REU, Alm.del - 2012-13 - Bilag 340: Notat om de lovgivningsmæssige konsekvenser af Europarådets konvention til forebyggelse og bekæmpelse af vold mod kvinder og vold i hjemmet, fra justitsministeren

Retsudvalget 2012-13
REU Alm.del Bilag 340
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Council of Europe Convention on

preventing and combating

violence against women and domestic violence

Explanatory report

REU, Alm.del - 2012-13 - Bilag 340: Notat om de lovgivningsmæssige konsekvenser af Europarådets konvention til forebyggelse og bekæmpelse af vold mod kvinder og vold i hjemmet, fra justitsministeren

Introduction

1. Violence against women, including domestic violence, is one of the most serious forms of gender-based

violations of human rights in Europe and is still shrouded in silence. Domestic violence – against other victims

such as children, men and the elderly – is also a hidden phenomenon which affects too many families to be

ignored.

2. Prevalence rates for Europe do not exist, but many member states have increasingly conducted surveys to

measure the extent of violence against women nationally. Although methodologies vary, an overview of these

surveys suggests that across countries, one-fifth to one-quarter of all women have experienced physical

violence at least once during their adult lives and more than one-tenth have suffered sexual violence involving

the use of force. Figures for all forms of violence, including stalking, are as high as 45%. The majority of such

violent acts are carried out by men in their immediate social environment, most often by partners and ex-

partners.

3. Secondary data analysis supports a conservative estimate that about 12% to 15% of all women have been

in a relationship of domestic abuse since the age of 16. Many more continue to suffer physical and sexual

violence from former partners even after the break-up, indicating that, for a large number of women, ending an

abusive relationship does not necessarily mean physical safety.

4. Domestic violence against children is widespread and studies have revealed the link between domestic

violence against women and child physical abuse, as well as the trauma that witnessing violence in the home

causes in children. For other forms of domestic violence, such as elderly abuse and domestic violence against

men, reliable data are relatively scarce.

5. Violence against women is a worldwide phenomenon. The Committee on the Elimination of Discrimination

against Women (CEDAW Committee) of the United Nations Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) in its general recommendation on violence against women No. 19

(1992) helped to ensure the recognition of gender-based violence against women as a form of discrimination

against women. The United Nations General Assembly adopted a Declaration on the Elimination of Violence

against Women in 1993 that laid the foundation for international action on violence against women. In 1995, the

Beijing Declaration and Platform for Action identified the eradication of violence against women as a strategic

objective among other gender-equality requirements. In 2006, the UN Secretary-General published his in-depth

study on all forms of violence against women, in which he identified the manifestations and international legal

frameworks relating to violence against women, and also compiled details of “promising practices” which have

shown some success in addressing this issue.

6. As a regional instrument open for ratification and accession to non-member states, the Council of Europe

Convention on preventing and combating violence against women and domestic violence complements and

expands the standards set by other regional human rights organisations in this field. The Inter-American

Convention on the prevention, punishment and eradication of violence against women, adopted in 1994 by the

Organisation of American States, and the Protocol to the African Charter on Human and Peoples’ Rights on the

Rights of Women in Africa, adopted in 2003 by the African Union, both address the issue of violence against

women. More comprehensive in nature, the Council of Europe convention significantly reinforces action to

prevent and combat violence against women and domestic violence at world level.

Action of the Council of Europe

7. One of the primary concerns of the Council of Europe, representing 47 member states and their 800 million

citizens, is to safeguard and protect human rights. Violence against women, including domestic violence,

undermines the core values on which the Council of Europe is based.

8. Since the 1990s the Council of Europe, in particular its Steering Committee for Equality between Women

and Men (CDEG), has undertaken a series of initiatives to promote the protection of women against violence. In

1993, the 3rd European Ministerial Conference on Equality between Women and Men was devoted to

Strategies

for the elimination of violence against women in society: the media and other means.

9. An Action Plan to Combat Violence against Women which had subsequently been developed provided the

first comprehensive policy framework for national administrations. This was followed up in 2002 by the adoption

of Council of Europe Recommendation Rec(2002)5 of the Committee of Ministers to member states on the

protection of women against violence. It represents a milestone in that it proposes, for the first time in Europe, a

comprehensive strategy for the prevention of violence against women and the protection of victims in all Council

of Europe member states. Since 2002, it has served as the most important reference text for member states in

combating violence against women. Its implementation is regularly monitored by means of a monitoring

framework to evaluate progress. Several monitoring cycles were completed and their outcome assessed and

published. They showed that, in particular in the areas of legislation, police investigation and prosecution, much

had been done to enhance the criminal law response to violence against women. Nonetheless, many gaps

remain. In other areas, notably the provision of services for victims, signs of progress are scarce.

10. To give new impetus to the eradication of violence against women, and to reaffirm their commitment to this

aim, the Heads of State and Government of the Council of Europe member states decided at their 3rd Summit

(Warsaw, 16-17 May 2005) to carry out a large-scale campaign on the issue, devised and closely monitored by

the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence, whose

members were appointed by the Secretary General of the Council of Europe.

11. The campaign was conducted at three levels: intergovernmental, parliamentary and local. Member states

were asked to make significant progress in four main areas: legal and policy measures, support and protection

for victims, data collection and awareness raising. They were also invited to carry out national campaigns to

lobby for stronger implementation of Recommendation Rec(2002)5 on the protection of women against violence,

which more than half the member states did.

12. Thanks to the unique role of the Parliamentary Assembly of the Council of Europe, comprising delegations

from all 47 national parliaments, there was a strong parliamentary dimension to the campaign. Many

parliamentarians have, individually and jointly, pushed for changes in legislation to protect women from gender-

based violence. By organising parliamentary debates and hearings on violence against women, but also in

interviews and public statements, parliamentarians have greatly contributed to raising awareness of this topic.

Parliamentarians in many member states continue to actively lobby for change and have created a “Network of

Contact Parliamentarians” who are committed to combating violence against women at national level.

13. The campaign revealed the magnitude of the problem in Europe, but it also brought to light examples of

good practice and initiatives in many different member states. It increased awareness among key actors and

helped place the various forms of violence against women on the political agenda.

14. Furthermore, the assessment of national measures to address violence against women carried out by the

Task Force showed the need for harmonised legal standards and the collection of relevant data to ensure that

victims across Europe benefit from the same level of protection and support. The Task Force therefore

recommended in its Final Activity Report (EG-TFV (2008) 6) that the Council of Europe develop a human rights

convention to prevent and combat violence against women.

15. Moreover, the European Ministers of Justice decided during their 27th Conference (Yerevan, Armenia, 12-

13 October 2006) to assess the need for a Council of Europe legal instrument on violence against the partner,

while being aware that such violence can be based on discriminating prejudices in terms of inequalities resulting

from gender, origins and economic dependency. Following the results of the “Feasibility study for a convention

against domestic violence” (CDPC (2007) 09 rev), it was concluded by the European Committee on Crime

Problems (CDPC) that such an instrument would be necessary.

16. The Parliamentary Assembly has long taken a firm political stance against all forms of violence against

women. It has adopted a number of resolutions and recommendations on the various forms of violence against

women; in particular, Resolution 1247 (2001) on female genital mutilation, Resolution 1582 (2002) on domestic

violence, Resolution 1327 (2003) on so-called “honour crimes”, Recommendation 1723 (2005) on forced

marriages and child marriages, Recommendation 1777 (2007) on sexual assaults linked to “date-rape drugs”

and, more recently, Resolution 1654 (2009) on Feminicides and Resolution 1691 (2009) on rape of women,

including marital rape.

17. The Parliamentary Assembly has repeatedly called for legally binding standards on preventing, protecting

against and prosecuting the most severe and widespread forms of gender-based violence and has expressed its

support to the drafting of the Council of Europe Convention on preventing and combating violence against

women and domestic violence.

The Council of Europe Convention on preventing and combating violence against women and domestic

violence

18. In response to the recommendations by the Task Force to develop a convention on violence against women

and the results of the feasibility study on a convention on violence against the partner, the Committee of

Ministers decided to set up a multi-disciplinary committee mandated to develop legally binding standards that

would cover both these areas: violence against women and domestic violence.

19. As a result, the Ministers’ Deputies of the Council of Europe adopted, at their 1044th meeting on

10 December 2008, the terms of reference for the Ad Hoc Committee on Preventing and Combating Violence

against Women and Domestic Violence (CAHVIO) to prepare one or more legally binding instrument[s] “to

prevent and combat domestic violence, including specific forms of violence against women, other forms of

violence against women, and to protect and support the victims of such violence as well as prosecute the

perpetrators”. The Deputies also requested that CAHVIO “present, by 30 June 2009, an interim report on its

position on the subjects and contents of the proposed instrument(s), its working methods and the timetable for

its work, in order to allow the Committee of Ministers to take a decision, where necessary, on these matters”.

The interim report reflected the opinion of the Committee that the focus of the convention was to be on the

elimination of violence against women. Furthermore, the convention would deal with domestic violence which

affects women disproportionately, while allowing for the application of its provisions to all victims of domestic

violence. At its 1062nd meeting of 1 July 2009, the Deputies “took note of the interim report …” and “invited the

CAHVIO to continue its work in accordance with the work programme and timetable set out in the interim report

and, in particular, to prepare the instruments proposed in the report”. On that basis, in December 2009, the

CAHVIO started negotiations on the Convention on preventing and combating violence against women and

domestic violence. The CAHVIO held six meetings, in December 2009 and February, June/July, September,

November and December 2010 to finalise the text.

20. The text of the draft convention was approved by the CAHVIO during its meeting in December 2010 and

transmitted to the Committee of Ministers for submission to the Parliamentary Assembly for opinion. On

11 March 2011, the Parliamentary Assembly gave its opinion on the draft convention.

21. Building on Recommendation Rec(2002)5 on the protection of women against violence, the convention sets,

for the first time in Europe, legally binding standards to prevent violence against women and domestic violence,

protect its victims and punish the perpetrators. It fills a significant gap in human rights protection for women and

encourages parties to extend its protection to all victims of domestic violence. It nonetheless frames the

eradication of violence against women in the wider context of achieving substantive equality between women

and men and thus significantly furthers recognition of violence against women as a form of discrimination.

II.

Commentary on the provisions of the convention

Preamble

22. The Preamble reaffirms the commitment of the signatories to human rights and fundamental freedoms. It

recalls only the most important international legal instruments which directly deal with the scope of this

convention in the framework of the Council of Europe and the United Nations.

23. During the negotiation process of this convention, these international legal instruments, in particular those

prepared by the Council of Europe, have been taken into account. In addition, the drafters bore in mind the

following recommendations of the Council of Europe Parliamentary Assembly: Recommendation 1450 (2000) on

violence against women in Europe, Recommendation 1582 (2002) on domestic violence against women,

Recommendation 1723 (2005) on forced marriages and child marriages, Recommendation 1759 (2006) on

parliaments united in combating domestic violence against women, Recommendation 1777 (2007) on sexual

assaults linked to “date-rape drugs”, Recommendation 1817 (2007) on “parliaments united in combating

domestic violence against women”: mid-term assessment of the Campaign, Recommendation 1847 (2008) on

combating violence against women: towards a Council of Europe convention, Recommendation 1873 (2009) on

sexual violence against women in armed conflict, Recommendation 1868 (2009) on action to combat gender-

based human rights violations, including abduction of women and girls, Recommendation 1861 (2009) on

feminicides, Recommendation 1881 (2009) on the urgent need to combat so-called “honour crimes”,

Recommendation 1887 (2009) on rape of women, including marital rape, Recommendation 1891 (2009) on

migrant women: at particular risk from domestic violence, and Recommendation 1905 (2010) on children who

witness domestic violence. Similarly, the drafters took into consideration Recommendation 260 (2009) on

combating domestic violence against women and Resolution 279 (2009) on combating domestic violence

against women of the Congress of Local and Regional Authorities of the Council of Europe.

