Sustainable Development” with goal 5.2 “Eliminate all forms of violence against all women and girls in the public and private spheres, includ i ng trafficking and sexual and other types of exploitation”.3_{Through this goal, the UN affirmed its} objective to counter violence against women.

Domestic violence and violence against women were defined in different texts. For instance, the Declaration on the Elimination of Violence Against Women defines that: “violence against women is a manifestation of historically unequal power relations between men and women”. 4_{The Council} of Europe in the Convention on Preventing and Combating Violence Against Women and Domestic Violence, defines that it is a violation of human rights, and a form of discrimination amounting to gender-based violence resulting in physical, sexual, psychological and economic harm or suffer ing to women. 5_{In addition, the Convention affirms that it can take place in public or in private without} making a difference to the definition. If violence can take several forms, the focus of this study will be domestic violence. According to the UN, domestic violence stands for “a pattern of behavior in any relationship that is used to gain or maintain power and control over an intimate partner”. The violence can

1_{The World Health Organization,} ‘Violence against women, Intimate partner and sexual violence against women’ (2019) < https://www.who.int/news-room/fact-sheets/detail/violence-against-women>

2_Ibid.

3_{United Nation General Assembly,}‘Transforming our world: the 2030 Agenda for Sustainable Development’, A/RES/70/1 (2015)

4_UNGA,‘Declaration on the Elimination of Violence against Women’, resolution 48/104 (20 December 1993) 5_{Council of Europe,}‘The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence’, ISBN 978-92-871-7990-6 (entered into force in 2014), “the Istanbul Convention”, art. 3(a)

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take several forms, from psychological to physical. It can also impact people regardless of their background. 6

As domestic violence was considered a private issue, no public policies were seriously addressing the problem. 7_{However, international law bodies tend to recognize the importance of this topic: the} United Nations (UN), and the European Court of Justice (ECtHR) held that it breaches several human rights such as the right to life, to equal treatment, to be protected from torture and inhuman or degrading treatments, to private and family life. 8_{Following the development of an internatio na l} consensus: domestic violence went from a private issue to a public issue as State’s role to prevent human rights breaches is now generally accepted. 9_{In concordance with this consensus, it is necessary} to analyze how the European Convention for the Protection of Human Rights and Fundamenta l Freedoms (ECHR) can be interpreted regarding domestic violence cases, and thus answer the following question: What does the positive obligation to counter domestic violence entail for State parties to the European Convention on Human Rights?

In order to curb the issue of domestic violence, some legal challenges remain and will be addressed throughout this thesis.

Firstly, while the ECHR is deemed to protect human rights, it does not provide for the protection of domestic violence victims. 10_{However, the lack of precision of some provisions is} similar to other Human Rights treaties and thus, open to interpretation. 11_{Accordingly, domestic}

6_{United Nations website, What Is Domestic Abuse?}

7Yakın Ertürk, ‘The Due Diligence Standard: What Does It Entail for Women’s Rights?’ in Carin

Benninger-Budel, Due Diligence and Its Application to Protect Women from Violence, Nijhoff Law Specials, Volume: 73 (2 October 2008), p. 32

8_{Ronagh J.A. McQuigg,}‘Domestic Violence as a Human Rights Issue: Rumor v. Italy’, The European Journal of International Law Vol. 26 no. 4, Oxford University Press (2016)

9_{Beth Simmons, Mobilizing for human rights : international law in domestic politics, Cambridge University} Press (1958), p. 24

10_{Council of Europe,}‘European Convention for the Protection of Human Rights and Fundamental Freedoms’_,

ETS No.005 (1950)

11Dr. sc. Maša Marochini, The interpretation of the European Convention Human Rights Zbornik radova

Pravnog fakulteta u Splitu, god. 51, 1/2014., str. 63.-84

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violence can trigger the right to life (art. 2), the protection against torture, inhuman and degrading treatments (art. 3) and the right to non-discrimination (art. 14). 12_{As a result, if the ECHR does not} explicitly protect women against domestic violence, the positive obligation that it entails is open to interpretation, in light of present-day conditions. In order to do so, other tools of international law will be used. For instance, different principles are useful: some of them can be considered as judicia l self-restraint principles on the one hand, when the others involve judicial creativity. 13_{This first group} contains intentionalism, textualism, margin of appreciation and the fourth instance doctrine. Secondly, creativity refers to the living instrument doctrine, effectiveness doctrine and autonomous concept doctrine. 14_{When interpreting the ECHR, relevant rules of international law are important,} as indicated by the Vienna Convention on the Law of the Treaties (VCLT). 15_{It enables to look upon} other relevant Conventions, showing a developing consensus on the matter. A landmark Conventio n on the Elimination of All Forms of Discrimination against Women was adopted by the United Nations General Assembly in 1979. 16_{It invites all State members to implement protective measures in order} to prevent violence against women. Importantly, the Committee on the Elimination of Discriminat io n against Women is a body of experts monitoring the implementation (CEDAW) of the Convention by State members. For instance, their reports are importantly used by the ECtHR when assessing decision of domestic violence against countries, as an indicator of context. The first legally binding instrument on the matter was adopted in 2011 by the Committee of Ministers of the Council of Europe with the Convention on Preventing and Combating Violence against Women and Domestic Violence. This text is of particular importance as it provides for a protective legal framework, criminalizi ng psychological and physical violence against women. 17_{The Istanbul Convention is an important} influence to enlighten the interpretation of the ECHR regarding domestic violence. The ECtHR jurisprudence is also an important indicator of the interpretation to give to the ECHR. As a result, the case-law of the Court will be particularly important. Finally, legal literature will be looked at, as an important tool for treaty interpretation.

12_{ECtHR, Bevacqua and S. v Bulgaria, n°71127/01 (2008)} 13 Dr. sc. Maša Marochini, supra note 11

14_Ibid.

