Ministers' Deputies / Rapporteur Groups
GR-H
Rapporteur Group on Human Rights
GR-J
Rapporteur Group on Legal Co-operation


GR-H(2008)22 add / GR-J(2008)12 add 19 September 20081
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“Feasibility study for a convention against domestic violence” prepared by the European Committee on Crime Problems (CDPC)2
Opinions of the:

A. Council of Europe Task Force to combat violence against women, including domestic violence (EG-TFV),
B. European Committee on Crime Problems (CDPC),
C. European Committee on Legal Co-operation (CDCJ)
D. Steering Committee for Equality between Women and Men (CDEG)

Document prepared by DGHL

Item to be considered by the GR-H and the GR-J, in the presence of the TC-EG, at their joint meeting on 7 October 2008
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A. OPINION OF THE COUNCIL OF EUROPE TASK FORCE TO COMBAT VIOLENCE AGAINST WOMEN, INCLUDING DOMESTIC VIOLENCE (EG-TFV) (4 April 2008)
Extract from CM(2008)78 Appendix 2

I. BACKGROUND

Chapter II.4 of the Action Plan adopted at the Third Summit of Heads of State and Government of the Council of Europe (Warsaw, 16-17 May 2005) reads as follows:

“The Council of Europe will take measures to combat violence against women, including domestic violence. It will set up a task force to evaluate progress at national level and establish instruments for quantifying developments at pan-European level with a view to drawing up proposals for action. A pan-European campaign to combat violence against women, including domestic violence, will be prepared and conducted in close co-operation with other European and national actors, including NGOs.“

The expected results of the Task Force, as outlined by the Committee of Ministers in the framework of the Follow-up to the Action Plan adopted during the Third Summit of the Council of Europe, are among others to evaluate the effective functioning of the measures for preventing and combating violence against women adopted at national and international level and to make proposals for revising these measures or for adopting new measures.

It is clear that one of the main responsibilities of the Task Force is to draw up proposals for future action by the Council of Europe to prevent and combat violence against women. Following its deliberations, the main proposal of the Task Force will be to draw up a Council of Europe legally binding human rights instrument to prevent and combat violence against women and to protect its victims.

During their 27th Conference (Yerevan, Armenia, 12-13 October 2006), the European Ministers of Justice invited, in the adopted Resolution No 1, the Committee of Ministers to entrust the European Committee on Crime Problems (CDPC) to:

a. examine, in co-operation with other competent bodies of the Council of Europe, the measures concerning violence against the partner contained notably in the appendix to Recommendation Rec(2002)5 on the protection of women against violence in order to determine the feasibility of and the need for an additional Council of Europe legal instrument on violence against the partner taking into account the discussions of this Conference;

b. report back to the Committee of Ministers on the results of this examination so that it can decide whether there is a need for the Council of Europe to carry out work in this field, possibly in the form of an international normative instrument to combat domestic violence, in particular violence against the partner;”.

In accordance with this Resolution, the Committee of Ministers of the Council of Europe decided at its 984th meeting (17-18 January 2007) to instruct the CDPC to examine whether the Council of Europe should prepare a new convention on violence against the partner and report back to the Committee of Ministers.

To this end, the CDPC instructed a consultant, Ms Renée Römkens, (PhD, IVA Policy Research and Consultancy, INTERVICT, University of Tilburg, Netherlands) to prepare a Feasibility study on a convention to combat domestic violence. This study was examined by the CDPC at its 56th meeting on 21 June 2007.

At its 1006th meeting on 10 October 2007, the Ministers’ Deputies instructed the CDPC to transmit the Feasibility study for a convention against domestic violence, for opinion, to the Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV) and to the Steering Committee for Equality between Women and Men (CDEG).

