Violence against women: what will be the impact of the EU signing the Istanbul Convention?

Steve Peers

The scourge of violence against women is a serious human rights abuse and the worst form of sex discrimination. Several years ago, the Council of Europe (a body different from the EU) drew up the Istanbul Convention on this issue. It came into force in 2014, and currently applies to 20 countries, including 12 EU Member States (for ratification details, see here). Today, the EU Commission proposed that the EU sign and then conclude the Convention. What practical impact will that have on violence against women?

If the EU does sign and conclude (ie ratify) the Treaty, it will be the second human rights treaty binding the Union. The first is the UN Convention on the Rights of Persons with Disabilities. While most attention has been focussed on the EU’s attempt to accede to the European Convention on Human Rights (ECHR), which was essentially thwarted by the EU’s Court of Justice (CJEU) in 2014 (as discussed here), the EU’s capacity to sign up to other human rights treaties is also relevant. While the EU cannot sign up to older international human rights treaties, like the UN Covenants, because they are only open to States, newer treaties (like the Istanbul Convention) expressly provide for the EU to sign up to them – if it wishes.

Impact of EU ratification

Like many international treaties, the Istanbul Convention is a ‘mixed agreement’, meaning that (if the EU ratifies it), the treaty will bind both the Union and its Member States. EU ratification should have six main effects (I’ve updated this list from the previous post on the reasons why the EU should ratify).

First of all, the EU’s ratification of the Convention could provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe. It should be noted that the treaty is open for signature to non-EU countries: the 19 Council of Europe countries not in the EU (8 of them have ratified it already), as well as the 4 non-European countries (plus the Holy See) which took part in drawing it up.

Do you live in a country which hasn’t ratified the Convention? You can sign up to a campaign for the UK to ratify the Convention here. Please let me know of any other campaigns in the UK or any other country, and I’ll list them with a link in an Annex to this post.

Secondly, ratification could, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that Member States, would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to urge any countries to do so?

Thirdly, ratification of the Convention should enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation. While there’s no general EU criminal law on violence against women (on the case for such a law, see here), there are other relevant EU rules. In particular, the Commission proposal refers to EU free movement law, substantive EU criminal law relevant to violence against women, EU immigration and asylum law, and the EU law on crime victims’ rights, applicable from last autumn (on the content of the crime victims’ law, see discussion here). It should also mean that the Convention will already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence. The proposal is based on EU competence over victims’ rights, and would apply (if agreed) to every Member State covered by the crime victims’ law – meaning every EU country except Denmark.

In practical terms, that should mean that (for instance), EU law must be interpreted to mean victims receive a residence permit based on their personal situation, if the authorities consider it necessary (Article 59(3) of the Convention). That would apply to citizens of other Member States and their (EU or non-EU) family members, in all 27 Member States covered by the proposal. It would also apply to non-EU citizens in general, in the Member States which apply EU law on non-EU migration (ie the 25 Member States other than the UK, Ireland and Denmark, which have mostly opted out of such laws).  

For asylum cases, Article 60 of the Convention makes clear that gender-based violence is a ground of persecution. This is more explicit than the EU’s qualification Directive, which says that ‘gender-related aspects shall be given due consideration’, with further reference in its preamble to specific practices like genital mutilation. (Note that the UK and Ireland are covered by the first-phase qualification Directive, which has less precise wording on this issue; so the EU’s ratification of the Convention might have more influence in these countries).

As regards victims of domestic violence crimes (of any nationality and residence status), Chapter IV of the Convention, concerning support and protection, could in particular have an impact on the interpretation of the crime victims’ Directive in each Member State.

Fourth, since the CJEU will have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this could promote a uniform interpretation of those provisions within the EU.  

Next, the relevant provisions of the Convention will be more enforceable if the EU ratifies it. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

Conclusion

For all the above reasons, the EU’s planned ratification can only be welcomed. It may not, by itself, prevent any act of violence from being committed, but it may accelerate a broader process of ratification (and corresponding national law reform) on this issue. And it may have the important practical impact of helping victims receive support or protection, particularly in the context of the law on crime victims, immigration or asylum.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter II:4, chapter I:5

Should the EU ratify the Istanbul Convention on violence against women?

