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THE UN CEDAW CONVENTION AND DOMESTIC VIOLENCE : LETTERS AND PRACTICE . The case of A.T. versus Hungary Presented by Enikő Pap Regional Conference on domestic violence legal reform, Sofia, February 12-14, 2008. . 1. The UN CEDAW Convention : Relevant Articles and General Recommendations.
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THE UN CEDAW CONVENTION AND DOMESTIC VIOLENCE: LETTERS AND PRACTICE The case of A.T. versus Hungary Presented by Enikő Pap Regional Conference on domestic violence legal reform, Sofia, February 12-14, 2008.
1. The UN CEDAW Convention: Relevant Articles and General Recommendations • No concrete provision on violence against women, on domestic violence; but discrimination against women includes gender-based violence • Main applicable provisions to domestic violence: • Article 2 (comprehensive state obligation to eliminate discrimination against women) • Article 5 (elimination of prejudices and practices, based on the stereotyped roles of women and men) • Article 16 (elimination of discrimination against women in marriage and family relations: equality of women and men, same rights and responsibilities)
The General Recommendations • GR: Not formal parts, but integral explanatory sources for the interpretation and full implementation of CEDAW • GR No. 12 – The content of state periodic reports to CEDAW • Legislation to protect women from all kinds of violence (sexual violence, domestic violence, sexual harassment etc.) • Other measures to eradicate violence against women • Existence of support services for women victims • Statistical data on the incidence of violence against women
General Recommendation No. 19 • The definition of discrimination against women in CEDAW includes gender-based violence • GBV may breach the Convention provision, regardless whether those provisions mention violence • Discrimination is not restricted to action by or on behalf of Governments • States may be responsible for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish acts of violence, and for providing compensation.
Recommendations regarding VAW • Appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act; • Adequate legal protection (penal sanctions, civil remedies); • Appropriate protection and support services (refuges, counselling, rehabilitation and support services); • Gender sensitive training of judiciary and law enforcement; • Compilation of statistics and research on the extent, causes and effects of violence, and on the effectiveness of measures;
Effective measures to ensure that the media respect and promote respect for women; • Effective measures to overcome attitudes, customs and practices that perpetuate violence against women; • Effective complaints procedures and remedies, including compensation; • Preventive measures, including public information and education programmes to change attitudes concerning the roles and status of men and women.
Specific recommendations on domestic violence • Criminal penalties where necessary and civil remedies; • Legislation to remove the defence of honour in regard to the assault or murder of a female family member; • Services to ensure the safety and security of victims, including refuges, counselling and rehabilitation programmes; • Rehabilitation programmes for perpetrators; • Support services for families where incest or sexual abuse has occurred.
2. The Optional Protocol to CEDAW • 90 State Parties • Communications procedure – conditions: • by or on behalf of individuals or groups of individuals, in writing; • claiming to be a violation of the rights in the Convention; • all available domestic remedies have been exhausted, unless the application is unreasonably prolonged or unlikely to bring effective relief; • Possibility interim measures to avoid possible irreparable damage to the victim (s). • Inquiry procedure: grave and systematic violation of the Convention
3.The domestic violence situation in Hungary (in 2003) • In every week at least one woman dies at the hand of her partner and ex-partner; • No specific legislation on domestic violence; general offences in the Criminal Code (bodily harm, coercion etc.) can be applied; • No restraining or protection orders; • No proper shelters (except one) and state assistance for victims; • Police negative attitude – ‘do not act until blood is flowing’; • Mild punishing policy, stereotyped attitude in the justice system.
The civil initiative in 2002 • Civil movement in 2002 for the effective state response (50,000 signature, decision-makers, media attention) • Order of the Chief of National Police (2003) and methodological guidelines on police tasks regarding domestic violence cases and protection of minors • Parliamentary Resolution on establishing a national strategy to prevent and effectively combat domestic violence (2003) • Restraining order • Legal aid and representation for victims • Special provisions for witness protection, out of turn procedures, protocols • Complex national action plan • Network of shelter and crisis intervention centers • Training for professionals • Statistical data collection • National awareness raising programs.
4. The case of A.T. versus Hungary • Background • Several years in domestic violence (battering and serious threats; ten medical certificate); • Civil case (on exclusive ownership of the jointly owned flat). Decision: no evidence of offender’s battering, his property rights can not be restricted: he is allowed to usethe flat; • Criminal procedures (took for years, with no detention, no restraining order, files were lost, punishment of 365 USD for two serious bodily harms); • No effective help from the child protection authorities; • No proper shelter to accomodate the victim and her children (one of which has a serious brain damage).
2. The case before the Committee • Submitted in October 2003 by A. T. herself. • A.T.’s claim: the state did not provide effective protection for her from domestic violence. • Committee: request to provide immediate, appropriate and concrete preventive interim measures of protection to the victim, to avoid irreparable damage. • Nointerim measures; some steps of the Government Office for Equal Opportunities (retained lawyer for the victim, contact with local authorities). • State: there are no effective remedies; the law and institutions are not ready to provide appropriate protection.
3. The Views of the Committee (2005) • Violation of the Convention by the State • Article 2 (a,b,e), Article 5, Article 16 • Recommendations concerning the victim: • take immediate and effective measures to guarantee the physical and mental integrity of the victim and her family; • ensure that she is given a safe home, receives appropriate child support and legal assistance, as well as reparation.
General recommendations • maximum legal protection of the victims, by acting with due diligence to prevent and respond to cases; • implementation of the national strategy; • regular training on CEDAW and the Optional Protocol to judges, lawyers and law enforcement officials; • implementation of the Concluding Comments, in particular: a specific law on prohibiting domestic violence against women (protection and exclusion orders, support services) • prompt and serious investigation of cases, and bringing the offenders to justice; • safe and prompt access to justice for victims, including free legal aid where necessary; • effective and sufficient remedies and rehabilitation; • rehabilitation programmes for offenders.
4. State steps during the CEDAW procedure • Opening, then closing the first pilot crisis center for victims of domestic violence, building on gender-based approach • Creation of the National Crisis Information Hotline, based on a gender-neutral approach • Legislation on restraining order (2006) – not suitable for immediate and effective protection • Establishment of a shelter building • Establishment of 9 regional crisis intervention centers, linked to family temporary homes • Providing state support to the family group conference
5. Conclusions: Where we are now • Neither the general, nor the specific recommendations have been met fully –lack of political will to take CEDAW seriously. • The victim was not offered compensation; neither a safe home to live.The argument of the state: the CEDAW’s Views is not a legally binding document; they do not want to make a precedent. • Options, outcomes: • For the victim: civil lawsuit against the state before the national court, based on the CEDAW decision - to make a precedent • For other victims: use the CEDAW Views in their cases. • For other countries: states are responsible under CEDAW to provide appropriate legislation, law enforcement and services in every single domestic violence cases.