II. TASK FORCE’S OPINION ON THE FEASIBILITY OF A COUNCIL OF EUROPE CONVENTION TO PREVENT AND COMBAT VIOLENCE AGAINST WOMEN

On the basis of its work, the Task Force is of the opinion that there is a clear need for a European Convention to prevent and combat violence against women and to protect its victims. In addition, the Task Force considers that the Council of Europe has a unique opportunity to lead the process for the preparation of the first European human rights treaty to prevent and combat violence against women. The Task Force highlighted the absence of a universal treaty and a European treaty in this field. Indeed, at present only the Organisation of American States and the African Union have treaties in this field. The Organisation of American States was the first international organisation to adopt, in 1994, a legally binding convention to combat all forms of violence against women3, in force since March 1995. The fact that this is the most widely ratified convention within the inter-American system demonstrates the strong political will to set common legally binding standards in this field. The African Union, in 2003, adopted the Protocol on the Rights of Women in Africa4 which explicitly calls for the protection of women from violence – in private and public life – as a form of guaranteeing the right to life, integrity and security of the person.

The Task Force points out that one of the main messages of the Council of Europe Campaign to combat violence against women, including domestic violence was “to urge States to demonstrate political will to stop violence against women”. In this respect, the Task Force considers that the agreement among Council of Europe member States to prepare a legally binding human rights instrument will demonstrate their commitment to eradicating violence against women.

The Task Force also underlines that in conformity with the Council of Europe Campaign Blueprint “Violence against women is a human rights violation and therefore States have the responsibility to act with due diligence to prevent this type of violence, to protect its victims, to award them compensation and to prosecute and punish the perpetrators". Consequently the Task Force strongly recommends that a future Council of Europe Convention to prevent and combat violence against women should be a human rights instrument containing justiciable rights in relation to the protection of the rights of victims (e.g. European Convention on Human Rights).

The Task Force welcomes the initiative to explore the feasibility of the need for a Council of Europe legally binding instrument to prevent and combat violence against women taken by other Council of Europe committees as well as some of the findings of the Feasibility Study for a convention against domestic violence prepared by the CDPC. The Task Force considers the Feasibility Study as an input to its current work and as an important recognition of the need for a new Council of Europe legally binding instrument. As mentioned above the Task Force is mandated to make proposals in relation to the preparation by the Council of Europe of a legally binding instrument to prevent and combat violence against women. However, the Task Force expresses its concern over the fact that the Feasibility Study focuses on only one form of violence against women – domestic violence – and only on the criminal aspects. The Task Force firmly believes that any future Council of Europe legally binding instrument to combat violence against women should be a broad human rights treaty and its paramount objectives should be the prevention of gender-based violence, the protection of victims and the prosecution of the perpetrators.

The Task Force and the CDEG (see report 38th meeting of the CDEG 28 – 30 November 2007) agree on the following elements concerning a future Council of Europe legally binding human rights instrument in this field:

- the necessity to draft a convention on combating violence against women based on the underlying principle that gender-based violence affects women disproportionately;
- the scope of application of this convention should cover women from birth to death and should not be limited to domestic violence, but should cover all forms of violence against women;
- the convention should take a holistic approach covering prevention, protection and prosecution
- the convention should be prepared by a group having multidisciplinary expertise;
- the convention should include an independent monitoring mechanism.

The Task Force’s opinion in relation to the scope, areas to be covered and possible monitoring mechanism of a future Council of Europe Convention in this field is detailed in the sections III to VIII below.

III. UNDERLYING PRINCIPLE

The Task Force points out the gendered nature of the phenomenon of domestic violence, and reiterates and emphasises the structural causes of violence against women, of which domestic violence is only one form. The Task Force further points out that women are subjected to many forms of violence disproportionately. Therefore, we can speak about gender-based violence; women are subjected to this violence because they are women. It is the result of an imbalance of power between women and men and a human rights violation, presenting an obstacle to achieving gender equality.