24. Furthermore, the negotiations were inspired by the following political declarations:

the Declaration and Programme of Action adopted at the 5th European Ministerial Conference on

Equality between Women and Men (Skopje, 22-23 January 2003);

the Action Plan adopted at the 3rd Summit of the Heads of State and Government of the Council of

Europe (Warsaw, 16-17 May 2005);

the Declaration “Making gender equality a reality” adopted by the Committee of Ministers of the Council

of Europe (Madrid, 12 May 2009);

Resolution No. 1 on preventing and responding to domestic violence adopted at the 29th Council of

Europe Conference of Ministers of Justice (Tromsø, Norway, 18-19 June 2009);

the Action Plan and Resolution adopted at the 7th Council of Europe Conference of Ministers

responsible for Equality between Women and Men (Baku, 24-25 May 2010);

the Beijing Declaration and Platform for Action adopted at the Fourth World Conference of Women in

1995, the report of the Ad Hoc Committee of the whole of the 23rd special session of the United Nations General

Assembly (Beijing + 5 – political declaration and outcome document) as well as the political declaration from the

49th session of the United Nations Commission on the Status of Women in 2005 (Beijing + 10) and 54th session

of the United Nations Commission on the Status of Women in 2010 (Beijing + 15) and Women 2000: Gender

Equality, Development and Peace for the 21st Century.

25. The preamble sets out the basic aim of the convention: the creation of a Europe free from violence against

women and domestic violence. To this end, it firmly establishes the link between achieving gender equality and

the eradication of violence against women. Based on this premise, it recognises the structural nature of violence

against women and that it is a manifestation of the historically unequal power relations between women and

men. Consequently, the Preamble sets the scene for a variety of measures contained in the convention that

frame the eradication of violence against women within the wider context of combating discrimination against

women and achieving gender equality in law and in fact. It should also be noted that the term “discrimination

against women” should be interpreted as constituting “any distinction, exclusion or restriction made on the basis

of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by

women, irrespective of their marital status, on a basis of equality of men and women, of human rights and

fundamental freedoms in the political, economic, social, cultural, civil or any other field” as provided in Article 1

of CEDAW. At the same time the drafters wished to acknowledge that violence against women and domestic

violence may be explained and understood in various manners at structural, group and individual levels.

Violence against women and domestic violence are complex phenomena and it is necessary to use a variety of

approaches in combination with each other in order to understand them.

26. The drafters wished to emphasise that violence against women seriously violates and impairs or nullifies the

enjoyment by women of their human rights, in particular their fundamental rights to life, security, freedom, dignity

and physical and emotional integrity, and that it therefore cannot be ignored by governments. Moreover, they

recognised that violence affects not only women adversely, but society as a whole and that urgent action is

therefore required. Finally, they stressed the fact that some groups of women, such as women and girls with

disabilities, are often at greater risk of experiencing violence, injury, abuse, neglect or negligent treatment,

maltreatment or exploitation, both within and outside the home.

27. In addition to affirming that violence against women, including domestic violence against women, is a

distinctly gendered phenomenon, the signatories clearly recognise that men and boys may also be victims of

domestic violence and that this violence should also be addressed. Where children are concerned, it is

acknowledged that they do not need to be directly affected by the violence to be considered victims but that

witnessing domestic violence is also traumatising and therefore sufficient to victimise them.

28. The drafters wished to stress that the obligations contained in this convention do not require parties to take

measures that run counter to constitutional rules or fundamental principles relating to the freedom of the press

and the freedom of expression in other media.

29. It is important to note that the measures contained in the convention are without prejudice to the positive

obligations on states to protect the rights recognised by the European Convention for the Protection of Human

Rights and Fundamental Freedoms (ECHR). Measures should also take into account the growing body of case

law of the European Court of Human Rights which sets important standards in the field of violence against

women, and which provided guidance to the drafters for the elaboration of numerous positive obligations and

measures needed to prevent such violence.

Chapter I – Purposes, definitions, equality and non-discrimination, general obligations

Article 1 – Purposes of the convention

30. Paragraph 1 sets out the purposes of the convention. Paragraph 1a states as the specific purpose of the

convention the protection of women against all forms of violence, as well as the prevention, prosecution and

elimination of violence against women and domestic violence.

31. In line with the recognition contained in the preamble that there is a link between eradicating violence

against women and achieving gender equality in law and in fact, paragraph 1b specifies that the convention will

contribute to the elimination of all forms of discrimination against women and promote substantive equality

between women and men. The drafters considered it essential to clearly state this as one of the purposes of the

convention.

32. Paragraph 1c reflects the need for a comprehensive approach to the protection of and assistance to all

victims of violence against women and domestic violence. The forms of violence covered by the scope of this

convention have devastating consequences on victims. It is necessary to design a comprehensive framework to

not only ensure their further safety and re-establish their physical and psychological health, but to also enable

them to rebuild their lives. This framework should be grounded on a human rights based approach.

33. Paragraph 1d deals with international co-operation, about which Chapter VIII contains details. International

co-operation is not confined to legal co-operation in criminal and civil matters but extends to the exchange of

information to prevent criminal offences established under the convention and to ensure protection from

immediate harm.

34. Eliminating violence requires extensive multi-agency co-operation as part of an integrated approach.

Ensuring this approach to preventing and combating violence is stated as the final purpose of the convention in

Paragraph 1e. It is further developed in Chapter II and other sections of the convention.

35. Paragraph 2 underlines that, in order to ensure the effective implementation of its provisions by the parties,

the convention sets up a special monitoring mechanism. This is a means of ensuring parties’ compliance with

the convention and is a guarantee of the convention’s long-term effectiveness (see comments on Chapter IX).

Article 2 – Scope of the convention

36. Paragraph 1 states that the focus of this convention is on all forms of violence against women, which

includes domestic violence committed against women. The drafters considered it important to emphasise that

the majority of victims of domestic violence are women.

37. The provision contained in paragraph 2 on the scope of the convention encourages parties to apply this

convention also to domestic violence committed against men and children. It is therefore up to the parties to

decide whether to extend the applicability of the convention to these victims. They may do so in the manner they

consider the most appropriate, taking particular account of the specific national situation and of the

developments in their society. However, with a view to keeping the focus on the various forms of gender-based

violence committed against women, paragraph 2 requires parties to pay particular attention to victims of this

form of violence when implementing the convention. This means that gender-based violence against women, in

its various manifestations, one of which is domestic violence, must lie at the heart of all measures taken in

implementation of the convention.

38. The basic principles of international humanitarian law and the Rome Statute of the International Criminal

Court, which are referred to in the preamble to the convention, affirm individual criminal responsibility under

international law for violence that occurs primarily (but not exclusively) during armed conflict. Article 7 of the

Rome Statute (crimes against humanity committed as part of a widespread or systematic attack directed against

any civilian population) and Article 8 (war crimes) include crimes of violence committed largely against women

such as rape and sexual violence. However, the forms of violence covered by the present convention do not

cease during armed conflict or periods of occupation. Paragraph 3 therefore provides for the continued

applicability of the convention during armed conflict as complementary to the principles of international

humanitarian law and international criminal law.

Article 3 – Definitions

39. Article 3 provides several definitions which are applicable throughout the convention.

Definition of “violence against women”

40. The definition of “violence against women” makes clear that, for the purpose of the convention, violence

against women shall be understood to constitute a violation of human rights and a form of discrimination. This is

in line with the purpose of the convention set out in Article 1.b and needs to be borne in mind when

implementing the convention. The second part of the definition is the same as contained in Council of Europe

Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women

against violence, the CEDAW Committee General Recommendation No. 19 on violence against women (1992),

as well as in Article 1 of the United Nations Declaration on the Elimination of All Forms of Violence against

Women. The drafters have, however, expanded it to include the notion of “economic harm” which can be related

to psychological violence.

Definition of “domestic violence”

41. Article 3.b provides a definition of domestic violence that covers acts of physical, sexual, psychological or

economic violence between members of the family or domestic unit, irrespective of biological or legal family ties.

In line with what is mentioned in paragraph 40, economic violence can be related to psychological violence.

Domestic violence includes mainly two types of violence: intimate-partner violence between current or former

spouses or partners and inter-generational violence which typically occurs between parents and children. It is a

gender-neutral definition that encompasses victims and perpetrators of both sexes.

42. Domestic violence as intimate-partner violence includes physical, sexual, psychological or economic

violence between current or former spouses as well as current or former partners. It constitutes a form of

violence which affects women disproportionately and which is therefore distinctly gendered. Although the term

“domestic” may appear to limit the context of where such violence can occur, the drafters recognised that the

violence often continues after a relationship has ended and therefore agreed that a joint residence of the victim

and perpetrator is not required. Inter-generational domestic violence includes physical, sexual, psychological

and economic violence by a person against her or his child or parent (elderly abuse) or such violence between

any other two or more family members of different generations. Again, a joint residence of the victim and

perpetrator is not required.

Definition of “gender”

43. As the convention places the obligation to prevent and combat violence against women within the wider

framework of achieving equality between women and men, the drafters considered it important to define the

term “gender”. In the context of this convention, the term gender, based on the two sexes, male and female,

explains that there are also socially constructed roles, behaviours, activities and attributes that a given society

considers appropriate for women and men. Research has shown that certain roles or stereotypes reproduce

unwanted and harmful practices and contribute to make violence against women acceptable. To overcome such

gender roles, Article 12.1 frames the eradication of prejudices, customs, traditions and other practices which are

based on the idea of the inferiority of women or on stereotyped gender roles as a general obligation to prevent

violence against women. Elsewhere, the convention calls for a gendered understanding of violence against

women and domestic violence as a basis for all measures to protect and support victims. This means that these

forms of violence need to be addressed in the context of the prevailing inequality between women and men,

existing stereotypes, gender roles and discrimination against women in order to adequately respond to the

complexity of the phenomenon. The term “gender” under this definition is not intended as a replacement for the

terms “women” and “men” used in the convention.

Definition of “gender-based violence against women”

44. The term “gender-based violence against women” is used throughout the convention and refers to violence

that is directed against a woman because she is a woman or that affects women disproportionately. It differs

from other types of violence in that the victim’s gender is the primary motive for the acts of violence described

under sub-paragraph

In other words, gender-based violence refers to any harm that is perpetrated against a

woman and that is both the cause and the result of unequal power relations based on perceived differences

between women and men that lead to women’s subordinate status in both the private and public spheres. This

type of violence is deeply rooted in the social and cultural structures, norms and values that govern society, and

is often perpetuated by a culture of denial and silence. The use of the expression “gender-based violence

against women” in this convention is understood as equivalent to the expression “gender-based violence” used

in the CEDAW Committee General Recommendation No. 19 on violence against women (1992), the United

Nations General Assembly Declaration on the Elimination of Violence against Women (1993) and

Recommendation Rec(2002)5 of the Committee of Ministers of the Council of Europe to member states on the

protection of women against violence (2002). This expression is to be understood as aimed at protecting women

from violence resulting from gender stereotypes, and specifically encompasses women.

Definition of “victim”

45. The convention contains a large number of references to victims. The term “victim” refers to both victims of

violence against women, and victims of domestic violence, as defined in Article 3.a and Article 3.b respectively.

While only women, including girls, can be victims of violence against women, victims of domestic violence may

include men and women as well as children. In line with other international human rights treaties, the term “child”

shall mean any person under the age of 18 years. The term “victim” should be understood in accordance with

the scope of the convention.

Definition of “women”

46. Conscious of the fact that many of the forms of violence covered by the convention are perpetrated against

both women and girls, the drafters did not intend to limit the applicability of the convention to adult victims only.

Sub-paragraph

therefore clearly states that the term “women” includes girls under the age of 18 years.

47. This convention is an agreement between states, which would create obligations only for them. The

provisions contained in Articles 3 and 4 do not create any new rights but clarify existing human rights. Any

obligations for individuals would follow from such legislative and other measures which parties adopt in

accordance with the convention.

