Violence against Women in the European Union: The EU needs to adhere to the Istanbul Convention ASAP

An article by Eileen Servidio-Delabre
President of the American Graduate School in Paris
Two documents have been recently published treating the subject of violence against women in Member States of the European Union (EU). The first, a 2014 Survey conducted by the European Union Agency for Fundamental Rights (FRA), the second, a 2016 Report from the Department of Citizens Rights and Constitutional Affairs of the European Union Parliament on: “The Issue of Violence Against Women in the European Union”. The Survey and the Report demonstrate the urgency for the EU to adopt minimum standard binding law in this area throughout the Member States.

This article will attempt to explain why it would be more productive and definitely more efficient for the EU to adhere to the Council of Europe’s (CoE), Treaty on preventing and combating violence against women and domestic violence, better known as the Istanbul Convention, than to begin legislating itself.

The CoE, which is the largest European human rights protector, set up a commission of experts at the end of 2008 to draft the said Convention that was adopted in April 2011, opened for signature in May of the same year and entered into force in August 2014 after its 10^th ratification.

The preamble of the Istanbul Convention recognizes that violence against women is a “manifestation of historically unequal power relations between women and men”, that this violence is gender-based and is “one of the crucial social mechanisms by which women are forced into a subordinate position compared to men” and that this violence “constitutes a serious violation of the human rights of women and girls and a major obstacle to the achievement of equality between women and men”.

The goals of the Convention are to protect women, eliminate discrimination, create policies to help victims, promote international co-operation and co-operation between organizations and law enforcement agencies in order “to adopt an integrated approach to eliminating violence against women and domestic violence”.

Parties to the Convention are inter alia obliged to take all action necessary to eliminate this violence, take measures to promote changing society’s behavior towards women, to promote awareness of the issues, train professionals dealing in this area, take preventive measures, create treatment programs and to take all measures to protect victims from further violence.

The following acts are defined and Parties to the Convention are required to consider them as crimes: psychological violence, stalking, physical violence, sexual violence including rape, forced marriage, female genital mutilation, forced abortion and forced sterilization, sexual harassment.

Honor will not be considered a justification for such violence.[1]

Before arguing the importance of the EU to adhere to this Treaty, this article will highlight some of the information found in the two documents, the Survey and the Report, to situate the gravity of the problem.

2014 Survey[2]: The 2014 Survey by the European Union Agency for Fundamental Rights (FRA) began with the premise that in spite of the seriousness of the issue in question “(violence against women) remains largely under-reported and relatively under-researched in key areas”.[3] The objectives of the Survey were therefore the following:

“– to provide the first EU-wide dataset on the extent, nature and consequences of violence against women, as reported by women, which can be used to inform policy and action on the ground;

– to highlight the manifestation of gender-based violence against women as a fundamental rights abuse in the EU.”[4]

The Survey interviewed 42,000 women in the 28 EU Member States regarding their personal experience of different forms of violence--physical, sexual and psychological violence including intimate partner violence--and the effect of this violence on them. The statistics gathered were hair-raising, what the Survey calls “a picture of extensive abuse” against women. In addition, it found that this violence was “systematically under-reported to the authorities”.[5]

A random sample of women aged 18 to 74 years old was used. The women were asked if they had experienced certain forms of violence since they were 15 years old.[6] According to the results, one in three women had had one or more experiences of physical and/or sexual violence during this time period. 11% of the women had suffered a form of sexual violence since the age of 15; the perpetrator being either a partner or someone else. One woman out of twenty had been raped (5%). In the twelve months preceding the interviews, an estimated 13 million women had experienced some form of physical violence while 3.7 million experienced sexual violence in the same time period. One in 20 women had been raped since the age of 15. That is, an estimated 9 million women in EU Member Countries have been raped and 1.5 million had been raped in the year preceding the Survey. Concerning intimate partner violence, be it sexual or not, the violence is often repeated over time.

