In the second post of her series, Gema Fernández Rodríguez de Liévana analyses how the X and Y v Georgia decision has strengthened international standards on gender-based violence. 

In my previous post, I discussed the need to incorporate a gender lens into procedural requirements. Here, I briefly set out the facts and analyse the merits of X and Y v Georgia, decided in 2015 by the Committee on the Elimination of Discrimination against Women. This will be followed by a final post, which looks specifically at the significance of the admissibility decision of the Committee in this case.

X and Y v Georgia is particularly important for a number of reasons. The decision marks the first time that the Committee examined Georgia under the individual communications procedure. It was also the first time that the country was found in violation of its obligations under the Convention. Significantly, it is the eighth case where the Committee has expressed views on acts of domestic or intimate partner violence as part of its efforts towards the elimination of this kind of violence. Additionally, like the case of Ángela González v Spain [posts here, here and here] the decision concerns the effects of this violence on children.

The decision’s jurisprudential value is important, strengthening standards on violence against women. Despite the well-known fact that violence is not mentioned within the Convention on the Elimination of All Forms of Discrimination against Women, the Committee stated in its General Recommendation No. 19 that gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men. Since then it has developed a rich jurisprudence on violence against women and girls.

Lastly, the case illustrates a common practice where the arguments used by perpetrators before national justice systems are echoed by the State in their observations on the admissibility and merits. The Committee deals with this practice by reframing the issue and focusing on the assessment of the authorities’ fulfilment of its obligations under the Convention.

by Vladimer Shioshvili [CC BY-SA 2.0], via Flickr

Facts

X and Y are a Georgian mother and daughter who suffered physical, psychological and sexual abuse from A –their husband and father, respectively—for several years.

A was increasingly violent towards his family, beating the children with various items. X was assaulted by him whenever she intervened to protect the children.

Several violent episodes took place throughout the years of their marriage, with X reporting three of them to the police. Following her complaints, the only action that the police took was to require A to undertake, in writing, not to use violence against his family. The District Prosecutor’s Office failed to open a criminal investigation on any of these occasions.

Further, X discovered that A was sexually abusing their daughter Y. X reported the sexual abuse and, in front of a psychologist, she described the incidents involving physical and sexual abuse committed during the previous five years. Despite this, the District Prosecutor’s Office decided once again not to open a criminal case.

[Read more: X and Y v Georgia Case Summary written by the European Human Rights Advocacy Centre for the LSE WPS Tackling Violence Against Women resource site.]

On the merits

The State denied responsibility with regards to adequacy of the response of the authorities to several reports of violent episodes. The State affirmed that it had fulfilled all its positive obligations under the Convention throughout the investigations conducted, including the Prosecutor Office’s decision to make the perpetrator pledge that he would no longer be violent to his family rather than prosecuting him. The State also accused the mother of ‘brainwashing’ her children, causing them to testify against their father. She was further accused of being illogical for having accused her husband of child abuse and yet having permitted the children to stay with him in another town overnight.

Lawyers for X and Y argued that the State showed a fundamental misunderstanding of its obligations under the Convention. They submitted that this demonstrated either bias against the mother or a preconceived notion of how victims of domestic violence behave. Furthermore, this occurred in a State where a sociocultural pattern of conduct exists that accords greater weight to the word of a man and that accepts a level of physical violence and sexual touching within the realm of acceptable parenting for a man. The lawyers submitted that the examination of the decisions demonstrated a judiciary that compounded the omissions and mistakes made by the prosecuting authorities.

Deliberations of the Committee

The issue before the Committee was whether the State had adequately addressed the complaints and provided effective legal protection.

Firstly, it is interesting to note that the Committee considered the history of violence perpetrated against X by her husband, beginning with her rape before their marriage, as information that helped frame the concrete episodes of violence that were brought before it. The Committee used its unique expertise in analysing the context of discrimination and showed the importance of unveiling the role that structural discrimination plays in the persistence of violence against women.

Further, the Committee noted that all the complaints of domestic violence were dealt with by the police purely on the basis of administrative rules, with officers simply obtaining written undertakings from A not to commit similar acts in the future. These declarations were not legally binding and thus, unenforceable. It also observed that the District Prosecutor’s Office declined to open a criminal investigation into another incident, during which X sustained injuries to her face and head, because she had withdrawn her complaint.

The way in which the Committee engaged with the State’s submissions is also notable and illustrates a manner of reasoning which breaks through some of the barriers women face in national judicial proceedings on violence against women. This demonstrates the importance of a specialised expert body on violence and discrimination against women. There are several illustrative examples of how the Committee adopted a gender approach to their decision making and in response to the State. First, the Committee faced the State’s argument that X had brainwashed her children to make them testify against their father. Instead of engaging with this allegation, the Committee focused on the State’s obligations in cases of violence against women. Secondly, the State attempted to rely on allegations about the applicant’s mental health, the neighbour’s positive character reference of the perpetrator and the fact that the applicant had withdrawn one of her complaints. Again, the Committee did not engage with these arguments but instead focused on the State’s failures in its due diligence obligations, in violation of article 2 of the Convention. It also concluded that the State had failed to fulfil its duties relating to the elimination of gender stereotyping under article 5.

This decision enriches the Committee’s already robust case-law on violence against women and States’ obligations, strengthening international standards.

More from this series

 


About the author

Gema Fernández Rodríguez de Liévana is a Spanish human rights lawyer who specialises in human trafficking, violence against women and sexual and reproductive rights. She is a senior staff attorney at the NGO Women’s Link Worldwide in Madrid, Spain. She litigates women’s rights cases before the Spanish courts, the European Court of Human Rights and the CEDAW Committee, including the case of Ángela González Carreño v. Spain.