The development of the legal obligation of due diligence in international law has played a crucial role in the recognition of the responsibility of States to take positive action to prevent and respond to violence against women, whether committed by State officials or by non-State actors. The due diligence obligation confirms that VAWG is not a ‘private’ matter, but is unequivocally a human rights issue.

The due diligence obligation refers to the duties of the State to respond to human rights violations and it is an important principle of international law. CEDAW recognises the due diligence obligations of States (Articles 2(e), 2(f) and 5 and CEDAW GR 19 and 35). The due diligence obligation defines the responsibilities of States under five key heads: Prevent, Protect, Investigate, Punish, Remedy and Repair.

To read a summary explanation of each obligation and access a compilation of key case law relevant to that obligation, or to read more about UK Human Rights and Equality Law more broadly, click on the respective link below.

Please note, this compilation of cases from the UK domestic courts and the European Court of Human Rights focuses primarily on the ‘due diligence obligation’ and is intended to be illustrative not exhaustive.

States must identify types and prevalence of VAWG; implement effective legislative and other appropriate preventive measures to address the underlying causes of gender-based VAWG; develop effective measures to address and eradicate prejudice, stereotypes, customs and practices that condone or promote gender-based VAWG; integrate gender equality into curricula at all levels; develop effective measures to make public spaces safe and accessible to all women and girls; provide mandatory training for judiciary, lawyers, law enforcement officers, health-care professionals etc to equip them to adequately prevent and address gender-based VAWG; and take steps to encourage all media to eliminate discrimination against women including harmful and stereotyped portrayal of women.

ECHR CASES

In the context of prolonged domestic abuse, including the use of weapons and death threats, the authorities did not pursue a criminal prosecution when the complaints were withdrawn by the victim. Ultimately, the applicant’s mother was shot and killed by the applicant’s abusive husband after a prolonged period of violence directed both at the applicant and her mother. The authorities had repeatedly dropped cases, treating the issue as a private family matter.

The Court found that they had failed to act with due diligence and their failure to protect the applicant’s mother constituted a breach of ECHR Article 2 (the right to life). The Court found a further failure to meet the positive obligations to prevent breaches of Article 3 (prohibition of torture) regarding their failures to take any preventative measures to stop the applicant’s husband’s offending.

This case established that the obligation to prevent domestic violence exists in the context of threats of violence even where no physical acts have been committed. The failure to act on threats constituted a violation of Article 8 (private and family life) as the conduct of the applicant’s husband meant that the authorities knew or ought to have known that he presented a real and immediate risk.

States are required to develop appropriate legislative frameworks, policing systems and judicial procedures (such as restraining orders; expulsion orders; and victim protection procedures) that will provide the necessary protection for all women and girls, including a safe environment for women to report acts of violence; gender-sensitive court procedures; accessible protection mechanisms to prevent further violence; and access to free or low cost high quality legal aid. In situations where particular women and girls are known to be at risk of violence, States must take reasonable steps to protect them from harm.

ECHR CASES

This was the first ECHR case to deal substantively with domestic violence and it concerned the positive obligation to provide protective measures. In the context of prolonged domestic abuse, including death threats, the applicant’s husband shot himself and their two children dead. Authorities had been aware of the abuse but the applicant had withdrawn criminal complaints and no actions had been taken by the authorities. The Court confirmed the State’s obligations to take preventative operational measures where authorities knew or ought to have known that there was a real and immediate risk to life. In this case, the authorities had failed to do so and were in breach of their positive obligations under ECHR Article 2 (the right to life).

The Court held that there had been a violation of ECHR Article 8 (the right to private and family life) in the failure of the authorities to protect the applicant from her violent ex-husband, and also in the excessively lengthy custody proceedings regarding their son. The Court found a violation of the positive obligations under Article 8. This was the first time that the Court had found that domestic violence could constitute an Article 8 violation.

This case concerned the decision of the Parole Board to direct the release of John Radford. Radford – previously known as John Worboys – had been convicted of 19 offences including numerous sexual offences and one count of rape in respect of 12  separate female victims. Radford was convicted after trial and sentenced to an indeterminate sentence of imprisonment for public protection with a minimum tariff of eight years. On the expiration of this tariff, Radford was eligible for release if the Parole Board considered that that his imprisonment was no longer required for public protection. In December 2017 the Parole Board directed Radford’s release – a decision that was challenged by the claimants in this case.

