International and regional human rights conventions are legally binding treaties which define our human rights under international law and set out the obligations of States Parties to ensure that human rights are respected, protected and fulfilled. The human rights conventions ratified by the UK can be used to hold the UK Government to account when its actions or omissions fall short of what is required to properly respect, protect and fulfil the rights of women and girls. This section includes key human rights conventions, standards and case law aimed at eliminating discrimination and violence against women and girls.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW or the Women’s Convention) was adopted by the UN General Assembly in 1979 and came into force in 1981. It has been heralded as an international bill of rights for women, defining international standards for women’s rights across the world, within both the public and private spheres. CEDAW requires States to pursue by all appropriate means and without delay a policy of eliminating discrimination against women (Article 2) and to take all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men (Article 3).
The Optional Protocol (OP) establishes two complaint procedures for the Women’s Convention. The communications procedure allows individual women, or groups of women, to submit claims of violations of rights protected under the Convention to the CEDAW Committee. The inquiry procedure enables the CEDAW Committee to initiate inquiries into situations of grave or systematic violations of women’s rights. For either of the complaint procedures to apply, States must be party to both the Convention and the Protocol.
Under the Optional Protocol to CEDAW, individuals and groups of individuals from States that have ratified CEDAW and the OP, can submit communications to the Committee. Communications can also be submitted on behalf of individuals (for example, by NGOs), with their consent. Communications may be submitted in any UN language (English, French, Russian, Arabic or Chinese).
Communications must concern a violation of one or more Convention right and may only be submitted if all available domestic remedies have been exhausted. Once the submission setting out the complaint has been received by the Committee, it will be sent to the State Party concerned, which has six months to respond. The Committee may request additional relevant information from the parties before making a decision. The Committee will first decide on the admissibility of the Communication (i.e. whether the complaint meets the procedural requirements under the OP). If the complaint is deemed to be admissible, the Committee will then consider the merits of the case.
The Committee will publish its decision on whether there has been a violation of Convention rights and if so, will set out recommendations for the State Party which must submit a written response detailing the action it has taken to follow the recommendations within six months.
A full library of decisions by the CEDAW Committee on individual complaints can be found here.
Guidance on submitting a compliant to the CEDAW Committee
The CEDAW Committee issues General recommendations (GRs) from time to time regarding the interpretation or application of the Convention. GRs provide guidance for States parties on how to comply with their obligations under the Convention to better respect, protect and fulfil the civil, political, economic, social and cultural rights of women and girls. The GRs that have been issued by the CEDAW committee can be found here.
The GRs cover a wide range of issues, including the use of temporary special measures (GR5), the core obligations of States under the Convention (GR28), State obligations to combat violence against women and girls (GRs 19 and 35), the gender-related dimensions of refugee status, asylum, nationality and statelessness of women (GR32); women’s access to justice (GR33); and the rights of rural women (GR34).
General Recommendation 19 acknowledges gender-based violence as a serious and harmful form of discrimination that inhibits women’s enjoyment of rights and freedoms. It defines gender-based violence as violence that is directed against a woman because she is a woman, or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.
GR35 updates GR19, adopting the term ‘gender-based violence against women’ to make explicit the gendered causes and impacts of violence. GR35 strengthens the understanding of violence against women ‘as a social rather than an individual problem, requiring comprehensive responses beyond those to specific events, individual perpetrators and victims/ survivors’.
Below are a selection of the most recent reports and related documents submitted in respect of the UK’s CEDAW reporting obligations. Access to the full library of reports relating to the UK can be found here.
As part of the CEDAW reporting process, NGOs can submit ‘shadow reports’, which offer an opportunity to submit additional information to the CEDAW Committee. Sisters For Change submitted a shadow report to the CEDAW Committee in relation to the consideration of the UK’s 8th Periodic Report, which can be accessed below.
