WAVE Conference24–27 September 2009, Vienna

CEDAW as an instrument to improve the protection of women from violenceby Rosa Logar

Introduction

This presentation is dedicated to Şahide and Fatma, two women who were brave enough to stand up against their violent husbands, but did not survive – they were killed by their husbands.

As the CEDAW committee states in its decisions No. 5 and 6, the Austrian authorities did not exercise due diligence to protect their lives.

Thus the human rights of Şahide and Fatma under the CEDAW convention were violated.

In its decisions the CEDAW committee acknowledged the Austrian measures to prevent VAW, such as the model law of 1997, but it clearly stated that it is not enough to have good laws, they have to be applied by all actors and in all cases!

Outline

In my presentation I will focus on: The process to send the communications on behalf of Şahide and

Fatma to the CEDAW Committee – why we did it, and how Some aspects of the procedure and the content of the decisions The impact the two cases have had in Austria so far The relevance of the decisions to our strategies to end Violence

against Women

The aim of my presentation is to encourage women and women’s organisations to send communications to CEDAW (not only in the case of homicides, of course)

and to show that international law can be a powerful instrument that we should use

Şahide

Şahide had experienced violence by her husband for several years. She had 3 children.

Despite three eviction orders by the police and a civil court protection order, her husband Mustafa did not stop being violent.

Although he threatened on several occasions that he would kill her, the prosecutor‘s office did not initiate an arrest.

On a Friday night Mustafa came to the apartment despite the protection order; Şahide called the police who did not send a patrol car because ‘he had left already’.

On Saturday 7 December 2002 Şahide was shot by her husband with a handgun in her apartment in the presence of her two daughters, her son found her dead.

Mustafa was later sentenced to a prison term in a prison for mentally ill offenders

Fatma

In summer 2003 Fatma decided to divorce her increasingly violent husband. On 6 August the police issued an eviction order. Despite this order, Fatma and her 5 year old daughter Melissa moved out of

the family house because they were afraid of further violence. Her husband Irfan continued to be violent, he threatened to kill her on

several occasions, following her to her workplace. Among other threats he told her that he would kill her and that her story

would be in the newspapers. Although she reported every incident to the police, the prosecutor did not

issue an arrest. On the evening of 11 September 2003, Fatma was stabbed to death on her

way home from work. Her husband fled but was found and sentenced to 20 years imprisonment.

Fatma and Anna died on 11 September 2003

Fatma was murdered on 11 September 2003, the very day on which Anna Lindh, Sweden’s Foreign Minister, died after she had been stabbed by a man in a department store.

Both incidents are atrocious, but their consequences are hardly comparable. While the murder of Anna Lindh was registered as a shocking crime and was covered by international media, the murder of Fatma was yet another everyday tragedy in an immigrant family and did not attract any media coverage or political attention.

If Anna Lindh had been threatened with murder several times and if the offender had been charged, but not arrested and had then murdered her, a political scandal would have erupted that might have even forced ministers to resign.

Why we were able to address CEDAW

The CEDAW Convention does not explicitly address violence against women

But it is implied that VAW is a form of discrimination States are also responsible for preventing violence by private actors Several recommendations, especially GR No 19 of the CEDAW

Committee, oblige states to take measures against violence and to exercise due diligence to prevent violence and to protect women from all forms of violence

Note: definition of ‘gender-based violence as violence that is directed against a woman because she is a woman or that affects women disproportionally’ (CEDAW Committee 1992:art 6)

Why did we not turn to the ECHR?& How to submit a complaint

We had been involved in the lobbying for the CEDAW optional protocol that came into force in 2000.

It was not easy to obtain this individual complaint procedure that enormously strengthens the CEDAW Convention.

Also, we were hoping that CEDAW would deliver decisions faster than the European Court of Human Rights that suffers from a huge backlog of cases.

The OP provides that communications can be submitted by or on behalf of individuals or groups of individuals (Article 2).

Later in the workshop I will give more details of how to submit a complaint – there is also a model form.

In short: it is a process that does not involve a personal hearing. There are no costs involved.

Why we decided to address CEDAW

The authorities, especially the prosecutor’s office, had refused to take any responsibility.

Fatma and Şahide had been clients of the Domestic Abuse Intervention Centre Vienna; the communications were submitted on their behalf.

