From Theory to Reality – the Role of Law for ending DV

Genoveva Tisheva

Bulgarian Gender Research Foundation

The UN system – the main and most reliable source of binding and soft law instruments for the protection of women from Domestic Violence and of inspiration for domestic legislation :

the Universal Declaration, ICCPR, ICESCR UN Convention against Torture CEDAW and GR 19/ 1992, CEDAW Opt. Protocol Vienna Declaration and Programme of Action from

the World Conference on Human Rights DEVAW Beijing Platform for Action /BPFA/ Reports of the Special Rapporteur on VAW

The international law on VAW and DV and also the national laws were by far brought to existence by women’ s organizations and women’ s movement, the UN system being the entry point. Important changes in the standards and national law are the results of this movement too.

And this is true and striking that up to now no reliable regional instrument against VAW and DV was agreed in Europe, despite the CoE system and the EUnion.

The law and mechanisms of the ECHR, as well as the case law of the ECtHR so far, are not adapted for the needs for timely and effective protection against DV.

That’ s why it is of relevance that within the CoE voices for an international or European treaty is needed for the protection of women against violence.

“The time has come to develop legally binding norms for the prevention, protection and prosecution of violence against women, including measures for the care of victims. A discussion should start on the most effective format of such a treaty, European or international. The aim is clear: zero tolerance.“

Commissioner Thomas Hammarberg, January 2008

The absence of a special standard is again the confirmation of the high level and deeply- rooted gender stereotypes in Europe.

Even if we have national laws, we have to be vigilant because these laws, their implementation, the mechanisms and institutions tend to reproduce the very stereotypes which make the basis for VAW.

We have to double efforts because we are adding such stereotypes from our regions to an already stereotyped old Europe.

At the difference of the American system, which offers us examples of theory, laws and case law- US is the champion of domestic laws, the Inter- American system- of standards and case law.

Ex. the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, in force since March 5, 1995

According to International universal standards on Domestic Violence / CEDAW, GR 19, DEVAW/, the priciples which should be expressed and translated into domestic laws in order to make theory and law reality are:

1. DV is a violation of a series of human rights protected by the UN instruments, like : The right to life; - The right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment; - The right to liberty and security of person; - The right to equal protection under the law; - The right to equality in the family; - The right to the highest standard attainable of physical and mental health; - The right to be free from discrimination, etc.

2. DV is a typical and one of the most spread forms of Gender Based Violence/ GBV/:

violence which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions,

is a distinct form of discrimination. The definition of discrimination includes gender-based violence, 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.

3. DV are aggressions based on the traditionally subordinated role of women in the society. They are usually invisible since they are hidden by the cultural and traditionally patriarchal patterns.

They are the manifestation of the fundamentally unequal positions of women and men.

Another way to make law reality is To use CEDAW and its Optional Protocol as a

main instrument for protection against DV- a fact also confirmed by the practice of the Committee under the Optional Protocol so far- the Hungarian case / AT v. Hungary/ and 2 Austrian cases / of Fatma and Sahide/

To report on the situation about DV in the so called alternative or shadow reports to the official governmental ones and presented before the CEDAW Committee

Arguments from CEDAW for making law practice:

Art 1- GBV and DV represent discrimination Art. 2 e/ – Positive obligation for the states

to eliminate discrimination against women by any person, organization or enterprise- addresses the public/ private divide

Art. 4 Possibility for adoption of temporary special measures for achieving substantive equality

Art. 5 –Positive obligation for the states to change not only the law but also the traditions if they make an obstacle for equality or when they are a source of discrimination. And this is valid whatever is the level of authority of the source of tradition.

Art. 15- Equality before the law Art. 16- Equality in marriage and family

relations

A new and important area for state intervention in the domestic laws and practice is:

the modification of the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on the stereotyped roles for men and women (CEDAW, Art. 5).

Law should also condemn stereotypes, customs and even norms which can “justify” multiple discrimination of women.

An important document for the practical realization of rights: CEDAW General Recommendation 19/ 92

The issue of VAW was not regulated explicitly by the CEDAW in 79 when the Convention was adopted.