15_{United Nations,}‘Vienna Convention on the Law of Treaties’, 1155 U.N.T.S. 331, 8 I.L.M. 679, (entered into force 27 January 1980), art. 31(3) ©

16_UNGA,‘Convention on the Elimination of All Forms of Discrimination Against Women’, A/RES/34/180 (1979), p. 13

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Secondly, another aspect of the problem will be addressed: when can State responsibility be entailed in domestic violence case? In order to answer this question, the case-law of the ECtHR can be studied with relevant literature on the matter. While it used to be considered as a private matter, domestic violence is turning into a public issue due to the development of a consensus among State members and in international law practice. Consequently, States can be held responsible if they fail to fulfil their positive obligation to protect women from violence. Nonetheless, as protecting women against domestic violence is an obligation of means and not an obligation of result, it discharges State members from their responsibility to protect women and thus, it raises issues regarding the threshold of States’ obligations.

Finally, clarifying the content of States’ positive obligations to protect domestic violence victims could improve their efficiency and enforcement. In fact, the Special Rapporteur on violence against women during the Commission on Human Rights of the UN Economic and Social Council confirmed that the prevention of violence against women is a customary international law obligat io n that requires due diligence. 18_{To curb the issue, States have to implement an effective framework and} operational measures, which they do not necessarily do.

Hence, the first chapter will analyze the ECHR provisions in order to interpret the positive obligation that States member have regarding domestic violence prevention (1). Furthermore, the second chapter will focus on the threshold to entail State responsibility when they fail to redress private actors’ conducts taking place in the private sphere (2) Finally, this research will address the content of States’ positive obligation, while they still enjoy a margin of appreciation, what they are required to do under the ECHR and what they could do to further tackle discriminatory behaviors (3).

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Chapter 1: The positive obligation to prevent domestic violence under the ECHR

There is no article that explicitly provides for a positive obligation to protect women against domestic violence in the ECHR. However, it became generally accepted that States have a role in human rights protection. 19_{As a result, in light of treaty interpretation standards, it is important to} interpret article 2 (A), article 3 (B) and article 14 (C) in order to clarify whether States have a positive obligation to protect women against domestic violence according to the ECHR.

1.1 Domestic violence amounting to a threat to life under article 2

1.1.1 Evolution of States’ positive obligation under article 2

The right to life is a fundamental right guaranteed by the article 2 of the European Conventio n on Human Rights. 20_{Due to the growing issue of violence against women, it is relevant to wonder if} this article also involves positive obligations for State members to prevent domestic violence. In fact, article 2 involves positive obligations when there is a serious threat to someone’s life and according to the UNDOC report on gender-related killing, 50 000 women were killed by intimate partners in 2017 alone. 21

In order to develop the interpretation of the ECHR, the Court established with the landmark case Tyrer, that the Court is a living instrument and thus, that its meaning is open to interpretation. 22 It shows a rejection of textualism and intentionalism in the interpretation, in favor of an evolut ive approach. 23_{Accordingly, article 31 VCLT indicates that treaty can be interpreted in light of relevant}

19_{Beth Simmons, supra note 9, p. 24} 20_{ECHR, supra note 10, art. 2}

21_UNDOC,‘Global Study on Homicide’, (2019), p.21

22_{Christian Djeffal, Static and Evolutive Treaty Interpretation, Cambridge University Press (December 2015),} p. 301

23_{George Letsas, A Theory of Interpretation of the European Convention on Human Rights, Oxford University} Press (2007), p. 59

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rules of international law. 24_{As a result, the ECHR should not be read in light of the intention of the} drafters only, but mainly in light of the consensus among State members and international law practice on the matter. Hence, when interpreting treaties, the method should progress “from terms to context”. 25_{Moreover, the intention at the time of the treaty drafting was to allow a broad} interpretation of the Convention, as Human Rights treaties are open to interpretation and then subjected to interpretation principles. 26_{As a result, once allowed to look upon context and relevant} rules of international law, different materials illustrate the causation link between the killing of women and domestic violence, and thus, why it triggers the right to life.

Firstly, the Commission on the Elimination of Discrimination Against Women (CEDAW) affir med that gender-based violence, including domestic violence, triggered the right to life among other human rights. 27_{The Council of Europe with the Istanbul Convention also aimed to protect the right} to life of domestic violence victims. The purpose of the Convention itself is to protect women against violence and domestic violence, and to criminalize physical, psychological and sexual violence. 28_As a result, it is possible to consider that there is an international consensus that domestic violence triggers the right to life. Furthermore, the ECtHR already ruled in the Osman v. UK case that a State could be found liable for a failure to protect the right to life, even when it includes State responsibilit y for the acts of private individuals. 29

Accordingly, due to the living instrument doctrine, article 2 ECHR can be interpreted as involvi ng positive obligations to counter domestic violence from amounting to a threat to life.

1.1.2 Evolution of the ECtHR practice

If domestic violence used to be considered as a private issue, it also triggers the effective ne ss principle and the important role of the ECHR to protect human rights. Thus, the developments of the Court also aimed to make the Convention practical and effective, regarding the context and the issue

24_{VCLT, Supra note 15}

25_{Gardiner, Treaty Interpretation, Oxford International Law (2008), p. 251} 26_{Dr. Sc.}Maša Marochini, supra note 11

27_{CEDAW, General Recommendation No. 19: Violence Against Women, UN Doc A/47/38, 11}th_Session (1999), par. 7

28_{Istanbul Convention, supra note 5, art. 1, 33, 35 and 36}

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at stake. 30_{In fact, the private/ public dichotomy can stifle the Court}’s efficiency as the threat to life in domestic violence cases takes place in the private sphere.