The NGO Association of Women‘s Access to Justice and its president Anna Sporrer supported the move, financially and practically – lawyer Gerda Hammerer wrote the complaint in cooperation with us – we spent about € 10 000.

We discussed whether it might have negative consequences to submit the communications to CEDAW, after all the Intervention Centre is 100% state funded.

We decided that the level of democratic development was high enough in Austria to ensure that no negative effects were to be feared.

By signing the Optional Protocol, Austria had also obliged itself not to subject people turning to the CEDAW Committee to ill treatment or intimidation (Article 11 OP).

In addition, it is the duty of the Intervention Centres to help victims enforce their rights, which also includes the rights they have been granted under international treaties.

Content of communication to CEDAW 1

In July 2004, the Intervention Centre Vienna, together with the Association for Women‘s Access to Justice, submitted the communication to the CEDAW Committee on behalf of Fatma, Sahide and their children.

We claimed that the State Party had not actively taken all appropriate measures to protect Şahide’s and Fatma’s rights to personal safety and life and thus had violated their rights under Articles 1, 2, 3 and 5 of CEDAW. We also claimed that Austria had not fulfilled its obligation stipulated in Recommendations 12, 19 and 21 of the CEDAW Committee

We argued that in both cases the State Party had failed to treat the perpetrator as an extremely violent and dangerous offender in accordance with criminal law.

We demanded a general improvement in the protection of women from violence

Domestic remedies

The Optional Protocol to CEDAW requires that all available domestic remedies need to be exhausted before a case can be brought forward.

We claimed that no remedies were possible for the two women because they were deceased and

that no additional reasonable legal steps were available to these women before they were

killed. The State Party argued against the admissibility of the complaint and stated that

domestic remedies had in fact been available, such as: Şahide and Fatma as well as their descendants would have been free to address the Austrian

Constitutional Court on grounds that no appeal was available to the victim against the rejection to issue an arrest warrant.

It was also pointed out that after the dismissal of proceedings they had still been free to assert their claims under civil law.

Eventually, Austria argued that a complaint against the Public Prosecutor could have been filed. The CEDAW committee did not agree with the State Party and declared the

communications admissible.

The State Party’s response to the communications

The State Party vehemently challenged the admissibility of the complaint.

In both cases Austria’s comments were aimed at denying any responsibility for what had happened and refusing to admit any errors or weak points in the system.

If you look at the decisions, it is especially sad and dismaying that Austria, especially in the case of Şahide, used the strategy to blame the victim. For each incident, the State Party attempted to divert attention from its own actions by criticising the victim.

The State Party’s response 2

Şahide was repeatedly blamed for not having given consent to the Austrian authorities to prosecute the abuser – the fact that she gave her consent later was not mentioned.

Regarding one incident of violence in which Şahide had been choked by her husband and threatened to be killed, the State Party argued that the Public Prosecutor withdrew the charges ‘because it could not be proved with sufficient certainty that Mustafa was guilty of making criminal dangerous threats against his wife that went beyond the harsh statements resulting from his background’.

This argument is openly racist and dangerous: what is perceived as a cultural background is used to qualify a legally punishable act as not punishable.

Double standards are introduced (threats occurring in an immigrant culture have to be judged differently from threats within the ‘Austrian’ culture), and victims are consequently denied their legitimate protection.

The State Party also argued in both cases that it would have been “disproportional” to detain the aggressors.

The State Party’s response 3

The reasoning of Austria shows that, unfortunately, there is little understanding of the obligation to act with due diligence when protecting women against discrimination and violence.

It also indicates a lack of professional understanding of the problem of violence against women committed by husbands and partners, the dynamics of violent relationships, knowledge about and identification of risk factors, the victim’s situation of fear and helplessness, and the difficulties and risks involved in attempts to leave the violent partner.

The CEDAW decisions 1

At its 39th session in August 2007, the CEDAW Committee decided that Austria, in both cases, had violated the rights of the two women to protection of their lives and physical integrity according to Article 2 (a) and (c) to (f) of the CEDAW Convention, together with Article 3 and General Rec No. 19 of the CEDAW Committee.

