The Group of Experts under the Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence and the ECtHR: Complementary or Contradictory Tools?

The Istanbul Convention is a blueprint document in handling violence against women as the first legally binding treaty in Europe specifically devoted to the problem of violence against women. One aspect of the Istanbul Convention that deserves particular attention is the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), which was established as the monitoring body of the implementation of the Convention by state parties.

GREVIO is the first enforcement mechanism with an exclusive mandate to handle cases relating to violence against women in Europe, it has already adopted its first evaluation reports on several state parties. This positions GREVIO as a major legal authority to determine state responsibility in addressing violence against women within Europe, alongside the ECtHR (European Court of Human Rights). In this post, I will analyse how any potential clash between these two bodies’ approaches in tackling violence against women is likely to occur, and how these clashes should be handled within the principles of international human rights law.

GREVIO: A New Actor in Addressing Violence against Women across Europe

The Istanbul Convention provides the most comprehensive set of measures in the world that a state can adopt in order to address violence against women. Through its 4(P)s structure, it imposes a wide-range of positive obligations on states, from setting up preventive intervention programs for perpetrators (Article 16) to establishing rape crisis centres (Article 25). Undoubtedly, these measures put a heavy economic burden on the state parties in implementing their legal duties arising from the Convention.

In monitoring the implementation of such a detailed instrument, GREVIO is considered a unique platform and expected to generate invaluable data arising out of its in-depth analysis of the national and international legal regulations regarding violence against women. It is also expected to facilitate an exchange of good practices among states in tackling violence against women.

GREVIO is set within a similar procedure to the UN human rights treaty bodies, including the CEDAW Committee (The monitoring body of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)), even though it has limited but important differences. The main similarities with the UN-based treaty bodies are that GREVIO exercises its monitoring largely through a state reporting procedure (Article 68 (1)(2)(3)(4)); it is entitled to adopt General Recommendations to further elaborate on the provisions of the Convention (Article 69), and it is entitled to conduct an inquiry procedure when immediate attention is needed to prevent or limit the scale of serious violations of the Convention (Article 68(14)) . 

On the other hand, the most substantial difference between UN treaty bodies and GREVIO is that GREVIO is not equipped to receive individual communications. However, as noted by the previous president of GREVIO, the Council of Europe is likely to create an individual complaint mechanism through a Protocol sometime in the future, in a similar way to the experience of CEDAW (Interview with Feride Acar, (Interviewee Gizem Guney, Ankara, 2017). Although the CEDAW Committee was not originally authorised with such a procedure, the Optional Protocol to CEDAW (2000) authorised the CEDAW Committee to receive communications from individuals or group of individuals claiming to be victims of a violation of any of the rights set forth in CEDAW (Article 2).

ECtHR and GREVIO: Contradictory or Complementary Actors in Addressing Violence against Women across Europe?

Granting GREVIO the ability to receive individual complaints may bring up the question of whether a tension between the case-law of GREVIO and the ECtHR is likely to happen and if so, how to resolve this tension. Answering this question is particularly important when a state party to the case, lodged either at GREVIO or ECtHR, is a party to both the ECHR (European Convention on Human Rights) and the Istanbul Convention.

It is true that the ECtHR’s opinions developed within its case-law have attained a high level of authority in international human rights and have been influential in defining the emerging human rights norms. Before the adoption of the Istanbul Convention, the ECtHR has been the main human rights body that addressed cases of violence against women on a legally binding basis in Europe.

The ECtHR adheres to the ‘living instrument’ principle. It therefore takes into account the other regional and international legal developments in its interpretation of the scope of rights. Since the adoption of the Istanbul Convention, the ECtHR has made references to the Istanbul Convention by presenting it as a guideline in the determination of the state responsibilities in domestic violence cases (Volodina v Russia (2019) para 60; Kurt v Austria (2019) para 47; Bălşan v Romania (2017) para 79; Talpis v Italy (2017) para 129; Halime Kılıç v Turkey (2016) paras 114-115; MG v Turkey (2016) paras 93, 94 and 106. The ECtHR is expected to refer to the Convention even more over the course of time (Interview with Acar). In this context, the ECtHR seems likely to view the Istanbul Convention as a complementary and inspiring instrument to ECHR, but not contradictory.