For this reason, the Istanbul Convention indicates that women should be protected from violence in the private sphere also. Accordingly, the Court adopted the same understanding of article 2 in order to protect the right to life of domestic violence victims. The Court developed its understanding through its jurisprudence. In the the Kontrová v. Slovakia case, the applicant was attacked with electric cables by her husband. However, she withdrew the complaint under pressure. Examining the case, the officer in charge did not take further action, and thus, failed to take the issue seriously. Later on, the victim called the police, as the violence escalated, and the threats were also concerning the applicant’s children. Although the applicant was driven by the police to her parent’s place and invited to come at the Station to fill a report. The process took a few days and her husband eventually killed himself and their two children. 31_{The Court indicated}: “the domestic authorities’ alleged failure to take action to protect the lives of the applicant’s children admissible under Article 2 of the Convention”. What is sanctioned by the Court is the failure of the authorities to protect the applicant and her children, resulting in a breach of article 2. 32_{Through this decision, the Court} affirmed State members have positive obligations to protect the life of domestic violence victims. In the Opuz case, the Court also ruled that article 2 was violated by Turkey, since the authorities knew or ought to have known that the applicant and her mother’s life were at “real and immediate risk” but failed to take adequate measures to protect their life. In the Talpis v. Italy case, the Court ruled that positive obligations exist for the member States in case of violence against women, as it represents a threat to life and trigger the obligation to protect life.

To conclude, in the recent case-law of the Court, it was pointed out that even if it is not explicitly written in the ECHR, State members have positive obligations to protect domestic violence victims’ right to life. If their legal framework and operational measures are not efficient, and the authorities still fail to protect their right to life, then, it entails State responsibility under article 2.

1.2 Domestic violence amounting to torture, inhuman or degrading treatme nt under article 3

30_{Christian Djeffal, supra note 22, p. 326}

31_{ECtHR, Kontrová v Slovakia, no. 7510/04 (13 June 2006)} 32_Ibid.

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1.2.1 Evolutive interpretation of article 3

It is then important to examine to what extent domestic violence can fall within the scope of article 3 prohibiting torture: “No one shall be subjected to torture or to inhuman or degrading

treatment or punishment.” 33

In the Convention against Torture, it is clear that the torturous acts perpetrated “with the consent or acquiescence of a public official” fall within its scope. 34_{Thus, violence against women} does not explicitly fall within this scope as perpetrators are often intimate partners. Once again, it proves the differentiation made between public and private matters. Traditionally, domestic violence was considered as a private issue, which can still have consequences in some domestic Courts. Since domestic violence is not explicitly protected by the ECHR, women benefit from it less than men.35

However, facing the recognition of domestic violence as a hot button issue, its connection with the prohibition of torture needs to be explored. The living instrument doctrine in this context is relevant as it refers to the interpretation of the ECHR “in the light of the present-day conditions”. 36 As a result, the provisions of the Convention have to be read in conjunction with the general evolut io n of the law and consensus on human rights. 37_{Consequently, the ECtHR developed its understand ing} of article 3. Moreover, the first time the living instrument was argued by the Court was in the Tyrer case, which was then assessed under article 3. The Court also added that the present-day conditio ns includes the consensus among State members, and newly accepted standards. 38_{In accordance with} article 31(1) VCLT, the evolutive interpretation has to remain concordant with the object and purpose of the treaty. The first aim of the ECHR is to preserve human rights, and more precisely, article 3 aims to protect against torture or to inhuman or degrading treatment or punishment. As a result, if some domestic violence cases can be assessed under article 3, it does not contravene the original aim of the Convention. In fact, it would address women’s rights and punish authors of degrading treatments amounting to torture, and thus, make the Convention effective.

33_{ECHR, supra note 10, art. 3}

34_{United Nations,} ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, 1465 UNTS 85 (CAT) (adopted 10 December 1984, entered into force 26 June 1987), art. 1 35_{Carin Benninger-Budel, Due Diligence and Its Application to Protect Women From Violence, Nijhoff Law} Specials, Volume: 73 (2 October 2008)

36_{ECtHR, Tyrer v. the United Kingdom, Series A no. 26 (25 April 1978), par. 31}

37_{Geir Ulfstein,}‘Interpretation of the ECHR in light of the Vienna Convention on the Law of Treaties’, The International Journal of Human Rights (2019)

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As the article 31(3)(c) VCLT indicates, treaty interpretation can be influenced by “relevant rules of international law”. 39_{Likewise, evolutive interpretation also need to be enlighten by a} potential consensus among States members and international law instruments. 40Following the “EU guidelines on violence against women and girls and combating all forms of discrimination against them” was adopted in 2008, then followed by the Istanbul Convention. Both of them include the aim to protect women against violence. The Court was thus forced to recognize that domestic violence generally affects women more than men and that there is a consensus among States and specialized international instruments on the matter. 41

The Special Rapporteur analyzed domestic violence as amounting to torture by dissociat ing substantive and attributive analysis. 42_{Firstly, the substantive analysis enables the characterization of} domestic violence as torturous acts, and attributive analysis allows to hold the State Responsible for them. In this part, the substantive criteria interest us. The Special Rapporteur then describes the essence of the definition of torture as “violation of physical, mental or emotional integrity that is incompatible with human dignity”. 43_{Then, powerlessness is emphasized, as the violent partner} intents to submit the victim. As domestic violence can gather all the criteria, the association of physical, psychological but also economical violence can amount to torture, inhuman or degrading treatment or punishment. As a result, the “element of humiliation” in addition to violence directly strikes article 3. 44The Opuz case is a landmark decision on this topic as it indicates that “a minimum level of severity” has to be reached so violence falls under the article 3 of the Convention for domestic violence cases. 45_{The applicant had been victim of threats and harassment perpetrated by her} ex-husband since 1995. Her mother also had been victim, as well as her new boyfriend. As a result, the

39_{VCLT, supra note 14, art. 31(3)©}

40_{Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights,} Cambridge: Cambridge University Press (2015), p. 38

41_{ECtHR, Opuz v. Turkey, Application no. 33401/02 (9 June 2009), par. 164}

42_UNGA,‘Relevance of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment to the context of domestic violence’, A/74/148 (12 July 2019), par. 5

43_{Ibid, par. 8}

44_{ECtHR, Valiuliene v. Lithuania,}_{no. 33234/07 (26 March 2013),}_{Concurring opinion of Judge Pinto De} Albuquerque

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Court affirmed that the applicant could be considered as “vulnerable individual”. 46_{She and her} mother brought three complaints that were then withdrew under threats, which is also a recurrent issue in domestic violence cases. Later on, the applicant was stabbed by her ex-husband.

