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Introduction

JudicialMechanismThe European Court of Human Rights (the ‘Court’) is the core judicial organ of the CoE responsible for evaluating state compliance with the European Convention on Human Rights and Fundamental Freedoms (ECHR) and/or its additional Protocols. It consists of 47 independent and full-time judges “of high moral character” (the same number of judges to High Contracting Parties to the Convention), supported by a Registry of legal and administrative staff. Each judge is elected by the Parliamentary Assembly for a non-renewable term of 9 years.

Individuals, groups of individuals, or one or more of the contracting states who believe a state party has violated their civil or political rights guaranteed under the ECHR can file an application with the Court for review. If the Court decides a state has violated the relevant applicant’s human rights, the final ruling is transmitted to the Committee of Ministers to oversee compliance with the Court’s recommendations. The Court also has the power to issue advisory opinions, which provide guidance on the ECHR through practical interpretations of the rights contained in the agreement.

The European Court of Human Rights is responsible for (European Convention on Human Rights, Section II, Articles 29, 33, 34, 41, 47):

  • Considering the admissibility and merits of applications for alleged violations of the Convention and its Protocols
  • Hearing inter-state applications put forward by any High Contracting Party against another
  • Hearing individual applications from a person, group of people, or non-governmental organisation who claim their rights have been violated by a contracting state
  • Suggesting just satisfaction or compensation for the applicant, if the Court finds a state has violated the Convention
  • Providing advisory opinions on the legal interpretations of the Convention and its Protocols

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How does it help tackle violence against women?

Through the Court’s decisions, the European Convention on Human Rights and Fundamental Freedoms (ECHR) becomes a living instrument. This means that the Court has the opportunity to interpret the right and freedoms outlined in the ECHR and apply these interpretations contextually, giving practical application of rights in specific contexts. Because violence against women exists on a continuum, taking many different forms and pervading all spheres of life, the Court’s decisions on VAW-related issues are highly important in the fight to end it. Through the Court’s decisions, violence has been has been recognised as a form of discrimination, torture (i.e. rape and sexual violence) and a violation of the right to life, among many other interpretations.

In practice, the Court has interpreted VAW-related offences through the lens of the ECHR’s human rights provisions. Some of the offences considered have included:

  • Domestic violence
  • Sex and reproductive health
  • Ill-treatment in detention
  • Police violence
  • Rape and sexual abuse
  • Female genital mutilation
  • Risk of ill-treatment in case of expulsion
  • Crimes committed in the name of so-called ‘honour’
  • Social exclusion
  • Trafficking in human beings

When the Court delivers a judgement finding human rights violations, it is binding on the state concerned. This means that states are obliged to implement the judgement of the Court, whether it requires compensation be paid to the applicant or specific actions are required (e.g. through law, establishment of services). There is also a larger impact of the Court’s case law on violence against women. When a Court delivers a judgment, it not only identifies which rights were violated but defines the practical application of human rights in a specific context. For example, in Aydin v. Turkey (1997, see case study below) the Court ruled that rape at the hands of public officials amounts to torture under Article 3 of the ECHR. This means that any state can be held responsible for violating a person’s Article 3 rights if one of its public officials commits rape, given that rape under these circumstances amounts to torture.

iconLockWant more? The Court has produced fact sheets on its work related to:

You can also browse through summaries of the Court’s cases on violence against women on the ‘Landmark Cases’ section of our website.

iconStarCivil Society Engagement: Individual Complaints

The Court can accept complaints from individuals, groups and/or organisations to protect women’s rights against a state. Before lodging, certain ‘admissibility’ requirements must be satisfied. These determine whether the Court has the authority to investigate the complaint. Very broadly, these requirements are:

  • The complaint must be lodged against a CoE member state that has ratified the ECHR (Article 32, 35; ECHR). The rights violation(s) must have taken place after the state had ratified the ECHR.
  • The complaint must be concerned with one or more rights protected by the ECHR and its Protocols (Article 32, 35; ECHR) – no other rights outside of the ECHR may be claimed
  • The applicant must be the victim of a rights violation
  • Significant disadvantage. The applicant must have suffered a significant disadvantage as a result of the rights violation (Protocol 14 to the ECHR).
  • Exhaustion of domestic remedies. The applicant must have pursued and exhausted available remedies under domestic law (Article 35).
    • Note: there are exceptions to this rule. According to the Court’s ‘Practical Guide on Admissibility Criteria‘ the “…exhaustion rule may be described as one that is golden rather than cast in stone.” For example, if more than one effective remedy is available, applicants are only required to have pursued one of them (Moreira Barbosa v. Portugal). Furthermore, the existence of a remedy must exist formally and in practice. The Court will evaluate the general political context in which formal remedies exist and evaluate if the applicant had done everything that could be reasonably expected of her given the circumstance. For more information on exceptions, we recommend reading through the Court’s Practical Guide.
  • The complaint must be submitted within 6 months of the final judgment that exhausted domestic remedies (Article 35, ECHR)

If the state is found to have violated a person’s rights, the Court determines what that state must do to repair the damage and prevent the recurrence of a similar situation. These rulings not only define specific obligations for the state concerned, but for all states parties who are bound by the Convention concerned. Each ruling is an interpretation and application of the Convention which defines what human rights treaties mean in certain circumstances.

