Domestic Violence against Women and the Principle of Non-Discrimination: Analysis of the Practice of the European Court of Human Rights

Abstract

The article analyzes the relevant practice of the European Court of Human Rights in cases on domestic violence against women for the purpose of finding judgments in which a violation of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms is established. The main trends in the consideration of this category of cases by the European Court of Human Rights are described. Cases were characterized when the actions and general policies of state bodies in these cases were recognized as discriminatory against women.

The criminalization of domestic violence in Ukraine was carried out against the background of both the general understanding of the relevance of such criminalization in domestic scientific circles, and the rapid development of anti-discrimination international documents, as well as taking into account the growing number of relevant judgments of the European Court of Human Rights. It was the latter a little more than ten years ago that began to examine in its judgments the circumstances of cases on domestic violence against women in accordance with the principles of equality and non-discrimination, which are embodied in Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. As shown in the article, the European Court of Human Rights emphasizes in this practice unacceptable discrimination against women when the state applies legal mechanisms to protect women from domestic violence.

Considering the above, the author reveals the features of the application of the principle of equality and non-discrimination by the European Court of Human Rights in the context of domestic violence against women. Along with this, he gives an example of the understanding of this principle in particular by the Constitutional Court of Ukraine. In addition, the author describes the general conditions for recognition of domestic violence against women as a form of discrimination against women by the European Court of Human Rights. The author comes to the conclusion that the European Court of Human Rights, if there was a violation, for instance, of the 2nd or 3rd article of the Convention on the Protection of Human Rights and Fundamental Freedoms, did not in all cases recognize also a violation of the Article 14 of the Convention by the Contracting State.

Analyzing the legal position of the European Court of Human Rights in the judgment in the case Volodina v. Russia, the author indicated that it was in this decision that the Court, in addition to the actions of law enforcement agencies against the applicant, pointed out the shortcomings of the legislation in the field of combating domestic violence of one of the Contracting States of the Convention on the Protection of Human Rights and Fundamental Freedoms. Based on the above, the author concludes that the complete ignoring of the problem of domestic violence against women by the authorities, which can be manifested, in particular, in the absence of legislation to combat this type of violence, will be a kind of guarantee for the establishment by the European Court of Human Rights of a violation of Article 14 of the Convention.