Article 4 – Fundamental rights, equality and non-discrimination
48. Paragraph 1 states the principle that every person has the right to live free from violence in the public and the private sphere. With a view to the focus of the Convention, the drafters considered it important to include the particular obligation to promote and protect this right for women which are predominantly victims of gender-based violence.
49. Discrimination against women provides a breeding ground for tolerance towards violence against women. Any measures taken to prevent and combat violence against women need to promote equality between women and men as only substantive equality will prevent such violence in the future. In the Opuz v. Turkey judgment, the European Court of Human Rights has discussed the interconnection between discrimination and violence against women and has held that gender-based violence constitutes a form of discrimination because it mainly affects women and women were not protected by the law on an equal footing with men.
50. For these reasons, paragraph 2 affirms the principle of substantive equality between women and men by requiring Parties to not only condemn all forms of discrimination against women, but to enshrine the principle of equality in law, ensure its practical realisation as well as prohibit discrimination by law and abolish any discriminatory legislation and practices. It recognises that the enjoyment of the right to be free from violence is interconnected with the Parties’ obligation to secure equality between women and men to exercise and enjoy all civil, political, economic, social and cultural rights as set out in the human rights instruments of the Council of Europe, particularly the ECHR and its Protocols and the European Social Charter, and other international instruments, particularly CEDAW, to which they are Parties.
51. It is important to note that this paragraph provides Parties with two options to meet the requirement of enshrining in law the principle of equality between women and men: a constitutional amendment or its embodiment in other legislative act. Furthermore, the obligation to ensure the practical realisation of equality between women and men addresses the fact that enshrining it in law is often insufficient and that practical measures are required to implement this principle in a meaningful way.
52. Paragraph 3 prohibits discrimination in Parties’ implementation of the Convention. The meaning of discrimination is identical to that given to it under Article 14 of the ECHR. The list of non-discrimination grounds draws on that in Article 14 ECHR as well as the list contained in Protocol No. 12 to the ECHR. It is worth pointing out that the European Court of Human Rights has applied Article 14 to discrimination grounds not explicitly mentioned in that provision (see, for example, as concerns the ground of sexual orientation, the judgment of 21 December 1999 in Salgueiro da Silva Mouta v. Portugal).
53. In light of this case law, the drafters wished to add the following non-discrimination grounds which are of great relevance to the subject-matter of the Convention: gender, sexual orientation, gender identity, age, state of health, disability, marital status, and migrant or refugee status or other status, meaning that this is an open-ended list. Research into help-seeking behaviour of victims of violence against women and domestic violence, but also into the provision of services in Europe shows that discrimination against certain groups of victims is still wide-spread. Women may still experience discrimination at the hands of law enforcement agencies or the judiciary when reporting an act of gender-based violence. Similarly, gay, lesbian and bisexual victims of domestic violence are often excluded from support services because of their sexual orientation. Certain groups of individuals may also experience discrimination on the basis of their gender identity, which in simple terms means that the gender they identify with is not in conformity with the sex assigned to them at birth. This includes categories of individuals such as transgender or transsexual persons, cross-dressers, transvestites and other groups of persons that do not correspond to what society has established as belonging to “male” or “female” categories. Furthermore, migrant and refugee women may also be excluded from support services because of their residence status. It is important to point out that women tend to experience multiple forms of discrimination as may be the case of women with disabilities or/and women of ethnic minorities, Roma, or women with HIV/AIDS infection, to name a few. This is no different when they become victims of gender-based violence.
54. The extent of the prohibition on discrimination contained in paragraph 3 is much more limited than the prohibition of discrimination against women contained in paragraph 2 of this article. It requires Parties to refrain from discrimination in the implementation of the provisions of this Convention, whereas paragraph 2 calls on Parties to condemn discrimination in areas beyond the remit of the Convention.
