Yesterday, 4 March 2016, there was much EU fanfare and self-congratulation that the EU was proposing that it should accede to the Istanbul Convention on domestic violence. Beyond the press releases, what does this mean? Where does it fit in to what is already existing international law? What might it mean in practice?
I am certainly not a domestic violence law specialist. But a couple of years ago, as editor of Jordans “International Family Law Practice” book, I decided we needed a chapter on domestic violence given the international developments, and then found myself being a co-author. So there was a steep learning curve. This article seeks to explain the background. It is much more fully set out in chapter 20 of the book.
The European problem
Statistics can be unreliable. EU statistics are notoriously unreliable. But the EU asserts on statistical data that about a third of all women in the European Union have experienced either physical or sexual violence since the age of 15, that domestic violence is the main cause of death in women aged between 16 and 44 and accounts for more deaths and ill-health than cancer or road traffic accidents. Domestic violence also affects men badly and there is English statistics showing 40% of domestic violence victims are men who also need protection. EU statistics say 90% of victims of domestic violence in the EU are women. Whatever the statistics, it is a major problem nationally and internationally.
In an increasingly mobile global society, localised domestic protection orders, ineffective across national boundaries, are of little use. Whilst the UK may be more moderately cocooned with our sea borders, it is a real problem where a protection order cannot protect when the perpetrator simply moves to an adjoining town across a land national border.
The EU has ranked domestic violence as a priority on its agenda e.g. Declaration 19 of Art 8 of TFEU. Protection of victims is a key family law priority for the next five years as decided by the EU in June 2014.
Both the Council and Parliament of the European Union have passed resolutions calling for specific action. The EU has funded many projects and made grants to support victims of crime including the Daphne programs over recent years.
The EU Victims Directive
This Directive, 2012/29/EU, encouraged cooperation between member states and steps to be taken to strengthen the rights of victims. Directives are not automatically law in member states and invariably set a three-year timetable for introduction of law. This required implementation by November 2015
The 2011 Criminal European Protection Orders
This Directive (2011/99) has its core object in respect of criminal law and cross-border recognition of protection orders and implementation in the criminal law context.
The EU Protection Orders Regulation
This EU Regulation (606/2013), binding on member states, provides for the mutual and automatic recognition of protection measures across the EU. A protection order made in one member state will be treated as if ordered in the member state where recognition is sought. No special procedure or declaration of enforceability is required.
A protection order imposes obligations on the person causing the risk with a view to protecting another person where that latter person’s physical or psychological integrity may be at risk. It can include a prohibition or regulation on entering the place where a protected person resides, works or regular visits or stays, a prohibition or regulation of contact in any form and a prohibition or regulation on approaching the protected person closer than a prescribed distance. It is fairly widely drafted.
Enforcement measures are left to the member state where it is occurring, which may be more than where the protection order was granted. There are limited grounds for refusal of recognition or enforcement, as with other EU family law legislation. There is provision for legal aid to improve access to justice. The protection order is often limited to 12 months but can be extended.
It came into force in January 2015
There is a new Part 38 of the FPR to make procedural provisions for incoming and outgoing protection measures under the EU Protection Measures Regulation. It is similar to other domestic rules implementing EU family law legislation.
The Istanbul Convention
The above provisions are EU Directives and Regulations. The Istanbul Convention emanates from the Council of Europe. This is separate to the European Union. It has 47 member states, as distinct from the 28 member states of the EU. Although Europe, member states range from Russia bordering in the east on the Pacific through to Greenland close to America through to Turkey in and adjoining Asia. It cannot make laws binding member states. It is most known for the European Court of Human Rights which enforces the European Convention on Human Rights.
The Istanbul Convention signed in May 2011 aims to provide a comprehensive legal framework and approach to combat domestic violence. It has a strong emphasis on prevention of violence with measures to give police power to remove perpetrators of domestic violence from the home, setting up telephone helplines and accessible shelters and increasing availability of rape and sexual violence crisis centres. It defines and criminalises various forms of domestic violence. Member states are required to introduce new criminal offences and co-ordinated policies. It encourages states to work to eliminate cultural justifications for violence such as “tradition” or “honour”. Member states should provide good, understandable and accessible information to help victims of domestic violence.
The full text can be found at Appendix 36 of the Jordan’s international family law book as well as online.
It entered into force in August 2014 and a number of European countries have ratified the convention including 12 EU member states which does not include the UK. A further 13 member states have signed it but not yet ratified. More signatures and ratifications are expected.
On 4 March 2016, the EU Commission proposed that the EU itself ratify the Istanbul Convention. The EU accession should mean a mandate for better data collection at an EU level, accountability for the EU at the international level and encourage remaining member states to ratify or at least introduce appropriate domestic provisions. (The EU is not a member of the Council of Europe but following the Lisbon Treaty, which gave the EU much greater powers and autonomy to enter into international conventions and treaties, it now enters in its own right and power into conventions such as the European Convention on Human Rights and now soon this Istanbul Convention.)
There can be no justification for domestic abuse, in its widest form and against either gender. At a time when there is a re-examination of the benefits of international co-operation and co-working, this is one area where it is vitally needed, and across not just the EU but the whole of the 49 countries in the Council of Europe.