Article 4 – Fundamental rights, equality and non-discrimination

48. Paragraph 1 states the principle that every person has the right to live free from violence in the public and

the private sphere. With a view to the focus of the convention, the drafters considered it important to include the

particular obligation to promote and protect this right for women which are predominantly victims of gender-

based violence.

49. Discrimination against women provides a breeding ground for tolerance towards violence against women.

Any measures taken to prevent and combat violence against women need to promote equality between women

and men as only substantive equality will prevent such violence in the future. In the

Opuz v. Turkey

judgment,

the European Court of Human Rights discussed the interconnection between discrimination and violence

against women and held that gender-based violence constitutes a form of discrimination because it mainly

affects women, and women were not protected by the law on an equal footing with men.

50. For these reasons, paragraph 2 affirms the principle of substantive equality between women and men by

requiring parties to not only condemn all forms of discrimination against women, but to enshrine the principle of

equality in law, ensure its practical realisation as well as prohibit discrimination by law and abolish any

discriminatory legislation and practices. It recognises that the enjoyment of the right to be free from violence is

interconnected with the parties’ obligation to secure equality between women and men to exercise and enjoy all

civil, political, economic, social and cultural rights as set out in the human rights instruments of the Council of

Europe, particularly the ECHR and its Protocols and the European Social Charter, and other international

instruments, particularly CEDAW, to which they are parties.

51. It is important to note that this paragraph provides parties with two options to meet the requirement of

enshrining in law the principle of equality between women and men: a constitutional amendment or its

embodiment in other legislative act. Furthermore, the obligation to ensure the practical realisation of equality

between women and men addresses the fact that enshrining it in law is often insufficient and that practical

measures are required to implement this principle in a meaningful way.

52. Paragraph 3 prohibits discrimination in parties’ implementation of the convention. The meaning of

discrimination is identical to that given to it under Article 14 of the ECHR. The list of non-discrimination grounds

draws on that in Article 14 ECHR as well as the list contained in Protocol No. 12 to the ECHR. It is worth

pointing out that the European Court of Human Rights has applied Article 14 to discrimination grounds not

explicitly mentioned in that provision (see, for example, as concerns the ground of sexual orientation, the

judgment of 21 December 1999 in

Salgueiro da Silva Mouta v. Portugal).

53. In light of this case law, the drafters wished to add the following grounds for discrimination which are of great

relevance to the subject matter of the convention: gender, sexual orientation, gender identity, age, state of

health, disability, marital status, and migrant or refugee status or other status, meaning that this is an open-

ended list. Research into help-seeking behaviour of victims of violence against women and domestic violence,

and also into the provision of services in Europe, shows that discrimination against certain groups of victims is

still widespread. Women may still experience discrimination at the hands of law enforcement agencies or the

judiciary when reporting an act of gender-based violence. Similarly, gay, lesbian and bisexual victims of

domestic violence are often excluded from support services because of their sexual orientation. Certain groups

of individuals may also experience discrimination on the basis of their gender identity, which in simple terms

means that the gender they identify with is not in conformity with the sex assigned to them at birth. This includes

categories of individuals such as transgender or transsexual persons, cross-dressers, transvestites and other

groups of persons that do not correspond to what society has established as belonging to “male” or “female”

categories. Furthermore, migrant and refugee women may also be excluded from support services because of

their residence status. It is important to point out that women tend to experience multiple forms of discrimination

as may be the case of women with disabilities and/or women of ethnic minorities, Roma, or women with

HIV/Aids, to name but a few. This is no different when they become victims of gender-based violence.

54. The extent of the prohibition on discrimination contained in paragraph 3 is much more limited than the

prohibition of discrimination against women contained in paragraph 2 of this article. It requires parties to refrain

from discrimination in the implementation of the provisions of this convention, whereas paragraph 2 calls on

parties to condemn discrimination in areas beyond the remit of the convention.

55. Paragraph 4 refers to special measures which a party to the convention may wish to take to enhance the

protection of women from gender-based violence – measures which would benefit women only. This provision

does not overrule the general prohibition of discrimination. Drawing on Article 4 of CEDAW, this paragraph

stipulates that special measures which aim to prevent and protect women from gender-based violence and

which do not address men do not constitute a form of discrimination. This is in line with the concept of

discrimination as interpreted by the European Court of Human Rights in its case law concerning Article 14

ECHR. In particular, this case law has made clear that not every distinction or difference of treatment amounts to

discrimination. As the Court has stated, for example in the

Abdulaziz, Cabales and Balkandali v. United Kingdom

judgment, “a difference of treatment is discriminatory if it has no objective and reasonable justification, that is, if

it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the

means employed and the aim sought to be realised”. The fact that women experience gender-based violence,

including domestic violence, to a significantly larger extent than men can be considered an objective and

reasonable justification to employ resources and take special measures for the benefit of women victims only.

56. See also paragraph 47.

Article 5 – State obligations and due diligence

57. Under international law a state is responsible for the commission of an internationally wrongful act which is

attributable to it, through the conduct of their agents such as the police, immigration officials and prison officers.

This principle is set out in the International Law Commission's Articles on the Responsibility of States for

Internationally Wrongful Acts (2001), which are widely accepted as customary international law. Under

international human rights law, the state has both negative duties and positive duties: state officials must both

respect the law and refrain from the commission of internationally wrongful acts and must protect individuals

from their commission by other non-state actors. Article 5.1 addresses the state obligation to ensure that their

authorities, officials, agents, institutions and other actors acting on behalf of the state refrain from acts of

violence against women, whereas paragraph 2 sets out parties’ obligation to exercise due diligence in relation to

acts covered by the scope of this convention perpetrated by non-state actors. In both cases, failure to do so will

incur state responsibility.

58. A requirement of due diligence has been adopted in a number of international human rights instruments,

interpretations, and judgments with respect to violence against women. These include CEDAW Committee

General Recommendation No. 19 on violence against women (1992), Article 4 of the United Nations General

Assembly Declaration on the Elimination of Violence against Women (1993), the Inter-American Convention on

the Prevention, Punishment and Eradication of Violence against Women (Convention of

Belém do Pará,

1994)

adopted by the Organisation of American States, and Council of Europe Recommendation Rec(2002)5 of the

Committee of Ministers to member states on the protection of women against violence (2002). Furthermore, the

content of Article 5 reflects the case law of the European Court of Human Rights. In its recent case law on

domestic violence, the Court has adopted the obligation of due diligence (see the judgment of

Opuz v. Turkey,

2009). It has established that the positive obligation to protect the right to life (Article 2 ECHR) requires state

authorities to display due diligence, for example by taking preventive operational measures, in protecting an

individual whose life is at risk.

59. Against the backdrop of these developments in international law and jurisprudence, the drafters considered

it important to enshrine a principle of due diligence in this convention. It is not an obligation of result, but an

obligation of means. Parties are required to organise their response to all forms of violence covered by the

scope of this convention in a way that allows relevant authorities to diligently prevent, investigate, punish and

provide reparation for such acts of violence. Failure to do so incurs state responsibility for an act otherwise

solely attributed to a non-state actor. As such, violence against women perpetrated by non-state actors crosses

the threshold of constituting a violation of human rights as referred to in Article 2 insofar as parties have the

obligation to take the legislative and other measures necessary to exercise due diligence to prevent, investigate,

punish and provide reparation for acts of violence covered by the scope of this convention, as well as to provide

protection to the victims, and that failure to do so violates and impairs or nullifies the enjoyment of their human

rights and fundamental freedoms.

60. The term “reparation” may encompass different forms of reparation under international human rights law

such as restitution, compensation, rehabilitation, satisfaction, and guarantee of non-repetition. As regards

compensation, it is important to note that this form of reparation shall only be provided by a party under the

conditions set out in Article 30.2 of this convention. Finally, the term “non-state actor” refers to private persons, a

concept which is already expressed in point II of Council of Europe Recommendation Rec(2002)5 on the

protection of women against violence.

Article 6 – Gender-sensitive policies

61. Since Article 6 is placed under Chapter I, which also deals with general obligations of parties, its application

extends to all other articles of this convention. The nature of this obligation is twofold. On the one hand, it

requires parties to ensure that a gender perspective is applied not only when designing measures in the

implementation of the convention, but also when evaluating their impact. This means that a gender impact

assessment needs to be carried out in the planning stage of any measure which a party takes in the

implementation of this convention. It further means that during the evaluation stage, parties are required to

determine whether there is a gender differential in the impact of the provisions.

62. On the other hand, this article calls on parties to promote and implement policies aimed at achieving equality

between women and men and at empowering women. This obligation complements the obligation to condemn

and prohibit discrimination contained in Article 4.2. Convinced of the need to achieve equality between women

and men and to empower women in order to put an end to all forms of violence covered by the scope of this

convention, the drafters believed it essential to place an obligation on parties that goes beyond the specific

measures to be taken to prevent and combat such violence in order to achieve this goal. This ties in with the

purposes of the convention listed in Article 1, in particular the promotion of substantive equality between women

and men, including by empowering women, as expressed in Article 1.b.

Chapter II – Integrated policies and data collection

63. Similar to other recent conventions negotiated at the level of the Council of Europe, this convention follows

the “three Ps” structure of “Prevention”, “Protection”, and “Prosecution”. However, since an effective response to

all forms of violence covered by the scope of this convention requires more than measures in these three fields,

the drafters considered it necessary to include an additional “P” (integrated

Policies).

Article 7 – Comprehensive and co-ordinated policies

64. Paragraph 1 requires parties to devise and implement policies which would comprise a multitude of

measures to be taken by different actors and agencies and which, taken as a whole, offer a holistic response to

violence against women. This obligation is further developed in paragraph 2. It requires parties to ensure that

the adopted policies are implemented by way of effective multi-agency co-operation. Good practice examples in

some member states show that results are enhanced when law enforcement agencies, the judiciary, women’s

non-governmental organisations, child protection agencies and other relevant partners join forces on a particular

case, for example to carry out an accurate risk assessment or devise a safety plan. This type of co-operation

should not rely on individuals convinced of the benefits of sharing information but requires guidelines and

protocols for all agencies to follow, as well as sufficient training of professionals on their use and benefits.

65. To ensure that the expertise and perspective of relevant stakeholders, agencies and institutions contribute

to any policy making in this field, paragraph 3 calls for the involvement of “all relevant actors, such as

government agencies, the national, regional and local parliaments and authorities, national human rights

institutions and civil society organisations”. This is a non-exhaustive list of actors, which the drafters intended to

cover, in particular, women’s non-governmental organisations and migrant organisations, but also religious

institutions. National human rights institutions refer to those established in accordance with the UN principles for

national institutions for the promotion and protection of human rights, adopted by United Nations General

Assembly Resolution 48/134, 1993. As national human rights institutions exist in many member states of the

Council of Europe, the drafters considered it important to include these in the list of relevant actors, where they

exist. This provision does not contain the obligation to set up such institutions where they do not exist. By

including national, regional and local parliaments in this provision, the drafters wished to reflect the different

levels of law-making powers in parties with a federal system. One way of ensuring the elements of

comprehensive and co-ordinated policies on the one hand and the involvement of all relevant institutions and

agencies on the other would be by drawing up national action plans.

Article 8 – Financial resources

66. This article aims to ensure the allocation of appropriate financial and human resources for both activities

carried out by public authorities and those of relevant non-governmental and civil society organisations. Across

Council of Europe member states, different practice exists when it comes to government funding for non-

governmental organisations (NGOs) involved in preventing and combating all forms of violence covered by the

scope of this convention. The obligation placed on parties is therefore that of allocating financial and human

resources for activities carried out by NGOs and civil society.

67. In view of the different economic circumstances of member states, the drafters chose to limit the scope of

this obligation to the allocation of appropriate resources. This means that the resources allocated need to be

suitable for the target set or measure to be implemented.