The Survey references different sources to define the notion of violence against women and summarizes these with the definition found in the Istanbul Convention:

“ 'Violence against women' is understood as a violation of human rights and a form of discrimination against women and shall mean all acts of gender-based violence that result in, or likely to result in, physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in pubic or in private life.”[7]

The term “women” also refers to girls under 18 years of age.[8]

The Survey estimates that the majority of physical violence against women is gender-based violence and that non-partner sexual violence was “overwhelmingly” gender-based.[9]

Gender-based violence against women is defined by the Istanbul Treaty as “(…) violence that is directed against a woman because she is a woman or that affects women disproportionately.” [10]

Statistics are broken down country by country. Characteristics, such as age, education, income and employment, of both the victims and perpetrators, are studied.

The Survey stresses the importance of legal uniformity in this area and regrets the lack of it; differences in definitions of the various forms of violence from one EU country to another, the differences in formal and social reactions to this violence. This situation adds to the difficulty of gathering exact data.

However, in spite of the differences, the Survey stresses one fact that seems to remain the same throughout the EU; violence against women is “predominantly” perpetrated by men and men are “overwhelmingly” the perpetrators of sexual violence against women.[11]

One of the suggestions in the Survey’s conclusions is for the EU “to explore the possibility of accession” to the Istanbul Convention it being “the most comprehensive regional instrument addressing violence against women”.[12]

Both the Survey and the more recent EU Report treat the different forms of violence against women as violations of human rights and not just common crimes.

2016 EU Report: As with the Survey, the Report underlines the lack of precise data in the EU, the important number of unreported cases, and the different legal definitions and reactions in this area from Member State to Member State. The Report considers that a uniform legal instrument in the EU is necessary.

Again, as with the Survey, the list of forms of violence treated in the report is long: all forms of violence including domestic violence, sexual violence, human trafficking, psychological and emotional abuse, stalking (including cyber-stalking), forced abortion or sterilization, female genital mutilation, honor crimes, forced marriage. This article will relate the conclusions of the Report concerning only some of these crimes.

Virtually all statistics cited in the Report are from the 2014 Survey.

The Report uses the same definition of violence against women as the Survey, that is, the one found in the Istanbul Convention.

According to the Report, violence against women is perpetrated by men in order to “(re)establish women’s secondary position compared to men in an individual relationship and in society”.[13] It is a “denial of fundamental rights to women”. These are also the reasons the violence is “often sexualized”.[14]

The first form of violence cited is domestic violence (sometimes labeled ‘intimate partner violence’ since often the perpetrator is the husband or intimate partner of the victim). The Report again refers to the definition of the Istanbul Convention to define this crime:

“all acts of physical, sexual, psychological or economic violence that occurs within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim”.[15]

Amongst the consequences of this form of violence, the Report not only cites the World Health Organization (WHO)[16] in stressing the “public health issue” involved but asserts that this form of violence against women:

“is likely to constrain poverty reduction efforts by reducing women’s participation in productive employment. Violence also undermines efforts to improve women’s access to education, with violence and the fear of violence contributing to (lower) school enrolment for girls. Domestic violence has also been shown to affect the welfare and education of children in the family”.[17] (Highlighted in Report)

According to the 2014 Survey, the fact that in the case of intimate violence, the violence “can take place over a long period of time and can involve various types of violent acts”,[18] one can conclude, as the Report does, that the violence and the fear of violence can have long and detrimental consequences on all members of the family unit, not just the direct victim.

Concerning sexual violence, the Report esteems that this form of violence not only causes physical injury and long-term health issues including reproduction problems but the victim’s mental state may be also dramatically injured. One must add to this the fact that in some cultures the victim may also be “stigmatized and ostracized” from society and even from their own families.[19]

One area in which the EU has taken steps is human trafficking.[20] Victims of human trafficking come both from outside and inside the EU. Although forced labor and sexual exploitation are the two major purposes of human trafficking, the Report mainly treats the latter. The Report cites the United Nations Office on Drugs and Crime (UNODC): “the vast majority of trafficking victims globally are female”.[21] In the EU between the period of 2010-2012, 80% of all victims of human trafficking were female of which 69% were trafficked for sexual exploitation. Of all victims of sexual exploitation, 95% were female.[22] Concerning the traffickers, 70% were male.[23]

Once again, one must conclude that women are the victims and men are mainly perpetrators.