In the Valiuliene v. Lithuania case, the Court gave similar indications on the threshold to fall under article 3. It reestablished that “ill-treatment must attain a minimum level of severity”. 47_In order to assess whether domestic violence falls under the scope of article 3, the Court indicates that the nature of the ill-treatment, its context, duration, its physical and psychological consequences have to be considered along with the sex, age and health of the victim. 48 It also confirms the Court’s jurisprudence, as it already ruled that even if “the applicant did not suffer any severe or long-lasting physical effects”, serious physical injuries can fall within the scope of article 3. 49

Accordingly, in the Rumor v. Italy case, the applicant, who had been beaten, threatened with a knife and scissors and locked in her flat by her husband, the Court indicates that the violence of the facts, and their psychological consequences amount to ill-treatment and fall under article 3. 50_Nonetheless, the facts were not enough to entail the State responsibility, illustrating that ill-treatment is not the only criteria.

The ECtHR continued to adopt a protective approach of treaty interpretation in light of its objective to preserve human rights. The authorities in the Opuz case, failing to recognize the danger he represented, released the man which killed the mother of the applicant in March 2002. 51_{The Court} agreed with the applicant and recognized the failure and inaction of the state’s authorities to protect her and her mother. Moreover, the Court also considered that article 3 entails a positive obligation to protect women against ill-treatment, which includes the obligation to take protective measures. Accordingly, the previous facts, amounting to ill-treatment as understood in article 3 of the Convention, can entail the State responsibility as the authorities failed to do everything in their power to prevent it. For the first time, the Court explored the possibilities under article 3 to prosecute perpetrators of domestic violence. Nonetheless, the Court’s interpretation also have to guarantee its

46_{Ibid, par. 160}

47_{Valiuliené v. Lithuania, supra note 44, par. 65} 48_Ibid.

49_{Tyrer v. the United Kingdom, supra note 36, par. 33}

50_{ECtHR, Rumor v. Italy, no. 72964/10 (27 May 2014), par. 61} 51_{Opuz v. Turkey, supra note 41}

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effectiveness. In fact, when State have the obligation to implement measures, they do not only have to implement a text but also to enforce it.

Effectiveness is related to the appropriate effects the treaty should have, according to its aim and objectives. Thus, it has to be interpreted in light of the pacta sunt servanda, art 26 VCLT. 52_{It means} that it has to be interpreted in good faith regarding the intention of the drafters, the object and purpose of the treaty in the first place, but also regarding the social context surrounding the treaty. 53_{As a} result, when interpreting the ECHR, two options are possible. Firstly, the reader can strictly consider that State members do not entail their responsibility under article 3 because the Convention does not explicitly define positive obligations to prevent domestic violence, which was not planned by the drafters either. However, to meet the treaty objective to protect human rights, there is an obligat io n to prevent domestic violence from amounting to torture. As a result, if the latter involves taking distance from the text itself, the good faith element should not restrict the treaty interpretation but rather be considered as a tool to reach the object and purpose of the Convention according to the principle of effectiveness. 54

In order to be effective, the interpretation goes further than the words, and it is also the path taken by the ECtHR. In the Valiuliene case, the Court reaffirms that State members have the positive obligation to protect every individual under the article 1 of the Convention and that there is an obligation for States to counter torture, inhuman or degrading treatment or punishment and other ill-treatment from being perpetrated. 55_{As a result, domestic violence can fall under the scope of article} 3 when read in light of relevant rules of international law on the one hand and, of its aim to efficie nt l y protect human rights on the other hand.

To conclude, article 3 entails the positive obligation to prevent against domestic violence as it can amount to torture, inhuman or degrading treatment.

1.3 Failure to prevent domestic violence under article 14 1.3.1 Domestic violence amounting to discrimination

52_{Gardiner, supra note 25}

53_{Djeffal Christian, supra note 22, p. 160} 54_{Gardiner, supra note 25, p. 150}

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Article 14 aims to guarantee the equal enjoyment of human rights under the ECHR. It is used in conjunction with other rights protected by the Convention. The Council of Europe is becoming more intransigent in cases related to domestic violence and non-discrimination, following an evolutive interpretation, meanwhile the consensus against gender-discrimination grows. 56_{As a} result, it is possible to wonder whether States have positive obligations to prevent discrimination in cases of domestic violence, regarding private acts.

The living instrument doctrine and article 31(3) © VCLT also enable us to look at the context and other relevant rules of international law in order to interpret treaty provisions. 57_{As a result, we} can interpret article 14 on non-discrimination in light of the Istanbul Convention on the matter. In fact, article 4 indicates that contracting States have to promote fundamental rights, equality and non-discrimination. Article 4(1), (2) and (3) affirm that women have to be protected from violence even when it takes place in the private sphere, and that States should protect them from discrimina tor y behaviors. 58_{Thus, as domestic violence violates numerous human rights, States have positive} obligations to stop these breaches even when they take place in the private sphere, in order to preserve equal enjoyment of human rights. This is the possible understanding of the ECHR when read in conjunction with the Istanbul Convention and the VCLT.

In fact, gender-discrimination knows particular developments as there is a general consensus among international law that both men and women should be treated equally. The CEDAW Committee also affirmed that domestic violence can be considered as discrimination against women. 59_{Due to the facts that domestic violence victims are mainly wo}men, resulting in women’s submission, it is a gender-based issue. 60_{The Committee also reminded that States can be held} responsible for discriminatory acts perpetrated by private actors, not only when perpetrated by public officials. 61_{Furthermore, this consensus is particularly important as it tailors public morals, which the} Convention aims at protecting. 62_{As a result, it confirms that States have positive obligations to free} women from discriminatory behaviors, and therefore from domestic violence.

56_{European Union Agency for Fundamental Rights and Council of Europe,}‘Handbook on European non-discrimination law’ (2018)

57_{Gardiner, supra note 25}

58_{Istanbul Convention, supra note 5, art. 4}

59_{General Recommendation No. 19, supra note 27} 60_Ibid.

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Nonetheless, article 14 also involves positive obligations for State members regarding State officials acts, as repeated tolerance is a form of discrimination.

