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European Human Rights Court - Gender equality Introduction In 2010 the Council of Europe is commemorating the 60th anniversary of the European Convention on Human Rights and Fundamental Freedoms. Over the years the European Court of Human Rights, which was created to interpret and implement the Convention through its judgments, has made a significant contribution to shaping the rights of men and women in Europe. There are some human rights violations which concern women particularly. The Court has for example delivered judgments on issues such as the protection of women from domestic violence (Opuz v. Turkey), sexual violence (M.C. v. Bulgaria), discrimination against single mothers (Marckx v. Belgium), the right to carry a maiden name (Ünal Tekeli v. Turkey), protection of physical integrity (Y.F. v. Turkey) and trafficking in human beings (Rantsev v. Cyprus and Russia). Protection of women against gender-based violence Opuz v. Turkey (2009) - In 2002 Mrs Nahide Opuz, a Turkish national, lodged an application with the Court alleging that the Turkish authorities had failed to protect her and her mother from aggression by her former husband, which resulted in the death of her mother and her own ill-treatment. In its judgment, the Court found a violation of the rights to life (article 2), not be subjected to torture or ill-treatment (article 3) and not to be discriminated against (article 14). The Court considered that “the violence suffered by the applicant and her mother could be regarded as gender-based violence which is a form of discrimination against women”.The applicant had been able to show that domestic violence affected mainly women in Turkey and that the general and discriminatory judicial passivity created a climate which was conducive to domestic violence. Moreover, the criminal law system did not have an adequate deterrent effect. Protection of women against sexual violence M.C. v. Bulgaria (2003) - In 1997 a Bulgarian national, M.C., who had been raped by two men when she was 14 years old, filed an application alleging that the Bulgarian national law and practice in rape cases and the investigation of the rape of which she had been a victim did not comply with the positive obligation to provide effective legal protection against rape and sexual abuse. The Court considered that States have a positive obligation inherent in articles 3 (right not to be subjected to torture, inhuman or degrading treatment) and 8 (right to private life) to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective legislation and prosecution. The Court observed that, historically, proof of physical force and physical resistance was required under domestic law and practice in rape cases in many countries, although there was a general trend to consider lack of consent, and not the use of force, the constituent element of the offence of rape. It also pointed out that the evolving understanding of the manner in which rape is experienced by the victim has shown that victims of sexual abuse often provide no physical resistance because of a variety of psychological factors or because they fear violence from the perpetrator. The Court found that the investigation carried out by the Bulgarian authorities and the approach taken by the investigator and the prosecutor in the case (which focused on the lack of proof of resistance of the applicant) fell short of fulfilling the state´s obligation to establish - and apply effectively a criminal law system punishing all forms of rape and sexual abuse. Discrimination against single mothers Marckx v. Belgium (1979) - In 1974 Ms Paula Marckx, a Belgian journalist, who in 1973 and while being single had given birth to her daughter Alexandra, filed a claim – on behalf of herself and her daughter - alleging that the provisions of the Belgian Civil Code on the manner of establishing the maternal affiliation for an “illegitimate” child as regards both the extent of the family relationships and the patrimonial rights of the child and of his mother were in breach of the Convention. She also questioned the necessity for the mother to adopt the child if she wished to increase his or her rights. The Court found several violations of article 8 and article 14. The Court said that to allow the family life of an unmarried mother and her child to develop normally, the State must avoid any discrimination on grounds of birth, and considered that the requirement imposed on the mother of a voluntary recognition or a court declaration as to maternity violated the right to private and family life. It also found that the limited capacity of the mother to make dispositions in her daughter’s favour until she was adopted by her was discriminatory. Right to bear only the maiden name Ünal Tekeli v. Turkey (2004) - In 1995 Mrs. Ayten Ünal Tekeli filed an application with the Court alleging that the refusal by the Turkish domestic courts to allow her to bear only her maiden name unjustifiably interfered with her right to protection of private life. She also alleged that she had been discriminated against since only men could continue to bear their own family name after they married. The applicant had taken her husband’s name after her marriage. As she was known by