Although men are generally not the direct perpetrators of the crime of female genital mutilation (FGM), the Report emphasizes that:

“FGM is based and sustained by gender inequality. Women’s and girl’s “honour” is considered to be the property of men”.[24] (Highlighted in Report)

The Report noted that FGM is very under-reported in the EU and the Member States have very different reactions to this procedure.[25]

Again the Report cites the Istanbul Convention that stipulates that honor cannot be a justification for crimes committed.[26]

Concerning forced marriages, the Convention asks Member States to consider them as null and void:

“Parties shall take the necessary legislative or other measures to ensure that marriages concluded under force may be voidable, annulled or dissolved without undue financial or administrative burden placed on the victim.”[27]

Here again, reporting on the number of such marriages in the EU is difficult. The Report also notes that honor crimes and forced marriages can be related:

“Honour killing can be a reaction to the victims’ resistance against forced marriage or may be committed to prevent a marriage that is considered unsuitable. Even if honour crimes happen only in a small minority of cases, compared to the total of forced marriages, these cases are of the highest impact”.[28]

The Report continues by underlining the costs of violence against women:

“Women who experience violence suffer a range of health problems and their ability to participate in the public life is diminished (…) Violence impoverishes women, their families, communities and nations. (…).[29] (Highlighted in Report)

It was estimated that in 2011 the cost of this violence was around 228 billion euros each year in the EU.[30] More importantly perhaps, as the Report notes, is the economic dependency of women often due to this violence—this most likely creates an environment which may permit the violence to continue particularly concerning domestic violence where the women is unable to leave the situation due to her economic dependency.

The Report then asks what causes this violence. It excludes some of the obvious motives such as the perpetrator experiencing violence as a child, alcoholism or drug addiction. It looks at other causes that have a better chance of being prevented:

“(…) authors agree on a series of inter-related factors which are primarily “manifestations of historically unequal power relations between men and women”[31]. In certain circumstances, cultural ideologies, as well as the patriarchal and sexist structure of society legitimate violence against women, supporting an inherent and necessary dominance/superiority of males.”[32] (Highlighted in Report)

Other causes include poverty and unemployment. Unemployment of the woman leaves her often economically dependent, unable to leave a violent situation. Unemployment of the man, particularly where the woman is working, can also lead to violence due to the threat against his ‘masculinity’.

This seems to be confirmed by a 2009 survey taken by UNICEF that concluded that an economic crisis “leads to an increase in violent behaviour against women”.[33] The reasoning for this is that:

“Violence against women is thus seen not just as an expression of male powerfulness and dominance over women, but also as being rooted in male vulnerability stemming from social expectations by manhood that are unattainable because factors such as poverty experienced by men.”[34]

The difficulty of data gathering in the EU due to the number of non-reported cases and also due to the lack of unified definitions of these different crimes from one EU Nation to another is an important issue for this Report as it was for the Survey.[35]

The Report then lists the multiple international legal instruments that target directly or indirectly violence against women: those of the United Nations, the Council of Europe and finally the EU. The number of legal instruments in force is a bit mind boggling and this is without mentioning the national legislative activity in the different States.[36]

Although the Report names numerous EU policies in this area based on EU Council recommendations, EU Parliament resolutions or the EU Commission strategies—it stresses that these are not binding. It calls for a EU legally binding instrument; “an integrated, harmonised and coordinated policy”.[37]

Istanbul Convention: An EU integrated, harmonized and coordinated legally binding instrument is tempting. However, the procedure for such an instrument would most likely take a considerable amount of time allowing for many more victims.

Violence against Women is firmly set in the domain of criminal law. Criminal law is probably the closest body of law to one’s beliefs, culture and history. Finding definitions for the crimes in this area that all 28 (or 27 by then) of the Member States agree upon would be a long drawn-out procedure; with perhaps no success at the end. Asking all Member States to agree on such language and adapt binding law seems more a pipe dream than anything that could happen in the near future.