IV. PERSONAL SCOPE OF A FUTURE CONVENTION

The Task Force notes the proposal of the Feasibility Study to limit the scope of a possible convention to violence against women as violence between adults and therefore to exclude violence against children in general. However, the Task Force is of the opinion that a new legal instrument needs to cover gender-based violence against girls. Restricting its application to women who have reached the age of majority will limit the reach and effectiveness of such an instrument, as severe forms of gender-based violence such as female genital mutilation, forced marriages and honour killings often affect girls under the age of 18. Furthermore, girls under 18 also suffer violence at the hands of partners before marriage.

In conformity with the Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence, which covers gender-based violence throughout the lifetime of women, the Task Force considers that a legally binding human rights instrument in this field should comprise all forms of gender-based violence perpetrated against women from birth to death, and should therefore include girls.

V. MATERIAL SCOPE OF A FUTURE CONVENTION

While the Feasibility Study of the CDPC focuses on domestic violence from a criminal aspect, the Task Force recommends that any legally binding international instrument of the Council of Europe in this field should be a human rights instrument and framed in a broader context of violence against women as gender-based violence. It therefore considers it vital to expand the scope of a possible convention to cover other forms of gender-based violence against women, including girls. This can be done by covering various forms of the three types of violence it proposes (physical violence, sexual violence and psychological violence).

Therefore, the forms of violence against women covered by such an instrument would include, inter alia, forms of gender-based violence such as physical violence among partners or former partners, rape, sexual violence as well as sexual harassment, but also female genital mutilation, forced marriages and crimes committed in the name of the honour. Furthermore, the Task Force recommends that any definition of violence against women should be sufficiently broad to encompass emerging forms of violence.

The Task Force is of the opinion that including a range of forms of violence against women is all the more justified as other existing international instruments do the same. Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence covers all forms of gender-based violence. Other international legally binding instruments such as the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem do Para”), and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, also extend to various forms of violence against women and are not confined to one type of violence only. In particular, the definition of violence against women on which the Protocol operates includes not only all acts causing physical, sexual and psychological harm, but also economic harm. This goes beyond the scope of violence against women included in both, the General Recommendation 19 to the CEDAW Convention and the inter-American Convention Belem do Para.

VI. AREAS TO BE COVERED BY A FUTURE CONVENTION

Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence proposes a comprehensive strategy to prevent violence, protect its victims and punish the perpetrators.

The Task Force is of the view that any legally binding human rights instrument in this field should also cover these three areas. This implies a holistic approach to preventing and combating violence against women, meaning that a future convention should contain a comprehensive set of measures covering the three areas above. To this end, the Task Force welcomes the proposal in the Feasibility Study that the scope of the convention be comprehensive.

VII. MONITORING MECHANISM OF A FUTURE CONVENTION

It is generally recognised that the effectiveness of international instruments can be measured by the effectiveness of their monitoring mechanism. The Task Force is therefore of the opinion that a future convention should be equipped with an effective and independent monitoring mechanism. Such independent human rights monitoring mechanisms are very well known in the framework of the Council of Europe and enjoy high credibility – as a result of the independence and impartiality of their members and due to the quality of their reports and conclusions resulting from the monitoring procedure. The Task Force is therefore of the opinion that the monitoring body of such a convention should be composed of independent and highly qualified experts capable of monitoring implementation of the obligations contained therein.

In relation to the composition and competences of such a monitoring mechanism, the Task Force suggests examining existing human rights treaty bodies or monitoring mechanisms such as the monitoring mechanism of the Council of Europe Convention on Action against Trafficking in Human Beings (GRETA), the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) or the Mechanism to Follow Up on the Implementation of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (MESECVI).

VIII. PRACTICAL MODALITIES

To guarantee that such a wide range of diverse subject matters are adequately addressed in a future convention, the Task Force recommends that the group in charge of drafting such a human rights instrument be multidisciplinary and include experts with different professional experience, on violence against women, gender equality, human rights in general, criminal and civil law, including non-governmental organisations. It therefore proposes the setting up a new ad-hoc committee with the multidisciplinary expertise mentioned above and with the participation of representatives of the European Committee on Crime Problems (CDPC), the Steering Committee for Equality between Women and Men (CDEG), Steering Committee for Human Rights (CDDH), European Committee on Legal Co-operation (CDCJ) as well as other Steering Committees concerned (e.g. composition similar to the Ad-Hoc Committee on Action against Trafficking in Human Beings, (CAHTEH)).