1.3.2 Repeated tolerance as a breach of article 14 by State authorities

Article 14 of the Convention guarantees the equal enjoyment of human rights against State officials’ potential breach. As a result, women should also be protected against States’ authorities discriminatory behavior. This obligation was confirmed by Protocol No. 12 that confirms that the enjoyment of rights should not subject to discrimination by “any public authority”. 63

However, it is possible to wonder whether States’ systemic failure to intervene constitutes repeated tolerance in domestic violence cases, and thus, if State members have a positive obligation to prevent this systemic tolerance. The ECtHR developed its understanding of article 14 in the Opuz v. Italy case, a landmark decision on non-discrimination, in which the Court reads article 14 in conjunction with article 2 and 3. The Court pointed out several criteria that, when gathered, can characterize gender-based discrimination and thus a violation of article 14. In the first place, it addresses the repeated failure of the authorities to investigate cases of violence against women after a complaint or to punish perpetrators, proving tolerance from the State and the ineffectiveness of remedies. 64_{The repeated tolerance of the authorities thus created a conducive} climate, propitious for the perpetrators, amounting to gender-based violence. 65_{In concordance} with its jurisprudence, the Court in the Talpis case also ruled that repeated tolerance by the State can amount to a breach of article 14. 66_{In this case, the authorities failed to take actions before the} murder of the applicant’s son and the Court concluded that the facts amounted to repeated tolerance from the State authorities. As a result, since article 14 aims to prohibit discrimination in the enjoyment of the Convention rights, and as the authorities’ failure to intervene discriminates domestic violence victims, State members have positive obligations under article 14 regarding State officials. Moreover, this interpretation corresponds to the treaty objectives of the ECHR, but also read its provisions in light of the international consensus on the matter.

63_{Council of Europe,}‘Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms’, ETS 177 (entered into force April 2005)

64_{Opuz v. Turkey, supra note 41, par. 196} 65_{Ibid, par. 198}

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Above all, as explained previously, domestic violence triggers the right to life and the right to be free from degrading treatments. Article 14, in conjunction with article 2 and 3, enables to address domestic violence as a gender-based issue, and thus, to entail States responsibility for their lack of efforts to fight against it. Accordingly, the Court often used reports to support its findings on discrimination aside to the proofs that the authorities’ actions and inactions have been “repeatedly condoning such violence”. 67_{As the effectiveness doctrine is based on the fact that} provisions should be effective, thus, more than implementing adequate law, State members have to insure positive operational actions. 68_{Therefore, article 14 is particularly important to make the} law efficient for domestic violence victims. In fact, even if some States criminalized domestic violence, the authorities’ failure demonstrates that their legal framework is not efficient. Thus, it is important to address States inefficiency as a discrimination problem. In fact, if domestic violence cases were not assessed under article 14, the Court would not be able to address States’ repeated failure to prevent gender-based discriminatory behaviors. As the main objective of the Convention is to protect human rights, it is its role to address discrimination under article 14.

The protection of women enduring domestic violence is a very important issue in some State members of the Council of Europe such as Turkey, Russia or Moldova where the Court and lawyers are particularly lacking medium to fight and offer remedies. 69_{Under the ECHR, it is} possible to say that States have the positive obligation to protect victims of domestic violence, to free them from degrading treatment and discriminatory behaviors from both public and private actors and guarantee their equal enjoyment of human rights

Chapter 2: The threshold to entail State responsibility

The first chapter shows that even if the ECHR does not explicitly create a positive obligat io n to prevent domestic violence, it can be interpreted under article 2, 3 and 14. Accordingly, failures to fulfil their positive obligations should entail State responsibility. As a result, it is important to analyze if States can be held responsible for their failure to protect the life of domestic violence victims by

67_{ECtHR, Eremia v. The Republic of Moldova, no. 3564/11 (28 August 2013), par. 89} 68_{Dr. Sc.}Maša Marochini, supra note 11

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using the Osman test (A). Meanwhile another standard for this test is emerging and can be discussed (B). Finally, the systemic nature of States’ failure can be described as the main element to hold States responsible under article 3 and 14 (C).

2.2 The Osman test in domestic violence cases

2.1.1 The Osman test: a tool to protect the right to life

The ECtHR developed a protective approach of the right to life, ordering States to adopt a protective legal framework. The latest developments of the Court’s jurisprudence gave precisions on the positive obligation to protect life within the ECHR.70_{It is relevant in case of violence against} women since in most cases brought to the Court, the police had already been informed but failed to react. It is possible to wonder when exactly the police are required to take action, and what is the threshold to entail State responsibility. Moreover, the turning point for women’s life is often when the police should have intervened. In fact, they are often the first public actor victims can turn to. In order to protect life, the Court indicated in the Osman case when is State’s intervention required, with the Osman test. In the Osman v. UK case, a teacher was known to be obsessed by his student, his colleagues, starting to be concerned, gave notice to the police. An important number of events then followed, the teacher changed his name to his student’s, he also followed one of Osman’s friend’s home and harassed him. Even with this series of clear warning signs, the police failed to react. As a result, these tragic events ended in a shooting where Osman was wounded, and his father was killed. 71

In order to protect such cases from happening again, the Court indicated that the police had to intervene to protect life at the moment 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.” 72_{It is a landmark case as it} enabled the Court to determine clear standards to entail State responsibility for the acts of non-State actors. Thus, the Osman test allows to understand when the police have to intervene to protect life and in case of failure, when State responsibility can be entailed. The Court considers that the threats have to be expressly directed at the individual, and then sets three criteria: the risk threatened the right

70_{ECtHR, Marckx v Belgium Application No 6833/74, (13 June 1979) at par. 31} 71_{Osman v. United Kingdom, supra note 29}

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to life and is real and immediate. Thus, the State must have known of the risk and failed to react accordingly in order to be held responsible. 73

Since the Osman test is used to determine the moment States have the obligation to protect life, and as we concluded in the first part, State members have the positive obligation to protect domestic violence victims’ life, thus the Osman test can be used in domestic violence cases. Above all, it is particularly important as it gives a threshold to entail State responsibility for the acts of non-State actors.

