DOMESTIC VIOLENCE AS A HUMAN RIGHTS ISSUE- RUMOUR V ITALY Flashcards
Domestic Violence As a Human Rights Issue
The CEDAW makes no express mention of domestic violence; however, in 1992, the UN Committee on the Elimination of Discrimination against Women (CEDAW Committee) issued its immensely important General Recommendation 19, which interpreted CEDAW as prohibiting violence against women in both the public and private contexts. 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.
In 1993, the 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.’
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. 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.
In regard to the African Union, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) was adopted in
2003. Again, the term ‘domestic violence’ is not used in this instrument; however, under Article 1(b) of the Protocol, ‘violence against women’ is defined as encompassing ‘all acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts’. The Maputo Protocol proceeds to place a range of obligations on states parties in relation to violence against women, including domestic violence.
In relation to the Council of Europe, on 30 April 2002, the Committee of Ministers adopted Recommendation (2002) on the Protection of Women against Violence.
A monitoring framework relating to implementation by member states of this Recommendation was established in 2005, and, at the time of writing, four rounds of
monitoring have taken place. The Istanbul Convention entered into force on 1 August 2014 and has currently been ratified by 18 states. This instrument constitutes a
crucial development in regard to the response of the Council of Europe to violence against women in all of its forms, and it will be further discussed later in this article.
In addition, over the past eight years, the ECtHR has considered a substantial number of cases on the issue of domestic violence, the most recent of which is Rumor v. Italy.
The Facts of Rumor v. Italy
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.
Verdict
In Rumor, the ECtHR held that the violence and the ensuing psychological consequences that the applicant had suffered were sufficiently serious to constitute ill treatment within the meaning of Article 3. This is a positive finding, as it reinforces the point that it seems now to be firmly established that the Court regards domestic violence as falling within the ambit of Article 3. However, the Court was of the view that in this instance the state had fulfilled its obligations under the ECHR in the matter.
This finding emphasizes the point that there are limits to how far the doctrine of positive obligations can reach to protect individuals from human rights violations occur-
ring in the private sphere, such as domestic violence.
The applicant in Rumor was attacked by her then partner, as a result of which she sustained a concussion, head injuries and bruising. She was also left with psychological consequences and lived in a state of constant fear as a result of the incident. The
treatment she had suffered was ‘inhuman and degrading’, and, therefore, her rights under Article 3 were breached. However, it is a fundamental principle of human rights law that, in general, only states can be held liable for violations. In Rumor, it was essentially a private individual who had violated the applicant’s rights, and, in general, private individuals cannot be held to be in breach of human rights law. No matter how
well developed the ECtHR’s doctrine of positive obligations is, there are limits to how far it can reach to protect victims from rights abuses occurring in the private sphere.
Shortcomings of the Verdict (Rumor v Italy)
Nevertheless, there are certain indications that the state’s response may have been insufficient. First, given the nature of the offence, an ultimate sentence of
three years and four months’ detention seems to be somewhat short. There is no indication in the judgment as to why the original sentence of four years and eight months’ detention imposed in April 2009 was reduced eight months later.
In June 2010, J.C.N. was then given permission to serve the remainder of his sentence at a reception centre facility. Little information on this facility is given in the
judgment; however, it is stated that J.C.N. was permitted to work outside the reception centre and also that after he completed his sentence he chose to continue residing
at the centre. It seems unlikely, therefore, that detention at the centre constituted a very punitive measure. In addition, the fact that this facility was situated only 15 kilometres from the applicant’s home is troubling, particularly as J.C.N. had been granted permission to work outside the facility. This is especially problematic given that the applicant had not been informed by the authorities that J.C.N. had been granted house
arrest, and she had only become aware of this fact when she received a telephone call from J.C.N. himself. The applicant’s allegation 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 also raises questions concerning the suitability of the facility. The state did not contest the truthfulness of this allegation.
The Istanbul Convention
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.
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.
Conclusion
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.
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 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 mechanism
under the Istanbul Convention whereby individuals can make complaints concerning violations of this instrument.
