There have been several interesting European and international developments in gender and domestic violence in the past few weeks.
CEDAW Committee issues landmark ruling against Spain
The Committee on the Elimination of Discrimination against Women (CEDAW Committee) has ruled that the Spanish state violated its international obligations under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) when it failed to protect a woman and her daughter from domestic violence. A Spanish woman suffered years of violence and abuse at the hands of her former partner, with multiple legal actions and complaints made to authorities, until tragically, her abuser and father to her child murdered her daughter and took his own life. She took a case to the Spanish courts to seek justice after the failure of the authorities, but when the courts could not provide justice she submitted a complaint to the CEDAW Committee, with representation from Women’s Link Worldwide.
The case highlighted the Spanish system’s failure to protect gender violence victims because of ineffective enforcement of existing laws by judicial and administrative authorities. The Committee ruled that the young girl’s murder occurred in the context of domestic violence and structural violence against women. The Committee recommended two structural protection measures. First, the need to consider any history of domestic violence when ruling on visitation rights and secondly, mandatory training on domestic violence issues for judges and administrative personnel.
US immigration court recognises domestic violence as a basis for asylum
In the USA, a landmark decision was made by the Board of Immigration Appeals, the highest administrative immigration court in the United States. It held that women escaping domestic violence can be considered members of a particular social group. For the purposes of establishing refugee status under the 1951 UN Convention relating to the status of refugees (and its protocol), membership of a social group is a qualifying ground. The BIA found that the applicant in the case had suffered harms that amounted to the level of persecution. The BIA did not grant her asylum but sent her case back to an immigration judge, with the precedential ruling that fleeing from domestic violence places her as a member of a social group and her application should be assessed in that light, including whether her government (Guatemala) is able or willing to protect her.
Council of Europe convention on violence against women comes into force
In Europe, the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) entered into force last month after it achieved the necessary amount of ratifications. The Convention establishes a framework for governments to ensure robust actions to prevent, investigate and prosecute, and ultimately, eliminate violence against women and girls. The UNHCR has welcomed the Istanbul Convention for its provisions relating to asylum. It requires that state parties recognise gender-based violence as a form of persecution. It also requires gender sensitivity in interpretation of the 1951 Refugee Convention and in the procedures, guidelines and support services in the asylum process.
Unfortunately, Ireland has not yet signed or ratified the Convention. According to Minister for Justice Frances Fitzgerald, the Department is conducting a review of legislation relating to domestic violence and draft legislation is under development to satisfy the obligations of the Convention to allow ratification and to transpose the EU victims’ directive.