2.1.2 Inadequate option in domestic violence cases

In cases of domestic violence, the Osman test and the delay before the “imminent risk” often withdraw all chances to prevent the breach to the right to life. It is simply too late for the police to react. Moreover, it also aims to lower the burden weighting on the authorities, as they cannot be held responsible unless the risk was foreseeable and immediate. 74_{It does not pressure the police to} exercise due diligence and to react to a threat to life. They are only reacting when the risk is immine nt. However, States should have to be aware of the risks and to react to this one in prevention. The test remains general, which is reinforced by the fact that the Osman test requires measures as an obligat io n of conduct, not an obligation of result. 75_{Consequently, each time States fail to protect life, the} threshold is quite high and State responsibility is not easily entailed. Thus, the main problem is the lack of consequences for States’ failure to implement a preventive legal framework on the one hand and then to make it efficient.

Moreover, the Osman test in domestic violence cases falls short because of the structural risk due to the context where it takes place. 76_{In fact, domestic violence is a gender-based issue that takes place} in societies more or less driven by discriminatory constructs and thus, it creates an atmosphere

73_{Franz Christian Ebert,}‘Preventing violations of the right to life in the European and the Inter-American Human Rights Systems: From the Osman Test to a Coherent Doctrine on Risk Prevention?’, Human Rights Law Review, Vol 15 (June 2015)

74_{Sara De Vido,}‘The ECtHR Talpis v. Italy Judgment: Challenging the Osman Test through the Council of

Europe Istanbul Convention?’, ESIL Reflections (6 July 2017)

<https://edizionicafoscari.unive.it/media/pdf/article/ricerche-giuridiche/2017/2/art-10.14277-Rg-2281-6100-2017-02-001_soQ2GOC.pdf>

75_{Dr. Sc.}Maša Marochini, supra note 11 76_Ibid.

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conducive to discrimination and domestic violence. Consequently, the Osman test does not suffice because of the necessity to prevent threats to life before the risk becomes immediate, as violence grounded in sexism have to be assessed in light of its singularity. 77_{When the risk is immediate, it is} almost impossible to protect the victim’s life.

2.2 A lower standard instead of “real and immediate risk”

2.2.1 A present risk test

The issues raised by the Osman test and the necessity to adapt the standards to the specificities of domestic violence was well understood by international courts, such as the ECtHR but also the Inter-American Court of Human rights, and Judges already adopted a context-drive n approach. In its decision Valiuliene v. Lithuania and in Bevacqua and S. v. Bulgaria, the ECtHR refers to customary international law obligations on due diligence to lower the standards of the threshold and thus, of the the Osman test. In his concurring opinion, Judge De Albuquerque reacted to the Court’s jurisprudence and confirmed protection in case of domestic violence should go further. As a matter of fact, the moment the risk becomes “immediate” is often too late for the victims. 78_{Consequently, context is an important factor as domestic violence in our societies is} systemic and requires the implementation of specific measures to curb the issue.79_{In addition, the} escalation of violence perpetrated in cases of domestic violence is recurrent and illustrates that the police have to intervene earlier than when the risk becomes immediate in order to protect the right to life.

To counter this, lower standards to entail the State responsibility places an important burden on the authorities but could positively impact the efficiency of operational measures. Since the risk is present in the society itself and the cases are showing similarities, recurring complaints of domestic violence should directly alert the police.

On the other hand, this standard has already emerged from the Court’s jurisprudence, Judge De Albuquerque refers to the case in which the Court established a “greater degree of vigilance” should be observed by the state in similar cases. 80_{Lastly, he makes a proposal for a revised Osman}

test by saying that the authorities shall take actions at the moment the risk is present, instead of

77_Ibid.

78_{Concurring opinion of Judge Pinto de Albuquerque, supra note 44} 79_Ibid.

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imminent. It means that the police should have the responsibility to intervene when they have knowledge of an existing risk. This proposal is particularly interesting as it amplifies the burden on the State authorities and is consistent regarding contextual issues.

2.2.2 Persistent debates

In fact, the Court has already used wider standards and its understanding of the Osman test in domestic violence cases is already more lenient. However, several issues arise from the present risk

test concept. In the first place, a revised test could be intrusive in case of “present risk”. Judge Spano

in his dissenting opinion of the Talpis case wonders how immediate is the risk when the gap between the first police intervention and the murder is a whole year. He also questioned the viability of asking the public authorities and the police to prevent such events from happening if the standards to entail State responsibility are so low. Moreover, if preventive measures have to be taken while the requirements for immediacy are not met, it also implies a disproportionate offence to other rights. 81 Moreover, the present risk test might bring an individualization of the risk when it is not desirable and become invasive. 82_{Thus, some scholars argue that it should depend on each case, and not} become a general standard in domestic violence cases.

However, the present risk test addresses the lack of efficiency of operational measures in domestic violence cases and thus, should not be rejected altogether. On the other hand, the Court already unofficially used lower standards to judge when the police should have intervened in domestic violence cases. Moreover, if the use of a present risk test is not explored, the main risk is that waiting for a “real and immediate risk” will keep being “too late” and will fail systemically. The

present risk test also enables the Court to address a peculiar issue in a peculiar way, in accordance

with the context, and of its systemic and escalating nature. 83

2.3 Repeated failure and tolerance from the authorities

81_{Talpis v. Italy, supra note 66, Partly dissenting opinion of Judge Spano, par. 16}

82 V Stoyanova, ‘Due Diligence versus Positive Obligations’ in J Niemi, L Peroni and V Stoyanova, International Law and Violence Against Women: Europe and the Istanbul Convention, Routledge , (2020), p. 22 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3384607>

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As illustrated earlier, domestic violence does not only trigger the right to life under the ECHR. As a result, the threshold to entail State responsibility under article 3 and 14 should be emphasized.

