Thursday, October 30, 2008

European Court of Human Rights considers domestic violence

This October the European Court of Human Rights (left) heard arguments in the case of Opuz v Turkey (ECtHR press release) in which the applicant claimed a violation of the Convention on the basis of Turkey’s alleged failure to take action against the applicant’s husband who repeatedly subjected her to domestic abuse and killed her mother. The applicant complained of violations of her right to life (Art. 2), the right to be free from torture, inhuman and degrading treatment or punishment (Art. 3), the right to an effective remedy (Art. 13) and the right to be free from discrimination (Art. 14--in this case it was a claim of gender discrimination). (photo credit)
The case is particularly important as it opens the vista for a recognition at ECtHR level that states have enforceable and justiciable positive obligations to take reasonable steps to protect individuals from domestic violence. Of course, states’ positive obligations in relation to the right to life and to the right to be free from torture, inhuman and degrading treatment or punishment have been long-established under the ECHR, but a finding that domestic violence engages those obligations would be enormously important from the perspective of effective protection. Should the Court find in Mrs. Opuz’s favour, this could significantly chip away at the public/private divide which has traditionally obstructed attempts to use international law to protect vulnerable individuals (and especially women and children) from intimate forms of violence. The Court has already held that states have positive obligations to protect children from sexual abuse and corporal punishment from their parents (Z v United Kingdom (2002) and A v United Kingdom (1998), for example) and so the integrity of this public/private dividing line is not in issue, but whether it will be pierced from a gender perspective remains to be seen. [Aside: this is not intended to deny that men are at times the victims of domestic violence, but rather to reflect the fact that such victims are primarily women].
It seems to me to be quite probable that the applicant will succeed under Arts. 2 and 3, particularly since the violence was frequently reported and the state did not effectively investigate and protect, but success under Art. 14 (non-discrimination) is arguably somewhat less likely. Nevertheless, the case represents an important opportunity for the Court to make a decisive mark against a ‘hands off’ approach to domestic violence and rather to recognise that such violence must be combated. The date of the judgment is not yet known, but there is little doubt that it will be noted and discussed here on IntLawGrrls!
INTERIGHTS are a joined party in this case and their summary of the arguments is available here.

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