1. Introduction
1. The fight against impunity is a fight central to
the Council of Europe’s mission to ensure that human rights and
the rule of law are upheld in its member states. The Committee on
Legal Affairs and Human Rights deserves to be commended for having
proposed this theme for the Assembly’s annual debate on the state
of human rights in Europe. The rapporteur (and chairperson) of the
committee, Ms Herta Däubler-Gmelin, has presented an interesting
and detailed report on the different types of impunity in Europe
today.
2. However, the legal focus of the report, which is based – to
a great extent – on the judgments of the European Court of Human
Rights, leads to a certain neglect of other factors which are responsible
for impunity in Europe today. In fact, the most widespread problem
is that, in many member states, it still has to be recognised by
the whole society that violence against women is no less serious
than other forms of violence, and needs to be treated as a crime
– by lawmakers, the police, prosecutors, judges, jury members, etc.
Without a culture/mentality change in the whole of society, which
parliamentarians are uniquely well placed to influence (through
their law-making capacity, their possibility to monitor the implementation
of laws, but also their closeness to the electorate, and thus their
capacity for awareness-raising and leadership), impunity will not
be eradicated from Europe, far from it.
3. Thus it is only a recent development, for example, that marital
rape is legally recognised as a form of rape in Council of Europe
member states. Similarly, it took a Spanish Prime Minister willing
to put the combating of violence against women at the top of his
government’s priority list (above the war in Iraq) to stem the tide
of gender-based violence in the country via the unanimous adoption
by parliament of the Organic Act 1/2004 on Measures for Comprehensive
Protection against Gender Violence. It is estimated that about 12%
to 15% of all women have been in a relationship of domestic abuse
after the age of 16.
This means that 80 million women Europe-wide
could be concerned by domestic violence.
Where are the 80 million
judgments condemning the – almost exclusively male – perpetrators
of that violence? This widespread impunity should be recognised,
and condemned in stronger terms than it is in the report and draft
resolution and recommendation tabled by the Committee on Legal Affairs
and Human Rights.
2. Gender-based violence – one of the most serious
and widespread forms of impunity in Europe
2.1. Domestic violence against women
4. Only a few days ago, on 9 June 2009, the European
Court of Human Rights issued a landmark judgment
on impunity and gender-based
violence, in
Opuz v. Turkey (Application
No. 33401/02) concerning the Turkish authorities’ failure to protect
the applicant and her mother from domestic violence. The Court held unanimously
that:
- there had been a violation
of Article 2 (right to life) of the European Convention on Human
Rights in respect of the applicant’s mother who was killed by the
applicant’s ex-husband despite the fact that the domestic authorities
had been repeatedly alerted about his violent behaviour;
- there had been a violation of Article 3 (prohibition of
torture and of inhuman and degrading treatment) on account of the
authorities’ failure to protect the applicant against her ex-husband’s
violent and abusive behaviour;
- there had been a violation of Article 14 (prohibition
of discrimination) read in conjunction with Articles 2 and 3 on
account of the violence suffered by the applicant and her mother
having been gender-based, which amounted to a form of discrimination
against women, especially bearing in mind that, in cases of domestic
violence in Turkey, the general passivity of the judicial system
and impunity enjoyed by aggressors mainly affected women.
5. Despite the fact that Nahide Opuz won her case, she unfortunately
still lives in fear for her life. Her violent ex-husband, though
convicted for the murder of his mother-in-law, is free (pending
an appeal), and continues to threaten her. According to press reports,
Ms Opuz was granted police protection only for one week during her
ordeal over several years, and currently lives in hiding – and separated
from her children, afraid that her ex-husband would be willing to
harm the children to get at her. It appears that, last week, following
the Court’s judgment, she was offered police protection at last.
But is that enough?
6. Ms Opuz is a Turkish national. However, she could have been
of almost any other European nationality. Two days ago, for example,
a report by the Northamptonshire Domestic Abuse Forum (in the United
Kingdom) found that the authorities "failed in their duty" to protect
a woman killed in a house fire started by her son-in-law on 1 January
2008.
Mrs Susan Barber, often terrified
and in fear for her life, called Northamptonshire police on at least
20 occasions to report domestic abuse, harassment, damage and threats
involving her estranged husband, said the report. Friends and family
phoned another 12 times. But the calls often failed to result in
the “desperately needed” deployment of officers, the probe found.
Assistant Chief Constable Alan Featherstone reacted to the report
by giving the family an unreserved apology: “We failed them and
we failed ourselves in the standards we met, or didn't meet, in
the investigation”.
