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Patricia Londono, Developing Human Rights Principles in Cases of Gender-based Violence: Opuz v Turkey in the European Court of Human Rights , Human Rights Law Review, Volume 9, Issue 4, 2009, Pages 657–667, https://doi.org/10.1093/hrlr/ngp022
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Extract
The European Court of Human Rights (the ‘Court’) has made some significant decisions in relation to gender-based violence. 1 The most significant of these have involved sexual violence, where the positive duty on the part of States to secure rights between private individuals has provided the basis for finding a violation. What has been missing, however, is the articulation of these issues as inequality issues. 2 Violations involving Article 14 of the European Convention of Human Rights (ECHR)—the prohibition of discrimination in securing Convention rights—have not generally been found in cases regarding violence against women. This can be illustrated by the approach of the Court in the acquaintance-rape case of MC v Bulgaria where the inadequacies of Bulgarian law in dealing with cases of rape were treated as a violation of the substantive right to freedom from ‘inhuman or degrading treatment’ (Article 3) but not as an issue of discrimination against women in the protection of their fundamental rights. 3 While the Court's development of case law regarding violence which disproportionately affects women and girls has been significant in the development of positive duties, such as the duty to conduct investigations capable of bringing perpetrators to justice, 4 the absence of this discrimination component is conspicuous. The practice of the other human rights bodies such as the Committee on the Elimination of all Forms of Discrimination Against Women (the ‘CEDAW Committee’) and the Human Rights Committee (HRC) of the International Covenant on Civil and Political Rights (ICCPR) has recognized sexual violence and violence against women in the home not only as a violation associated with the substantive right, but also as an issue of inequality. 5 Outside of the ECHR system, the Council of Europe has also embarked upon greater moves to tackle violence against women. 6