This is a non-exhaustive list of cases setting out the views adopted by the CEDAW Committee. A full library of recent cases considered by the CEDAW Committee can be found here.
S.F.M. alleged that Spain had violated her rights to high-quality health services free from violence and discrimination, to personal autonomy and to physical and psychological integrity under CEDAW articles 2, 3, 5 and 12 through the obstetric violence she suffered in hospital during childbirth.
The Committee noted its role was to assess the State party’s compliance with its obligation to exercise due diligence in the administrative and judicial proceedings initiated because of the acts which were the subject of S.F.M’s complaint. The Committee stated that stereotyping affects the right of women to be protected against gender-based violence, in this case obstetric violence, and that the authorities responsible for analysing responsibility for such acts should exercise particular caution in order not to reproduce stereotypes. In the present case, the Committee found that there was an alternative to the situation experienced by S.F.M, given that her pregnancy had progressed normally and without complications and that there was no emergency when she arrived at the hospital but that, nevertheless, from the moment she was admitted, she was subjected to numerous interventions about which she received no explanation and was allowed to express no opinion. The Committee held that the administrative and judicial authorities of the State party applied stereotypical and thus discriminatory notions by assuming that it was for the doctor to decide whether or not to perform an episiotomy, stating without explanation that it was “perfectly understandable” that the father was not allowed to be present during the instrumental delivery and taking the view that the psychological harm suffered by S.F.M was a matter of “mere perception”.
The Committee found a violation of CEDAW articles 2(b), (c), (d) and (f), 3, 5 and 12.
Natalia Ciobanu was an older women in a critical economic situation after providing care for her severely disabled (and now deceased) daughter for 20 years. The CEDAW Committee noted that the lack of social security policies for parents of children with disabilities disproportionately affected women given the fact that they were the primary caregivers for their children with disabilities with no supporting social services to enable them to combine childcare obligations with work responsibilities.
The Committee found that the State party denied Natalia Ciobanu equality in respect of the right to social security in cases of retirement and old age and failed to provide her with any other means of economic security or any form of adequate redress in violation of its obligations under CEDAW article 3 and article 11(1)(e). Further, the State party’s failure to take all appropriate measures, including through legislation, to ensure the full development and advancement of women providing care for their children with disabilities in a society that traditionally attributes caregiving responsibilities to women, constituted indirect gender-based discrimination in violation of article 11(2)(c) of the Convention.
Both X and Y suffered repeated acts of domestic violence perpetrated by their husbands. All complaints submitted by them or by medical personnel on their behalf to the authorities and the police resulted in no action, with no criminal cases against the perpetrators opened, despite two decisions by prosecutors reversing the police refusal to open a criminal case. As a result, the perpetrators were not sanctioned. Instead, X and Y were informed that they could initiate private prosecutions against the perpetrators.
The Committee held that, in the absence of a comprehensive law on domestic violence and without any proper definition of domestic violence in legislation, requiring X and Y to initiate private prosecution proceedings, in which they had to call and interrogate witnesses, collect evidence and be forced to confront the perpetrators directly at the trial or risk having the proceedings closed, without any protection system in place for them as victims of domestic violence, was not a proper mechanism to address, prosecute and sanction a crime as serious as domestic violence.
The Committee concluded that by adjudicating acts of domestic violence through a system of private prosecution, the State party failed to fulfil its due diligence obligation to prevent and punish acts of violence as part of its obligations under CEDAW article 2. Further, requiring a victim of domestic violence to resort to private prosecution, where the burden of proof is placed entirely on her, denied the victim access to justice. The Committee found a violation of X and Y’s rights under CEDAW articles 2(a), (e)–(g) and 3.
J.I alleged that Finland had failed in its duty of due diligence to protect her and her son, E.A., from, and investigate incidents of, domestic violence by her intimate partner, J.A. She argued that whilst legislation existed regarding the equality of men and women and the best interests of the child, in reality, national decision makers and law enforcement officials did not implement it properly, allowing gender stereotypes to affect the weight given to the evidence of victims and vulnerable persons, often women and children, versus that of the perpetrator, and that the authorities had failed to protect her and her son owing to gender stereotypes in decision-making that minimized the importance of the father’s violence.