her maiden name in her professional life, she continued to put it in front of her legal name. However, she could not use both names on official documents. The Court held unanimously that there had been a violation of Article 14 (prohibition of discrimination) taken together with article 8 (right to respect of private and family life). The objective of reflecting family unity through a joint family name cannot provide justification for the gender-based difference in treatment mentioned in the complaint. The Court also said that although states have a certain margin of appreciation under the Convention regarding the measures to be taken in reflecting family unity, Article 14 requires that these measures apply equally to both men and women, unless there are compelling reasons to justify a difference in treatment. Protection of physical integrity Y.F v. Turkey (2003) - In 1998 Mr. Y.F. filed an application with the Court claiming that the forced gynecological examination of his wife Mrs. N.F. constituted a breach of her right to respect for private life. In 1993 the applicant and his wife were taken into police custody on suspicion of aiding and abetting an illegal terrorist organisation, the Workers Party of Kurdistan. Mrs. F was held for two days during which allegedly police officers hit her, insulted her and threatened her with rape. During her detention she was examined by a doctor. At the request of the police that the medical report should state that she had had no sexual intercourse while in custody and despite her refusal, she was forced to undergo a gynecological examination. The report eventually determined that she had not had any sexual intercourse while in custody. In its judgment the Court found a violation of the right to private life. While accepting the Turkish government´s view that the medical examination of detainees by a forensic doctor can prove to be a significant safeguard against false accusations of sexual aggressions, it considered that any interference with a person’s physical integrity must be prescribed by law and requires the consent of that person. The Court also recalled that, under Turkish law, any interference with a person’s physical integrity was prohibited except in the case of medical necessity and in circumstances defined by the law. Protection against trafficking in human beings Rantsev v. Cyprus and Russia (2010)[1] - In 2004 Mr. Nikolay Rantsev, a Russian national, filed an application with the Court claiming several violations of the human rights of his daughter Oxana Rantseva, who had travelled to Cyprus to work in a cabaret and died in strange and unexplained circumstances having fallen from a window in 2001. Ms Rantseva had arrived in Cyprus on an “artiste” visa and started working in a cabaret, but after three days, abandoned her place of work and lodging. The manager of the cabaret found her in a discotheque some days later and took her to the police asking them to declare her to be an illegal immigrant and to detain her, apparently with a view to expelling her so that he could have her replaced in his cabaret. The police refused to detain her since her presence in Cyprus did not appear to be illegal, and asked the cabaret manager to return with her next morning to make further inquiries into her immigration status. Ms Rantseva was brought by the cabaret manager to the house of another employee of the cabaret, where she was taken to a room on the sixth floor of the apartment block. Next morning she was found dead in the street below the apartment. The Court concluded that Ms Rantseva had been a victim of trafficking and that there had been several violations of the Convention: - a violation of Article 2 as a result of the failure of the Cypriot authorities to investigate effectively Ms Rantseva’s death. - a violation of Article 4 by Cyprus arising from its failure to create an appropriate legal and administrative framework to combat trafficking as a result of the existing regime of artiste visas, and, from the failure of the police to protect Ms Rantseva from trafficking, despite circumstances which had given rise to a credible suspicion that she might have been a victim of trafficking. The Court noted that, like slavery, trafficking in human beings, by its very nature and aim of exploitation, is based on the exercise of powers attaching to the right of ownership; treats human beings as commodities to be bought and sold and put to forced labour; implies close surveillance of the activities of victims, whose movements are often circumscribed; and involves the use of violence and threats against victims. - a violation of Article 4 (prohibition of slavery and forced labour) by Russia on account of its failure to investigate how and where Ms Rantseva had been recruited and, in particular, to take steps to identify those involved in her recruitment or the methods of recruitment used. - a violation of Article 5 (right to liberty and security) related to the detention of Ms Rantseva for about an hour at the police station once it was confirmed she was not an illegal immigrant and her subsequent confinement to the private apartment. Further information on: European Court of Human Rights Contact Council of Europe Press Office Tel. +33 (0) 388 41 25 60 Updated: March 2010 |
