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Opinion 280 (2011) Final version
Opinion on the draft Council of Europe Convention on preventing and combating violence against women and domestic violence
1. The Parliamentary Assembly has
consistently, repeatedly and forcefully condemned violence against women
as one of the most serious violations of human rights in Europe,
finding its roots in unequal power relations between women and men
and discrimination against women. The Assembly, therefore, warmly welcomes
the draft Council of Europe convention on preventing and combating
violence against women and domestic violence, as the first international
binding instrument specifically devoted to this issue and as an important
step forward in the promotion of substantive equality between women
and men.
2. The Assembly welcomes the comprehensive and holistic approach
of the draft convention, which encompasses simultaneously the prevention
of violence against women, the protection of victims, the prosecution
of perpetrators and integrated policies.
3. It also commends the strong monitoring mechanism foreseen
by the draft convention, as well as the innovative provisions setting
out a specific role for national parliaments and the Assembly in
the context of monitoring the implementation of the convention.
4. Having had the opportunity to take part in the entire negotiation
process in the Ad hoc Committee on Preventing and Combating Violence
against Women and Domestic Violence (CAHVIO), the Assembly is aware that
the text of the draft convention is the result of a delicate compromise
between diverging views, interests and concerns.
5. The Assembly notes that the scope of the draft convention
itself is the result of a compromise as it primarily covers all
forms of violence against women, including domestic violence, which
affects women disproportionately, while the states parties are encouraged
to apply the convention also to other victims of domestic violence.
6. Although such a wide scope goes beyond the mandate of the
Council of Europe campaign "Stop domestic violence against women",
and was not clearly defined in the terms of reference of the CAHVIO,
the Assembly does not think it appropriate, at this stage, to call
it into question, because of the risk of altering a balance which
has been very carefully negotiated.
7. The Assembly, however, wishes to propose amendments, with
a view to strengthening the standards set out in the draft convention.
8. In particular, the Assembly expresses its concern with regard
to the inadequate protection of some specific vulnerable groups,
such as children, elderly people and migrant women without a legal
residence status. These women are mentioned only in the case of
their losing their residence status as a result of the dissolution
of a relationship with a spouse or partner as a consequence of their
being victims of violence.
9. In addition, the Assembly points out that, in the field of
prosecution, too much flexibility is left to the states parties
on how to sanction some of the forms of violence covered by the
draft convention, whether through administrative, civil or criminal
law. The Assembly would have preferred a much stronger emphasis
on the obligation to criminalise certain acts of violence, even
if this created the need for some member states to make additional
efforts to adapt their domestic law to the draft convention.
10. It is likewise regrettable that exceedingly broad latitude
to make reservations is left to the states parties, with the result
that a considerable proportion of the convention could be made inoperative.
This is all the more worrying considering that reservations could
be made to important provisions such as those concerning the victims'
right to compensation, the exercise of jurisdiction, the statute
of limitations, residence status or the obligation to provide for
criminal sanctions for certain acts, as opposed to non-criminal
sanctions.
11. In the light of the above, the Assembly recommends to the
Committee of Ministers that the draft convention be amended so as
to replace the expression "gender-based violence against women"
with "gender-based violence" in Article 3.d, Article 14, paragraph
1, and Article 60, paragraph 1.
12. In addition, with a view to addressing the situation and needs
of specific vulnerable groups, the Assembly invites the Committee
of Ministers to consider drafting three additional protocols to
the draft convention, respectively on children, disabled people
and elderly people. It also recommends the following amendments
to the draft convention:
12.1. in
Article 15, paragraph 2, replace "encourage" with "ensure";
12.2. in Article 22, at the end of paragraph 2, add the following
words: "taking into account their specific needs".
13. Moreover, in order to make it explicit that the convention
applies also to migrant women without a regular residence status
and to reinforce measures aimed at protecting them and encouraging
them to report violence to the relevant authorities, the Assembly
recommends to the Committee of Ministers that the draft convention be
amended as follows:
13.1. in Article
4, paragraph 3, after the words "migrant or refugee status" add
the words ", absence of legal residence status";
13.2. in Article 18, paragraph 1, after the word "victims" add
", irrespective of their legal status,";
13.3. in Article 59, paragraph 1, delete the words "in the event
of particularly difficult circumstances";
13.4. after Article 59, add the following new article:
"Irregular migrant status
1. Parties shall take the necessary legislative or other measures to ensure that victims without regular residence status are granted a residence permit in the following cases:a. where the competent authority considers that their stay is necessary owing to their personal situation;b. where the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in an investigation or criminal proceedings.
2. Parties shall apply all the provisions of the present Convention to victims without regular residence status, without discrimination."