The CEDAW Committee considered ‘that in light of the long record of earlier disturbances and battering, by not responding to the call immediately, the police are accountable for failing to exercise due diligence to protect Şahide’. (Para 12.1.4)

The Committee also considered that the behaviour of the perpetrator (threats, intimidation and battering) crossed a high threshold of violence and that the Public Prosecutor thus should not have denied the requests of the police to detain him in connection with the incidents of August 2000 and October 2002. (Para 12.1.5)

In the case of Fatma the Committee considered the failure to have detained Irfan ... as having been in breach of the State Party’s due diligence obligation to protect (Para 12.1.5)

The CEDAW decisions 2

In both cases, the CEDAW Committee acknowledges the fact that Austria’s domestic violence law established a comprehensive model of protection from domestic abuse.

However, the Committee emphasizes that this is not enough since the political will as expressed in the law must be supported by State actors put into practice the State’s due diligence obligations. In other words: it is not enough to have good laws, they also have to be enforced by all actors.

Regarding Austria’s argument that detention would have been disproportionate, the Committee noted in both cases that although it has to be considered for each case individually whether detention would disproportionately interfere in a suspect’s fundamental and human rights, ‘the perpetrator’s right can not supersede women’s human rights to life and to physical and mental integrity’. (Para 12.1.5)

The recommendations to, and obligations of, Austria

As a consequence, in both cases the CEDAW Committee made a number of recommendations to Austria:

“(a) Strengthen implementation and monitoring of the Federal Act for the Protection against Violence within the Family and related criminal law, by acting with due diligence to prevent and respond to such violence against women and adequately providing for sanctions for the failure to do so;

(b) Vigilantly and in a speedy manner prosecute perpetrators of domestic violence in order to convey to offenders and the public that society condemns domestic violence as well as ensure that criminal and civil remedies are utilized in cases where the perpetrator in a domestic violence situation poses a dangerous threat to the victim and also ensure that in all action taken to protect women from violence, due consideration is given to the safety of women, emphasizing that the perpetrator’s rights cannot supersede women’s human rights to life and to physical and mental integrity;

(c) Ensure enhanced coordination among law enforcement and judicial officers, and also ensure that all levels of the criminal justice system (police, public prosecutors, and judges) routinely cooperate with non-governmental organizations that work to protect and support women victims of gender-based violence;

(d) Strengthen training programmes and education on domestic violence for judges, lawyers and law enforcement officials, including on the Convention on the Elimination of All Forms of Discrimination against Women, general recommendation 19 of the Committee, and the Optional Protocol thereto.” Para 12.3 a–d

What effects have these decisions had so

far? In short: the two CEDAW decisions can be seen as important

milestones in improving policies and practice to protect women from violence in Austria

the actors at the political level reacted swiftly. But: the judiciary so far refused to acknowledge the

CEDAW decision and to apply it in jurisdiction contrary to the European Court of Human Rights which

applied the two decisions in its most recent DV case, Opuz vs Turkey (appl. 233401/02-para 77)

Effects of the communications/decisions 1

Approximately halfway through the procedure the authors decided to turn to the public and contacted Florian Klenk, a journalist of Falter, a political and cultural weekly magazine, who published a long article about the two murders and the complaints to CEDAW.

Minister of Justice Karin Gastinger reacted immediately and promised to improve the measures to protect women against violence.

She kept her promise: by 1 July 2006 an amendment to the Code of Criminal Procedure entered into force, abolishing the requirement of the victim’s consent for prosecuting dangerous threats within families. What had been demanded for decades by women’s organisations and intervention centres had finally been achieved, and the pressure was taken off victims who were intimidated by threats which prevented them from making free decisions.

Effects of the communications/decisions 2

When the views of the CEDAW Committee were published in August 2007, the Association for Women’s Access to Justice informed the media.

Again, the political level reacted immediately: Doris Bures, then Minister for Women’s Issues, commented on the Committee’s views, saying that she would take them very seriously and close gaps in measures protecting women against violence.

As a response to the recommendations, the Ministry of Justice convened a working group consisting of representatives from law enforcement agencies, the prosecutor’s office, the criminal court, the respective ministry departments and representatives of Intervention Centres and a general victims’ support service.