2.3.1 Repeated failure to entail State responsibility

As the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment showed in the report on domestic violence, it is important to distinguish “substantive” and “attributive” elements when analyzing domestic violence through the scope of the CAT. 84_These attributive criteria are interesting when analyzing when degrading treatment can entail State responsibility. The ECtHR first recognized that domestic violence can amount to torture in the Opuz case. The Court recognized that the victim’s physical injuries and the psychological consequences reached the minimum level of severity to amount to ill-treatment. 85_{In order to find a breach of article} 3, the Court seeks if the facts amount to torture in the first place and then, it establishes whether the breach took place because of State’s actions or inactions, and thus can engage State responsibility. This is the attributive standards; they enable the Court to assess if the State can be held responsible for private actor’s actions.

Furthermore, the attributive element is of particular value regarding domestic violence because of its public/private nature. While it used to be regarded as a private issue only, it is also a public issue as State members can be held responsible for their failure to prevent ill-treatment, even when perpetrated by non-State actors. As a result, it is necessary to clarify why States could be held responsible for private acts, and when their responsibility can be entailed for a failure to prevent torture.

Firstly, the CAT affirmed that States members have the obligation to prevent torture from being perpetrated by private actors. 86_{As a result, if they fail to prevent it, their responsibility can be} entailed. In case of domestic violence, the Special Rapporteur refers to international law to find that general practice condemns the absence of criminalization of domestic violence. 87_{For instance, it was} reestablished by the Committee Against Torture with the general comment No. 2 that States have due diligence obligations regarding domestic violence. As a result, if the State failed to implement a protective legal framework and measures, thus it failed to prevent torture. When interpreting the ECHR article 3 in light of the CAT, and of the understanding of the Committee Against Torture, it is possible to say that domestic violence can fall within the scope of the article 3, if it reached a minimum level of severity and if State members failed to prevent it. However, when it comes to the threshold

84_{UNGA, Supra note 42} 85_{Ibid, par. 161}

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to entail State responsibility the main indicator would be the repeated failure to implement measures, or to make them effective. For this reason, reports are important to get a clear vision of the context at the time the facts took place.

2.3.2 Repeated tolerance to entail State responsibility

As described previously, in cases of discrimination, the main criteria to entail responsibilit y is the repeated nature of State’s failure to address problematic behaviors. However, the threshold to find a violation of article 14 is rather high in domestic violence cases. Two criteria are important : States are manifestly creating a “climate conducive to domestic violence” and the alleged actions and inactions are “not a simple failure or delay”. 88_{The systemic gender-based discrimination should be} strongly proven as to create insecurity for victims of domestic violence. Moreover, the actions and omissions should not be a simple failure or delay but repeatedly condoning violence.

However, the ECtHR was criticized for using a lower threshold in practice. In fact, proving a general climate conducive to domestic violence was enough in the Opuz case, while in Eremia, the Court required the applicant to prove a repeated failure from the authorities, in relation to gender-based discrimination. 89

Furthermore, Judge Spano and Judge Eicke argued that the Court does not characterize violations of article 14 following the threshold it established itself. In the Rumor v. Italy case, the Court rules the State had implemented an efficient legal framework to prosecute perpetrators of domestic violence and prevent it. 90_{Moreover, it was confirmed several times that the Italian legal framework was} efficient in defending women from domestic violence, like in the 2012 UN Special Rapporteur report. 91_{However, by ruling in the Talpis case on systemic gender-based discrimination in Italy, the Court} contradicted its previous decision. In fact, in the Talpis case, the Court affirms that the applicant provided sufficient evidence, in addition to the reports, to prove persistent gender discrimination and murder of women by former partners or partners. 92

88_{Elisaveta Talpis v. Italy, supra note 66, Dissenting opinion of Judge Spano, par. 18}

89_{Jasmina Ma}čkić, ‘Proving Discriminatory Violence at the European Court of Human Rights’, Leiden Studies on the Frontiers of International Law, Volume: 4 (26 July 2018)

90_{Rumor v. Italy, supra note 50, par. 76}

91_{Elisaveta Talpis v. Italy, supra note 66, Dissenting opinion of Judge Spano, par. 22} 92_{Ibid, par. 145}

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As a result, it is clear that the dynamic international legal practice aims to develop protection against domestic violence and it has been consistent in this sense. 93_{Nonetheless, the specificities of} gender-based discrimination might raise debates, the threshold to amount to a breach of article 14 should both consider context and the facts of each case. If the repeated nature of States’ failure should be confirmed, the particularity of the issue should lower the threshold to enable the Court to address discriminatory behaviors and to improve the Convention’s implementation.

Chapter 3: Content of the positive obligation to prevent domestic violence

The previous chapters showed that State members to the ECHR have the positive obligat io n to prevent domestic violence and that they can be held responsible for their failure to do so. This chapter will now discuss the content of States’ positive obligation. Firstly, as domestic violence is a systemic issue, it should be tackled with strict due diligence standards (A). Secondly, several suggestions will be made on the basis of recurring facts of the domestic violence cases studied, first regarding the legal framework (B) and then regarding operational measures (C).

3.1 Importance of due diligence standards in domestic violence cases

3.1.1 Due diligence as a tool to avoid breaches of the ECHR

Due diligence is a standard of conduct that can be linked to State’s positive obligation to prevent domestic violence. In fact, due diligence is particularly important in international law when it comes to human rights issues, due to their specificities and context. By definition, due dilige nce provides for protective standards in order to preserve human rights. It stands for a degree of care in the decision-process to avoid undesirable outcomes, such as a breach of human rights. 94_{It entails} State responsibility to act with a careful analysis of the risk undertaken. However, it is used as a component of primary international law obligations. 95_{As a result, due diligence standards can be} particularly useful in domestic violence cases, as necessary tools to protect the right to life, to live

93_{Kanstantsin Dzehtsiarou, Fiona de Londras, Great Debates on the European Convention on Human Rights,} Palgrave Great Debates in Law (14 March 2018), ‘The Convention in time of uncertainty: Does the Convention protect people from “everyday insecurity”?’

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free from torture and to enjoy the Convention rights without discrimination. It also indicates the content of positive obligations.

International law practice shows that even if domestic violence takes place in the private sphere, States have the obligation to counter gender-based discrimination through measures that would tackle the roots of the issue. 96_{As a result, due diligence in case of domestic violence would} be particularly important.