The Court found that the Parole Board ought to have carried out or instigated a further inquiry in order to properly probe the credibility of the prisoner in order to assess the risk any continuing risk that he posed to women. Such lines of inquiry would have revealed inconsistencies on the prisoner’s account and details of civil claims he had settled in respect of numerous individuals. In the absence of this information, or any efforts to obtain it, the Court held that the Parole Board had acted irrationally and quashed the decision to direct the prisoner’s release. The Court further found that the Parole Board Rule 25(1) which prohibits any information about parole proceedings being made public was too wide and therefore unlawful.

The duty of investigation is not conditional upon the State being guilty, directly or indirectly, of misconduct itself. The duty to investigate is triggered where there is a credible claim that a woman has been subjected to serious violence, torture, inhuman or degrading treatment at the hands of a private party.

UK CASE LAW

This case related to the police investigation of John Worboys, a serial sex offender known as the ‘Black Cab Rapist’. Worboys is thought to have been responsible for the drugging and sexual assault of over 100 women. Worboys was eventually charged with 23 offences relating to 14 victims and convicted of 19 counts. Two of his victims brought actions against the Metropolitan Police Service on the grounds that the police investigations had been so significantly flawed that they constituted violations of the duty to investigate inherent in the right under ECHR Art 3.

The High Court found in favour of the two victims on the basis of serious systemic and operational failings by the police. The Court of Appeal rejected the appeal by the Metropolitan Police, which then appealed to the Supreme Court.

The Supreme Court held that the State has a duty to conduct an effective investigation into crimes involving serious violence to the individual. Laws prohibiting conduct constituting a breach of Article 3 (prohibition against torture, inhuman and degrading treatment) must be rigorously enforced and complaints of such conduct properly investigated. The duty to investigate can be invoked by an individual who demonstrates that the State’s failure to fulfil its obligation to investigate has led to her suffering treatment prohibited by Article 3. Further, deficiencies in investigations do not have to be part of a flawed approach of a system generally (systemic failings) for a breach of Article 3 but operational errors or failings must be serious to give rise to such a breach. In upholding the claim and dismissing the Metropolitan Police’s appeal, the Supreme Court made it ‘incontestably clear’ that an operational duty arises where there is a violation of a Convention right committed by a private actor. The police were ordered to pay compensation to the victims.

The challenge to the Parole Board decision to release John Radford is considered separately in R (DSD and Others) v The Parole Board of England and Wales [2018] EWHC 694 (Admin) under the duty to prevent and the duty to protect.

ECHR CASE LAW

In this case, the Court held that the rape and physical ill-treatment of a 17-year-old girl in police custody constituted torture in violation of ECHR Article 3. It further found that the public prosecutor’s failure to complete a proper investigation constituted a violation of Article 13, ensuring an effective remedy by national authorities.

Mrs Osman’s husband was killed by her son’s former teacher and her son was seriously wounded. Mrs Osman complained of the failure of authorities to take adequate and appropriate steps to protect the lives of her son and his father from the real and known danger which the teacher posed, and that the domestic Court decision to dismiss their negligence action against the police for reasons of public policy amounted to a restriction on their right of access to a court and a denial of the only effective remedy available to them in the circumstances.

The Court noted that in well-defined circumstances, ECHR Article 2 implied a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. As to the scope of that obligation, the Court considered that, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, any such obligation had to be interpreted in a way which did not impose an impossible or disproportionate burden on the authorities. Accordingly, for the Court, not every claimed risk to life could entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. The Court found no violation of Article 2 (right to life) in the particular circumstances of the case.

This case also challenged the UK police’s complete immunity for operational decisions, finding that such an immunity constituted a disproportionate restriction on Mrs Osman’s access to justice and right to have a determination on the merits of her claim in violation of ECHR Article 6 (the right to a fair trial).

Bulgaria was found to be in violation of Articles 3 (prohibition of torture, inhuman and degrading treatment) and 8 (right to respect for private and family life) ECHR in its failure to enact laws that effectively criminalise and punish rape and the subsequent ineffective rape investigation that was the subject of this complaint.

The applicant in this case, a 14-year-old female, alleged violations of Articles 3, 8, 13 and 14 ECHR. The case related to failures in domestic law and practice regarding a rape investigation which the Court held did not meet the positive obligation to provide effective legal protection against rape and sexual abuse.

The facts of the case involved the 14-year-old applicant who was waiting to go into a bar with her friends when she was approached by three males (P., A. and V.A.). The males invited the applicant to go to the bar with them; she knew two of the males and agreed to join them, on the condition that she needed to be home by 11pm. While the group were in the bar, the applicant repeatedly told them that she needed to go home. She left in a car with the three men but instead of taking her home, they insisted on stopping at a reservoir to swim. The applicant insisted that she did not want to swim, and the three males left her in the car which they had parked close to the reservoir and told the applicant that they were going swimming. P. then returned to the car and made sexual advances to the applicant; she refused and asked him to leave, but P. refused to leave and raped the applicant in the car. She had tried to push him back but did not have the strength to violently resist or scream. P. later claimed that they had consensual sex. P. then returned to the other two men and told them that he had had sex with the applicant. Shortly after, the men returned to the car and drove off, but instead of returning the applicant to her home, they travelled to another nearby town where V.A.’s relatives had a house.