Nevertheless, creating criminal law is one thing, accepting criminal law already in force is another. That is where the Istanbul Convention steps in. Definitions have already been agreed upon and accepted by many Nations. Moreover, of the 28 Member States of the EU, half of them, 14, have already ratified the Treaty; that is, the Istanbul Convention is already law for them. The following is a list of the Member States of the EU that have ratified the Treaty with the dates of ratification:

– Austria, 1/08/14

– Belgium, 1/07/16

– Denmark, 1/08/14

– Finland, 1/08/15

– France, 1/11/14

– Italy, 1/08/14

– Malta, 1/11/14

– Netherlands, 1/03/16

– Poland, 1/08/15

– Portugal, 1/08/14

– Romania 1/09/16

– Slovenia, 1/06/15

– Spain, 1/08/14

– Sweden, 1/11/14

Additionally, all other Member States of the EU have signed it.

On March 4, 2016, the European Commission proposed the ratification of the Istanbul Convention to “reaffirm the European Union’s solid commitment to fight gender-based violence”.[38]

This is a promising start. One can only hope that the procedure to ascension will not be stopped as it was in the case of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). And that in spite of article 6-2 of the Treaty of the European Union (TEU) that clearly states:

“The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Such accession shall not affect the Union's competences as defined in the Treaties.”

This has yet to happen.[39] The EU is still not a member to that Convention due to a 2014 decision of the Court of Justice of the European Union (CJEU).[40]

Just a word concerning this decision. A draft agreement had been sent by the Commission to the Court providing for the accession of the EU to the ECHR. In 1996, an earlier opinion of this same Court had already refused the ascension of the European Community to the ECHR. [41] However, at the time, the EC law did not provide for this. With the entrance into force of the Lisbon Treaty in 2009, EU law has radically changed. Not only does article 47 (TEU) grant the EU a legal personality, the Treaty on the Functioning of the European Union (TFEU) states in article 216 the following:

“1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.”

It was thus surprising that the CJEU in 2014 refused to accept the Commission’s proposal. The Court first decided that the case was admissible and then reminded all that the EU was not a State. After a rather complicated motivation, it concluded that the ascension to the ECRH was incompatible with EU law and this in spite of article 6-2 demanding this ascension. The main argument seemed to be that if the EU were a member of the ECHR, the EU “and its institutions, including the Court of Justice would be subject to the control mechanisms provided for by the ECHR and, in particular, to the decisions and the judgments of the ECHR”[42]. The Court insisted upon the impossibility of this:

“In particular, any action by the bodies given decision-making powers by the ECHR, as provided for in the agreement envisaged, must not have the effect of binding the EU and its institutions, in the exercise of their internal powers, to a particular interpretation of the rules of EU law.”

According to the Court, this would go against its mission “to ensure consistency and uniformity in the interpretation of EU law”. That is to say, the CJEU would no longer have the final word on interpreting EU law. This decision will be put aside for the moment.

The constituent Treaties grant the right for the EU to conclude agreements with international organizations. The essential question now is: Does the EU have the power to conclude an international agreement in the specific area of violence against women? Is this within the limits of its competence?

The competence of the EU is regulated by the principle of conferral. Article 5 (TEU) states and explains this concept:

“1. The limits of Union competences are governed by the principle of conferral. (…).

2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. (…).”

Thus, the EU can act only within its competence; competence expressly or implicitly granted in it constituent treaties; TEU and TFEU.

It has already been mentioned how linked criminal law is to socially acceptable tenets of each country. Criminal law is also considered the legal area that is the most territorial. A crime is a crime only if the territory (country) on which it is committed considers it a crime. [43] Criminal law is guarded jealously by States that see it as representing their sovereingty.

For these reasons, criminal law played little or no role in the European Community. However, it has crept in and the Lisbon Treaty has given the EU an unprecedented role in criminal law.[44] Article 83-1 of TFEU states that the EU can establish rules concerning serious crimes with a cross-border dimension:

“The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.”

Some of these areas such as trafficking in human being and sexual exploitation of women and children involve violence against women. Also, cross-border crimes can take into consideration such crimes as forced marriages and FGM in some cases. However, other violence against women does not fit the cross-border condition. Nevertheless, the TFEU goes on to declare that other areas of crime may also be in the EU domain:

“On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.”

