A Winding Road to Justice for Domestic Violence Victims
- Posted by: Rachel Harper
- Category: Domestic Violence
Like most campaigns to right long-standing discriminatory practices, establishing intolerance for domestic violence and effective government responses requires patience and varied approaches.
Most international human rights conventions do not explicitly prohibit violence against women, including the Convention on the Elimination of Discrimination against Women (CEDAW). CEDAW instructs States to not discriminate but does not expressly address issues that primarily or only affect women, such as forced abortions or domestic violence. Initially, violence against women was not perceived as a consistent phenomenon. Instead, most governments viewed family violence as a ‘private matter;’ thus, complaints fell within various government agencies, yielding scattered and haphazard responses.
But, in the 1980s, women collaborated worldwide to highlight recurrent issues particularly facing women. Then, in 1992, the CEDAW Committee issued General Recommendation No. 19, which first perceived violence against women comprehensively and recognized gender-based violence as an issue that primarily affects women, precisely because the victim is a woman. The Committee stressed that family violence is an ‘insidious form' of violence against women’ that places ‘women's health at risk and impair[s] their ability to participate in family life and public life on a basis of equality.’
The European Court of Human Rights (ECtHR) was slower to identify domestic violence as a form of gender-based discrimination. In June 2008, in Bevacqua and S. v. Bulgaria, INTERIGHTS functioned as Advisers of record for the applicant who had been repeatedly physically assaulted by her husband. Nevertheless, authorities had denied her pleas for criminal prosecution. The ECtHR specifically condemned the Government’s designating the husband’s abuse as only a ‘private matter.’
Then, in a monumental decision in Opuz v. Turkey in early June 2009, the ECtHR first recognized domestic violence as a means of sex-discrimination. The applicant and her mother suffered multiple severe beatings. The perpetrator drove a car into the victims, issued death threats, stabbed the applicant, and eventually shot and killed the mother. The women filed several complaints but often withdrew them. As a third party intervener, INTERIGHTS argued that Turkey discriminated against women by not adequately addressing domestic abuse or protecting the women. INTERIGHTS also argued that States’ obligations exist independently of victims’ complaints or withdrawals. The ECtHR agreed that Turkey discriminated against women with a common lacking response to domestic violence. The Court’s reasoning included Turkey’s failure to protect the victims after multiple initial complaints, frequent mitigated sentences for family violence offenders, and Turkey’s high rates of domestic violence. Discrimination ‘resulted from the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence and judicial passivity in providing effective protection to victims.’ The ECtHR also specified that perpetrators’ rights to privacy and family life can not subjugate the victim’s right to physical and mental integrity.
But, Opuz v. Turkey was not the first time the ECtHR was asked to examine domestic violence. INTERIGHTS brought a case before the ECtHR in March 2007 on behalf of a Georgian mother, her son and daughter, who were victims of recurring, escalating domestic violence. During the ongoing psychological and physical abuse the mother filed police complaints with the police and appealed six times the authorities’ decisions not to press charges or open investigations. The victims’ application to the ECtHR did not claim discrimination under article 14 but, instead, violations of the prohibition on torture, right to privacy and family life, and right to remedy. Without listing reasons, the ECtHR dismissed the application against Georgia as ‘manifestly ill founded’ just six months before the decision in Opuz v. Turkey.
Subsequently, in late June 2009, INTERIGHTS redirected this case to the CEDAW Committee, focusing on arguments of domestic violence as gender discrimination. The communication from the mother and daughter to the CEDAW Committee in Gegidze v. Georgia, rest generally on the same facts previously presented to the ECtHR. Consequently, the State of Georgia objected that the ECtHR’s dismissal constituted a review by an international judicial body and prevented proceedings before the Committee on the ‘same matter’ under the legal theory of res judicata. The Committee disagreed with Georgia’s assessment. In July 2013, the Committee deemed the communication admissible based on its ‘different legal orientation.’ Now ‘discrimination based on sex is at the heart of the communication,’ with claims of ‘repeated domestic violence’ as the crux of the arguments. (Decision of the Committee on the Elimination of Discrimination against Women, Communication No. 24/2011, Gegidze v. Georgia, 55th Sess., 26 July 2013) Thereby, the Committee reaffirmed that alleging a systemic failure to address domestic abuse constituting discrimination against women is entirely different than arguing infringements of individually-held rights and resulting harms to the applicants.
Indeed, the social realities in Georgia reflect a systemic failure. Despite Georgia’s accession to CEDAW in 1994, no policy or legislation regarding domestic violence existed before the Prevention of Domestic Violence Act of March 2006. As late as 2010, National Research on Domestic Violence Against Women in Georgia, (funded by Norway and UNFPA) found a need for ‘effective policies and mechanisms for elimination of gender inequality and for combating domestic violence, as well raising public awareness’. Although every eleventh married woman suffered physical abuse, just over 75% of interviewed individuals ‘consider[ed] that the topic of domestic violence must not be discussed publicly since speaking about family problems is taboo.’
As evidenced, pursuing social justice is often a slow process that does not always follow a direct, straightforward path, but norms surrounding domestic violence have substantially progressed. The CEDAW Committee’s admissibility decision to in Gegidze v. Georgia is a welcome recognition that incidents of domestic violence require proper and rigorous scrutiny by international bodies.