Note: the Court does not have the authority to decide the guilt or innocence of an individual, nor can it overturn a state’s ruling in this regard. It may only issue judgments regarding state’s compliance with their human rights obligations and issue recommendations. It should also be noted that complaints may only be against a state party if that state has ratified the relevant conventions under the Court’s authority.

As of 1 January 2016 the Rule 47 of the Rules of Court was amended. A new application form is now available.

 
iconLockWant more? The Court produced an online admissibility checklist, practical guide on admissibility and short video on the correct way to lodge an application with the Court. You can also visit the European Court of Human Right’s application page to access the new application form for filing a complaint

CourtCaseCase Study: Aydin v. Turkey (1997)

Aydin v. Turkey (1997) was the first time the Court recognised that an act of rape by public officials or another person acting in an official capacity constitutes a form of torture. This landmark ruling fundamentally changed the way European human rights law interpreted acts of rape and sexual abuse and has significantly contributed to No longer were these acts considered private or social crimes, they were a violation of a human being’s right to be freedom from torture and other cruel, inhuman and degrading punishment or treatment.

Şükran Aydin was 17 years old and living with her parents when a group of village guards and a gendarme arrived in her village on 29 June 1993. Four members of the group forcibly removed Şükran and her family from their home. Eventually, Şükran, her father and her sister-in-law were blindfolded and driven to Derik gendarmerie headquarters. Separated from her family, Şükran was beaten, sprayed with cold water from high-pressure jets, then taken into an interrogation room where an an individual in military clothing forcibly removed her clothes and raped her. In severe pain and covered in blood, Şükran was then ordered to get dressed and was moved to another room. Before her release from custody, she was taken back into the room where she had been raped and beaten for an hour by multiple assailants. They warned her not to report what they did to her while in custody.

When Şükran returned to her village, she (along with her father and sister-in-law) went to the office of the public prosecutor to report what had happened. The same day, they were taken to a medical hospital for examination. While there, Şükran underwent three medical examinations within the same day – all focused on establishing whether or not she had lost her virginity. No reference was made with regard to the bruising on Şükran’s thighs, whether the bruising was consistent with allegations of rape, nor was any attempt made to psychologically evaluate whether Şükran’s attitude and behaviour was symptomatic of rape. The incomplete investigation into her case meant Şükran could not start domestic proceedings because she had no proof she had been raped and ill-treated by state officials — the government maintained that Şükran and her family had never been arrested or detained.

Through its analysis, the Court decided that Turkey was responsible for violating Şükran’s human rights, specifically:

The reasoning behind the Court’s decision has set a precedent for states obligations to eliminate VAW under ECHR. This is because the Court recognised:

  1. During the investigation of Şükran’s claims, the public prosecutor should have acted promptly to gather all evidence necessary. In Şükran’s case, this should have included documentation of her allegations of rape, as well as evaluation of psychological and behavioural evidence. To successfully gather this evidence, there should have been an independent medical examination by medical professionals with competence in this area. Because Şükran’s case was not thoroughly or effectively investigated in this regard, it can be considered a failure that would undermine the effectiveness of any other remedies that may have been available to her otherwise – thus violating her rights under Article 13 of the ECHR.
  2. “Rape of a detainee by an official of the State must be considered to be an especially grave and abhorrent form of ill-treatment given the ease with which the offender can exploit the vulnerability and weakened resistance of his victim. Furthermore, rape leaves deep psychological scars on the victim which do not respond to the passage of time as quickly as other forms of physical and mental violence. The applicant also experienced the acute physical pain of forced penetration, which must have left her feeling debased and violated both physically and emotionally.” For this reason, the Court found that the violence inflicted on Şükran, especially the “cruel act of rape”, violated her right under Article 3 of the ECHR.

iconLockWant more? Find out what specific actions the Court recommended to Turkey on our ‘Cases’ page

 

Contact Information

Note: All applications to the Court must be sent by post. A fax does not interrupt the six-month time-limit for submissions.

 
The Registrar
European Court of Human Rights
Council of Europe
F-67075 Strasbourg cedex
France

Tel. + 33 (0)3 88 41 20 18 | Fax. + 33 (0)3 88 41 27 30

For questions and other inquiries, the Court has a form you may fill out online and submit electronically.

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