* * *

B. OPINION OF THE EUROPEAN COMMITTEE ON CRIME PROBLEMS (CDPC) – 2-6 JUNE 2008
Extract from CM(2008)128 add3

Domestic violence / Violence against women

I. Background

1. At the 27th Conference of European Ministers of Justice, held in Yerevan, Armenia, on 12-13 October 2006, the Ministers, in Resolution No. 1 on victims of crime, invited the Committee of Ministers to entrust the European Committee on Crime Problems (CDPC) to:

    “2° - Domestic violence, in particular violence against the partner

a. examine, in co-operation with other competent bodies of the Council of Europe, the measures concerning violence against the partner contained notably in the appendix to Recommendation Rec (2002) 5 on the protection of women against violence in order to determine the feasibility of and the need for an additional Council of Europe legal instrument on violence against the partner taking into account the discussions of this Conference;

b. report back to the Committee of Ministers on the results of this examination so that it can decide whether there is a need for the Council of Europe to carry out work in this field, possibly in the form of an international normative instrument to combat domestic violence, in particular violence against the partner;”

II. Feasibility Study for a convention against domestic violence

2. In conformity with these instructions, the CDPC commissioned a study to be carried out by an independent expert on the feasibility of a convention against domestic violence. The study, entitled “Feasibility Study for a Convention against Domestic Violence” (see Appendix I) was adopted by the CDPC in June 2007. It highlighted the need for an international normative instrument on this subject and stated that the Council of Europe was the best placed organisation to carry out this task.

3. The CDPC agreed that it could be necessary to draft a legally binding instrument to combat domestic violence. It took the view that any work should be carried out in co-operation with the Steering Committee for Equality between Women and Men (CDEG) and with the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV, hereafter, the Task Force). It agreed that a possible convention should cover penal, civil and human rights aspects of the problem and that preparing such a convention required a multi-disciplinary approach.

4. Taking into account that the final report of the Council of Europe campaign “Stop domestic violence against women” would be finalised in June 2008, the CDPC concluded that it would discuss the issue concerning the preparation of a possible Convention in this field at its next plenary meeting in 2008 and instructed its Bureau to continue to examine issues related to violence against the partner in close co-operation with other Council of Europe bodies dealing with this subject.

Opinion of the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV)

5. The Feasibility Study for a Convention against Domestic Violence was transmitted to the Task Force and to the CDEG for opinions. The Task Force adopted its opinion (see Appendix II) at its meeting on 1-4 April 2008. After acknowledging the position of the Task Force and the position expressed by the Bureau of the European Committee on Legal Cooperation (CDCJ) at its last meeting (7-9 April 2008) that finds it regrettable to restrict the scope of a future convention to women and girls, the CDPC Bureau invited the CDPC to have a discussion on this issue and to transmit the results of this discussion to the Committee of Ministers for information.

Outcome of CDPC plenary discussions

6. At is plenary meeting on 2-6 June 2008, the CDPC discussed different issues related to the future work of the Council of Europe in this field and in particular the scope of a possible future convention.

7. Ms Simonović and Ms Acar, members of the Task Force, presented the views expressed in the opinion. The Task Force was clearly in favour of the future convention taking a specific gender-based approach, dealing with violence against women, including domestic violence, recognising that violence against women is a form of discrimination and a human rights violation. The members of the Task Force highlighted that while some other regions of the world have developed binding instruments to combat violence against women, there is no such instrument in Europe. They stressed that an international binding instrument is required to tackle gender-based violence against women in the home, within the family, in the workplace, in domestic-work settings, in armed conflict, etc, addressing issues of physical, psychological and sexual violence, and taking a multi-dimensional and multi-disciplinary approach. They also felt that it would be desirable to maintain a continuity of work within the Council of Europe, building on the success of the campaign “Stop violence against women” and up-grading the Committee of Ministers Recommendation Rec(2002)5 on the protection of women against violence into a legally binding convention.