Steve Peers

For many years, discussion as regards the EU and human rights has focussed on the growing role of the EU Charter of Fundamental Rights and the EU’s planned accession to the European Convention on Human Rights. This is understandable, given the importance of these developments. However, the EU’s relationship with other international human rights instruments is also worthy of further examination.

The EU is not able to sign up to older UN human rights treaties – such as the two Covenants and the Conventions relating to sex discrimination, race discrimination and migrant workers – because ratification of these instruments is only open to States. Similarly, only States can ratify ILO Conventions, although the EU sometimes coordinates its Member States’ position as regards ILO measures (see the discussion of the proposal to coordinate positions regarding new ILO forced labour measures).

However, more recent international human rights treaties do provide for possible accession by the EU, and indeed the Union has signed up to the UN Convention on the Rights of Disabled Persons (see the recent Z judgment of the CJEU). With the imminent entry into force of the Council of Europe’s Istanbul Convention on violence against women (which will come into force on 1 August 2014, after the deposit of the tenth ratification on April 22nd), the question now arises whether the EU should sign up to another human rights treaty. This post sets out the reasons why the EU should ratify the Convention at the earliest opportunity.

EU competence to ratify the Istanbul Convention

The EU is certainty competent to ratify the Istanbul Convention, if it wishes to do so. First of all, the Convention expressly provides (in Article 75(1)) for ratification by the EU, without setting any special condition in this respect.

Secondly, as a matter of internal EU law, the EU can sign up to any treaties which are (inter alia) ‘likely to affect common rules or alter their scope’ (Article 216 TFEU). Although EU law has not regulated the key substantive criminal law issues dealt with in the Istanbul Convention, the Convention does not limit itself to establishing rules concerning criminal liability, but also addresses a number of other issues. In particular, there are EU law measures concerning the Convention’s rules on: crime victims’ rights, cross-border application of protection orders (both civil and criminal), other forms of cross-border cooperation, and immigration and asylum issues (see the detailed list in the Annex).

It must be pointed out that if the EU ratifies the Istanbul Convention, it would not be replacing its Member States, but ratifying the Convention alongside them. In other words, the Convention would be another ‘mixed agreement’ which both the EU and its Member States have ratified, like the UN Disabilities Convention, (in future) the ECHR and many other treaties. The EU would not be legally obliged to adopt any more legislation affecting the issue of violence against women than it already has done. While I have argued before that there are good reasons (and legal powers) for the EU to adopt legislation establishing substantive criminal law rules in this field, this is a separate question from whether the EU ought to ratify the Convention.

Reasons why the EU should ratify the Istanbul Convention

First of all, the EU’s ratification of the Convention would provide encouragement to its Member States, as well as non-Member States of the EU, to ratify the Convention. It would increase the prominence of the Convention worldwide, perhaps inspiring changes to national law and regional treaty-making outside Europe.

Secondly, ratification would, as regards this Convention at least, address the argument that the EU has ‘double standards’ as regards human rights, insisting that would-be EU Member States and associated countries should uphold human rights standards that the EU does not apply itself. While the double standards argument can be answered as regards human rights treaties which the EU cannot ratify, it cannot so easily be rebutted as regards treaties which it can. If the EU is perfectly able to ratify the Istanbul Convention, but chooses not to, what moral authority does it have to ask non-Member States to do so?

Ratification of the Convention would enhance its role in EU law, because it could more easily be used as a parameter for the interpretation and validity of EU legislation (such as the legislation listed in the Annex, plus any future relevant measures). It would also mean that the Convention would already bind those EU Member States which had not yet ratified it, as regards those provisions within EU competence.

Furthermore, since the CJEU would have jurisdiction to interpret those provisions of the Convention which fall within the scope of EU competence, this would promote a uniform interpretation of those provisions within the EU. 

Next, the relevant provisions of the Convention would be more enforceable if they were enshrined in to EU law. While the CJEU ruled in the Z case that the UN Disabilities Convention did not have direct effect, and might rule the same as regards the Istanbul Convention, at least that Convention would have ‘indirect effect’ (ie the obligation to interpret EU law consistently with it), and the Commission could bring infringement actions against Member States which had not applied the Convention correctly, as regards issues within the scope of EU competence. Ensuring the enforceability of the Convention is all the more important since it does not provide for an individual complaint system.