Does violence against women have a legal basis in the TEU and/or TFEU?

The first paragraph in the preamble of the TEU speaks of “universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”. The second refers to the EU “attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law”. These values are reiterated in article 2 stressing “the solidarity and equality between women and men (…)”.

Article 3 promotes the “wellbeing of its peoples”. Article 8 of the TFEU mentions the need to promote equality between men and women. Article 9 guarantees “a high level of employment, (…) of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health”. All which speak to the subject of violence against women.

Article 6 recognizes “the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted (sic) at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties”.

This Charter proposes to “strengthen the protection of fundamental rights”. Its first article stresses the notion of human dignity that is “inviolable”. Article 3 of the Charter states that all people have a “right to respect for his or her physical and mental integrity”. Article 6 grants the right of “liberty and security” of each person. Article 21 prohibits discrimination on the grounds of one’s sex. Article 23 speaks of the “equality between men and women” that must be “ensured in all areas”.

And one can continue citing article after article that insists on the role of the EU to promote equality between the sexes and protect fundamental rights of its citizens. It would be hard to argue that violence against women does not fall under the competence of the EU.

Finally, article 21-1 sums up the action of the EU on the international scene:

“The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations. 2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity(b) consolidate and support democracy, the rule of law, human rights and the principles of international law (…).”

Actually, almost every term used in (a) and (b) of this article could be referring to violence against women.

The 2011 Communication from the Commission suggests that the EU can “tackle gaps and shortcomings wherever EU action adds value” and that criminal law can play an “important role to ensure the implementation of European Union policies”. It stresses the fact that “where the enforcement choices in the Member States do not yield the desired result and levels of enforcement remain uneven, the Union itself may set common rules on how to ensure implementation, including, if necessary, the requirement for criminal sanctions for breaches of EU law.”

As the Survey and the Report underline, the harmonization of criminal law concerning violence against women is far from being satisfactory; definitions differ as do sanctions throughout the EU, if the act is sanctioned at all. And the consequences of this patchwork mixture of law from one Member State to another has been seen by the horrific statistics found in the Survey. Both these documents leave little doubt that the “desired result and levels of enforcement remain uneven”. The EU cannot continue to claim internally that it protects fundamental rights and promotes equality between the sexes when little is being done to achieve these goals.

Half of the EU’s population, women and girls, are neglected—protected in words only.

Since criminal law does reflect basic beliefs of society, the importance of it being consistent and coherent throughout the EU is essential. The Member States minimum standards should reflect the constituent Treaties goals. However, if precision is not given on how to achieve these goals in the Treaties—as is the case—then this precision must be found elsewhere. That elsewhere is the Istanbul Convention.

One final question: Will the proposal to adhere to this Treaty be doomed to failure as was the case with the ECHR? Will the CJEU refused to accept the proposal claiming that it must keep control of the interpretation of EU law?

The monitoring mechanism of the Istanbul Convention is described in detail in Chapter IX. A group of experts will monitor the State Parties implementation of the Treaty. This group, referred to as GREVIO, will be composed of 10 to 15 members elected by the Committee of the Parties amongst candidates nominated by the Parties. The Committee is composed of representatives of the State Parties. Based on a questionnaire prepared by GREVIO, Parties will report on their legislative and other measures taken to implement the Treaty. GREVIO’s findings are sent to the Party concerned and they may be sent to the Committee of the Parties and to the Committee of Ministers of the CoE. GREVIO may, when necessary, make general recommendations to the Parties. As can the Committee of the Parties. The Parties will submit these findings to their national parliaments. The Parliamentary Assembly of the CoE will also be asked regularly to “take stock” of the Treaty’s implementation.

According to these measures, it seems that the CJEU will still have the final word on EU law. The Istanbul Convention speaks only of recommendations; its power of control rather limited. In addition, the Treaty clearly declares that it will not “affect obligations arising from other international instruments” that the Parties adhere to.

The CJEU will lose no power and will not be subjected to binding external control. One therefore sees no legal reason to refuse the Commission’s proposal to adhere to the Istanbul Treaty and that as soon as procedurally possible.

Image credit: Charlotte Lyon