Article 9 – Non-governmental organisations and civil society

68. In many member states, the overwhelming majority of services for victims of domestic violence, and also

services for victims of other various forms of violence against women, are run by NGOs or civil society

organisations. They have a long tradition of providing shelter, legal advice, medical and psychological

counselling as well as of running hotlines and other essential services.

69. The purpose of this article is to emphasise the important contribution these various organisations make to

preventing and combating all forms of violence covered by the scope of this convention. It therefore requires

parties to the convention to recognise their work by, for example, tapping into their expertise and involving them

as partners in multi-agency co-operation or in the implementation of comprehensive government policies which

Article 7 calls for. Beyond such recognition, this article requires parties to the convention to actively encourage

and support the work of these dedicated NGOs and civil society organisations. This means enabling them to

carry out their work in the best possible way. Although Article 9 refers only to NGOs and civil society active in

combating violence against women, this should not prevent parties from going further and supporting the work

that is carried out by NGOs and civil society focusing on domestic violence in its wider scope.

Article 10 – Co-ordinating body

70. Paragraph 1 entails the obligation to entrust one or more official government bodies with four specific tasks:

co-ordinating, implementing, monitoring and evaluating the policies and measures which the respective party to

the convention has devised to prevent and combat all forms of violence covered by the scope of this convention.

This can be done by setting up new official bodies or mandating official bodies already in existence with these

tasks. The term “official body” is to be understood as any entity or institution within government. It may be a body

set up or already in existence either at national or regional level. Size, staffing and funding are to be decided by

the parties, as well as which entity it shall be answerable to and any reporting obligations it shall have.

Regarding the tasks of implementation, monitoring and evaluation this body should be in existence on the

respective level of a party’s structure which is responsible for the carrying out of the measures. This means that

in a federal government structure it may be necessary to have more than one body.

71. The four tasks which this body or bodies are mandated to undertake aim to ensure that the various

measures taken by the party in implementation of this convention are well co-ordinated and lead to a concerted

effort of all agencies and all sectors of government. Moreover, they aim to ensure the actual implementation of

any new policies and measures. The monitoring task bestowed upon these bodies is limited to the monitoring of

how and how effectively policies and measures to prevent and combat all forms of violence covered by the

scope of this convention are being implemented at the national and/or regional and local level. It does not

extend to monitoring compliance with the convention as a whole, which is a task performed by the independent,

international monitoring mechanism set up in Chapter IX of the convention (see comments on Chapter IX).

Lastly, the evaluation of policies and measures which these bodies are mandated to carry out comprises the

scientific evaluation of a particular policy or measure in order to assess whether it meets the needs of victims

and fulfils its purpose as well as to uncover unintended consequences. This will require robust administrative

and population-based data, which Article 11 obliges parties to the convention to collect. For this reason, bodies

created under this article are also assigned the task of co-ordinating the collection of the necessary data and to

analyse and disseminate its results. Some member states have set up observatories on violence against women

which already collect a vast variety of data. While these may serve as examples, the drafters decided to leave to

the parties the decision on how to ensure the co-ordination, analysis and dissemination of data by the bodies in

question.

72. Paragraph 2 of this article authorises these bodies to receive information within the framework of this

convention which the respective party has taken in compliance with Chapter VIII (see comments on

Chapter VIII). It is important to note that, for data protection reasons, the authorisation is limited to receiving

information of a general nature (see comments on Article 65). The obligation is therefore confined to ensuring

that bodies created under this article are kept informed, in a general manner and without references to individual

cases, of international co-operation activities, including mutual legal assistance in civil and criminal matters. The

purpose is to allow them to fulfil its role.

73. The information and knowledge acquired through the exchange of experiences and practice is of great value

in preventing and combating all forms of violence covered by the scope of this convention. Paragraph 3

therefore equips bodies created under this article with the ability to seek contact with and set up working

relations with its counterparts created in other parties to the convention. This will allow for important cross-

fertilisation that is mutually productive and will lead to further harmonisation of practice.

Article 11 – Data collection and research

74. Systematic and adequate data collection has long been recognised as an essential component of effective

policy making in the field of preventing and combating all forms of violence covered by the scope of this

convention. Despite this recognition, examples of systematically collected administrative or population-based

data in Council of Europe member states are rare. Additionally, available data are seldom comparable across

countries nor over time, resulting in a limited understanding of the extent and the evolution of the problem.

Preventing and combating violence against women and domestic violence requires evidence-based policy

making. This implies effectively documenting the magnitude of violence by producing robust, comparative data

in order to guide policy and to monitor the implementation of measures to address the problem. This chapter

contains the obligation to address the importance of regularly collecting representative and comparable data to

the devising and implementation of policies to prevent and combat all forms of violence covered by the scope of

this convention. It establishes the type of data that will need to be collected, analysed and prepared for

dissemination by the co-ordinating body or bodies created under Article 10 and provided to the Group of

independent experts (GREVIO) responsible for the monitoring of the implementation of the convention (see

Chapter IX). Additionally, it highlights the need to support research in the field of violence against women and

domestic violence.

75. The nature of the obligation contained in paragraph 1 is twofold. First, in order to design and implement

evidence-based policies and assess whether they meet the needs of those exposed to violence, sub-paragraph

requires parties to collect disaggregated relevant statistical data at regular intervals on cases of all forms of

violence covered by the scope of this convention. Accurate statistical information specifically designed to target

victims and perpetrators of such violence is not only important in efforts to raise awareness among policy

makers and the public on the seriousness of the problem, but can also encourage reporting by victims or

witnesses. Relevant statistical data may include administrative data collected from statistics compiled by health

care services and social welfare services, law enforcement agencies and NGOs, as well as judicial data

recorded by judicial authorities, including public prosecutors. Appropriately collected statistical administrative

and judicial data can contribute to parties’ national response to all forms of violence covered by the scope of this

convention by seeking information about the performance of government institutions as well as information on

crimes that authorities are dealing with within the criminal procedure. Service-based administrative data include,

for instance, the systematic recording of data on how victims of such violence are using services and how

government agencies as well as the public (and private) health sector, in return, are serving them in their plight

to seek justice, medical care, counselling, housing or other support. Agency-based client data on service use is

not only limited to assessing the effectiveness of policies in place, but can also provide a basis for estimating the

administrative cost of such violence. Furthermore, judicial data can provide information on the sentences and

characteristics of convicted persons, as well as on conviction rates.

76. Consequently, public authorities such as the judiciary, the police and social welfare services will need to set

up data systems that go beyond the internal recording of the needs of the agency. Again, in order to show if

there has been an improvement or a decline in the effectiveness of prevention, protection and prosecution

measures and policies, relevant statistical administrative and judicial data should be collected at regular

intervals. The usefulness and relevance of such data depend above all on the quality of its recording. Although

the drafters felt it best to leave to the parties the choice of data categories used, as a minimum requirement,

recorded data on victim and perpetrator should be disaggregated by sex, age, type of violence as well as the

relationship of the perpetrator to the victim, geographical location, as well as other factors deemed relevant by

parties such as disability. Recorded data should also contain information on conviction rates of perpetrators of

all forms of violence covered by the scope of this convention, including the number of protection orders issued.

The Council of Europe study on “Administrative data collection on domestic violence in Council of Europe

member states” (EG-VEW-DC(2008)Study) identifies these and other categories and designs a model approach

containing recommendations on the collection of administrative data beyond current practices.

77. Secondly, sub-paragraph

creates the obligation for parties to support research in the field of all forms of

violence covered by the scope of this convention. It is essential that parties base their policies and measures to

prevent and combat such forms of violence on state-of-the art research and knowledge in this field. Research is

a key element of evidence-based policy making and can thus contribute greatly to improving day-to-day, real-

world responses to violence against women and domestic violence by the judiciary, support services and law

enforcement agencies. This provision therefore requires parties to undertake to support research efforts in order

to pursue further knowledge of the root causes and effects of the problem, incidences and conviction rates, as

well as of the efficiency of measures taken in implementation of the convention.

78. Paragraph 2 details parties’ obligation to endeavour conducting population-based surveys. This implies

collecting data that are statistically representative of the target population so that they can be easily generalised

to the larger population. Population-based surveys can provide more general sociologically oriented insights into

the prevalence, nature, determinants and consequences of all forms of violence covered by the scope of this

convention. They can also provide reliable data on victims’ experiences of violence, on the reasons for not

reporting, on the services received, as well as victims’ opinions of and attitudes towards such violence. Parties

are additionally obliged to conduct such surveys at regular intervals in order to make a pertinent and

comparative assessment of the prevalence and the trends in all forms of violence covered by the scope of this

convention by tracking developments longitudinally. In this case, the choice of population sample size and the

regularity of such studies is left to the parties. Depending on the party, the scope of the surveys may be national,

regional or local. It is, however, important to note that the combination of these levels can provide a macroscopic

view of the phenomenon while also highlighting local or regional specificities. When designing population-based

surveys, parties may refer to the World Health Organization (WHO) Multi-country Study on Women’s Health and

Domestic Violence against Women as well as to the International Violence Against Women Survey (IVAWS).

79. The drafters considered it important to highlight the distinction between population-based surveys and

statistical administrative and judicial data for they serve different purposes and answer different questions. While

the first can shed light on the level of severity and frequency as well as on the socio-economic and cultural

factors leading to violence against women and domestic violence, the second can contribute to address capacity

issues of government agencies and evaluate the effectiveness of services provided for victims of such violence.

Using both types of data collection methods in conjunction can help gain an in-depth picture of the problem.

Owing to a lack of shared definitions and common indicators for evaluating the prevalence and trends of

violence against women and domestic violence, data that are available rarely allow for cross-country

comparison. Consequently, it would be beneficial for parties to align the collection of data with standardised

indicators and methods already in existence or currently under development. Parties should take into account

existing developments or initiatives to provide reliable and comparable data such as the European Union

Agency for Fundamental Rights violence against women international survey.

80. As laid out in Article 65, the process of collecting, storing and transforming collected data should comply with

standards on data protection as contained in the Council of Europe Convention for the Protection of Individuals

with regard to Automatic Processing of Personal Data (ETS No. 108), to ensure confidentiality and respect for

the privacy of victims, perpetrators and other persons involved. The standards laid out in Article 65 do not only

apply in cases of transnational data exchange, but to all processes of collecting, storing and transforming of

collected data.

81. Complementing Article 68.7, the third paragraph of this article entails the obligation of parties to provide the

independent Group of experts referred to in Chapter IX with the information collected in order to stimulate

international co-operation and enable international benchmarking. This not only allows the identification of

existing good practice but also contributes to its harmonisation across the parties to the convention.

82. Finally, paragraph 4 contains the obligation to ensure that the information collected pursuant to Article 11 is

available to the public. It is, however, left to the parties to determine the form and means, as well as the type of

information that is to be made available. In making information collected pursuant to Article 11 available to the

public, parties shall pay special attention to the privacy rights of persons affected.

Chapter III – Prevention

83. This chapter contains a variety of provisions that come under the heading of prevention in the wide sense of

the term. Preventing violence against women and domestic violence requires far-reaching changes in attitude of

the public at large, overcoming gender stereotypes and raising awareness. Local and regional authorities can be

essential actors in implementing these measures by adapting them to specific realities.

Article 12 – General obligations

84. This article comprises a number of general preventive measures which lay the foundation and represent

overarching principles for more specific obligations contained in the subsequent articles of this chapter.

85. The obligations contained in paragraph 1 are based on the conviction of the drafters that existing patterns of

behaviour of women and men are often influenced by prejudices, gender stereotypes and gender-biased

customs or traditions. Parties to the convention are therefore required to take measures that are necessary to

promote changes in mentality and attitudes. The purpose of this provision is to reach the hearts and minds of

individuals who, through their behaviour, contribute to perpetuate the forms of violence covered by the scope of

this convention. As a general obligation, this paragraph does not go into detail as to propose specific measures

to take, leaving it within the discretion of the party.