The gap was filled by GR 19/92- a strong and essential interpretation of CEDAW which elaborates the Committee's view of the obligations assumed under the Convention and is addressed to States parties

Since 92 the States should address under the Convention the issue of violence as well.

GR 19 clearly states an essential principle that

The States are responsible for violence perpetrated by private persons as well if state institutions have not implement the due diligence for preventing violence or for prosecuting and punishing such acts or have not provided mechanisms for compensation of the victim.

This interpretation influenced also by the concept of due diligence developed for the first time in the case Velasquez- Rodriguez from 1989 of the Inter- American Commission about the lack of due diligence of the state to prevent the HR violation.

The State should take reasonable steps to prevent HR violations, to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation

It is important fro the real protection of women’ s rights to further develop the due diligence principle in our laws and practice, for ex. to make the states fulfill their commitments understaken also within the DEVAW:

exercise due diligence to prevent, investigate and, in accordance with national legislation,

to punish acts of violence against women, whether those acts are perpetrated by the State or by private persons;

develop penal, civil, labour and administrative sanctions to punish and redress wrongs caused to women,

to provide access to the mechanisms of justice, to provide just and effective remedies;

And further:

Develop preventive approaches to promote the protection of women against any form of violence;

Including in government budges adequate resources for their activities related to the elimination of violence against women;

Make measures sensitization training of the law enforcement officers and public officials responsible for implementing policies on violence against women;

Promote research, collect data and compile statistic on VAW, ect.

Important for the protection against DV in practice:

Although DV affects women in all communities, women from some minority communities and marginalized women are more deeply affected and have less chances for protection and rehabilitation.

It enhances their isolation, poverty and social exclusion and also affects the chances of their children for full development. Additional and special legal and social work is needed for addressing DV in these communities.

This is particularly relevant to the situation in some countries in the region we broadly defined for this conference- where groups of women are the poorest of the poor and if also victims of violence, they are further marginalized and excluded.

We are all responsible to make the law work for them too and to not allow the system to further isolate them.

Such examples are offered in the cases of :1/ Honour related violence / HRV/ - the result of the patriarchal order, justified and protected as culturally specific and, therefore, a culturally unique practice. Marital sexual slavery, seclusion, arranged marriage, brideprice, polygyny and genital mutilation, this is all the expression of female sexual slavery with well developed ideologies rooted in the customs, religion and laws of the societies.

2/ The role of the informal institutions- traditions, family, communities with cult for patriarchy- for undermining gender equality and hampering the freedom of women from violenceThe informal institutions can make a barrier for the implementation of both national and international law- for ex. the legislation against domestic violence not applied in Roma communities.

Besides DV, Roma women are affected by violence as a result of traditional practices as of coemptio/ransom paid for the bride/, kidnapping, etc.

Reaction of the state and civil society is needed in order to break through the closed realm of the informal institutions.

3/ Women with disabilities are among the poorest members of our societies and thereforeare placed in situations in which they must rely on others to a greater degree than do those without disabilities.

For women with disabilities, the abuse may be perpetrated by an intimate partner or spouse, by a family member or care-giver (e.g., health care service provider, doctor, nurse, institutional and residential staff or attendant). When people depend on others for basic primary care, they may be more vulnerable to abuse.

Of women with disabilities, it is estimated

that 83% will be sexually abused in their lifetime.

Of girls with intellectual disabilities, it is estimated that 40% to 70% will be sexually

abused before the age of 18

The UN Convention on the Rights of persons with disabilities - in force since 30 March 2007 - Guarantees a broad set of rights alos for women and girls with disabilities, including the freedom from torture, form discrimination, etc.

Special measures and special approach in legislation and legal practice is needed for tackling VAW with disabilities.

Other mechanisms and approaches are needed to make theory and law reality:

effective implementation of the laws litigation at national and international levels applying the CCR/ coordinated community

response/ ensuring sustainability of the activities for

protection of the victims monitoring the whole process of implementation

of national and international standardsIn order for the level of EVAW in our region to become a reliable indicator for the social progress achieved in our societies.