by Rahime Erbaş*
Acquis communautaire as of today has something significant to say on the violence against women and domestic violence! The European Union (EU) based on a strong commitment to promoting and protecting human rights, has recently adopted a new Directive on Combating Violence against Women and Domestic Violence. The UN defines the violence against women “…a violation of human rights, is rooted in gender inequality, is a public health problem, and an impediment to sustainable development” (WHO, 2019). As the EU has been expected to respond this human rights violation, which nourishes in the environment where the power imbalance between women and man exists, though a oneseparate directive. Therefore, the EU Directive on Combating Violence against Women and Domestic Violence has been long- waited! The Council of Europe, thanks to the case-law of the Court (the ECtHR) and its outcome in 2011, Istanbul Convention, has been ahead of the EU on the violence against women and domestic violence. Today, it has been a model of the EU through its rich case-law on this matter. Therefore, we can observe a whole host of similar approaches on the Directive with the Istanbul Convention as well as the UN approach. However, I would like to bring an attention the novelties of the EU Directive. There are a range of issues and aspects of the EU Directive on the matter which cannot be exhausted in this blog post. Many significant studies and precious comments will appear very soon. Today I would like to mention about some core areas and aspects of this EU Directive, which I consider highly important.
At the first glance, it is quite obvious that the Directive aspires to establish a set of core and minimum standardson preventing and combating the violence against women and domestic violence though providing a comprehensive approach. Fair enough to say, as the EU member states’ national law and approaches on the matter vary in a considerable way. Even, some the EU countries such as Bulgaria and Poland have considerable amount of resistance to the Istanbul Convention (Gwiazda and Minkova, 2023). Now, through the introduction of the EU Directive which cover most part of the Istanbul Convention’s approaches, it seems that some EU countries will face a response from the EU side, which is not the case for the Council of Europe.
It is also quite clear that providing a unique standard on the violence against women and domestic violence on the EU level has been an overwhelming need and as such it paved a way to come up with this Directive. The Directive’s comprehensive approach is quite evident in definitions of concepts, the crime types, criminal procedure related issues such as victim rights and also supporting measures for victims. Furthermore, the Directive handles the violence against women and domestic violence both in- person and online ones, which differentiates it from the Istanbul Convention of the Council of Europe. Further, the first crime types that the Directive regulates are female genital mutilation (Art. 3) and forced marriage (Art. 4). It is known that these crime types are committed against the immigrant women in Europe because the acts of these crimes have some cultural roots such as in Africa or Asia or different countries. It is, therefore, well known facts that the perpetrators of these crimes defend themselves with cultural defense before the courts in European countries. After this huge emphasis on the Directive, it is clear message that there is no place for cultural defense for these crimes anymore but a protection for immigrant women or women who have different countries origin in Europe. The Directive has a comprehensive approach, but regarding rape, the definition which is based on the lack of consent was not included in the Directive’s final version, although there was a huge debate on it after some EU countries changed their consent model such as Germany, Spain and Sweden. Regarding crime types, the Directive describes some violence acts in cyber forms such as cyber stalking (Art. 6), cyber harassment (Art. 7) and cyber incitement to violence or hatred (Art. 8). Further, investigating cybercrimes and gathering and reserving evidence for these crimes are comprehensively elaborated in the Directive.
As for the Directive’s approach to establish some core standards, it appears on definitions of concepts, the crime types, minimum penalties for crime types, criminal procedure related victim rights and also supporting measures for victims. For example, female genital mutilation (Art. 3) is punishable by a maximum term of imprisonment of at least five years (Art. 10). Else, forced marriage (Art. 4) are punishable by a maximum term of imprisonment of at least three years (Art. 10) as well as aggravating circumstances examples (Art. 11). To illustrate, aggravating circumstances in Art. 11 appears as a long list. One is very remarkable that we see through the Directive is committing the violence against women and domestic violence committed against a child or in the presence of a child. Because the children are mostly unseenpart of the violence against women and domestic violence. The other one is committing this violence repeatedly, which is considering the repeated nature of the violence against women and domestic violence.
As for the procedural aspects, it begins the issue of reporting to enable victims report such violence to the competent authorities without fearing negative consequences. The Art. 14, titled as reporting of violence against women or domestic violence, stating that “Member States shall ensure that victims can report acts of violence against women or domestic violence to the competent authorities through accessible, easy-to-use, safe and readily available channels”. As for investigation and prosecution (Art. 15), there is an emphasis on the adequate expertise in violence against women or domestic violence. Further, effective investigation and also using effective investigative tools (especially in cases of cybercrime) is stressed. In that context, securing evidence in sexual offences, it refers to healthcare professionals or to the support services that are specialized in assisting with securing evidence. One other remarkable thing is that Art. 15 states that “victims shall be informed of the importance of collecting such evidence at the earliest possible time”.
Regarding rape, Art. 15 stipulates that “Member States shall ensure that investigations into or the prosecution of acts of rape are not dependent on a victim or the victim’s representative reporting the act, or on a complaint by a victim or the victim’s representative, and that criminal proceedings are not discontinued solely because the report or complaint has been withdrawn”. This means that rape has to be ex officio prosecuted crime and not affected by the will of the victim at any stage of criminal procedure.
There is a great deal of emphasis on risk analysis and assessments. Provisions are very comprehensively regulated, which is coined as the individual assessment (Art. 16). There are two type of individual assessment. Individual assessment for risk and Individual assessment for victims’ support needs. As for risk, a remarkable number of factors that the European Court of Human Rights paid attention in the case (particularity in the case of Opuz v. Türkiye, 2009) are listed to provide an individual risk assessment. Such as the risk of repeated violence, the risk of bodily or psychological harm, the possible use of and access to weapons, the fact that the offender or suspect lives with the victim, the misuse of drugs or alcohol by the offender or suspect, child abuse, mental health issues and stalking behavior. The EU Directive repeats the Istanbul Convention for prevention measures. As such, emergency barring orders, restraining orders and protection orders are explicitly regulated in Art. 19. Further, in terms of Protection of victims’ private life, the Directive requires member states to ensure that in criminal proceedings, evidence concerning the past sexual conduct of the victim or other aspects of the victim’s private life related thereto is permitted only where it is relevant and necessary.
What is so remarkable is that the Directive, in Art. 21, encourages member states to issue a guideline for law enforcement and prosecutorial authorities by providing core principles as being gender sensitive and advisory. It, for example, provides some principles and factors as ensuring that all forms of violence against women and domestic violence are properly identified, gathering and preserve relevant evidence, including online evidence or handling cases which might require emergency barring orders, restraining orders or protection orders to be issued or implemented or raising awareness about all victim groups in the context of domestic violence.
The EU Directive has been long-waited, but from today it seems that it is going to be long- discussed as well. On the one hand, it is built upon the acquisitions and learnings outcomes of the Council of Europe and the Istanbul Convention as well as the UN’s approach. Therefore, the preexisting discussions may refuel in the Directive context this time. On the other hand, it come up with novelties like cybercrimes on the violence against women and domestic violence or the minimum standards for definitions, penalties or investigation and prosecutions on the matter. As such, it also provides new avenues as well as reinforcement for addressing the violence against women and domestic violence, particularly from criminal justice system in Europe.
*Assistant Professor in Criminal Law and Criminal Procedure Law in Istanbul University Faculty of Law, Academic Visitor in Criminal Law and Criminal Justice in the Glasgow Law School