In March 2008 the State Party of Austria submitted its first comment on the implementation of CEDAW’s recommendations regarding the cases of Fatma and Şahide, which stated that ‘in response to these recommendations Austria has endeavoured to take and/or intensify appropriate measures in order to eliminate the deficits in the protection of women against domestic violence identified by the CEDAW Committee and to continuously improve such protection.’

Effects of the communications/decisions 3

As an indirect result, a new set of measures of protection against violence came into force on 1 June 2009. The new legal provisions include:

a new type of offence, with imposition of more severe punishment for repeated violence against a victim compared to the punishment for individual acts of violence (continued exercise of violence);

granting every victim the right to apply for protection measures under civil law, independent of their family relationship to the perpetrator, instead of restricting this right to persons who are legally recognised as a family, which had been the case before the law reform

extension of the police barring order from 10 days to 2 weeks extension of orders of protection (as interim injunctions) to six months and one year,

respectively

As of 2008: special prosecutor for violence Before: government funds were increased by approx. 60% in 2007 for the

Intervention Centres so that they can extend their services to all victims

Our view on the goverment’s effort to implement

the CEDAW decision The CEDAW Committee gave the authors of the complaints the opportunity

to respond to Austria’s comments on the implementation of the recommendations.

We generally welcomed the steps taken but also noted that a number of measures did not yet work well.

For instance, the guidelines for improving the work of the public prosecutor in cases of domestic violence have not been implemented. Other measures have not yet been realised either, and CEDAW’s views have not been widely distributed.

We noted that the government’s plans represent improvements but that further steps have to be taken in the area of implementation of laws, monitoring, vigilant and speedy prosecuting of perpetrators, enhanced co-ordination and training for public prosecutors and judges, as demanded in the recommendations of the CEDAW committee.

Lack of implementation in the judiciary

It appears that as yet not all actors in Austria are aware of the fact that international law and decisions under international law are relevant at the national level and must be applied.

For instance, in the context of the state liability claims filed by Şahide’s children demanding financial compensation from the state for not having protected the life of their mother, Austria’s Supreme Court stated that the CEDAW recommendations were not relevant for the proceedings and did not have to be considered by the national courts.

This is a problematic disregard of international law, and therefore it is absolutely necessary to make available to experts in the justice authorities, especially judges, intensive training programmes in application of international law.

What is the answer to the questions “What is the importance of international treaties such as CEDAW at national level, and what potential for concrete improvements does it actually involve”?

Two assumptions can be made with regard to these questions:

1. that international law plays a rather insignificant role at national level and

2. that decisions such as those communicated by CEDAW may have a relevant influence on the statutory situation and practice in the field of prevention of violence against women, provided that there are actors such as NGOs that have the necessary knowhow as well as access to international law.

Conclusions

CEDAW and the Optional Protocol are important instruments to improve the protection of women against violence.

The two views are relevant not only for Austria but for all State Parties to CEDAW and it is important that authorities in charge of preventing violence, political actors as well as women’s and human rights organisations in all countries and international agencies are informed about these two views and apply them.

Women’s and human rights organisations should organise more training programmes in order to obtain know-how on CEDAW and other international law provisions and to acquire the skills necessary to apply these instruments and submit complaints.

The governments should support and promote NGOs in this respect.

The two main arguments of the CEDAW decisions are landmarks in the prevention of violence against women:

a perpetrator’s rights cannot supersede women’s human rights to life as well as physical and mental integrity; and

it is not enough to have good laws, they also have to be enforced in each individual case to ensure the protection of women.

Let us never forget Şahide and Fatma and all other women who fought for they lives but did not survive.

Let us work together to ensure that other women and their children will not suffer the same fate

and will receive the best possible protection from all forms of violence!

Thank you for your attention.

Contact:

Rosa Logarrosa.logar@interventionsstelle-wien.at

The two CEDAW decisions are available in all UN languages (Arabic, Chinese, English, French, Russian, Spanish) on the website of the United Nations High Commissioner for Human Rights:

Download: http://www2.ohchr.org/english/law/jurisprudence.htm Documents Number:

CEDAW/C/39/D/5/2005 andCEDAW/C/39/D/6/2006

A German translation is available on the website of the Austrian Federal Minister for Women and Civil Service http://www.frauen.bka.gv.at/DocView.axd?CobId=28269http://www.frauen.bka.gv.at/DocView.axd?CobId=28270