8. The CDPC fully shared the view of the Task Force that the phenomenon of gender-based violence is an extremely important problem and a serious human rights issue. Nevertheless, the CDPC felt that it would be unfeasible to cover all the issues identified by the Task Force in one convention; the scope would be so wide as to make such a convention unworkable. The CDPC agreed that the future convention, to be effective, needed to be restricted to a specific domain, that of domestic violence or violence within close relationships. Account should also be taken of existing legal instruments protecting women and girls from violence in order to avoid duplication, in particular the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) and the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201). Finally, the CDPC noted that a gender-based approach to violence could not easily be translated into criminal law provisions. As such provisions would form the substantive law part of the future convention, difficulties could arise in this respect.

Opinion of the CDPC on the scope of the future convention

9. For these reasons, the CDPC expressed the clear view that a future convention should be limited in scope to domestic violence or violence where there is a close/intimate relationship between the victim and the perpetrator. In so doing, the primary victims of this type of violence – women – would be the principal beneficiaries of the convention.

10. The CDPC decided to send to the Committee of Ministers its Feasibility Study for a Convention against Domestic Violence and the opinion of the Task Force on this study, as well as the outcome of its discussions on this issue, as described above.

* * *

C. OPINION OF THE EUROPEAN COMMITTEE ON LEGAL CO-OPERATION (CDCJ) (Strasbourg, 4-6 June 2008)
Extract from the report of the 83rd plenary meeting of the CDCJ

9.9 Domestic violence

124. Following a decision of the Committee of Ministers, an external consultant was commissioned by the CDPC to prepare a Feasibility Study for a convention against domestic violence. The Study was presented to the CDPC Plenary in June 2007. It clearly highlighted the need for an international legally binding instrument to combat domestic violence and stated that the Council of Europe was the best-placed organisation to carry out this task.

125. The Study was transmitted to the “Task Force to Combat Violence against Women, including Domestic Violence” (EG-TFV) and to the CDEG for opinion. The Task Force prepared an opinion, expressing a clear preference for a comprehensive Convention on violence against women. This opinion was considered by the Bureau of the CDPC which agreed to favour a more restrictive approach.

126. The Bureau of the CDCJ is favourable to future co-operation with the CDPC on this subject. However, during its 81st meeting the Bureau of the CDCJ was not in favour of restricting the scope of the future convention to women and girls, as it is advocated in the Opinion of the “Task Force on violence against women” on the CDPC study. The Bureau of the CDCJ considers that domestic violence should also cover men, the elderly, children, and the disabled.

127. Before draft terms of reference for an Ad hoc multidisciplinary group of experts can be drawn up and presented to the CDPC and CDEG for approval, the Committee of Ministers will take a decision on the scope of a new Convention when considering the final report of the Task Force.

128. The CDCJ was invited to take note of the on going work of the CDPC in this field. The CDCJ was of the opinion that the scope of a future convention on domestic violence to be prepared by the Council of Europe should not be limited to women and girls, but should have a wider scope, including all victims. The CDCJ invited the Committee of Ministers to take note of its view that, should a Convention on domestic violence be prepared by the Council of Europe, its scope of application should include all victims of all domestic violence, including women, men, children, the elderly and the handicapped.

* * *

D. Opinion of the Steering Committee for Equality between Women and Men (CDEG) (30 June – 2 July 2008)
Extract from the 39th abridged meeting report (CM(2008)115 Appendix 2)

I. Background

1. In the framework of the preparation of its opinion, the CDEG wished to recall that since the late 1970s, the Council of Europe and in particular its Steering Committee for equality between women and men (CDEG) have undertaken numerous actions to make the protection of women against violence a political priority, i.e. such as the organisation of the 3rd European Ministerial Conference on Equality between Women and Men in 1993, devoted to “Strategies for the elimination of violence against women in society: the media and other means”.