2.2. Rape
7. This committee is currently preparing a report on
rape, including marital rape, which the rapporteur – Ms Rupprecht
(Germany, SOC) – hopes to present to the Assembly during the September/October
2009 part-session of the Assembly. Ms Rupprecht’s introductory memorandum
starts as follows: “Every year,
millions of women are raped: by their husbands, partners or ex-partners,
male relatives or acquaintances, or complete strangers. However,
most of these rapes are not reported and the perpetrators go unpunished.”
Many
women feel that they will not be believed if they report having
been raped, because of the pervasiveness of certain myths on rape
which serve to minimise the seriousness of rape and shift the blame
away from those who commit the crime. The common myths cited by
Ms Damanaki in her 2007 report on sexual assaults linked to “date-rape
drugs”
include: only certain types of women
get raped (those who are promiscuous or have poor judgment); women
provoke rapes by the way they dress or the way they flirt; men rape
women because they are sexually aroused or have been sexually deprived
(in fact, men rape women to exert control and humiliate).
Even if women find the
courage to report the crime of rape, more often than not, the rapists
enjoy impunity – and not only in times of armed conflict.
8. The preliminary conclusion of a vast study on rape entitled
“Different systems, similar outcomes? Tracking attrition
in reported rape
cases in eleven countries” by Professor Liz Kelly of the London Metropolitan
University, as presented on 28 April 2009, reads as follows: “The
majority of women reporting rape across Europe do not see justice
done …. This is the outcome of the continued influence of stereotypes
of rape, rape victims and rapists at all stages of the legal process,
and a failure to modernise investigation and prosecution practices.”
Professor Kelly reports that conviction
rates for rape are generally very low: ranging from 6.5% of reported
rapes in England and Wales (2007) to 25% in France (2005). Attrition
in the early stages of the investigation is as high as 82%, and
these high rates are most common in countries with the lowest conviction
rates – raising “serious questions about the professionalism of
the investigation”. The percentage of cases designated as false
allegations is described as “extremely low” by Professor Kelly (ranging
from 2% to 9%), leading her to conclude that “This is extremely
strong evidence that the extent of false allegations is exaggerated
by professionals, but this over-estimation creates a culture of
scepticism.”
2.3. Forced marriages
9. One of the gender-based crimes which, though on the
rise (with tens of thousands of victims in Europe a year), is hardly
ever reported, let alone prosecuted, is forced marriage, as the
case of Humayra Abedin illustrates, whom the committee had an exchange
of views with during the April 2009 part-session. Ms Abedin, a 33-year-old
doctor from Bangladesh, had been living in the United Kingdom for
the past six years and practising medicine in East London for five
years. In August 2008, she travelled to Bangladesh for the purposes of
visiting her mother, who she had been told was very ill; she initially
intended to stay only three days in her country of origin. As soon
as she arrived, her family locked her up with a view to marrying
her by force; they confiscated her passport, her identity documents
and her return ticket. Despite being closely guarded, Humayra Abedin
managed to send an e-mail asking some British friends for help.
They found her a lawyer, Anne-Marie Hutchinson, who had worked for
the Home Office working group on forced marriages, and who set in
motion a procedure requesting her repatriation, pursuant to the
new British legislation that came into force in November 2008.
10. Dr Abedin’s family forcibly admitted her to a psychiatric
hospital in Dakha, without any precise diagnosis of her mental health.
On 5 November, she left the hospital and was taken against her will
to Jessore in south-west Bangladesh where she was married by force
on 14 November. Her cousin, Dr Shipra Chaudhury, filed a petition
in the High Court of Bangladesh alleging that she had been detained
against her will. Humayra Abedin was summoned to appear before the
Dakha family court but her parents managed to avoid this summons
by moving her to different states in Bangladesh. Dr Abedin’s case
was only heard by the Supreme Court of Bangladesh a month later,
on 15 December 2008. In its judgment, it ordered her immediate return
to the United Kingdom, pursuant to the injunction issued to her
family by the British courts.
11. The United Kingdom Foreign Office department in charge of
such matters identified 1 500 cases of forced marriages in 2008
in the United Kingdom alone. However, even when the victims manage
to escape from the forced marriage, they are often reluctant to
see their parents prosecuted – like Dr Abedin, who explained during
the committee meeting that she was reluctant to see her parents
suffer, as she was their only child. In some countries, the necessary
legislation to effectively prosecute this crime is not even in place. Forcing
a young woman (or girl – many victims are under-age) into marriage
is thus a crime which can be perpetrated in almost complete impunity.
2.4. So-called “honour crimes”
12. The committee is presenting a report by Mr Austin
(United Kingdom, SOC) on so-called “honour crimes” to the Assembly
during this June 2009 part-session.
The report considers
all forms of violence against women and girls in the name of traditional
codes of honour to be so-called "honour crimes": "honour killing", assault,
torture, restrictions on free association, captivity or imprisonment,
and interference in the choice of a spouse or partner. The committee
considers that all of these crimes constitute a serious violation
of fundamental human rights, for which no tradition or culture can
invoke any kind of honour to violate women's fundamental rights.