86. Paragraph 2 requires parties to the convention to take the necessary legislative and other measures to

prevent all forms of violence covered by the scope of this convention by any natural or legal person. Depending

on the national legal system, some of these measures may require the passing of a law while others may not.

87. In addition to the prohibition of discrimination contained in Article 4.3, this paragraph requires positive action

to ensure that any preventive measures specifically address and take into account the needs of vulnerable

persons. Perpetrators often choose to target such persons because they know that they are less likely to be able

to defend themselves, or seek prosecution of the perpetrator and other forms of reparation, because of their

situation. For the purpose of this convention, persons made vulnerable by particular circumstances include:

pregnant women and women with young children, persons with disabilities, including those with mental or

cognitive impairments, persons living in rural or remote areas, substance abusers, prostitutes, persons of

national or ethnic minority background, migrants – including undocumented migrants and refugees, gay men,

lesbian women, bisexual and transgender persons as well as HIV-positive persons, homeless persons, children

and the elderly.

88. Paragraph 4 stresses that all members of society can make an important contribution to the prevention of

violence and should be encouraged to do so. As many of the forms of violence covered by the scope of this

convention are perpetrated primarily by men and boys, the drafters considered it important to emphasise their

particular role in the prevention of such violence. Bearing in mind the fact that the majority of men and boys are

not perpetrators, the drafters wanted to point out that their contribution can take on many forms in particular as

role models, agents of change and advocates for equality between women and men and mutual respect. By

speaking out against violence, engaging other men in activities to promote gender equality and acting as role

models by actively taking on a caring role and family responsibilities men have an important contribution to

make.

89. Paragraph 5 clearly states that culture, custom, religion, tradition or so-called “honour” shall not be invoked

to justify any act of violence covered by the scope of this convention. Parties to the convention are therefore

obliged to ensure that their national laws do not contain loopholes for interpretations inspired by such

convictions. Moreover, this obligation extends to the prevention of any official statements, reports or

proclamations that condone violence on the basis of culture, custom, religion, tradition or so-called “honour”.

This provision also establishes a key principle according to which the prohibition of any of the acts of violence

set out in the convention can never be invoked as a restriction of the perpetrator’s cultural or religious rights and

freedoms. This principle is important for societies where distinct ethnic and religious communities live together

and in which the prevailing attitudes towards the acceptability of gender-based violence differ depending on the

cultural or religious background.

90. Rounding off the list of general preventive measures, paragraph 6 calls for the promotion of specific

programmes and activities for the empowerment of women. This means empowerment in all aspects of life,

including political and economic empowerment. This obligation is a reflection of the greater aim of achieving

gender equality by increasing women’s agency and reducing their vulnerability to violence.

Article 13 – Awareness raising

91. The purpose of this article is to ensure that the general public is fully informed of the various forms of

violence that women experience on a regular basis as well as of the different manifestations of domestic

violence. This would help all members of society to recognise such violence, speak out against it and support its

victims – neighbours, friends, relatives or colleagues – where possible and appropriate. The obligation entails

the running of public awareness-raising campaigns or programmes on a regular basis that address and explain

these issues in a gender-sensitive manner. Awareness-raising activities should include the dissemination of

information on equality between women and men, non-stereotyped gender roles, and non-violent conflict

resolution in interpersonal relationships. Moreover, the drafters considered it important that any campaign

highlight the harmful consequences for children which violence against women and domestic violence may have

in its direct or indirect form.

92. Many NGOs have a long tradition of carrying out successful awareness-raising activities – at local, regional

or national level. This provision therefore encourages the co-operation with national human rights institutions

and equality bodies, civil society and NGOs, in particular women’s organisations, where appropriate, in order to

reach out to the general public. This however, is a non-exhaustive list of actors, which the drafters intended to

cover. Furthermore, the inclusion of “where appropriate” in the provision means that parties are not obliged to

set up such bodies or institutions where they do not exist. Finally, it should be noted that the term “women’s

organisations” refers to women’s NGOs working in the area of protection and support for women victims of

violence against women.

93. Paragraph 2 extends the obligation to the dissemination of concrete information on available government or

non-government preventive measures. This means the wide dissemination of information leaflets or posters or

online information material on services which the police or the local community offers, contact information of

local, regional or national services such as helplines or shelters, and much more.

Article 14 – Education

94. Attitudes, convictions and behavioural patterns are shaped very early on in life. The promotion of gender

equality, mutual respect in interpersonal relationships and non-violence must start as early as possible and is

primarily a responsibility of parents. Educational establishments, however, have an important role to play in

enhancing the promotion of these values.

95. In paragraph 1, this article addresses the need to design, where parties deem appropriate, teaching material

for all levels of education (primary, secondary and tertiary education) that promotes such values and enlightens

learners with respect to the various forms of violence covered by the scope of this convention. Where parties

deem teaching material appropriate, it needs to be adapted to the capacity of learners, which would, for

example, require primary school teaching material to meet the intellectual capacity of primary school students.

Teaching material means any type of formally developed and approved material that forms part of the curriculum

and which, where appropriate, all teachers at a particular school have access to and are required or requested

to use in class. As the words “where appropriate” indicate, the drafters did not want to impose a specific model

on the parties. Rather, this provision leaves it to the parties to decide which type of schooling and which age

group of learners they consider such teaching material to be appropriate for. The drafters decided on this

wording to allow for a maximum of flexibility in the implementation of this provision also taking into account

different possibilities between parties in determining teaching materials. Some states, for instance, determine

the teaching aims in their formal curriculum while leaving it to the schools to decide on the proper working

methods and teaching materials to be used to reach these aims. The term “formal curriculum” refers to the

planned programme of objectives, content, learning experiences, resources and assessment offered by a school

where appropriate. It does not refer to incidental lessons which can be learnt at school because of particular

school policies.

96. Paragraph 2 extends the obligation to promote the principles of equality between women and men, non-

stereotyped gender roles, mutual respect, non-violent conflict resolution in interpersonal relationships in all

informal educational facilities as well as any sports, cultural and leisure facilities as well as the media. Across

Council of Europe member states, many different forms of informal education exist and are often referred to in

many different ways. Generally, the term “informal educational facilities” refers to organised education activity

outside formal systems, such as community or religious education facilities, activities, projects and institutions

based on social pedagogy, and any other type of educational activity offered by community groups and other

organisations (such as boy scouts or girl scouts, summer camps, after-school activities, etc.). Sports, cultural

and leisure facilities refer to facilities which offer leisure activities in the areas of sports, music, arts or any other

field and which contribute to the lifelong process of learning from everyday experience.

97. Furthermore, this paragraph requires parties to the convention to include the media in their measures to

promote the above principles. It is important to note that the drafters clearly indicated that any measures taken in

this regard shall have due regard to the fundamental principle of the independence of the media and the

freedom of the press.

Article 15 – Training of professionals

98. The training and sensitisation of professionals to the many causes, manifestations and consequences of all

forms of violence covered by the scope of this convention provides an effective means of preventing such

violence. Training not only allows to raise awareness among professionals on violence against women and

domestic violence, but contributes to changing the outlooks and the conduct of these professionals with regard

to the victims. Furthermore, it significantly improves the nature and quality of the support provided to victims.

99. It is vital that professionals in regular contact with victims or perpetrators have appropriate knowledge of the

issues associated with these kinds of violence. For this reason, paragraph 1 places an obligation on parties to

provide or strengthen appropriate training for the relevant professionals dealing with victims or perpetrators of all

acts of violence covered by the scope of this convention on issues such as the prevention and detection of such

violence, equality between women and men, the needs and rights of victims, as well as on how to prevent

secondary victimisation. Initial vocational training and in-service training should enable the relevant

professionals to acquire the appropriate tools for identifying and managing cases of violence, at an early stage,

and to take preventive measures accordingly, by fostering the sensitivity and skills required to respond

appropriately and effectively on the job. The drafters felt it best to leave to the parties how to organise the

training of relevant professionals. However, it is important to ensure that relevant training be ongoing and

sustained with appropriate follow-up to ensure that newly acquired skills are adequately applied. Finally, it is

important that relevant training should be supported and reinforced by clear protocols and guidelines that set the

standards staff are expected to follow in their respective fields. The effectiveness of these protocols, where

relevant, should be regularly monitored, reviewed and, where necessary, improved.

100.

The relevant professionals may include professionals in the judiciary, in legal practice, in law-

enforcement agencies and in the fields of health care, social work and education. When providing training for

professionals involved in judicial proceedings (in particular judges, prosecutors and lawyers), parties must take

account of requirements stemming from the independence of the judicial professions and the autonomy they

enjoy in respect of the organisation of training for their members. The drafters wished to stress that this provision

does not contravene the rules governing the autonomy of legal professions but that it requires parties to ensure

that training is made available to professionals wishing to receive it.

101.

The content of paragraph 2 is linked to the greater aim of the convention to establish a comprehensive

approach to prevent and combat all forms of violence covered by its scope. This provision requires parties to

encourage that the training referred to in paragraph 1 also includes training on coordinated multi-agency

co-operation, complementing in this way the obligations laid down in Article 7 of this convention. Consequently,

professionals should also be taught skills in multi-agency working, equipping them to work in co-operation with

other professionals from a wide range of fields.

Article 16 – Preventive intervention and treatment programmes

102.

Preventive intervention and treatment programmes have been developed to help perpetrators change

their attitudes and behaviour in order to prevent further acts of domestic violence and sexual violence.

103.

Paragraph 1 requires parties to the convention to establish or support the establishment of programmes,

where they do not exist, or support any existing programmes, for perpetrators of domestic violence. Many

different models for working with perpetrators exist and the decision on how they should be run rests with the

parties or service providers. However, the following core elements should be respected in all models.

104.

Domestic violence intervention programmes should be based on best practice and what research

reveals about the most effective ways of working with perpetrators. Programmes should encourage perpetrators

to take responsibility for their actions and examine their attitudes and beliefs towards women. This type of

intervention requires skilled and trained facilitators. Beyond training in psychology and the nature of domestic

violence, they need to possess the necessary cultural and linguistic skills to enable them to work with a wide

diversity of men attending such programmes. Moreover, it is essential that these programmes are not set up in

isolation but closely co-operate with women’s support services, law enforcement agencies, the judiciary,

probation services and child protection or child welfare offices where appropriate. Participation in these

programmes may be court-ordered or voluntary. In either case, it may influence a victim’s decision to stay with

or leave the abuser or provide the victim with a false sense of security. As a result, priority consideration must be

given to the needs and safety of victims, including their human rights.

105.

The second paragraph of this article contains the obligation to set up or support treatment programmes

for perpetrators of sexual assault and rape. These are programmes specifically designed to treat convicted sex

offenders in and outside prison, with a view to minimising recidivism. Across Council of Europe member states,

many different models and approaches exist. Again, the drafters felt it best to leave to the parties and/or service

providers how to run such programmes. Their ultimate aim must be preventing re-offending and successfully

reintegrating perpetrators into the community.

Article 17 – Participation of the private sector and the media

106.

Paragraph 1 contains two different obligations. First, it requires parties to the convention to encourage

the private sector, the information and communication technology (ICT) sector and the media to participate not

only in the development of local, regional or national policies and efforts to prevent violence against women, but

also to take part in their implementation. If and what type of action is taken is left to the individual company. The

importance of this as regards media is such that the text specifically signals that the parties’ encouragement has

to respect freedom of expression and the media’s independence; the latter should be seen in particular from the

perspective of editorial independence.

107.

