A first insight into the EU proposal for a Directive on countering violence against women and domestic violence

On 8. March 2022, the European Commission launched the long-awaited proposal for a Directive on combating violence against women and domestic violence (the EU proposal or draft Directive). The proposal overtly declares to fill a gap in EU law, where there is no act specifically addressing VAW and DV (several instruments respond to specific aspects, such as the protection and support of victims of crime). This post aims at providing a prima facie comment of the draft Directive. It will briefly explain what the EU proposal is about, why it is innovative with specific regard to cyber violence against women, and how this act bypasses the ratification by the EU (and some of its members) of the 2011 Council of Europe Istanbul Convention (Istanbul Convention).

What the EU proposal is about

The EU proposal establishes: a) minimum rules on the definition of criminal offences ‘in the areas of sexual exploitation of women and children and computer crimes’ and penalties; b) rights of victims of all forms of violence against women or domestic violence before, during and after criminal proceedings; c) victims’ protection and victims’ support (Article 1). This draft has been among the priorities of the von der Leyen Commission, as clearly acknowledged in the Gender Equality Strategy 2020-2025, and has been widely supported (though with a broader scope) by the European Parliament. As for the offences, States must ensure under Chapter 2 of the EU proposal the criminalization of the following behaviours: rape, female genital mutilation, non-consensual sharing of intimate or manipulated material, cyber stalking, cyber harassment and cyber incitement to violence or hatred. These behaviours fall under the umbrella concept ‘violence against women’ as defined by the Istanbul Convention, but, for the purposes of EU law, they refer to two euro-crimes for which minimum rules concerning the definition of criminal offences and sanctions can be adopted according to the Treaty (Article 83 TFEU). This is one of the reasons why, for example, no criminalisation of domestic violence or femicide is envisaged, precisely because these offences cannot be brought within the terms of the ‘euro-crime’ of sexual exploitation of women and children mentioned in Article 83 TFEU. The alternative, encouraged by NGOs like European Women’s Lobby, would have been to include the crime of violence against women as euro-crime, requiring a quite unlikely unanimous vote within the Council (Article 83(1) second sentence). Chapter 2 also provides for aggravating circumstances, including ‘the offence resulted in the death or suicide of the victim or severe physical or psychological harm for the victim,’ which sounds particularly important to grasp the multiple effects of violence on the victim. Chapter 3 is devoted to the protection of victims of any form of gender-based violence against women and domestic violence and access to justice. The chapter partly relies on acts that are already in force at European level, such as the Victims’ rights Directive and the Directive on European Protection Orders. It also obliges States to adopt guidelines for competent authorities acting in criminal proceedings, which must be child, gender- and trauma-sensitive. As demonstrated in this EELN study, commissioned by the European Commission, guidelines for public authorities have proved to be particularly effective in promptly responding to violence against women when elaborated in a gender-sensitive way. Chapter 4 on victim support relies on and improves the Victims’ Rights Directive, by including specific provisions on specialist support services and support for child victims. Chapter 5 represents one of the key pillars of the Istanbul Convention, namely prevention. The EU proposal goes further than the Convention and specifically requires States to address cyber violence in prevention measures, including ‘critical engagement with the digital world’ (Article 36). Chapter 6 addresses coordination and cooperation, by requiring States to have a system for the collection of disaggregated data on violence against women and domestic violence.

Why the EU proposal is innovative

The EU proposal covers offences committed in the digital world that are not explicitly included in the Istanbul Convention. Cyber violence, or ICT-facilitated violence against women, is widespread, targets all women, including female politicians, silences women. This is a practice that has inevitably become more common in times of pandemic when part of our lives moved online. ICT-facilitated VAW was brought within the terms of the Istanbul Convention by the recent first GREVIO Recommendation on the digital dimension of VAW (on the normative value of soft law regarding this Recommendation, see Guney here). The EU proposal, relying on the euro-crime called ‘computer crime’ included in Article 83(1) TFUE, requires States to criminalise behaviours that are committed through the use of information and communication technology, including cyber incitement to violence or hatred. Two aspects are worth mentioning here. First, the process of interpreting ‘computer crime’ under Article 83(1) TFEU as encompassing cyber VAW responds to the great concern the Commission has expressed about the magnitude of the phenomenon and the need for European action. Secondly, the EU proposal requires States to punish as a criminal offence ‘the intentional conduct of incitement to violence or hatred directed against a group of persons or a member of such a group defined by reference to sex or gender, by disseminating to the public material containing such incitement by means of information and communication technologies’ (Article 10). This provision, which will oblige States to criminalise hate speech on the basis of sex or gender, will require the coordination with an ongoing action of the EU launched last December aimed at including hate crime and (online and offline) hate speech among euro-crimes, and with the ongoing process for a Digital Services Act (DSA).

Bypassing the ratification by the EU (and some of its Members) of the Istanbul Convention

All in all, the EU proposal is a good compromise and addresses cyber VAW as it was never done before in a (potentially for the time being) binding legal instrument. As for every legislative procedure, it could have been better, but it could also have been much less ambitious. The proposal partly implements the Istanbul Convention without the EU having ratified it yet. The EU signed the Convention in 2017 and last year the European Court of Justice issued an opinion upon request of the European Parliament, in which, among the many legal aspects covered, it affirmed that ratification can proceed even without all the EU Member States being party to the Istanbul Convention. It is interesting to note that even without the EU and some of its Member States having ratified it, the Directive, once adopted by qualified majority, will oblige all EU Member States to respect its provisions, which partly reflect the Convention of the Council of Europe. Bypassing the process of ratification, which can continue on another legal track, would represent an attempt to overcome the resistance showed by some States with regard to the concept of ‘gender’ included in the Istanbul Convention (on anti-gender contestations, see also here).

What’s next?

The ordinary legislative procedure leading to the adoption of a directive requires the vote of both the European Parliament and the Council. The process might be characterised by a large number of amendments to the EU proposal which would inevitably slow down the process. Having achieved this text as a starting point should not be underestimated, though. It is a long way ahead, but one worth taking.