Finally, ratification would subject the EU to outside monitoring as regards this issue, and avoid the awkward scenario of its Member States being monitored as regards issues within EU competence – meaning that the Convention’s monitoring body would in effect to some extent be monitoring whether EU Member States were complying with EU law.

[Update: the Commission proposed that the EU should sign and conclude the Convention in March 2016. See discussion here.]

Annex

EU competence regarding the Istanbul Convention

Articles 18-22, 25-28, 30(1), 50(1), 56, 57: crime victims Directive

Article 47: Framework Decision on recognition of criminal sentences

Article 59(1): family reunion Directive, citizenship directive

Article 59(2): Returns Directive, citizenship Directive

Article 60(1) and (2): Qualification directive

Article 60(3): Reception conditions directive; asylum procedures directive

Article 61: Qualification directive, Returns Directive

Article 62(1)(b) and (3): Crime victims Directive

Article 62(1)(d): protection orders legislation 

Article 62(1)(a) and (c) and (2): legislation on mutual recognition, et al in criminal and civil matters

Article 65: Data protection Directive; Framework Decision on data protection


Barnard & Peers: chapter 20, chapter 24, chapter 25, chapter 26

Reverse discrimination against rape victims: a disappointing ruling of the CJEU

Steve Peers

While national criminal justice systems are often criticised for ignoring the role of crime victims, the EU has shown great interest in this issue from an early stage of the development of EU criminal law. One of the first EU 'Framework Decisions' concerned crime victims' rights, and this measure has since been replaced by a comprehensive Directive on this issue, which Member States must apply by October 2015.

Yet this Directive is not the only measure dealing with crime victims, as the topic of state compensation for crime victims is the subject of an earlier Directive, dating from 2004. The primary aim of the compensation Directive is to establish a framework for compensation in cross-border cases, where a 'violent intentional crime' is committed in a Member State other than the Member State where the person concerned is habitually resident. However, the Directive does provide that 'All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.'

In the recent order in C, a woman in Italy brought a claim for state compensation on the basis of this provision, following the conviction of her attacker for sexual violence. The national court had ordered the offender to pay compensation (an issue addressed by the general Framework Decision, now the Directive, on victims' rights), but there was no prospect of enforcing this order, since he did not have the money to pay that compensation. So she tried to obtain compensation from the Italian state instead, pursuant to the Directive. However, according to the CJEU, the Directive did not apply to purely domestic cases like this one, but only to cases where there was a cross-border element.

With great respect, this is just not convincing. While the main focus of the Directive is certainly compensation in cross-border cases, Article 12(1) of the Directive makes clear that this takes place on the basis of each national system for compensation. Therefore Article 12(2) - quoted above - requires each Member State to set up a national system covering crimes like this one. So a failure by Italy to provide for state compensation for its residents who are victims of such crimes will complicate any attempt by visitors from other Member States to collect compensation from the state in such cases.

Since such cross-border disputes will undoubtedly fall within the scope of the Directive, the CJEU might be prepared to rule that crime victims in such case would nonetheless have a directly effective right to compensation against the Italian government, regardless of its failure to implement the Directive fully. While protection of some victims is of course welcome, all of them ought to be protected. EU lawyers have long become accustomed to 'reverse discrimination' as regards family reunion, where EU citizens who move between Member States can rely on decent standards, while those who do not leave their Member State can in some countries (like the UK) be subject to a far more restrictive national law. It hardly helps the legitimacy of EU law to accept that the same double standards apply to compensation of victims of violent crime, especially when the better interpretation of the legislation concerned is that they shouldn't.

[update: see analysis of the main crime victims' Directive, which has applied since autumn 2015, here].

Barnard & Peers, chapter 25

Violence against women: Can EU law play a bigger role in combatting it?

Steve Peers

Today's report from the EU's Fundamental Rights Agency (FRA) on the scale of violence against women within the European Union is simultaneously an enormously impressive attempt to collect standardised data on this important issue, and a very upsetting indication at how prevalent such forms of violence are. The FRA report makes a large number of detailed and useful recommendations to Member States and the EU about how to address this issue, as regards changes to national law, the interpretation of existing EU laws, and the role of education and awareness-raising. Yet it does not suggest that the EU adopt legislation on the specific subject. In my view, the EU could - and should- do so. So despite the great value of the FRA's report, it is, in my view, unfortunate that it did not take this opportunity to advocate EU legislation.