Over the last twenty years, so-called “honour crimes” have become
increasingly common in Europe, particularly in France, Sweden, the
Netherlands, Germany, the United Kingdom, and Turkey – and impunity
is one of the main problems with these crimes.
13. In the majority of cases, so-called “honour crimes” are perpetrated
by the husband, father or brother of the woman or the girl regarded
as “culpable” by the family of having violated a traditional code
of “honour” – to punish a real or supposed relationship of which
the family disapprove and/or “immoral conduct”, such as a mere exchange
of words with a male neighbour or friend. Brothers often proclaim
themselves to be the guardians of their sister’s honour. Frequently,
the youngest brother, if possible a minor, is chosen to carry out the
crime, so that he will not be judged too severely by the courts.
Many crimes go unreported,
even the most serious – “honour killings”, as many such killings
are successfully disguised as suicides by the families.
2.5. Female genital mutilation
14. Female genital mutilation is one of the rare cases
of gender-based violence in which the majority of the perpetrators
tend to be women – both the “cutters” who actually mutilate the
women and girls, and their mothers who take the latter to them to
undergo the dreadful procedure. Nevertheless, female genital mutilation
is the result of a traditional, male-dominated, patriarchal society
which finds it necessary to control women’s bodies (as well as their
virginity) to maintain established power relationships – keeping
women and girls in an inferior position. Though the practice is
not as widespread in Europe as other types of gender-based violence,
female genital mutilation is an extremely serious crime, as it constitutes
grievous bodily harm, and sometimes even leads to the death of the
victim. According to the European Parliament, 180 000 female emigrants
in Europe undergo, or are in danger of undergoing, female genital
mutilation
(with
500 000 who have already undergone the procedure).
15. Impunity for this crime is widespread, since it is often carried
out outside the jurisdiction of the member state: many victims are
taken to their country of origin by their parents, and are forced
to undergo the procedure there. Few states have made it possible
so far to prosecute the crime in these circumstances, which is why
the European Parliament, in its recent resolution on the matter,
called on European Union member states to “pursue, prosecute and
punish any resident who has committed the crime of FGM, even if
the offence was committed outside their borders (extraterritoriality)”.
But
even when female genital mutilation is practised in Europe, there
is a low reporting rate, and it is difficult to find evidence and
testimonies.
For this reason, the European Parliament
also called on the EU member states to “adopt legislative measures
to allow judges or public prosecutors to take precautionary and
preventive measures if they are aware of cases of women or girls at
risk of being mutilated”.
3. Conclusion: the need to fight impunity for gender-based
violence in Europe
16. Society should not accept these types of gender-based
violence, but, unfortunately, it does to a great extent in many
countries. Studies have shown that between 10% and 33% of respondents
consider that men have the right to use violence against their partners,
or that so-called “honour killings” can be justified, depending
on the country and the cultural context.
17. Thus, not only is there more gender-based violence, but it
is more accepted as “normal” by society. When parliamentarians take
a long time to modify laws to ensure that gender-based violence
is treated as seriously as other forms of violence (by, for example,
foreseeing ex officio prosecution
for such crimes), when prosecutors hesitate to bring prosecutions
for rape, when judges find mitigating circumstances in so-called “crimes
of passion” or crimes committed in the name of so-called “honour”
– they are simply reflecting the attitude, the mentality, and the
culture of the society they are a part of. This is why it is so
important to get the whole society on board to fight gender-based
violence, and the impunity that so often accompanies it.
18. Indeed, this is also the added value of the convention currently
being drafted by the Council of Europe, which the Assembly – and
this committee – hopes will focus on combating the most serious
and widespread forms of violence against women,
and will thus give a strong
signal that gender-based violence must be eradicated, and that impunity
for these crimes must end.
19. I believe that the draft resolution and the draft recommendation
tabled by the Committee on Legal Affairs and Human Rights deserve
the full support of this committee. However, I would like to present
a number of amendments to underline that there is widespread impunity
for gender-based violence (for example, domestic violence against
women, rape (including marital rape), forced marriages, so-called
“honour crimes” and female genital mutilation) in many, if not all,
Council of Europe member states, and that the fight against this
impunity must involve the whole society, and be lead by parliamentarians,
to be effective.
Reporting committee:
Committee on Legal Affairs and Human Rights
Committee seized for opinion:
Committee on Equal Opportunities for Women and Men
Reference to committee:
Bureau decision of 9 January 2009
Opinion adopted by the
committee on 23 June 2009
Secretariat of the committee:
Ms Kleinsorge, Ms Affholder, Ms Devaux