Transcript THE UN CEDAW CONVENTION AND DOMESTIC VIOLENCE

THE UN CEDAW
CONVENTION AND
DOMESTIC VIOLENCE:
LETTERS AND PRACTICE
The case of A.T. versus Hungary
Presented by Enikő Pap
Regional Conference on domestic violence legal reform,
Sofia, February 12-14, 2008.
1. The UN CEDAW Convention: Relevant
Articles and General Recommendations
• No concrete provision on violence against women, on
domestic violence; but discrimination against women
includes gender-based violence
• Main applicable provisions to domestic violence:
– Article 2 (comprehensive state obligation to eliminate
discrimination against women)
– Article 5 (elimination of prejudices and practices, based
on the stereotyped roles of women and men)
– Article 16 (elimination of discrimination against women
in marriage and family relations: equality of women and
men, same rights and responsibilities)
The General Recommendations
• GR: Not formal parts, but integral explanatory
sources for the interpretation and full
implementation of CEDAW
• GR No. 12 – The content of state periodic
reports to CEDAW
– Legislation to protect women from all kinds of violence
(sexual violence, domestic violence, sexual harassment
etc.)
– Other measures to eradicate violence against women
– Existence of support services for women victims
– Statistical data on the incidence of violence against
women
General Recommendation No. 19
• The definition of discrimination against women in
CEDAW includes gender-based violence
– GBV may breach the Convention provision, regardless
whether those provisions mention violence
• Discrimination is not restricted to action by or on
behalf of Governments
– States may be responsible for private acts if they fail to
act with due diligence to prevent violations of rights or
to investigate and punish acts of violence, and for
providing compensation.
• Recommendations regarding VAW
– Appropriate and effective measures to overcome all
forms of gender-based violence, whether by public or
private act;
– Adequate legal protection (penal sanctions, civil
remedies);
– Appropriate protection and support services (refuges,
counselling, rehabilitation and support services);
– Gender sensitive training of judiciary and law
enforcement;
– Compilation of statistics and research on the extent,
causes and effects of violence, and on the effectiveness
of measures;
– Effective measures to ensure that the media respect and
promote respect for women;
– Effective measures to overcome attitudes, customs and
practices that perpetuate violence against women;
– Effective complaints procedures and remedies,
including compensation;
– Preventive measures, including public information and
education programmes to change attitudes concerning
the roles and status of men and women.
• Specific recommendations on domestic violence
– Criminal penalties where necessary and civil
remedies;
– Legislation to remove the defence of honour in regard
to the assault or murder of a female family member;
– Services to ensure the safety and security of victims,
including refuges, counselling and rehabilitation
programmes;
– Rehabilitation programmes for perpetrators;
– Support services for families where incest or sexual
abuse has occurred.
2. The Optional Protocol to CEDAW
• 90 State Parties
• Communications procedure – conditions:
– by or on behalf of individuals or groups of individuals, in writing;
– claiming to be a violation of the rights in the Convention;
– all available domestic remedies have been exhausted, unless the
application is unreasonably prolonged or unlikely to bring effective
relief;
– Possibility interim measures to avoid possible irreparable damage
to the victim (s).
• Inquiry procedure: grave and systematic violation of the
Convention
3. The domestic violence situation in
Hungary (in 2003)
• In every week at least one woman dies at the hand of her
partner and ex-partner;
• No specific legislation on domestic violence; general
offences in the Criminal Code (bodily harm, coercion etc.)
can be applied;
• No restraining or protection orders;
• No proper shelters (except one) and state assistance for
victims;
• Police negative attitude – ‘do not act until blood is
flowing’;
• Mild punishing policy, stereotyped attitude in the justice
system.
The civil initiative in 2002
• Civil movement in 2002 for the effective state response
(50,000 signature, decision-makers, media attention)
• Order of the Chief of National Police (2003) and
methodological guidelines on police tasks regarding
domestic violence cases and protection of minors
• Parliamentary Resolution on establishing a national strategy
to prevent and effectively combat domestic violence (2003)
– Restraining order
– Legal aid and representation for victims
– Special provisions for witness protection, out of turn
procedures, protocols
– Complex national action plan
– Network of shelter and crisis intervention centers
– Training for professionals
– Statistical data collection
– National awareness raising programs.
4. The case of A.T. versus Hungary
1. Background
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Several years in domestic violence (battering and serious
threats; ten medical certificate);
Civil case (on exclusive ownership of the jointly owned
flat). Decision: no evidence of offender’s battering, his
property rights can not be restricted: he is allowed to use
the flat;
Criminal procedures (took for years, with no detention,
no restraining order, files were lost, punishment of 365
USD for two serious bodily harms);
No effective help from the child protection authorities;
No proper shelter to accomodate the victim and her
children (one of which has a serious brain damage).
2. The case before the Committee
- Submitted in October 2003 by A. T. herself.
- A.T.’s claim: the state did not provide effective protection
for her from domestic violence.
- Committee: request to provide immediate, appropriate and
concrete preventive interim measures of protection to the
victim, to avoid irreparable damage.
- No interim measures; some steps of the Government
Office for Equal Opportunities (retained lawyer for the
victim, contact with local authorities).
- State: there are no effective remedies; the law and
institutions are not ready to provide appropriate protection.
3. The Views of the Committee (2005)
• Violation of the Convention by the State
– Article 2 (a,b,e), Article 5, Article 16
• Recommendations concerning the victim:
– take immediate and effective measures to guarantee the
physical and mental integrity of the victim and her
family;
– ensure that she is given a safe home, receives
appropriate child support and legal assistance, as well
as reparation.
• General recommendations
– maximum legal protection of the victims, by acting
with due diligence to prevent and respond to cases;
– implementation of the national strategy;
– regular training on CEDAW and the Optional Protocol
to judges, lawyers and law enforcement officials;
– implementation of the Concluding Comments, in
particular: a specific law on prohibiting domestic
violence against women (protection and exclusion
orders, support services)
– prompt and serious investigation of cases, and bringing
the offenders to justice;
– safe and prompt access to justice for victims,
including free legal aid where necessary;
– effective and sufficient remedies and rehabilitation;
– rehabilitation programmes for offenders.
4. State steps during the CEDAW
procedure
• Opening, then closing the first pilot crisis center for
victims of domestic violence, building on gender-based
approach
• Creation of the National Crisis Information Hotline, based
on a gender-neutral approach
• Legislation on restraining order (2006) – not suitable for
immediate and effective protection
• Establishment of a shelter building
• Establishment of 9 regional crisis intervention centers,
linked to family temporary homes
• Providing state support to the family group conference
5. Conclusions: Where we are now
• Neither the general, nor the specific
recommendations have been met fully –lack of
political will to take CEDAW seriously.
– The victim was not offered compensation; neither a safe
home to live.The argument of the state: the CEDAW’s
Views is not a legally binding document; they do not
want to make a precedent.
• Options, outcomes:
– For the victim: civil lawsuit against the state before the national
court, based on the CEDAW decision - to make a precedent
– For other victims: use the CEDAW Views in their cases.
– For other countries: states are responsible under CEDAW to
provide appropriate legislation, law enforcement and services in
every single domestic violence cases.