2. In 1997, when implementing the recommendations of the 3rd European Ministerial Conference, an Action Plan to Combat Violence against Women, aimed at providing a policy framework for national administrations, was developed. This Action Plan was followed up in April 2002 by the adoption of Recommendation Rec(2002)5 on the protection of women against violence by the Committee of Ministers. This recommendation was the first international legal instrument to propose a global strategy to prevent violence and to protect victims, covering all forms of gender-based violence.

3. This issue was then taken up at the Warsaw Summit (16-17 May 2005) during which the Heads of State and Government of the Council of Europe member states reaffirmed their commitment to eradicating violence against women, including domestic violence and defined in their Action Plan the future activities of the Council of Europe in this field.

4. As a follow-up to this Action Plan, a Task Force to Combat Violence against Women, including domestic violence was established in early 2006. On the basis of the measures contained in Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence, the Task Force drafted the blueprint for the Council of Europe Campaign to Combat Violence against Women, including Domestic Violence, which was led from 2006 to 2008 in close co-operation with other European and national actors, including NGOs.

5. This problem also drew the attention of the Europe Ministers of Justice. During their 27th Conference (Yerevan, Armenia, 12-13 October 2006), they invited, in the adopted Resolution No 1, the Committee of Ministers to entrust the European Committee on Crime Problems (CDPC) to:

a. “examine, in co-operation with other competent bodies of the Council of Europe, the measures concerning violence against the partner contained notably in the appendix to Recommendation Rec(2002)5 on the protection of women against violence in order to determine the feasibility of and the need for an additional Council of Europe legal instrument on violence against the partner taking into account the discussions of this Conference;

b. report back to the Committee of Ministers on the results of this examination so that it can decide whether there is a need for the Council of Europe to carry out work in this field, possibly in the form of an international normative instrument to combat domestic violence, in particular violence against the partner”.

6. In accordance with this Resolution, the Committee of Ministers of the Council of Europe decided at its 984th meeting (17-18 January 2007) to instruct the CDPC to examine whether the Council of Europe should prepare a new convention on violence against the partner and report back to the Committee of Ministers.

7. To this end, the CDPC instructed a consultant, Ms Renée Römkens, (PhD, IVA Policy Research and Consultancy, INTERVICT, University of Tilburg, Netherlands) to prepare a Feasibility study on a convention to combat domestic violence. This study was examined by the CDPC at its 56th meeting on 21 June 2007.

8. At its 1006th meeting on 10 October 2007, the Ministers’ Deputies instructed the CDPC to transmit the Feasibility study for a convention against domestic violence, for opinion, to the Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV) and to the Steering Committee for Equality between Women and Men (CDEG).

II. Opinion of the CDEG on the feasibility of a Council of Europe convention to prevent and combat violence against women

9. The CDEG is of the opinion that there is a clear need for a European Convention to prevent and combat violence against women and to protect its victims. In addition, the CDEG considers that the Council of Europe has a unique opportunity to lead the process for the preparation of the first European human rights treaty to prevent and combat violence against women. The CDEG highlighted the absence of a universal treaty and a European treaty in this field. The European Convention on Human Rights is a general international instrument on civil and political rights but it does not provide for specific protection to women victims of gender-based violence. Indeed, at present only the Organisation of American States and the African Union have treaties in this field. The Organisation of American States was the first international organisation to adopt, in 1994, a legally binding convention to combat all forms of violence against women5, in force since March 1995. The fact that this is the most widely ratified convention within the inter-American system demonstrates the strong political will to set common legally binding standards in this field. The African Union, in 2003, adopted the Protocol on the Rights of Women in Africa6 which explicitly calls for the protection of women from violence – in private and public life – as a form of guaranteeing the right to life, integrity and security of the person.