Second, it requires parties to encourage the private sector, the ICT sector and the media to set

guidelines and self-regulatory standards to enhance respect for the dignity of women and thus contribute to

preventing violence against them. However, the reference in Article 17.1, to policies, guidelines and self-

regulatory standards to prevent violence against women should be construed as encouraging more private

companies to establish protocols or guidelines on, for example, how to deal with cases of sexual harassment in

the workplace. It is also intended to encourage the ICT sector and the media to adopt self-regulatory standards

to refrain from harmful gender stereotyping and spreading degrading images of women or imagery which

associates violence and sex. Moreover, it means encouraging these actors to establish ethical codes of conduct

for a rights-based, gender-sensitive and non-sensationalist media coverage of violence against women. All

these measures must be taken with due respect for the fundamental principles relating to the freedom of

expression, the freedom of the press and the freedom of the arts.

108.

The Council of Europe, through its Committee of Ministers and its Parliamentary Assembly, has long

called for an end to gender stereotyping and inequality between women and men by issuing the following

recommendations:

Recommendation No. R (84) 17 of the Committee of Ministers to member states on equality

between women and men in the media;

Recommendation 1555 (2002) by the Parliamentary Assembly of the Council of Europe on the

image of women in the media;

Recommendation 1799 (2007) by the Parliamentary Assembly of the Council of Europe on the

image of women in advertising;

Resolution 1751 (2010) and Recommendation 1931 (2010) by the Parliamentary Assembly of

the Council of Europe on combating sexist stereotypes in the media.

109.

The aim of this article is to give these efforts new impetus to achieve the long-term goal of preventing

and combating all forms of violence covered by the scope of this convention. As the Steering Committee on the

Media and New Communication Services (CDMC) indicated in comments to the above-mentioned

Recommendation 1931 (2010), “Dealing with gender stereotypes will contribute to reducing inequality, including

gender violence which is one of its most unacceptable expressions. Given that addressing this issue effectively

will inevitably have to take account of the fundamental principle of media’s independence, purely regulatory

measures may not provide a satisfactory response. The task therefore falls largely to the media themselves

which have to incorporate the principle of equal presentation and fair treatment of various persons with their

specific identities in their professional codes and self-regulatory mechanisms and to combat stereotypes as an

everyday practice. It may be even more effective to consider solutions through governance models and

approaches.”

Chapter IV – Protection and support

110.

While the ultimate aim of the convention is the prevention of all forms of violence covered by its scope,

victims require adequate protection from further violence, support and assistance to overcome the multiple

consequences of such violence and to rebuild their lives. This chapter contains a range of obligations to set up

specialised as well as more general support services to meet the needs of those exposed to violence.

Article 18 – General obligations

111.

This article sets out a number of general principles to be respected in the provision of protective and

supportive services.

112.

Paragraph 1 contains the general obligation of taking legislative or other measures for the protection of

all victims within their territory from any further acts of violence covered by this convention.

113.

In line with the general multi-agency and comprehensive approach promoted by the convention,

paragraph 2 requires parties to the convention to ensure that, in accordance with internal law, there are

appropriate mechanisms in place that provide for effective co-operation among the following agencies which the

drafters have identified as relevant: the judiciary, public prosecutors, law enforcement agencies, local and

regional authorities and NGOs. By adding “other relevant organisations” the drafters have ensured that this list is

non-exhaustive to allow for co-operation with any other organisation a party may deem relevant. The term

“mechanism” refers to any formal or informal structure such as agreed protocols, round tables or any other

method that enables a number of professionals to co-operate in a standardised manner. It does not require the

setting up of an official body or institution.

114.

The emphasis placed on co-operation among these actors stems from the conviction that the forms of

violence covered by the convention are best addressed in a concerted and co-ordinated manner by a number of

agencies. Law enforcement agencies, which are often the first to be in contact with victims when called to a

crime scene, need to be able to refer a victim to specialist support services, for example a shelter or a rape crisis

centre often run by NGOs. These support services will then support the victim by providing medical care, the

collection of forensic evidence if required, psychological and legal counselling. They will also help the victim in

taking the next step, which often requires dealing with the judiciary. It is important to note that this obligation is

not limited to victims but extends to witnesses as well, bearing particularly in mind child witnesses.

115.

Paragraph 3 lists a number of aims and criteria which protective and support services should pursue or

be based on. First, all measures taken shall be based on a gendered understanding of violence against women

and domestic violence. This means that services offered need to demonstrate an approach, relevant to their

users, which recognises the gendered dynamics, impact and consequences of these forms of violence and

which operates within a gender equality and human rights framework.

116.

Second, this paragraph requires any such measures to take into account the relationship between

victims, perpetrators, children and their wider environment to avoid the risk of addressing their needs in isolation

or without acknowledging their social reality. The drafters considered it important to ensure that the needs of

victims are assessed in light of all relevant circumstances to allow professionals to take informed and suitable

decisions. The term “integrated approach” refers to the integrated human rights based approach known as the

“three Ps approach”, which aims to integrate prevention, protection and prosecution.

117.

Third, measures and services that mean well but do not adequately take into consideration the

devastating effects of violence and the length of the recovery process or that treat victims insensitively run the

risk of re-victimising service users.

118.

Furthermore, paragraph 3 requires all measures to be aimed at the empowerment and economic

independence of women victims of such violence. This means ensuring that victims or service users are familiar

with their rights and entitlements and can take decisions in a supportive environment that treats them with

dignity, respect and sensitivity. At the same time, services need to instil in victims a sense of control of their

lives, which in many cases includes working towards financial security, in particular economic independence

from the perpetrator.

119.

Some examples in which services, including branches of law enforcement agencies, are located in the

same building or in close proximity to one another and co-operate have shown to significantly increase levels of

satisfaction with services and have, in some cases, increased the willingness of victims to press charges or go

through with a case. These examples are known as “one-stop shops” and have been tried and tested for

domestic violence services but can easily be adapted to other forms of violence. For this reason, paragraph 3

calls on parties to strive to locate services in the same building.

120.

Lastly, paragraph 3 requires parties to the convention to ensure that the available support services are

made available to vulnerable persons and address their specific needs. The term “vulnerable persons” refers to

the same list of persons as explained in the comments under Article 12. Parties should make these services

available to victims independently of their socio-economic status and provide them free of charge, where

appropriate.

121.

The purpose of paragraph 4 is to point to a serious grievance which victims often express when seeking

help and support. Many services, public and private, make their support dependent on the willingness of the

victim to press charges or testify against the perpetrator. If, for reasons of fear or emotional turmoil and

attachment, the victim is unwilling to press charges or refuses to testify in court, he or she will not receive

counselling or accommodation. This goes against the principle of empowerment and a human rights based

approach and must be avoided. It is important to note that this provision refers first and foremost to general and

specialist support services referred to in Articles 20 and 22 of the convention – with the exception of legal aid

services.

122.

Some of the forms of violence covered by the scope of this convention may have an international

dimension. Victims of violence such as forced marriages or domestic violence, but also women or girls

threatened with being genitally mutilated and who are outside their country of nationality require consular

protection and, possibly, medical and financial assistance. Paragraph 5 requires parties to take appropriate

measures to provide the necessary consular assistance and if appropriate other protection and assistance,

which includes assistance to victims of violent crime, assistance in the event of arrest or detention, relief and

repatriation of distressed nationals, issuance of new identity documentation and other consular support.

123.

This obligation is not limited to nationals of a party to the convention but extends to all other victims who,

in accordance with their obligations under international law, are entitled to national protection by that party, for

example nationals of a member state of the European Union which does not itself offer protection through a

permanent representation (embassy, general consulate or consulate) as provided for by Article 20.2.c of the

Treaty on the Functioning of the European Union.

Article 19 – Information

124.

In the immediate aftermath of violence, victims are not always in a position to take fully informed and

empowered decisions and many lack a supportive environment. This provision lays particular emphasis on the

need to ensure that victims are provided with information on the different types of support services and legal

measures available to them. This requires providing information on where to get what type of help, if necessary

in a language other than the national language(s), and in a timely manner, meaning at a time when it is useful

for victims. This, however, does not oblige parties to the convention to offer information in any language but to

concentrate on the languages most widely spoken in their country and in accessible form. The term “adequate

information” refers to information that sufficiently fills the victim’s need for information. This could include, for

example, providing not just the name of a support service organisation, but handing out a leaflet that contains its

contact details, opening hours and information on the exact services it offers.

Article 20 – General support services

125.

In the provision of services for victims, a distinction is made between general and specialist support

services. General support services refer to help offered by public authorities such as social services, health

services and employment services, which provide long-term help and are not exclusively designed for the

benefit of victims only but serve the public at large. By contrast, specialist support services have specialised in

providing support and assistance tailored to the – often immediate – needs of victims of specific forms of

violence against women or domestic violence and are not open to the general public. While these may be

services run or funded by government authorities, the large majority of specialist services are offered by NGOs.

126.

The obligation contained in Article 20.1, requires public welfare services such as housing services,

employment or unemployment services, public education and training services, public psychological and legal

counselling services, but also financial support services to address, when necessary, the specific needs of

victims of the forms of violence covered by the scope of this convention. While many victims can already be

found among the clients of such services, their particularly difficult situation and trauma is not necessarily

sufficiently or systematically addressed or taken into account. Parties to the convention are thus required to

ensure that victims are granted access to such services, treated in a supportive manner and that their needs are

properly addressed.

127.

Health and social services are often the first to come in contact with victims. Paragraph 2 seeks to

ensure that these services are adequately resourced to respond to their long-term needs. Furthermore, it places

an emphasis on the importance of training staff members on the different forms of violence, the specific needs of

victims and how to respond to them in a supportive manner.

Article 21 – Assistance in individual/collective complaints

128.

This provision sets out the obligation of parties to ensure that victims have information on and access to

applicable regional and international complaints mechanisms. The term “applicable” refers only to those regional

and international complaints mechanisms that have been ratified by the parties to this convention. Council of

Europe member states are states parties to a significant number of regional and international human rights

treaties, and most have accepted the jurisdiction of the corresponding treaty bodies and complaints

mechanisms. Upon exhausting national remedies, victims of all forms of violence covered by the scope of this

convention therefore have recourse to a number of existing regional and international complaints mechanisms.

These can be open to individuals, who can, for example, turn to the European Court of Human Rights or the

CEDAW Committee for further legal redress. They can also be of a collective nature, meaning that they are

available to groups of victims – an example would be the collective complaints mechanism under the European

Social Charter.

129.

By ensuring that victims have “information on and access to” these mechanisms, the drafters wished to

stress that victims should be provided with information on the admissibility rules and procedural requirements

relating to the applicable regional and international complaint mechanisms, and that, upon exhaustion of national

remedies, parties should not impede in any way access to these mechanisms.

130.

The provision also aims to promote the availability of sensitive and knowledgeable assistance to victims

in presenting such complaints, which may be provided by the state, bar associations, relevant NGOs or other

possible actors. “Assistance” may consist of the provision of information and legal advice. The assistance

provided should be well informed and adapted to the needs of the victim, so as to facilitate the access to

applicable complaint mechanisms by the victim.

Article 22 – Specialist support services

131.

Complementing the obligation contained in Article 20, this and the following provisions require parties to

the convention to set up or arrange for a well-resourced specialist support sector.

132.

The aim of such specialised support is to ensure the complex task of empowering victims through

optimal support and assistance catered to their specific needs. Much of this is best ensured by women’s

organisations and by support services provided, for example, by local authorities with specialised and

experienced staff with in-depth knowledge of gender-based violence. It is important to ensure that these services

are sufficiently spread throughout the country and accessible for all victims. Moreover, these services and their

staff need to be able to address the different types of violence covered by the scope of this Convention and

provide support to all groups of victims, including hard-to-reach groups. The types of support that such

dedicated services need to offer include providing shelter and safe accommodation, immediate medical support,

the collection of forensic medical evidence in cases of rape and sexual assault, short and long-term

psychological counselling, trauma care, legal counselling, advocacy and outreach services, telephone helplines

to direct victims to the right type of service and specific services for children as victims or witnesses.

Article 23 – Shelters

133.