14. With a view to reinforcing substantive law provisions and
protection measures, the Assembly recommends to the Committee of
Ministers the following amendments:
14.1. in Article 34, replace the words "repeatedly engaging
in threatening conduct directed at" with "following, harassing or
threatening";
14.2. in Article 36, paragraph 3, delete the words "as recognised
by internal law";
14.3. in Article 40, delete the words "or other legal";
14.4. in Article 46, paragraph 1.a, delete the words "as recognised
by internal law";
14.5. reword Article 53 as follows:
"1. Parties shall take the necessary legislative or other measures to ensure that appropriate restraining and protection orders are available to the police and to the victims of all forms of violence covered by the scope of this Convention.
2. Parties shall take the necessary legislative or other measures to ensure that the restraining and protection orders referred to in paragraph 1 are:
- available for immediate protection and without undue financial or administrative burdens placed on the victim;
- issued for a specified period or until modified or discharged;
- where necessary, issued on an ex parte basis which has immediate effect;
- where necessary, issued ex officio;
- available irrespective of, and in addition to, other legal proceedings;
- allowed to be introduced in subsequent legal proceedings.";
14.6. in Article 56, paragraph 1.f, replace the words "may be"
with "are".
15. With a view to further reinforcing the monitoring mechanism
foreseen by the draft convention, and involving more closely specialised
non-governmental structures, national parliaments and the Assembly,
the Assembly recommends to the Committee of Ministers that the draft
convention be amended as follows:
15.1. reword
Article 68, paragraph 5, as follows:
"GREVIO may receive information on the implementation of the Convention from national human rights institutions and equality bodies, civil society and non-governmental organisations, especially women's organisations.";
15.2. in Article 70, after paragraph 2, add a new paragraph
worded as follows:
"Parties shall consult their national parliaments when drafting the comments to be submitted to GREVIO in accordance with Article 68 of the Convention.";
15.3. in Article 70, after paragraph 3, add a new paragraph
worded as follows:
"The Parliamentary Assembly shall be entitled to participate in the meetings of GREVIO and the Committee of the Parties as an observer."
16. With a view to reducing the current exceedingly broad latitude
for the states parties to enter reservations, the Assembly recommends
the following amendments:
16.1. in
Article 78, rephrase paragraph 2 as follows:
"Any state or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to apply or to apply only in specific cases or conditions the provisions laid down in Article 44, paragraph 1.e.";
16.2. in Article 78, delete paragraph 3.
17. Finally, the Assembly recommends to the Committee of Ministers
the following amendments to the draft convention:
17.1. in Article 1, reword sub-paragraph
b as follows:
"Contribute to the elimination of all forms of discrimination against women and promote equal dignity for all women and substantive equality between women and men, including by empowering women;";
17.2. in Article 10, paragraph 1, after the words "one or more
official bodies", add "involving all decision-making levels (governments,
parliaments and local and regional authorities)";
17.3. in Article 11 paragraph 1.a, replace the words "disaggregated
relevant statistical data at regular intervals" with "disaggregated,
relevant, harmonised and up-to-date statistical data on an annual
basis";
17.4. in Article 12, paragraph 1, replace the word "inferiority"
with "subordinate position";
17.5. in Article 12, after paragraph 6, add a new paragraph
worded as follows:
"Parties shall promote the activities of non-governmental organisations aimed at providing advice and assistance to victims, including on a cross-country basis.";
17.6. in Article 13, paragraph 1, after "increase awareness
and understanding among the general public of", insert the words
"the dignity and value of women and";
17.7. reword Article 20, paragraph 1, as follows:
"Parties shall take the necessary legislative or other measures to ensure that victims have access to services facilitating their recovery from violence. These measures should include, where appropriate, services such as legal and psychological counselling, financial assistance, housing, education, training and assistance in finding employment or setting up a business. The Parties are encouraged to set up special measures to facilitate the victims' access to employment.";
17.8. in Article 29, paragraph 2, replace "state authorities"
with "public authorities".
18. The Assembly also invites the Committee of Ministers to establish
a close dialogue with the European Union on the issue of violence
against women, with a view to avoiding double standards or contradictions between
the draft Council of Europe convention and European Union legislation
in this field, and encouraging European Union accession to the convention.
19. In the light of the urgency of effective legal standards to
prevent and combat violence against women and domestic violence,
the Assembly calls on member states:
19.1. not to hinder the process leading to the opening for signature
of the convention as soon as possible, giving a strong political
signal of their commitment to eradicating violence against women;
19.2. to sign and ratify the convention as soon as possible;
19.3. to ensure the application of the convention "to all victims
of domestic violence", as they are encouraged to do under Article
2, paragraph 2, of the draft convention;
19.4. to refrain from entering reservations and, in any case,
not to renew them after a period of five years from the entry into
force of the convention in respect of the state party concerned.
20. Recalling the activities conducted from 2006 to 2008 when
embodying the parliamentary dimension of the Campaign entitled "Stop
domestic violence against women", the Assembly affirms its commitment,
through its network of the contact parliamentarians of the Parliamentary
Assembly committed to combating violence against women, to conducting
campaigning and awareness-raising activities in support of the promotion
of the signature and ratification of the convention.