10. The CDEG wished to underline that Recommendation Rec(2002)5 on the protection of women against violence points out that violence against women “both violates and impairs or nullifies the enjoyment of their human rights and fundamental freedoms” and recommends that governments of member states “review their legislation and policies with a view to guaranteeing women the recognition, enjoyment, exercise and protection of their human rights and fundamental freedoms.” The Blueprint of the Council of Europe Campaign also underlined that “Violence against women is a human rights violation and therefore States have the responsibility to act with due diligence to prevent this type of violence, to protect its victims, to award them compensation and to prosecute and punish the perpetrators". Consequently the CDEG strongly recommends that a future Council of Europe Convention to prevent and combat violence against women should be a human rights instrument containing justiciable rights in relation to the protection of the rights of victims (e.g. European Convention on Human Rights).

11. The CDEG welcomes the initiative to explore the feasibility of the need for a Council of Europe legally binding instrument to prevent and combat violence against women taken by other Council of Europe committees as well as some of the findings of the Feasibility Study for a convention against domestic violence prepared by the CDPC. The CDEG considers the Feasibility Study as an important recognition of the need for a new Council of Europe legally binding instrument. However, it expresses its concern over the fact that the Feasibility Study focuses on only one form of violence against women – domestic violence – and only on the criminal aspects.

12. The CDEG firmly believes that any future Council of Europe legally binding instrument to combat violence against women should be a broad human rights treaty and its paramount objectives should be the prevention of gender-based violence, the protection of victims and the prosecution of the perpetrators. It is important to recognise the gendered nature of the phenomenon of domestic violence and the structural causes of violence against women of which domestic violence is only one form. Women are disproportionately subjected to many forms of violence and they are subjected to this violence because they are women; hence the term gender-based violence. This gender-based violence results from an imbalance of power between women and men which disadvantages women as pointed out in Recommendation Rec(2002)5 on the protection of women against violence: “violence towards women is the result of an imbalance of power between men and women and is leading to serious discrimination against the female sex, both within society and within the family”. Violence against women is a human rights violation which is an obstacle to achieving gender equality. The CDEG is thus of the view that a future convention should specify that the convention concerns all forms of gender based violence against women.

13. Following its exchange of views with the Chair of the Task Force during its 38th meeting (28-30 November 2007) the CDEG fully endorses the following elements of a future Council of Europe legally binding human rights instrument as set out by the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence in its “Opinion on the Feasibility Study for a convention against domestic violence prepared by the European Committee on Crime Problems” (EG-TFV(2008)2 final, adopted at their 7th meeting on 1-4 April 2008)7, in particular:

- the necessity to draft a convention on combating violence against women based on the underlying principle that gender-based violence affects women disproportionately;
- the scope of application of this convention should cover women from birth to death and should not be limited to domestic violence, but should cover all forms of violence against women;
- the convention should take a holistic approach covering prevention, protection and prosecution;
- the body responsible for drafting the convention should have multidisciplinary expertise in a variety of areas and therefore include specialists in gender equality, human rights and criminal matters;
- the convention should include an independent monitoring mechanism.

14. However, in addition to the Opinion of the Task Force, the CDEG agreed that children witnessing gender based violence are also an integral part of the problem. It should be made clear in a convention that prevention and protection strategies need to recognise this.

15. Furthermore, the CDEG is of the opinion that a future legally binding instrument in this field should not cover issues related to trafficking in human beings, as these fall within the remit of the Council of Europe Convention on Action against Trafficking in Human Beings (ETS No 197).

Note 1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.
Note 2 The text of this study (doc. CDPC (2007) 09rev) is available from the CDPC Secretariat (dgi.cdpc@coe.int).
Note 3 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Belem do Para, Brazil (1994).
Note 4 Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, entry into force on 25 November 2005, 21 ratifications as of 17 January 2008.
Note 5 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Belem do Para, Brazil (1994).
Note 6 Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, entry into force on 25 November 2005, 21 ratifications as of 17 January 2008.
Note 7 See also CM(2008)78, Appendix 2, of 24 April 2008.


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