The applicant stated that she had been very disturbed after the rape and had looked to A., who was the brother of her classmate, for support. She followed him and V.A. into a room where the two men talked for a while before V.A. left. At that point, the applicant stated that A. sat next to her, pushed her onto a bed where he undressed her and forced her to have sex. She had begged A. to stop but did not have the strength to resist violently. A. later told the police that they had had consensual sex.

The following morning, the applicant immediately informed her mother of the first rape. They went to the hospital and a medical examination confirmed that the applicant had sustained injuries and that her hymen had been recently torn. At that time, the applicant states that she had found it very difficult to talk about the events and did not disclose the second rape. She was from a small, conservative town and was afraid of the community’s reaction. The applicant stated that P. had subsequently approached her to ask for forgiveness and to propose marriage, something that she considered given the conservative attitudes of the local community towards virginity. During discussions, it was subsequently disclosed by P.’s grandmother that the applicant had had sex with both P. and A. The applicant made a formal complaint of rape to the police and P. and A. were arrested and questioned. After giving statements to the police, they were both released without charge and later made counter-complaints against the applicant and her mother of harassment, claiming that they were making public false statements against them. Police supported P. and A. and dismissed the claims of the applicant and her mother.

The rape investigation was subsequently resumed and following initial questioning of the parties, during which the applicant had explained that she had been in a state of shock and unable to physically resist A. and P. Following an initial investigation, the investigator concluded that the use of threats or force had not been established beyond reasonable doubt and that no resistance on the applicant’s part or attempts to seek help from others had been established. The applicant lodged appeals with the regional prosecutor’s office and the Chief Public Prosecutor’s office, both of which were dismissed on the basis that, inter alia, the applicant had not shown any signs of distress and on the basis that there was no physical force or threats, as required to establish the offence of rape under Bulgarian law.

Rape was defined under Bulgarian law as requiring compulsion by means of force or threats. Interights, intervening in this case, argued that the legal definition of rape had undergone a process of reform in civil and common law jurisdictions alike, as the result of an evolving understanding of the nature of the offence and the fact that research had demonstrated that women, particularly minors, often did not physically resist rape. Interights’ submission focused on the fact that, as an offence against women’s autonomy, the essential element of rape is the lack of consent. It should therefore not be necessary to establish that the accused had overcome the victim’s physical resistance. The Court held that in failing to investigate the surrounding circumstances of the case and by placing undue emphasis on ‘direct’ proof of rape by elevating the resistance of the applicant to the status of a defining element of the offence of rape, the Bulgarian authorities had failed in their positive obligations under Articles 3 (prohibition of torture, inhuman or degrading treatment) and 8 (respect for private life) of the ECHR. In light of this finding, the Court did not consider the alleged violations of Articles 13 (right to an effective remedy) and 14 (non-discrimination).

This was the first ECHR case that decided on the merits of a case concerning human trafficking. The applicant’s daughter had left Russia to work in Cyprus but soon after arriving had left her job. Her manager took her to a police station, requesting that they detain and deport her for immigration matters. The police refused to do so and instead asked her manager to bring her back to the police station at a later date to allow them to carry out further inquiries.

The applicant’s daughter left with the manager and was later found dead on the street outside the sixth floor room where he had left her. The court found a violation of positive obligations under Article 4 (prohibition of slavery and forced labour) and police failures to take operational measures to protect the applicant’s daughter from trafficking. The court found violations of Articles 2 and 4 regarding their failures to investigate both the trafficking and the subsequent death of the applicant’s daughter.

This case concerned a delayed and prolonged investigation into sexual assault allegations which lasted for several years. The court found that these delays constituted a breach of Article 3 obligations.

See also the cases of M.A. v Slovenia and N.D. v Slovenia, which deal with similar issues.

This case found a breach of procedural obligations under Article 3 ECHR regarding the lack of any effective investigation.

This case concerned excessive delays in an investigation where a case relating to sexual assault allegations had gone on for several years. The Court found that authorities had violated Article 3 obligations.

This case dealt with judicial passivity regarding a breach of positive obligations under Article 2. In a case involving the death of a woman, authorities accepted the husband’s account that his wife had committed suicide, even though her father had informed them of the violence she had suffered at the hands of her husband. The failure to investigate constituted a violation of positive obligations under Article 2.