The EU's ability to act

No matter how desirable a particular law might be, the EU can only act when powers have been conferred upon it. To what extent can it act to deal with violence against women? First of all, Article 83(1) TFEU gives the EU power to adopt criminal law measures on specific offences which were deemed by the Treaty drafters to have a EU-wide impact. This includes legislation concerning 'trafficking in human beings and the sexual exploitation of women and children'. Indeed, as the FRA report points out, the EU has adopted Directives on trafficking in persons and sexual offences against children.

The EU has also used its power to adopt a Directive on the protection of crime victims generally, which, as the report points out, contains specific provisions on protection against gender-related violence. However, this Directive does not address issues of substantive criminal law. Neither does the EU legislation on cross-border enforcement of criminal law protection orders or civil law protection orders.

Could the EU adopt a substantive criminal law measure on other aspects of violence against women? It does have power to adopt criminal law measures on offences not listed in Article 83(1), if (according to Article 83(2)) this is 'essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures'. As regards gender equality, there is (inter alia) EU law on sex equality in employment and sex equality as regards goods and services. It seems obvious that violence against women could impact in practice upon their equal access to employment or goods and services. The FRA report mentions in particular the fear of crime that deters women from moving freely. Of course, violence against women shouldn't normally be examined in such utilitarian terms, but it is necessary to do in the particular context of proving the EU's competence to act. And this analysis would apply equally as regards EU legislation concerning racial hatred, which I discussed in a previous blog post.

Should the EU use its powers?

The FRA report makes many references to the Council of Europe's recent Convention on violence against women, and encourages Member States and the EU to ratify it. Of course, this would be desirable, since the Convention is a comprehensive recent instrument which is moreover open to non-EU Member States.  But is it enough? Certainly the EU did not simply rely on the Council of Europe Conventions on trafficking in persons or the exploitation of children when it adopted its own legislation on the issue, or upon the UN Convention on the Elimination of Discrimination Against Women when it adopted its sex equality laws.

The fact is, while ratification of the Convention should be encouraged, most Member States have not yet ratified it. Moreover, EU law has an inherent advantage over international treaties in terms of its enforceability, given that the Commission can bring proceedings against Member States for non-application or incorrect application of the law, and individuals can rely on it before the national courts.

What specific issues could EU legislation address? Here, the FRA report points to some failings in national law which could be addressed by an EU measure, ensuring that the EU measure would add value compared to the existing legal position. In particular: some national laws have a restrictive definition of sexual violence; one Member State does not criminalise rape of married women; some Member States do not address repeat victimisation; some national laws do not address psychological violence, stalking or cyber-harassment; and current EU anti-discrimination law only concerns sexual harassment at the workplace, not in other contexts. This represents a significant catalogue of issues which EU law could usefully address.

Conclusion

The FRA's suggestion that the EU ratify the Council of Europe Convention presents an opportunity to bring the two issues (can the EU act, and should it act) together. According to EU external relations law, the EU can ratify treaties not just as regards its competence which it has already exercised (as regards crime victims' rights, for instance), but also in respect of competences which it has not exercised. Furthermore, a treaty which the EU has not yet ratified can be sent to the Court of Justice of the European Union, in order to examine its compatibility with EU law, including as regards EU competences. So the European Parliament, the Council, the Commission or a Member State could use this process to ask the Court to clarify the exact extent of the EU's powers to conclude the Convention as regards substantive criminal law.

[Update: in March 2016, the Commission proposed that the EU sign the Council of Europe Convention. See further discussion here.]

Barnard & Peers: chapter 20, chapter 25

Holocaust denial and hate crime: Can the EU and its Member States do more?

Steve Peers

The European Commission has chosen today, the International Holocaust Remembrance Day, to release its first report on Member States' implementation of the EU Framework Decision on combating racism and xenophobia by means of criminal law.