This article requires parties to provide for the setting up of appropriate, easily accessible shelters in

sufficient numbers as an important means of fulfilling the obligation to provide victims with protection and

support. The purpose of shelters is to ensure immediate, preferably around-the-clock, access to safe

accommodation for victims, especially women and children, when they are no longer safe at home. Temporary

housing alone, or general shelters such as those for the homeless, are not sufficient as they will not provide the

necessary support or empowerment. Victims face multiple, interlocking problems related to their health, safety,

financial situation and the well-being of their children. Specialised women’s shelters are best equipped to

address these problems, because their functions go beyond providing a safe place to stay. They provide women

and their children with support, enable them to cope with their traumatic experiences, leave violent relationships,

regain their self-esteem and lay the foundations for an independent life of their own choosing. Furthermore,

women’s shelters play a central role in networking, multi-agency co-operation and awareness raising in their

respective communities.

134.

To fulfil their primary task of ensuring safety and security for women and children, it is crucial that all

shelters apply a set of standards. To this end, the security situation of each victim should be assessed and an

individual security plan should be drawn up on the basis of that assessment. The technical security of the

building is another key issue for shelters as violent attacks by the perpetrators are a threat not only to the

women and their children, but also to the staff and other people in the surrounding area. Moreover, effective co-

operation with the police on security issues is indispensable.

135.

This provision calls for shelters to be set up in sufficient numbers to provide appropriate temporary

accommodation for all victims. Each type of violence requires a different kind of support and protection, and staff

need to be trained to provide these. The term “sufficient numbers” is intended to ensure that the needs of all

victims are met, both in terms of shelter places and specialised support. The Final Activity Report of the Council

of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV (2008)6)

recommends safe accommodation in specialised women’s shelters, available in every region, with one family

place per 10 000 head of population. However, the number of shelter places should depend on the actual need.

For victims of other forms of violence, the number of places to be offered will again depend on the actual need.

Article 24 – Telephone helplines

136.

Helplines are one of the most important ways of enabling victims to find help and support. A helpline

with a widely advertised public number that provides support and crisis counselling and refers to face-to-face

services, such as shelters, counselling centres or the police, forms the cornerstone of any support and advice

service in relation to all the forms of violence covered by the scope of this convention. This article therefore

contains the obligation to set up state-wide telephone helplines which are available around the clock and which

are free of charge. Many victims find themselves without documentation and resources and would find it difficult

to buy a telephone card or find the necessary change to pay for a phone call. Having to pay even a very small

amount of money can present a burden to many seeking help, hence the requirement to offer the call to a

helpline free of charge. Furthermore in many telephone systems non-toll free calls can be traced via the

telephone bill, thus indicating to the perpetrator that the victim is seeking help and therefore possibly

endangering the victim further. The Final Activity Report of the Council of Europe Task Force to Combat

Violence against Women, including Domestic Violence (EG-TFV (2008)6) recommends the establishment of at

least one free national helpline covering all forms of violence against women operating 24 hours a day, seven

days a week and providing crisis support in all relevant languages.

137.

Many victims find it difficult to actively seek help and the threshold for making a call and sharing intimate

and personal details is high. It is therefore important that callers may remain anonymous, that they are

counselled by persons who are trained in dealing with such situations and that helplines provide information and

support confidentially if callers so wish. In some countries, it is equally important to provide assistance in several

languages to ease the language barrier that some callers might face.

Article 25 – Support for victims of sexual violence

138.

The traumatic nature of sexual violence, including rape, requires a particularly sensitive response by

trained and specialised staff. Victims of this type of violence need immediate medical care and trauma support

combined with immediate forensic examinations to collect the evidence needed for prosecution. Furthermore,

there is often a great need for psychological counselling and therapy – often weeks and months after the event.

139.

Article 25 therefore lays particular emphasis on providing this type of specialised support by obliging

parties to provide for the setting-up of accessible rape crisis or sexual violence referral centres in sufficient

numbers. It is important to note that parties are provided with an alternative, and are not obliged to set up both

types of centre.

140.

Rape crisis centres may take many different forms. Typically, these centres offer long-term help that

centres on counselling and therapy by offering face-to-face counselling, support groups and contact with other

services. They also support victims during court proceedings by providing woman-to-woman advocacy and other

practical help.

141.

Sexual violence referral centres, on the other hand, may specialise in immediate medical care, high-

quality forensic practice and crisis intervention. They can, for instance, be placed in a hospital setting to respond

to the victims of recent sexual assaults by carrying out medical checks and referring them to specialised

community-based organisations for further services. They may also concentrate on immediate and adequate

referral of the victim to appropriate, specialised organisations so that they may provide the necessary care as

determined by Article 25. Research has shown that it is good practice to carry out forensic examinations

142.

The requirement to provide for the setting up of such centres places an obligation on parties to the

convention to ensure that this is done in sufficient numbers, but also to ensure their easy access and that their

services are carried out in an appropriate manner. The Final Activity Report of the Council of Europe Task Force

to Combat Violence against Women, including Domestic Violence (EG-TFV (2008)6) recommends that one such

centre should be available per every 200 000 inhabitants and that their geographic spread should make them

accessible to victims in rural areas as much as in cities. The term “appropriate” is intended to ensure that the

services offered are suitable for the needs of victims.

Article 26 – Protection and support for child witnesses

143.

Exposure to physical, sexual or psychological violence and abuse between parents or other family

members has a severe impact on children. It breeds fear, causes trauma and adversely affects their

development.

144.

For this reason, Article 26 sets out the obligation to ensure that, when providing services and assistance

to victims with children who have witnessed violence, the latter’s rights and needs are taken into account. The

term “child witnesses” refers not only to children who are present during the violence and actively witness it, but

to those who are exposed to screams and other sounds of violence while hiding close by or who are exposed to

the long-term consequences of such violence. It is important to recognise and address the victimisation of

children as witnesses of all forms of violence covered by the scope of this convention and their right to support.

Paragraph 2 therefore calls for best evidence-based psychosocial interventions, appropriate to the age and

stage of development of the children, that are specifically tailored to children so that they may cope with their

traumatic experiences where necessary. All services offered must give due regard to the best interests of the

child.

Article 27 – Reporting

145.

With the requirement of encouraging the reporting by any person who witnesses or has reasonable

grounds to suspect that an act of violence covered by the scope of this convention may be committed, the

drafters wished to highlight the important role that individuals – friends, neighbours, family members, colleagues,

teachers or other members of the community – can play in breaking the silence that often closes in around

violence. It is the responsibility of each party to determine the competent authorities to which such suspicions

may be reported. These can be law enforcement agencies, child protection services or any other relevant social

services. The term “reasonable grounds” refers to an honest belief reported in good faith.

Article 28 – Reporting by professionals

146.

Under this article parties to the convention must ensure that professionals normally bound by rules of

professional secrecy (such as doctors and psychiatrists) have the possibility to report to competent

organisations or authorities if they have reasonable grounds to believe that a serious act of violence covered by

the scope of this convention has been committed and that further serious acts of such violence are to be

expected. These are cumulative requirements for reporting and cover, for example, typical cases of domestic

violence where the victim has already been subjected to serious acts of violence and further violence is likely to

occur.

147.

It is important to note that this provision does not impose an obligation on such professionals to report. It

only grants them the possibility of doing so without running the risk of being accused of breach of confidence.

While confidentiality rules may be imposed by legislation, issues of confidentiality and breach of such may also

be governed by codes of ethics or professional standards for the different professional groups. This provision

seeks to ensure that neither type of confidentiality rule would stand in the way of reporting serious acts of

violence. The aim of this provision is to protect life and limb of victims rather than the initiation of a criminal

investigation. It is therefore important to enable those professionals who, after careful assessment, wish to

protect victims of violence.

148.

The term “under appropriate conditions” means that parties may determine the situations or cases to

which this provision applies. For instance, parties may make the obligation contained in Article 28 contingent on

the prior consent of the victim, with the exception of some specific cases such as where the victim is a minor or

is unable to protect herself or himself due to physical or mental disabilities. Moreover, each party is responsible

for determining the categories of professionals to which this provision applies. The term “certain professionals” is

intended to cover any number of professionals whose functions involve contact with women, men and children

who may be victims of any of the forms of violence covered by the scope of this convention. Additionally, this

article does not affect the rights, in conformity with Article 6 ECHR, of those accused of acts to which this

convention applies, whether in civil or criminal proceedings.

Chapter V – Substantive law

149.

As is the case in other Council of Europe conventions on combating specific forms of violence, abuse or

ill-treatment, substantive law provisions form an essential part of the instruments. It is clear from research on

national legislation currently in force on violence against women and domestic violence that many gaps remain.

Therefore, it is necessary to strengthen legal protection and reparation and to take into account existing good

practice when introducing changes into the legislative systems of all member states in order to effectively

prevent and combat these forms of violence. The drafters examined the appropriate criminal, civil and

administrative law measures to be introduced, to ensure that the convention covers the various situations

associated with the acts of violence concerned. As a result, this chapter contains a range of preventive,

protective and compensatory measures for victims and introduces punitive measures against perpetrators of

those forms of violence which require a criminal law response.

150.

This chapter sets out the obligation to ensure a variety of civil law remedies to allow victims to seek

justice and compensation – primarily against the perpetrator, but also in relation to state authorities if they have

failed in their duty to diligently take preventive and protective measures.

151.

Chapter V also establishes a number of criminal offences. This type of harmonisation of domestic law

facilitates action against crime at the national and international level, for several reasons. Often, national

measures to combat violence against women and domestic violence are not carried out in a systematic manner

or remain incomplete due to gaps in legislation.

152.

The primary aim of criminal law measures is to guide parties in putting into place effective policies to

rein in violence against women and domestic violence – both of which are still, unfortunately, widespread crimes

in Europe and beyond.

153.

The drafters agreed that, in principle, all criminal law provisions of the convention should be presented

in a gender-neutral manner; the sex of the victim or perpetrator should thus, in principle, not be a constitutive

element of the crime. However, this should not prevent parties from introducing gender-specific provisions.

154.

The drafters decided that this convention should avoid covering the same conduct already dealt with in

other Council of Europe conventions, in particular the Convention on Action against Trafficking in Human Beings

(ETS No. 197) and the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse

(ETS No. 201).

155.

The obligations contained in Articles 33 to 39 require parties to the convention to ensure that a particular

intentional conduct is criminalised. The drafters agreed on this wording to oblige parties to criminalise the

conduct in question. However, the convention does not oblige parties to necessarily introduce specific provisions

criminalising the conduct described by the convention. With regard to Article 40 (sexual harassment) and taking

account of the specific nature of this conduct, the drafters considered that it could be subject to remedy either

under criminal law sanctions or other legal sanctions. Finally, the offences established in this chapter represent

a minimum consensus which does not preclude supplementing them or establishing higher standards in

domestic law.

156.

In conformity with general principles of criminal law a legally valid consent may lift criminal liability.

Furthermore, other legally justifiable acts, for example, acts committed in self-defence, defence of property, or

for necessary medical procedures, would not give rise to criminal sanctions under this convention.

Article 29 – Civil lawsuits and remedies

157.

Paragraph 1 of this provision aims at ensuring that victims of any of the forms of violence covered by the

scope of this convention can turn to the national legal system for an adequate civil law remedy against the

perpetrator. On the one hand, this includes civil law remedies which allow a civil law court to order a person to

stop a particular conduct, refrain from a particular conduct in the future or to compel a person to take a particular

action (injunctions). A civil law remedy of this type can be used, for example, to help girls and boys faced with

the prospect of being married against their will to get their passport or other important documentation returned to

them if these are being withheld by anybody (parents, guardians or any family members) against their will. Such

injunctions help to provide protection against acts of violence.

158.

On the other hand, and depending on the national legal order of the party, civil law remedies offered

under this provision may also include court orders that deal more specifically with acts of violence covered by

the scope of this convention, such as barring orders, restraining orders and non-molestation orders as referred

to in Article 53. These are particularly relevant in cases of domestic violence and complement the immediate

and often short-term protection offered by emergency protection orders as referred to in Article 52.