The Committee noted that in the custody hearing relating to E.A, the court had questioned the mental state of J.I, a victim of domestic violence, and her hostility towards her alleged abuser without questioning the mental stability or carrying out an assessment of J.A, the accused abuser, before giving him the sole custody of his child. Almost immediately after the custody decision, the prosecutor brought charges against the father for violent assault but two weeks later, the child was handed over to his father without further checks being carried out. The mother was subjected to a psychiatric assessment in relation to custody and visitation rights, which showed no cause for concern, but the father was never subjected to such an assessment, despite his criminal conviction.
The Committee stressed that stereotypes affect the right of women to impartial judicial processes and that the judiciary should not apply inflexible standards based on preconceived notions about what constitutes domestic violence. The Committee found that the authorities, in deciding on the custody of E.A., applied stereotyped and therefore discriminatory notions in a context of domestic violence by treating a repetitive pattern of unilateral violence by J.A. as a disagreement between parents, affirming that both parents committed violence and dismissing the importance of J.A.’s criminal conviction, and according custody to a violent man. The Committee concluded that Finland had violated its obligations under articles 2 (a), (c), (d), (e) and (f), 15 (a) and 16 (1) (d) and (f) of the Convention.
The applicant had been convicted of the homicide of her abusive husband but claimed that her actions had been lawful and necessary to defend herself. The CEDAW Committee found that the State authorities had failed to address the issue of ongoing domestic violence, including failing to collect evidence and to conduct a proper investigation, and had failed to protect the applicant from domestic abuse in breach of their due diligence obligations.
The Committee found that Timor-Leste was in violation of CEDAW Articles 2(c), (d) and (f) and 15, read jointly with CEDAW Article 1 and CEDAW GRs 19, 28, 33 and 35.
The State’s failure to properly investigate and prosecute a crime of femicide constituted a failure to protect and punish and a failure to meet the required due diligence standards.
The Committee found violations of CEDAW Articles 2(b) and (c) and Article 5, read in conjunction with Article 1.
The State’s failure to investigate domestic violence and abuse, in part based on gender stereotypes, constituted a failure to protect and a failure to meet due diligence standards.
The Committee found that Russia was in violation of CEDAW Articles 1, 2 (b)–(g), 3 and 5(a).
The State’s failure to investigate allegations of domestic abuse, including physical and sexual violence, had resulted in the failure to adequately protect the applicant and her children from violence and had violated the due diligence obligation.
The Committee found violations of CEDAW Articles 2(b)-2 (f), in conjunction with Articles 1 and 5(a) and CEDAW GR19.
This case acknowledges the impact of negative gender stereotyping on the right to a fair trial. In this case, the domestic court had taken the failure of a woman with a disability to resist or escape her rapist as an indication of her weak credibility as a witness.
The Committee found that The Philippines was in violation of CEDAW Articles 2(c), (d) and (f), read in conjunction with Article 1 and CEDAW GRs 18 and 19.
The CEDAW Committee held that the murder of the applicant’s daughter at the hands of her violent father had been foreseeable and the State had failed to meet its due diligence obligations to protect both the applicant and her daughter.
The Committee found violations of CEDAW Articles 2(a-f); 5(a); and 16(1)(d), read jointly with Article 1 and CEDAW GR19.
The Committee found the failure to investigate allegations of domestic violence constituted a failure to effectively prevent violence and protect the victim as required by the due diligence obligation.
The Committee found Bulgaria in violation of CEDAW Article 2(b), (c), (d), (e) and (f); Article 5(a); and Article 16(c), (d) and (f), read in conjunction with Articles 1 and 3.