Implementing the EU legislation

Member States had to implement this law, a relic of the pre-Lisbon 'third pillar' of EU law (setting out special rules on policing and criminal law measures) by December 2010, and the Council had to assess the Member States' implementation of the rules, on the basis of the Commission report, by November 2013. So the Commission report is a little late, but most such reports arrive even later (due to Member States' tardy reporting on their implementation). All Member States must apply this law, although the UK is planning to opt out as of December 2014, and does not intend to apply to opt back in.

The first crucial legal question is whether Member States have properly implemented their obligations under the Framework Decision. They are obliged to criminalise: public incitement to violence or hatred based on race, et al; dissemination of tracts to the same end; the denial, trivilisation et al of war crimes, genocide and crimes against humanity as defined in the Rome Statute establishing the International Criminal Court; and denial or trivialisation of the Holocauat.

The Commission identifies some apparent breaches of the Framework Decision here; for instance, two Member States insist on some further conditions being met before criminal liability attaches to the first category of actions. Some Member States do not specify that the crimes can apply to an individual or to a group. Two Member States refer to 'nationality' instead of 'national origin'. As regards the Rome Statute crimes and Holocaust denial, some Member States' laws do not refer to all types of actions referred to as regards the first type of crime, or do not fully reflect the obligations as regards Holocaust denial. In particular, two Member States only criminalise Holocaust denial in relation to their own nation or citizens. Some Member States have no specific provisions on these issues, although arguably a general law on incitement to violence that fully covers all of the relevant actions would be sufficient.

According to the EU law, Member States must either provide for racist and xenophobic motives to be considered an aggravated circumstance, or provide that courts may take those motives into account. Some Member States restrict this obligation to certain violent crimes only. Furthermore, some Member States attach conditions to the rules regarding liability for legal persons, or do not fully apply the rules on jurisdiction, in particular as regards offences committed over the Internet.

As to the future, the Commission makes a number of recommendations to Member States, as regards (for instance) special hate crimes units, the exchange of information, cross-border cooperation, data collection, the rights of victims and comments by opinion leaders. The Commission intends to discuss the correct implementation of the Framework Decision with Member States up to 1 December 2014 - the date when it can begin infringement proceedings as regards pre-Lisbon third pillar legislation. It does not make any mention of any amendment of the legislation, or of the specific issues which the Council is required to review (the issue of judicial cooperation as regards the relevant crimes).

Comments

The Commission cannot be criticised for holding off on bringing infringement proceedings, since it cannot do so until the end of this year. After that point, this legislation will be another EU measure which the Commission ought to enforce vigorously by means of infringement proceedings if it is, as it claims, committed to ensuring the full implementation of the EU Charter of Fundamental Rights in practice.

It would be possible to clarify the interpretation of the Framework Decision if it were amended, and more importantly, its provisions could be improved. For instance, the recommendations which the Commission makes to Member States in its report could be incorporated into the legislation (except for the point concerning the rights of victims, which will become binding anyway once the EU's crime victims directive is implemented in 2015). The Commission does not consider the issue of possible amendments at all.

More significantly, the scope of the Framework Decision (or rather, the future Directive) could be enlarged, to cover other forms of hate crime. The Commission perhaps avoids mentioning the issue of amendment because of the lack of a specific legal base dealing with this issue in the current Treaties. True, racism and xenophobia are not listed among the crimes the EU can combat in Article 83(1) TFEU. But they surely fall within the scope of Article 83(2) TFEU, which gives the EU power to adopt criminal law measures when necessary in relation to a matter which the EU has harmonised. Since the EU has banned discrimination on grounds of race as regards all goods and services (inter alia), and it surely would interfere with equal access to transport, shopping and recreation (for instance) if crimes of racial hatred were committed, it could be argued that further EU measures could be adopted on this basis. The same would apply to bias crimes against women, given the scope of EU harmonisation already on the issue of gender equality.

However, it would be harder to argue that a legal power exists for the adoption of EU measures banning hate crime on grounds of sexual orientation, disability, religion or age, since the EU has only harmonised the law as regards equality in employment as regards those issues. When or if the Commission's proposed Directive extending equal treatment as regards these four grounds of discrimination is adopted, then a further measure relating to hate crime on the same grounds could be proposed.

Barnard & Peers: chapter 25, chapter 20