55. Paragraph 4 refers to special measures which a Party to the Convention may wish to take to enhance the protection of women from gender-based violence – measures which would benefit women only. This provision does not overrule the general prohibition of discrimination. Drawing on Article 4 of CEDAW, this paragraph stipulates that special measures which aim at preventing and protecting women from gender-based violence and which do not address men do not constitute a form of discrimination. This is in line with the concept of discrimination as interpreted by the European Court of Human Rights in its case law concerning Article 14 ECHR. In particular, this case law has made clear that not every distinction or difference of treatment amounts to discrimination. As the Court has stated, for example in the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment, “a difference of treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised”. The fact that women experience gender-based violence, including domestic violence, to a significantly larger extent than men can be considered an objective and reasonable justification to employ resources and take special measures for the benefit of women victims only.
56. See also paragraph 47.
Article 5 – State obligations and due diligence
57. Under international law a state is responsible for the commission of an internationally wrongful act which is attributable to it, through the conduct of their agents such as the police, immigration officials and prison officers. This principle is set out in the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts (2001), which are widely accepted as customary international law. Under international human rights law, the state has both negative duties and positive duties: state officials must both respect the law and refrain from the commission of internationally wrongful acts and must protect individuals from their commission by other non-state actors. Article 5, paragraph 1, addresses the state obligation to ensure that their authorities, officials, agents, institutions and other actors acting on behalf of the state refrain from acts of violence against women, whereas paragraph 2 sets out Parties’ obligation to exercise due diligence in relation to acts covered by the scope of this Convention perpetrated by non-state actors. In both cases, failure to do so will incur state responsibility.
58. A requirement of due diligence has been adopted in a number of international human rights instruments, interpretations, and judgments with respect to violence against women. These include CEDAW Committee General Recommendation No. 19 on violence against women (1992), Article 4 of the United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), the Convention on the Prevention of Violence against Women (Convention of Belém do Par?, 1994) adopted by the Organisation of American States as well as the Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence (2002). Furthermore, the content of Article 5 reflects the case-law of the European Court of Human Rights. In its recent case law on domestic violence, the Court has adopted the obligation of due diligence (see the judgment of Opuz v. Turkey, 2009). It has established that the positive obligation to protect the right to life (Article 2 ECHR) requires state authorities to display due diligence, for example by taking preventive operational measures, in protecting an individual whose life is at risk.
59. Against the backdrop of these developments in international law and jurisprudence, the drafters considered it important to enshrine a principle of due diligence in this Convention. It is not an obligation of result, but an obligation of means. Parties are required to organise their response to all forms of violence covered by the scope of this Convention in a way that allows relevant authorities to diligently prevent, investigate, punish and provide reparation for such acts of violence. Failure to do so incurs state responsibility for an act otherwise solely attributed to a non-state actor. As such, violence against women perpetrated by non-state actors crosses the threshold of constituting a violation of human rights as referred to in Article 2 insofar as Parties have the obligation to take the legislative and other measures necessary to exercise due diligence to prevent, investigate, punish and provide reparation for acts of violence covered by the scope of this Convention, as well as to provide protection to the victims, and that failure to do so violates and impairs or nullifies the enjoyment of their human rights and fundamental freedoms.
60. The term “reparation” may encompass different forms of reparation under international human rights law such as restitution, compensation, rehabilitation, satisfaction, and guarantee of non-repetition. As regards compensation, it is important to note that this form of reparation shall only be provided by a Party under the conditions set out in Article 30 (2) of this Convention. Finally, term “non-state actor” refers to private persons, a concept which is already expressed in point II of Council of Europe Recommendation Rec (2002)5 on the protection of women against violence.
Article 6 – Gender-sensitive policies
61. Since Article 6 is placed under Chapter I which also deals with general obligations of Parties, it application extends to all other articles of this Convention. The nature of this obligation is two-fold. On the one hand, it requires Parties to ensure a gender perspective is applied not only when designing measures in the implementation of the Convention, but also when evaluating their impact. This means that a gender impact assessment needs to be carried out in the planning stage of any measure which a Party takes in the implementation of this Convention. It further means that during the evaluation stage, Parties are required to determine whether there is a gender differential in the impact of the provisions.
