Readers of the Bulletin may remember that the Council of Europe has opened a treaty on domestic violence for signature.
In a recent case brought against the USA, the Inter-American Commission on Human Rights has ruled that systemic police failures to protect a family from violence breached the American Declaration.
The Applicant had obtained a permanent restraining order against her estranged husband. She contacted the police department a number of times when he abducted her three daughters. Her concerns were exacerbated when his girlfriend contacted her, asking if the husband had a mental health history and whether he had access to firearms. The Applicant then called the police again, requesting them to seek to locate her husband and children. The police told her to wait and see if he returned. The husband subsequently presented himself at a police station. He began to shoot and the police killed him. They later discovered the bodies of the three children in the husband's truck.
The Commission noted a "broad international consensus over the use of the due diligence principle to interpret the content of State legal obligations towards the problem of violence against women". They held that "all States have a legal obligation to protect women from domestic violence: a problem widely recognized by the international community as a serious human rights violation and an extreme form of discrimination. This is part of their legal obligation to respect and ensure the right not to discriminate and to equal protection of the law". Illustrating cross-fertilisation of international human rights jurisprudence, they cited the Opuz case by the European Court of Human Rights and upheld the principle applied in that case that "a State's failure to protect women from domestic violence breaches their right to equal protection of the law".
The Court noted that a feature common to the applicable case-law was that the State had already acknowledged a risk of harm and yet failed adequately to protect the victims. So too had the USA acknowledged the risk in this case, by granting a permanent restraining order, and yet they systematically failed to protect the Applicant and her children.
They made several recommendations, including that the USA conduct a serious and impartial investigation and that they introduce legislation and enforcement measures to protect women and children from domestic violence.
Click here to view a piece by the RightsNI Blog, which comments on the difficulties which the rules of standing (the right to be heard before a court) may cause in domestic violence cases, given the significant number of victims who do not wish to litigate. Dr Rhona McQuigg notes that the Optional Protocol to the Convention on the Elimination of Discrimination Against Women (CEDAW) permits complaints to be taken on behalf of victims of domestic violence by organisations. CEDAW cases have found that states have a duty to provide a safe home, child support and legal assistance to victims of domestic violence.
Click here to view case summaries and FAQs on rules of standing in Ireland, England and the Court of Justice of the EU.