This case sought to challenge the legality of a manifestly lenient sentence given to a man convicted of sexual assaults against a child. The CEDAW Committee held that the Bulgarian authorities had failed to exercise due diligence to protect the young girl from sexual assault, failed to provide an effective remedy and failed to provide protection from the perpetrator.
The Committee found that Bulgaria was in violation CEDAW Articles 2(a), (b), (c), (e), (f) and (g), read together with Articles 1, 3 and 5(a) and (b), Article 12 and Article 15(1).
This is a key case on gender stereotyping by criminal justice authorities. The CEDAW Committee held that the judge in a rape case had based his decision on a number of discriminatory stereotypes and on the personality and characteristics of the rape victim, rather than on the substance of the allegation.
The Committee found violations of CEDAW Article 2(c) and (f) and Article 5(a), read in conjunction with Article 1 and CEDAW GR19.
Both cases involved domestic homicides that had been committed in the context of a prolonged period of abuse. The CEDAW Committee held that failure to take sufficient action against the perpetrators and failure to prevent the deaths of the two victims constituted a violation of the due diligence obligation.
In both cases, the Committee found violations of CEDAW Articles 2(a) and (c)–(f) and Article 3, read in conjunction with Article 1 and CEDAW GR19.
This case confirmed that gender-based violence (in this case, domestic violence and abuse) is a form of discrimination within the definition of CEDAW Article 1 and held that States can be responsible for private acts of violence if they fail to take steps to prevent and protect.
The Committee found violations of CEDAW Articles 2(a), (b) and (e) and Article 5(a), in conjunction with Article 16.
The 1993 Declaration on the Elimination of Violence Against Women (DEVAW) was the first international instrument to explicitly address violence against women. DEVAW sets out a broad definition of violence against women as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life’.
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations on 10 December 1948. It is a landmark document in the history of human rights which sets out for the first time the rights and freedoms to which all human beings are entitled. The UDHR outlines a common standard of human rights, based on the principles of universality, indivisibility and interdependence.
The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations on 16 December 1966 and came into force on 23 March 1976. To date, 172 countries have ratified the ICCPR, and a further six States have become signatories. Together, the UDHR, ICCPR and the International Covenant on Economic, Social and Cultural Rights (see below) are considered the International Bill of Human Rights. The ICCPR is a key international human rights treaty giving legal force to a range of civil and political rights and freedoms, including the right to life (Article 6), freedom from torture and cruel, inhuman or degrading treatment (Article 7), freedom from slavery (Article 8), the right to liberty (Article 10), the right to respect for privacy and family (Article 23) and the rights to equality before the law and the equal protection of the law (Article 26). The UK ratified the ICCPR in 1976.
The First Optional Protocol to the ICCPR (OP1) establishes the complaints procedure for the ICCPR, empowering the Human Rights Committee to receive and consider individual communications concerning violations of the ICCPR. Complaints can only be made against a State party that has ratified OP1 – currently 116 of the 172 States parties.
The UK has not ratified the First Optional Protocol to the ICCPR.
The Second Optional Protocol to the ICCPR (OP2) concerns the abolition of the death penalty and obliges States parties to refrain from using execution and to take all necessary measures towards the abolition of the death penalty in their jurisdictions. To date, 86 countries, including the UK, have ratified OP2.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the United Nations on 16 December 1966 and came into force on 3 January 1976. The ICESCR has been ratified by 169 countries. The ICESCR reflects the commitments adopted after World War II to promote social progress and better standards of life and protects a wide range of economic, social and cultural rights, including the right to work and to just and favourable conditions of work (Articles 6 and 7); the right to form and join trade unions and the right to strike (Article 8); the right to social security including social insurance (Article 9); the right to an adequate standard of living for oneself and one’s family, including adequate food, clothing and housing and to the continuous improvement of living conditions (Article 11); the right to the highest attainable standard of physical and mental health (Article 12); and the right to education. The rights contained in the Covenant are exercisable without discrimination. The ICESCR also protects communal rights, such as the prohibition of depriving a people of its own means of subsistence and the right of all peoples to freely dispose of their natural wealth and resources based upon the principles of mutual benefit and international law.