62. On the other hand, this article calls on Parties to promote and implement policies aimed at achieving equality between women and men and at empowering women. This obligation complements the obligation to condemn and prohibit discrimination contained in Article 4, paragraph 2. Convinced of the need to achieve equality between women and men and to empower women in order to put an end to all forms of violence covered by the scope of this Convention, the drafters believed it essential to place an obligation on Parties that goes beyond the specific measures to be taken to prevent and combat such violence in order to achieve this goal. This ties in with the purposes of the Convention listed in Article 1, in particular the promotion of substantive equality between women and men, including by empowering women, as expressed in Article 1 (b).
Chapter II – Integrated policies and data collection
63. Similar to other recent conventions negotiated at the level of the Council of Europe, this Convention follows the “3 P structure” of “Prevention”, “Protection”, and “Prosecution”. However, since an effective response to all forms of violence covered by the scope of this Convention requires more than measures in these three fields, the drafters considered it necessary to include an additional “P” (integrated Policies).
Article 7 – Comprehensive and co-ordinated policies
64. Paragraph 1 requires Parties to devise and implement policies which would comprise a multitude of measures to be taken by different actors and agencies and which, taken as a whole, offer a holistic response to violence against women. This obligation is further developed in paragraph 2. It requires Parties to ensure that the adopted policies are implemented by way of effective multi-agency co-operation. Good practice examples in some member states show that results are enhanced when law enforcement agencies, the judiciary, women’s non-governmental organisations, child protection agencies and other relevant partners join forces on a particular case, for example to carry out an accurate risk assessment or devise a safety plan. This type of co-operation should not rely on individuals convinced of the benefits of sharing information but requires guidelines and protocols for all agencies to follow, as well as sufficient training of professionals on their use and benefits.
65. To ensure that the expertise and perspective of relevant stakeholders, agencies and institutions contribute to any policy-making in this field, paragraph 3 calls for the involvement of “all relevant actors, such as government agencies, the national, regional and local parliaments and authorities, national human rights institutions and civil society organisations”. This is a non-exhaustive list of actors, which the drafters intended to cover, in particular, women’s non-governmental organisations and migrant organisations, but also religious institutions. National human rights institutions refer to those established in accordance with the UN principles for national institutions for the promotion and protection of human rights, adopted by United Nations General Assembly Resolution 48/134, 1993. As national human rights institutions exist in many member states of the Council of Europe, the drafters considered it important to include these in the list of relevant actors, where they exist. This provision does not contain the obligation to set up such institutions where they do not exist. By including national, regional and local parliaments in this provision, the drafters wished to reflect the different levels of law-making powers in Parties with a federal system. One way of ensuring the elements of comprehensive and co-ordinated policies on the one hand and the involvement of all relevant institutions and agencies on the other would be by drawing up national action plans.
Article 8 – Financial resources
66. This article aims at ensuring the allocation of appropriate financial and human resources for both activities carried out by public authorities and those of relevant non-governmental and civil society organisations. Across Council of Europe member states, different practice exists when it comes to government funding for non-governmental organisations (hereinafter NGOs) involved in preventing and combating all forms of violence covered by the scope of this Convention. The obligation placed on Parties is therefore that of allocating financial and human resources for activities carried out by NGOs and civil society.
67. In view of the different economic circumstances of member states, the drafters chose to limit the scope of this obligation to the allocation of appropriate resources. This means that the resources allocated need to be suitable for the target set or measure to be implemented.
Article 9 – Non-governmental organisations and civil society
68. In many member states, the overwhelming majority of services for victims of domestic violence, and also services for victims of other various forms of violence against women, are run by non-governmental or civil society organisations. They have a long tradition of providing shelter, legal advice, medical and psychological counselling as well as of running hotlines and other essential services.
69. The purpose of this article is to emphasise the important contribution these various organisations make to preventing and combating all forms of violence covered by the scope of this Convention. It therefore requires Parties to the Convention to recognise their work by, for example, tapping into their expertise and involving them as partners in multi-agency co-operation or in the implementation of comprehensive government policies which Article 7 calls for. Beyond such recognition, this article requires Parties to the Convention to actively encourage and support the work of these dedicated NGOs and civil society organisations. This means enabling them to carry out their work in the best possible way. Although Article 9 refers only to NGOs and civil society active in combating violence against women, this should not prevent Parties from going further and supporting the work that is carried out by NGOs and civil society focusing on domestic violence in its wider scope.