Accordingly, the UNGA Declaration on the Elimination of Violence Against Women first established that States have due diligence obligations to free women from domestic violence. 97_{The Istanbul} Convention provides some recommendations regarding to due diligence obligations in case of violence against women. In fact, article 5 indicates that State parties should establish a protective legal framework and other measures to exercise due diligence and protect women against non-State actors when it falls under its scope. 98_{As the notion of due diligence is not usually mentioned directly} in international treaties, it can confirm that the issue at stake requires specific protection. In fact, domestic violence takes place in a conducive context of gender-discrimination, and it has to be tackled in order to curb the domestic violence issue efficiently. As a result, due diligence adapted to domestic violence cases could bring adequate solutions from State members to protect women’s rights. The protection of women against domestic violence is particularly linked to the enforcement of strict due diligence standards, as it encourages States to comply with their positive obligations. 99

There is a consensus among international law actors that the positive obligation to protect women against domestic violence entails due diligence obligations. However, this would be better implemented if it was clearly established. In fact, if the right to life or to be free from torture entail due diligence obligations, thus they should also be applicable to domestic violence cases. As a result, it is possible to imagine the establishment of general due diligence standards adapted to domestic violence cases to avoid any breach of human rights provisions. However, it is not realistic to imagine precise due diligence obligations for State members as they enjoy a margin of appreciation when

96Yakın Ertürk, supra note 7

97_{UNGA, Declaration on the Elimination of Violence Against Women, Res 48/104 (20 December 1993), art.} 4(c)

98_{Istanbul Convention, supra note 5, art. 5} 99_{Carin Benninger-Budel, supra note 35}

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implementing measures related to private sphere rights in their domestic legal system. 100 Furthermore, States enjoy a wider margin of appreciation when the issue at stake did not reach a consensus yet. 101_{Nonetheless, States can be required to act with a minimum level of due diligence,} to implement a protective legal framework and efficient operational measures. Moreover, this can already be understood from the protective approach operated by the Court in domestic violence cases.

Although the subsidiarity principle has to be respected, the Court has already subjected States to its assessment when they clearly failed to act with due diligence in domestic violence cases. Thus, this review process could give more enforceability to due diligence obligations if a general standard was established.

3.1.2 Potential issues of due diligence in domestic violence cases

The due diligence standards in domestic violence cases are subjected to debates and could raise issues. Firstly, the review process of State’s implementation was largely discussed as the ECtHR has to respect the principle of subsidiarity but has been accused to step out of its mandate several times. As the adoption of new measures is part of State’s sovereignty, the Court can assess States’ implementation only when it has strong reasons for doing so. However, the Court indicated that this process depends on each case and its facts and context. 102_{As it reaffirmed in its previous} jurisprudence: “it is not the Court's task to verify whether the domestic courts correctly applied domestic law”. Nonetheless, it has a power of review in case of manifest disproportion. 103_In addition, the margin of appreciation enjoyed by States depends on the work they made to include the Court’s jurisprudence in their own assessment. 104_{As a result, States enjoy flexibility when} implementing measures. However, the Court developed an understanding of subsidiarity in which it can have a word when States implement their measures if necessary. 105_{Thus, it can address on} the fulfilment of their due diligence obligations regarding domestic violence, but it still has to respect the principle of subsidiarity. For this reason, State members are free to decide the measures

100_{George Letsas, supra note 23, p. 120} 101_{Ibid, p. 121}

102_ECtHR,‘Opinion on the draft Copenhagen Declaration’ (19 February 2018), par. 13 103_{ECtHR, A. v. Croatia, no. 55164/08 (14 October 2010), par. 66}

104_{ECtHR, Von Hannover v. Germany (No. 2)}_,_{nos. 40660/08 and 60641/08 (7 February 2012), par. 107} 105_{Leonie Huijbers,}‘The Draft Copenhagen Declaration - Process-based review and subsidiarity’, Strasbourg Observers (February 27, 2018) <https://strasbourgobservers.com/2018/02/27/the-draft-copenhage n-declaration-process-based-review-and-subsidiarity/>

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that would be adequate within their territory. 106_{This was reestablished in the Powell and Rayner} case, in which the Court confirms States enjoy a “margin of appreciation” when implementing the protection of women against domestic violence. 107_{On the other hand, in the}O’Keeffe case, the Court recognized that the measures of the state members have to be assessed to evaluate their effectiveness. 108_{As a result, if it cannot precisely order the implementation of specific measures,} the Court can assess whether or not States took reasonable and efficient actions. Thus, States have to implement an effective legal framework and operational measures in order to reach their due diligence obligation to protect women against domestic violence.

Secondly, by establishing due diligence standards to protect women against domestic violence, the critics on positive obligations’ content can regard their intrusiveness. However, the law has already regulated aspects of individuals’ private life, with work regulations or compulsory education for example. 109_{As a result, and because of the protective role of States, due diligence should be} exercised to protect women from domestic violence even if it takes place in the private sphere.

To conclude, the positive obligation to protect women from domestic violence, because of their right to life, to live free from degrading treatments and without discrimination, State members have a due diligence obligation of prevention and to implement an efficient legal framework. 110 The due diligence standards are important for States’ involvement to prevent human rights breaches. If the ECHR does not explicitly provide for due diligence in domestic violence cases, it arises from the interpretation of the Convention and from relevant rules of international law. If States remain free to implement the measures they consider adapted, it is relevant to analyze some potential solutions.

3.2 Implementation of protective legal frameworks

The right measure has to balance the protection of the victim, the reasonability of the burden weighting on the authorities and the proportionality regarding the perpetrator. In fact, the domestic violence cases studied previously often show similarities: the victims try to alert the authorities on their situation, they often withdraw the complaint under the perpetrator’s pressure, the violence is

106_Ibid.

107_{ECtHR, Powell and Rayner v. the United Kingdom, no. 9310/81 (21 February 1990), par. 41} 108_ECtHR,O’Keeffe v. Ireland, no. 35810/09 (16 June 2009)

The European Convention on Human Rights regarding State members’ obligation to counter domestic violence