The UK ratified the ICESCR in 1976.
The Optional Protocol to the ICESCR was adopted on 18 July 2008 and came into force on 5 May 2013. It establishes both an individual complaint procedure and an inquiry procedure in cases of grave and systematic complaints.
The UK has not ratified the Optional Protocol to the ICESCR.
The Convention against Torture (CAT) was adopted on 10 December 1984 and came into force on 26 June 1987. It defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for the purpose of obtaining a confession, as a means of punishment, in order to intimidate or coerce, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, at the instigation of or with the consent or acquiescence of a public official or any person acting in a public capacity. The CAT establishes universal jurisdiction for the offence of torture and Article 22 establishes an individual complaints procedure.
The UK ratified the CAT in 1988.
The Optional Protocol to the CAT was adopted in 2002 and came into force in 2006. The OP establishes a monitoring mechanism with a mandate to visit places of detention.
The UK ratified the Optional Protocol to the CAT in 2003.
General Comment 2 concerns the implementation of Article 2 of the CAT by States Parties. It specifically makes reference to the application of the CAT to States parties’ failures to prevent and protect victims from gender-based violence such as rape, domestic violence, female genital mutilation, and trafficking.
The Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted on 21 December 1965 and came into force on 4 January 1969. It obliges States parties to pursue with all available means and without delay a policy of eliminating racial discrimination in all its forms. In accordance with Article 14 CERD, States parties may declare their recognition of the competence of the Committee on the Elimination of All Forms of Racial Discrimination to accept individual complaints.
The UK ratified CERD in 1969.
The Convention on the Rights of Persons with Disabilities (CRPD) was adopted on 13 December 2006 and came into force on 3 May 2008. The Convention defines disability as any long-term physical, mental, intellectual or sensory impairment and obliges States parties to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. The CRPD emphasises the need to promote a gender perspective in efforts to promote the full enjoyment of human rights and fundamental freedoms by persons with disabilities.
The UK ratified the CRPD in 2009.
The Optional Protocol to the CRPD establishes an individual complaints procedure. The UK ratified the OP in 2009.
The International Covenant on the Protection of the Rights of All Migrant Workers and Members of Their Families was adopted in 1990 and came into force in 2003. One of the key concerns of the Committee that monitors implementation of the IMCW is the rights of women migrant workers, who dominate sectors such as domestic work and who are particularly affected by sexual and physical abuse and harassment in the workplace.
The UK has not ratified this Convention.
The UN Special Rapporteur on Extreme Poverty and Human Rights visited the UK in November 2018. His statement emphasised the prevalence of poverty in the UK and highlighted the disproportionate impact of poverty on women, noting concerns with the rollout of Universal Credit and implementation of the policy of making single payments, which entrenches gendered dynamics within relationships and risks giving control of payments to abusive partners within family units where there is domestic abuse. Professor Alston also recorded the risk of exploitation of migrants with ‘No Recourse to Public Funds’.
The special procedures of the UN Human Rights Council are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. Special Rapporteurs and Independent Experts conduct country visits, act on individual cases and concerns of a broader, structural nature by sending communications to States, undertake research and contribute to the development of international human rights standards.
Working groups on thematic issues such as arbitrary detention can investigate individual complaints and may make declarations and recommendations, although their decisions are not legally enforceable. UN Commissions of Inquiry and Fact-Finding missions play a vital role in the gathering of evidence and documentation of serious and widespread human rights violations which may later be used by courts and tribunals.