The obligation to punish requires the State to respond adequately to all cases of gender-based VAWG and to effectively prosecute and appropriately punish perpetrators of violence against women and girls. States must ensure safe reporting of VAWG by victims; ensure victims have effective access to courts and tribunals; and take steps to guarantee gender-based VAWG is not mandatorily referred to alternative dispute resolution procedures, including mediation.

UK CASE LAW

In the first case of its kind, the defendant pleaded guilty to manslaughter on the basis that his controlling and abusive behaviour had led to his ex-partner’s suicide. This case demonstrates how criminal laws can be applied to cover different forms of violence against women.

ECHR CASE LAW

This case concerns the right to an adequate remedy. The 16-year-old applicant, who had mental disabilities, had been deemed to lack capacity to instigate a complaint of rape. The court found that this represented insufficient access to remedies and a breach of ECHR Article 8.

States must provide holistic reparations to women victims for acts of VAWG. This involves providing access to criminal and civil remedies and the establishment of effective rehabilitation and support services for women survivors of violence. Compensation for acts of violence against women and girls may include payment of monetary damages for physical and psychological injuries suffered and for loss of employment, as well as any legal, medical or social costs incurred as a consequence of the violence. The duty to provide redress to victims of gender-based violence has been described by former Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo, as one of the most grossly underdeveloped areas of the due diligence standard.

The Human Rights Act 1998, which came into force in 2000, incorporates the majority of rights set out in the European Convention on Human Rights into domestic law. The Act requires that all UK legislation to be given effect in a way that is compatible with Convention rights; places obligations on public authorities to act in a way that is compatible with Convention rights; and allows individuals whose rights have been violated to bring cases before UK Courts.

The Equality Act 2010 legally protects people from discrimination in the workplace and in wider society. It consolidated previous anti-discrimination laws, such as the Sex Discrimination Act 1975 and Race Relations Act 1976, into one single piece of legislation. It provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. The nine protected characteristics under the Equality Act are age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity.

The Modern Slavery Act sets out offences of slavery, servitude and forced or compulsory labour, human trafficking and exploitation, as well as systems for prevention orders, the establishment of an independent Anti-slavery Commissioner and provisions for the protection of victims.

Section 33 of the 2015 Act prohibits the disclosure of private sexual photographs and films with intent to cause distress (‘revenge porn’). Section 37 prohibits the possession of pornographic images of rape and assault by penetration.

Section 76 of the Serious Crime Act 2015 creates the offence of controlling and coercive behaviour in an intimate or family relationship. A person commits an offence by repeatedly or continuously engaging in behaviour towards another person that is controlling or coercive and where there is a personal connection – such as an intimate relationship or shared parental responsibility – between the victim and the perpetrator. The offence can be tried summarily or on indictment and carries a maximum sentence of five years imprisonment.

The 2003 Act creates a range of offences relating to the commission of female genital mutilation.

Sections 121 (England and Wales) and 122 (Scotland) create the offence of forced marriage. A person commits an offence if they use violence, threats or any other form of coercion for the purposes of causing another person to enter into a marriage without their free and full consent. The offence creates extra-territorial jurisdiction if at least one party, either the victim or perpetrator, is a UK national or habitually resident in either England and Wales or Scotland. The offences carry a maximum sentence of seven years imprisonment.

A person commits the offence of harassment if they pursue a course of conduct which amounts to harassment of another and they know, or ought to know, that their conduct amounts to harassment. The offence of stalking was created by the amendments to the Protection From Harassment Act 1997 by the Protection of Freedoms Act 2012.

The Protection of Freedoms Act 2012 amended the Protection from Harassment Act 1997 by identifying stalking as a criminal offence. The amendments came into force in November 2012. The 2012 Act adds two new offences: stalking and (in its more aggravated form) stalking which causes the victim to fear violence or suffer serious alarm or distress. To be guilty of the offence of stalking, the offender must, on at least two occasions, indulge in conduct that causes the victim harassment, alarm or distress. The 2012 Act recognises stalking as harassment that may include persistent and repeated contact or attempts to contact a victim.

This case examined what is meant by the word ‘violence’ in section 177(1) of the Housing Act 1996 (and consequent obligations to provide housing for victims of domestic violence and abuse) and whether it is limited to physical violence. The Court held that ‘domestic violence’ in the context of s.177(1) of the 1996 Act includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm.

This case concerned the responsibility of public authorities to provide housing, confirming that refuge accommodation for victims of domestic violence does not constitute a form of accommodation where it would be reasonable to remain for the purposes of making a homelessness application.

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