Any act of domestic violence may result in a violation of human rights. Among those rights are the right to life, the prohibition of inhumane or degrading treatment, the right to private and family life, and others.
There are a number of human rights which may be violated as a result of domestic violence.
Right to life
Everyone has the right to life and the State has an obligation to actively protect it. Where state authorities know, or ought to know, that someone’s life is at real and immediate risk, they should take all necessary and reasonable actions to avoid that risk, which includes both first response and structural assistance. It also has an obligation to investigate any case of unnatural death and take the necessary responsible measures. If a person’s life has been at risk as a result of domestic violence, but the pertinent authorities such as the police or the courts have failed to take the appropriate actions, these situations may result in a violation of the right to life.
Article 2 of the European Convention on Human Rights, which protects the right to life, contains two positive obligations for Member States, both of which apply in the context of domestic violence:
- A substantive obligation: The State has a general obligation to protect by law the right to life and to prohibit the intentional deprivation of life. Therefore, States must secure this right by putting in place effective criminal law provisions to punish and deter the commission of offences (including domestic violence) and must take preventive operational measures to protect individuals whose life is at risk. This means, for example, that state authorities must immediately respond to allegations of domestic violence and take appropriate measures to protect the victims.
- A procedural obligation: The State has a duty to carry out an effective investigation into alleged breaches of the right to life. Therefore, in the context of domestic violence, the State must investigate when an individual has been killed as a result of the use of force by the individual’s partner.
example A State was found liable for violating a woman’s right to life who was shot dead by her husband despite having complained several times about her husband’s violent attitude towards her. The police authorities had failed to respond promptly to the victim’s complaints and had failed to carry out a proper assessment of her situation. As a result, no action was taken to prevent the husband from killing his wife, for example the authorities did not seize his handgun and did not arrest him for breaching his restraining order. The Court held that the State had violated its positive substantive obligation to protect the woman’s right to life.
Prohibition of inhumane or degrading treatment
Everyone has the right to humane and dignified treatment. This means that the State must actively take immediate and structured protective measures against inhumane or degrading treatment and investigate any cases where such treatment has been meted out by private individuals. Both the lack of active protection and the lack of investigation may result in a human rights violation. Acts of domestic violence may be considered to be inhumane or degrading in cases such as physical ill-treatment, sexual abuse, kidnapping, stalking and threats of assault.
However, in order for treatment to be deemed inhumane or degrading, the suffering must have reached at least a minimum level of severity. When assessing whether such severity has been reached, such things as the duration of the situation, the physical and psychological effects, the victim's age, gender and condition of health would be taken into account. These criteria are often evaluated together.
Ill-treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, in the absence of physical injury, a treatment can be considered inhumane when it humiliates an individual or arouses feelings of fear, anguish or inferiority capable of breaking the individual’s moral and physical resistance.
Right to private and family life
Everyone has the right to respect for private and family life. The State has a positive obligation to take the necessary protective measures for individuals to be able to enjoy their private and family life. Acts of domestic violence can seriously prevent families from peacefully enjoying their family life and cause them continuing distress and anxiety. If the pertinent state authorities fail to take the necessary protective measures, this may result in a violation of the right to private and family life. Considering domestic violence to be a private matter is incompatible with the authorities’ obligation to protect the family life of individuals.
example There was a violation of the right to respect for private life in a case of domestic violence where the children of the victim were obliged to see their violent father in a non-protective environment during several years, and the mother’s parental responsibility was suspended when she showed hostility towards these meetings. The Court held that both the children and mother’s private life had been violated.
Right to fair trial
Situations of domestic violence may also lead to criminal proceedings. For example, when the perpetrator is called to responsibility by the justice system. If the victims of domestic violence have been recognized as victims in criminal proceedings, they have a number of rights pertinent to a fair trial. For example, under certain circumstances, they have the right to free legal aid. If the failure of the State to ensure fair trial guarantees towards victims has resulted in an unfair process for the victims, it may lead to a violation of the right to a fair trial.
For example, States have an obligation to make criminal and civil remedies available, e.g., by setting up legal aid scheme for victims of domestic violence who do not have financial means to pay for the assistance of a lawyer.
Similarly, situations of domestic violence may involve civil dispute settlement. In addition, the fair trial rights of the party who has been the victim of domestic violence must be ensured in civil proceedings.
example There was a violation of the right to a fair trial in a case where the national courts had not examined the applicant’s complaint about the failure to award the applicant compensation for suffering from domestic abuse, despite it being clearly stated in the national law that the courts had an obligation to rule on the matter of compensation, even without a formal request from the victim.
example There was a violation of the right to a fair trial in a case where a victim sought judicial separation from her physically abusive husband. As she was unable to conclude a separation agreement with her husband, she sought a judicially ordered separation. She was unable to obtain such an order since she lacked the financial means, in the absence of legal aid, to retain a solicitor. The Court held this was a violation of her right to access a court for determination of her civil rights and obligations.
Prohibition of discrimination
Domestic violence is considered to be a form of discrimination against women, because it affects mainly women and it is induced by the general and discriminatory passivity and unresponsiveness of the public authorities and judicial system towards allegations of domestic violence. Violence against women is any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including the threat of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. It has been acknowledged that violence against women seriously hampers women from using their rights and freedom on equal terms with men. Widespread prejudices and practices in society use gender-based violence as a form of protection or control of women.
The failure of the State to properly react to domestic violence cases, including the lack of a legal framework regarding domestic violence or the failure to utilize the existing law to adequately react to domestic violence crimes, which fosters a climate conducive for it, or the failure to provide protection for victims and/or deny their right to proper compensation, may result in a violation of the prohibition of discrimination in conjunction with the violation of the right to life, the prohibition of inhumane or degrading treatment, and the right to private and family life.
example The failure of law-enforcement authorities to take victims’ allegations of domestic violence seriously, to conduct an effective investigation and to prevent gender-based violences was seen by the European Court of Human Rights as a discriminatory passivity which creates a climate conducive to a further proliferation of violence committed against victims, merely because they were women.