The role of the UN Special Rapporteur on violence against women, its causes and consequences (Special Rapporteur on VAW) was established in 1994. In 2014, following her mission to the UK, the UN Special Rapporteur on VAW published a report which found that domestic violence is one of the most pervasive forms of violence against women in the UK. Concerns identified by the Rapporteur included the increase in the number of reported cases of sexual violence, the UK Government’s refusal of permission for the Special Rapporteur to visit Yarl’s Wood Immigration and Removal Centre, cuts to legal aid and their impact on women’s access to justice, and regressive measures – including the move towards gender-neutral services and austerity policies – which have impacted on the provision of services in the violence against women and girls sector.
The European Convention on Human Rights (ECHR) is the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms. States or individuals can bring complaints under the Convention before the European Court of Human Rights.
The case law of the European court of human rights is available in a freely accessible database which can be found here.
ECHR Protocol 12 sets out a general prohibition of discrimination for all public authorities regarding the application of Convention rights. The UK has not yet signed or ratified Protocol 12.
The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is a Council of Europe convention based on Article 3 of the ECHR, with the focus of preventing torture and inhuman or degrading treatment. It was ratified by the UK in 1988.
This Council of Europe Convention was adopted in 2011 and came into force in 2014. The Istanbul Convention focuses on the prevention, protection and prosecution of acts of violence against women. The UK signed the Istanbul Convention in 2012 but is yet to ratify it. In 2017, the UK Government passed the Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 which sets out the UK’s commitment to ratification.
The Istanbul Convention is based on the understanding that violence against women is a form of gender-based violence that is committed against women precisely because they are women. The Convention sets out State obligations to address gender-based violence by taking measures to prevent violence against women, protect victims of violence and punish perpetrators.
The Group of Experts on Action Against Violence Against Women and Domestic Violence (GREVIO) is the independent expert body responsible for monitoring the implementation of the Istanbul Convention by States parties. GREVIO has the mandate to publish reports on implementation by States parties, to initiate inquiries in respect of allegations of grave and widespread violations of the Istanbul Convention and to adopt general recommendations. GREVIO’s country reports and related information can be found here.
The Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Act 2017 obliges the secretary of state to report to parliament annually (in November) with progress updates regarding the steps taken and actions still required to enable the UK to ratify the Istanbul Convention.
Government reports on the UK’s progress towards ratification of the Istanbul Convention can be found here.
It is settled in ECHR case law that rape and serious sexual assault amount to treatment falling within the ambit of ECHR Article 3 and that Contracting States have positive obligations under ECHR Articles 3 and 8 to criminalise rape and serious sexual assault and effectively investigate credible allegations. The characteristics which an investigation must display to be seen as effective include promptness, reasonable expedition, adequacy, thoroughness, objectivity and sufficient involvement of the victim.
This case concerned the question whether a criminal investigation into a woman’s allegations of “stranger rape”, accepted as credible by the authorities, was sufficiently thorough and effective to meet the requirements of ECHR Articles 3 and 8 and, in particular, whether the investigating and prosecuting authorities directed enough effort towards identifying who had committed the rape or whether they failed to follow an obvious line of inquiry resulting from the DNA evidence in the case.
The Court concluded that the investigation, though satisfactory in several other respects, failed to properly pursue a line of inquiry which was obvious. The Court noted that the applicant herself did not press for the pursuit of this line of inquiry but stated that the obligation to investigate effectively is not limited to responding to assertions and specific requests by the alleged victim. The Court found that the authorities’ failure to make a serious attempt to clear up discrepancies, which in view of the DNA evidence were central to the case, was not simply an isolated error but a significant shortcoming which undermined the adequacy of the investigation. The positive obligation under ECHR Articles 3 and 8 to ensure effective protection against rape called for measures of a criminal-law nature. As such, the lack of an effective criminal investigation into the applicant’s allegations could not be made good by the possibility for her to bring claims for damages against the alleged perpetrator of rape. There had therefore been a breach of the State’s positive obligations under both Articles 3 and 8 of the Convention.
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 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.
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 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.
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.
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.
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 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).
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).
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).
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.
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.