The Council of Europe Convention on preventing and combating violence against women and domestic violence
18. In response to the recommendations by the Task Force to develop a convention on violence against women and the results of the feasibility study on a convention on violence against the partner, the Committee of Ministers decided to set up a multi-disciplinary committee mandated to develop legally-binding standards that would cover both these areas: violence against women and domestic violence.
19. As a result, the Ministers’ Deputies of the Council of Europe adopted, at their 1044th meeting on 10 December 2008, the terms of reference for the Ad Hoc Committee on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO) to prepare one or more legally binding instrument[s] “to prevent and combat domestic violence, including specific forms of violence against women, other forms of violence against women, and to protect and support the victims of such violence as well as prosecute the perpetrators”. The Deputies also requested that CAHVIO “present, by 30 June 2009, an interim report on its position on the subjects and contents of the proposed instrument(s), its working methods and the time table for its work, in order to allow the Committee of Ministers to take a decision, where necessary, on these matters”. The interim report reflected the opinion of the Committee that the focus of the Convention was to be on the elimination of violence against women. Furthermore, the Convention would deal with domestic violence which affects women disproportionately, while allowing for the application of its provisions to all victims of domestic violence. At its 1062nd meeting of 1 July 2009, the Deputies “took note of the interim report (…)” and “invited the CAHVIO to continue its work in accordance with the work programme and timetable set out in the interim report and, in particular, to prepare the instruments proposed in the report”. On that basis, in December 2009, CAHVIO started negotiations on the Convention on preventing and combating violence against women and domestic violence. CAHVIO held six meetings, in December 2009 and February, June/July, September, November and December 2010 to finalise the text.
20. The text of the draft convention was approved by the CAHVIO during its meeting in December 2010 and transmitted to the Committee of Ministers for submission to the Parliamentary Assembly for opinion. On 11 March 2011, the Parliamentary Assembly gave its opinion on the draft convention.
21. Building on Recommendation Rec(2002)5 on the protection of women against violence, the Convention sets, for the first time in Europe, legally-binding standards to prevent violence against women and domestic violence, protect its victims and punish the perpetrators. It fills a significant gap in human rights protection for women and encourages Parties to extend its protection to all victims of domestic violence. It nonetheless frames the eradication of violence against women in the wider context of achieving substantive equality between women and men and thus significantly furthers recognition of violence against women as a form of discrimination.
II. Commentary on the provisions of the Convention
22. The Preamble reaffirms the commitment of the signatories to human rights and fundamental freedoms. It recalls only the most important international legal instruments which directly deal with the scope of this Convention in the framework of the Council of Europe and the United Nations.
23. During the negotiation process of this Convention, these international legal instruments, in particular those prepared by the Council of Europe, have been taken into account. In addition, the drafters bore in mind the following recommendations of the Council of Europe Parliamentary Assembly: Recommendation 1450 (2000) on Violence against women in Europe, Recommendation 1582 (2002) on Domestic violence against women, Recommendation 1723 (2005) on Forced marriages and child marriages, Recommendation 1759 (2006) on Parliaments united in combating domestic violence against women, Recommendation 1777 (2007) on Sexual assaults linked to ''date-rape drugs'', Recommendation 1817 (2007) on Parliaments united in combating domestic violence against women: mid-term assessment of the Campaign, Recommendation 1847 (2008) on Combating violence against women: towards a Council of Europe convention, Recommendation 1873 (2009) on Sexual violence against women in armed conflict, Recommendation 1868 (2009) on Action to combat gender-based human rights violations, including abduction of women and girls, Recommendation 1861 (2009) on Feminicides, Recommendation 1881 (2009) on the urgent need to combat so-called ‘honour crimes’, Recommendation 1887 (2009) on Rape of women, including marital rape, Recommendation 1891 (2009) on Migrant women: at particular risk from domestic violence and Recommendation 1905 (2010) on Children who witness domestic violence. Similarly, the drafters took into consideration Recommendation 260(2009) Combating domestic violence against women and Resolution 279(2009) Combating domestic violence against women of the Congress of Local and Regional Authorities of the Council of Europe.
24. Furthermore, the negotiations were inspired by the following political declarations:
a. the Declaration and Programme of Action adopted at the 5th European Ministerial Conference on Equality between Women and Men (Skopje, 22-23 January 2003);
b. the Action Plan adopted at the Third Summit of the Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005);
c. the Declaration “Making gender equality a reality” adopted by the Committee of Ministers of the Council of Europe (Madrid, 12 May 2009);
d. the Resolution no. 1 on preventing and responding to domestic violence adopted at the 29th Council of Europe Conference of Ministers of Justice (Troms?, Norway, 18-19 June 2009);
e. the Action Plan and Resolution adopted at the 7th Council of Europe Conference of Ministers responsible for Equality between Women and Men (Baku, 24-25 May 2010);
f. the Beijing Declaration and Platform for Action adopted at the Fourth World Conference of Women in 1995, the report of the Ad Hoc Committee of the whole of the 23rd special session of the United Nations General Assembly (Beijing + 5 – political declaration and outcome document) as well as the political declaration from the 49th session of the United Nations Commission on the Status of Women in 2005 (Beijing + 10) and 54th session of the United Nations Commission on the Status of Women in 2010 (Beijing + 15) and Women 2000: Gender Equality, Development and Peace for the 21st Century.
25. The Preamble sets out the basic aim of the Convention: the creation of a Europe free from violence against women and domestic violence. To this end, it firmly establishes the link between achieving gender equality and the eradication of violence against women. Based on this premise, it recognises the structural nature of violence against women and that it is a manifestation of the historically unequal power relations between women and men. Consequently, the Preamble sets the scene for a variety of measures contained in the Convention that frame the eradication of violence against women within the wider context of combating discrimination against women and achieving gender equality in law and in fact. It should also be noted that the term "discrimination against women" should be interpreted as constituting “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” as provided in Article 1 of CEDAW. At the same time the drafters wished to acknowledge that violence against women and domestic violence may be explained and understood in various manners at structural, group and individual levels. Violence against women and domestic violence are complex phenomena and it is necessary to use a variety of approaches in combination with each other in order to understand them.
26. The drafters wished to emphasise that violence against women seriously violates and impairs or nullifies the enjoyment by women of their human rights, in particular their fundamental rights to life, security, freedom, dignity and physical and emotional integrity, and that it therefore cannot be ignored by governments. Moreover, they recognised that violence affects not only women adversely, but society as a whole and that urgent action is therefore required. Finally, they stressed the fact that some groups of women, such as women and girls with disabilities, are often at greater risk of experiencing violence, injury, abuse, neglect or negligent treatment, maltreatment or exploitation, both within and outside the home.
27. In addition to affirming that violence against women, including domestic violence against women, is a distinctly gendered phenomenon, the signatories clearly recognise that men and boys may also be victims of domestic violence and that this violence should also be addressed. Where children are concerned, it is acknowledged that they do not need to be directly affected by the violence to be considered victims but that witnessing domestic violence is also traumatising and therefore sufficient to victimise them.
28. The drafters wished to stress that the obligations contained in this Convention do not require Parties to take measures that run counter to constitutional rules or fundamental principles relating to the freedom of the press and the freedom of expression in other media.
29. It is important to note that the measures contained in the Convention are without prejudice to the positive obligations on states to protect the rights recognised by the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ECHR). Measures should also take into account the growing body of case law of the European Court of Human Rights which sets important standards in the field of violence against women, and which provided guidance to the drafters for the elaboration of numerous positive obligations and measures needed to prevent such violence.