The case may be different if GREVIO begins to decide on individual complaints. The Istanbul Convention is a far more comprehensive instrument regarding domestic violence than the gender-neutral rights framework of ECHR. It sets a higher bar of standards for state obligations. GREVIO is therefore likely to ask for measures that goes well beyond the scope of the ECHR.

The hints of this possibility can already be observed in the context of the discrimination approach of GREVIO and the ECtHR. The Istanbul Convention accepts all forms of violence against women as an outright violation of the prohibition of discrimination (Article 3(a) without any need for proof, such as the unequal treatment of women before the law or the evidence of women being disproportionately affected. However, the ECtHR has never declared violence against women as a direct form of sex discrimination, but instead required evidence to be provided proving discriminatory nature of violence against women.

For example, in the Opuz v Turkey case concerning domestic violence, the ECtHR found a violation of the prohibition of sexual discrimination for the first time (para 202). In reaching this decision, it relied on the reports submitted by the intervening parties which demonstrated the state’s failure to implement the relevant laws effectively, resulting in women being disproportionately affected (paras 193-198). However, in the next domestic violence case, A v Croatia, the ECtHR dismissed the claim of discrimination, arguing that the applicant failed to provide sufficient evidence, such as reports or statistics, to establish that the effects of measures adopted by Croatia were discriminatory (para 97). On the other hand, according to the Istanbul Convention, these cases would be considered as a form of discrimination straightforwardly without any need of such proofs.

In cases of difference between the Istanbul Convention and the ECHR reading of violence, such as the case above, the question of which body’s approach should prevail comes to fore. Article 71 of the Istanbul Convention ensures that the Convention shall not affect obligations arising from other international instruments to which parties to this Convention are parties and which regulate similar matters.

In elaborating this, the explanatory report to the Convention underlined that the Convention harmoniously coexists with other treaties – whether multilateral or bilateral (para 363). The drafters went on to state that the main aim of the Convention is to strengthen the protection for victims by assuring them of the highest level of protection (para 364). The word ‘highest’ here is important. It can be argued that whatever approach provides the higher protection, regardless of whether it is of the Istanbul Convention or any other instrument, should prevail. This is in line with the victim-centred approach of the Istanbul Convention, where the best interests of victims are prioritised.

It could also be argued that the ECHR constitutes lex generalis in the context of violence against women, while the Istanbul Convention constitutes lex specialis, as the law specifically dealing with violence across the Council of Europe. This being the case, in accordance with the lex specialis derogat legi generali principle, the provisions of the Istanbul Convention and the GREVIO’s interpretation should prevail over the ECHR.

In arguing this, it should not be ignored that the extensive positive obligations requiring financial sources in the Istanbul Convention would go well beyond the scope of the ECHR, which is liberally constructed and predominantly negative rights oriented. In this context, making a distinction between the positive and negative obligations imposed by the Istanbul Convention may be useful.

Some responsibilities of the Istanbul Convention do not require financial costs, such as broadening the definition of violence against women and facilitating legal tools to identify all forms of violence against women as an outright discrimination against women. These standards should constitute an absolute minimum bar that the ECtHR should not go below in its judgments concerning states that are also a party to the Istanbul Convention. But in terms of the positive obligations, which would be costly and would require a progressive realisation, such as establishing prevention programs and rape crisis centres, the ECtHR should aspire to catch up the standards of the Istanbul Convention. The ECtHR can consider such obligations as a part of state responsibilities by expending its due diligence reading. In this way, the Court can impose more obligations on states in cases regarding violence against women, going beyond the negative rights framework of the ECHR.