159.

Moreover, civil law should provide for legal remedies against defamation and libel in the context of

stalking and sexual harassment, in cases where such acts are not covered by the criminal legislation of the

parties.

160.

All civil law orders are issued following an application by the victim or – depending on the legal system –

a third party and cannot be issued

ex officio.

161.

While paragraph 1 aims to provide victims with civil remedies against the perpetrator, paragraph 2

ensures that victims are provided with remedies against state authorities which have failed in their duty to take

the necessary preventive or protective measures.

162.

It reiterates the principle of liability of state authorities, who, in accordance with Article 5 of this

convention, are under the obligation to diligently prevent, investigate and punish acts of violence covered by the

scope of this convention. Failure to comply with this obligation can result in legal responsibility and civil law

needs to offer remedies to address such failure. These remedies include civil law actions for damages which

need to be available for negligent and grossly negligent behaviour. The extent of state authorities’ civil liability

remains governed by the internal law of the parties, who have the discretion to decide what kind of negligent

behaviour is actionable.

163.

The obligation contained in paragraph 2 is in line with case law of the European Court of Human Rights

concerning the failure of public authorities to comply with their positive obligation under Article 2 ECHR (right to

life). In the

Osman v. United Kingdom

judgment, and again in the

Opuz v. Turkey

judgment, the Court has stated

that “where there is an allegation that the authorities have violated their positive obligation to protect the right to

life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be

established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a

real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party

and that they failed to take measures within the scope of their powers which, judged reasonably, might have

been expected to avoid that risk”. The Court explicitly stated that responsibility for such failure is not limited to

gross negligence or wilful disregard of the duty to protect life.

164.

In the event of death of the victim, the available remedies shall be accessible to her or his descendants.

Article 30 – Compensation

165.

This article sets out the right to compensation for damages suffered as a result of any of the offences

established by this convention. Paragraph 1 establishes the principle that it is primarily the perpetrator who is

liable for damages and restitution.

166.

Compensation can also be sought from insurance companies or from state-funded health and social

security schemes. Paragraph 2 establishes a subsidiary obligation for the state to compensate. The conditions

relating to the application for compensation may be established by internal law such as the requirement that the

victim has first and foremost sought compensation from the perpetrator. The drafters emphasised that state

compensation should be awarded in situations where the victim has sustained serious bodily injury or

impairment of health. It should be noted that the term “bodily injury” includes injuries which have caused the

death of the victim, and that “impairment of health” encompasses serious psychological damage caused by acts

of psychological violence, as referred to in Article 33. Although the scope of state compensation is limited to

“serious” injury and impairment of health, this does not preclude parties from providing for more generous

compensation arrangements, nor from setting higher and/or lower limits for any or all elements of compensation

to be paid by the state. In particular, this provision is without prejudice to the obligations of the parties to the

European Convention on the Compensation of Victims of Violent Crimes (ETS No. 116).

167.

The subsidiary obligation for the state to compensate does not preclude parties from claiming regress

for compensation awarded from the perpetrator as long as due regard is paid to the victim’s safety. The

reference to the “victim’s safety” requires parties to ensure that any measures taken to claim regress for

compensation from the perpetrator give due consideration to the consequences of these measures for the safety

of the victim. This covers in particular situations where the perpetrator may want to avenge herself or himself

against the victim for having to pay compensation to the state.

168.

This provision does not preclude an interim state contribution to the compensation of the victim. A victim

urgently needing help may not be able to await the outcome of often complicated proceedings. In such cases,

the parties can provide that the state or the competent authority may subrogate in the rights of the person

compensated for the amount of the compensation paid or, if the person compensated later obtains reparation

from any other source, may reclaim totally or partially the amount of money awarded.

169.

In the event that state compensation is paid to the victim because the perpetrator is unwilling or unable

although court-ordered to do so, the state shall have recourse against the perpetrator.

170.

To ensure compensation by the state, parties may set up state compensation schemes as specified in

Articles 5 and 6 of the European Convention on the Compensation of Victims of Violent Crimes.

171.

It should be noted that paragraph 2 of this article is open to reservations, pursuant to Article 78.2 of this

convention. This possibility of reservations is without prejudice to the obligations of the parties pursuant to other

international instruments in this field, such as the aforementioned European Convention on the Compensation of

Victims of Violent Crimes.

172.

As many victims of the forms of violence covered by this convention may not have the nationality of the

party in whose territory the crime was committed, subsidiary state compensation should extend to nationals and

non-nationals.

173.

Paragraph 3 aims to ensure that compensation be granted within a reasonable time, meaning within an

appropriate timescale.

174.

It is important to note that compensation may not only be awarded under civil or administrative law but

also under criminal law as part of a criminal law sanction.

Article 31 – Custody, visiting rights and safety

175.

This provision aims to ensure that judicial authorities do not issue contact orders without taking into

account incidents of violence covered by the scope of this convention. It concerns judicial orders governing the

contact between children and their parents and other persons having family ties with children. In addition to

other factors, incidents of violence against the non-abusive carer as much as against the child itself must be

taken into account when decisions on custody and the extent of visitation rights or contact are taken.

176.

Paragraph 2 addresses the complex issue of guaranteeing the rights and safety of victims and

witnesses while taking into account the parental rights of the perpetrator. In particular in cases of domestic

violence, issues regarding common children are often the only ties that remain between victim and perpetrator.

For many victims and their children, complying with contact orders can present a serious safety risk because it

often means meeting the perpetrator face-to-face. Hence, this paragraph lays out the obligation to ensure that

victims and their children remain safe from any further harm.

Article 32 – Civil consequences of forced marriages

177.

This article deals with the legal consequences of a forced marriage and ensures that such marriages

may be “voidable, annulled or dissolved”. For the purpose of this provision, a “voidable” marriage is a marriage

considered to be valid but which may be rendered void if challenged by one of the parties; an “annulled”

marriage is deprived of its legal consequences, whether challenged by a party or not. A “dissolved” marriage,

such as in case of divorce, is deprived of legal consequences only from the date of dissolution. The drafters bore

in mind that the concrete implementation of this article with regard to the terms used (voidable, annulled,

dissolved) may vary, depending on the concepts provided for in parties’ civil law.

178.

It is important that legal action as required under this provision is easily available and does not place an

undue financial and administrative burden on the victim. This means that any procedures set up for the

annulment or dissolution of a forced marriage shall not present insurmountable difficulties or indirectly lead to

financial hardship on the part of the victim. Furthermore, the form of ending the marriage should not affect the

rights of the victim of forced marriage.

Article 33 – Psychological violence

179.

This article sets out the offence of psychological violence. The drafters agreed to criminally sanction any

intentional conduct that seriously impairs another person’s psychological integrity through coercion or threats.

The interpretation of the word “intentional” is left to domestic law, but the requirement for intentional conduct

relates to all the elements of the offence.

180.

The extent of the offence is limited to intentional conduct which seriously impairs and damages a

person’s psychological integrity which can be done by various means and methods. The convention does not

define what is meant by serious impairment. Use must be made of coercion or threats for behaviour to come

under this provision.

181.

This provision refers to a course of conduct rather than a single event. It is intended to capture the

criminal nature of an abusive pattern of behaviour occurring over time – within or outside the family.

Psychological violence often precedes or accompanies physical and sexual violence in intimate relationships

(domestic violence). However, it may also occur in any other type of setting, for example in the workplace or

school environment. It is important to stress that pursuant to Article 78.3 of this convention, any state or the

European Union may declare that it reserves the right to provide for non-criminal sanctions, instead of criminal

sanctions in relation to psychological violence. The intention of the drafters was to preserve the principle of

criminalisation of psychological violence in the convention, while allowing flexibility where the legal system of a

party provides only for non-criminal sanctions in relation to these behaviours. Nevertheless, sanctions should be

effective, proportionate and dissuasive, regardless of whether parties chose to provide for criminal or non-

criminal sanctions.

Article 34 – Stalking

182.

This article establishes the offence of stalking, which is defined as the intentional conduct of repeatedly

engaging in threatening conduct directed at another person, causing her or him to fear for her or his safety. This

comprises any repeated behaviour of a threatening nature against an identified person which has the

consequence of instilling in this person a sense of fear. The threatening behaviour may consist of repeatedly

following another person, engaging in unwanted communication with another person or letting another person

know that he or she is being observed. This includes physically going after the victim, appearing at her or his

place of work, sports or education facilities, as well as following the victim in the virtual world (chat rooms, social

networking sites, etc.). Engaging in unwanted communication entails the pursuit of any active contact with the

victim through any available means of communication, including modern communication tools and ICTs.

183.

Furthermore, threatening behaviour may include behaviour as diverse as vandalising the property of

another person, leaving subtle traces of contact with a person’s personal items, targeting a person’s pet, or

setting up false identities or spreading untruthful information online.

184.

To come within the remit of this provision, any act of such threatening conduct needs to be carried out

intentionally and with the intention of instilling in the victim a sense of fear.

185.

This provision refers to a course of conduct consisting of repeated significant incidents. It is intended to

capture the criminal nature of a pattern of behaviour whose individual elements, if taken on their own, do not

always amount to criminal conduct. It covers behaviour that is targeted directly at the victim. However, parties

may also extend it to behaviour towards any person within the social environment of the victim, including family

members, friends and colleagues. The experience of stalking victims shows that many stalkers do not confine

their stalking activities to their actual victim but often target any number of individuals close to the victim. Often,

this significantly enhances the feeling of fear and loss of control over the situation and therefore may be covered

by this provision.

186.

Finally, just as with psychological violence, Article 78.3 provides for the possibility of any state or the

European Union to declare that it reserves the right to provide for non-criminal sanctions, as long as they are

effective, proportionate and dissuasive. Providing for a restraining order should be seen as a non-criminal

sanction within the possibility of a reservation. Once more, the intention of the drafters was to preserve the

principle of criminalisation of stalking, while allowing flexibility where the legal system of a party provides only for

non-criminal sanctions in relation to stalking.

Article 35 – Physical violence

187.

This article criminalises any intentional act of physical violence against another person irrespective of

the context in which it occurs.

188.

The term “physical violence” refers to bodily harm suffered as a result of the application of immediate

and unlawful physical force. It encompasses also violence resulting in the death of the victim.

Article 36 – Sexual violence, including rape

189.

This article establishes the criminal offence of sexual violence, including rape. Paragraph 1 covers all

forms of sexual acts which are performed on another person without her or his freely given consent and which

are carried out intentionally. The interpretation of the word “intentionally” is left to domestic law, but the

requirement for intentional conduct relates to all the elements of the offence.

190.

Sub-paragraph

refers to the vaginal, anal or oral penetration of another person’s body which that

person has not consented to. The penetration may be performed with a bodily part or an object. By requiring the

penetration to be of a sexual nature, the drafters sought to emphasise the limits of this provision and avoid

problems of interpretation. The term “of a sexual nature” describes an act that has a sexual connotation. It does

not apply to acts which lack such connotation or undertone. Sub-paragraph

covers all acts of a sexual nature

without the freely given consent of one of the parties involved which fall short of penetration. Lastly, sub-

paragraph

covers situations in which the victim is caused without consent to perform or comply with acts of a

sexual nature with or by a person other than the perpetrator. In relationships of abuse, victims are often forced to

engage in sexual acts with a person chosen by the perpetrator. The purpose of sub-paragraph

is to cover

scenarios in which the perpetrator is not the person who performs the sexual act but who causes the victim to

engage in sexual activity with a third person provided that this conduct has some connection to the intentional

conduct that must be criminalised pursuant to Article 36 of the convention.

191.

When assessing the constituent elements of offences, the parties should have regard to the case law of

the European Court of Human Rights. In this respect, the drafters wished to recall, subject to the interpretation

that may be made thereof, the

M.C. v. Bulgaria

judgment of 4 December 2003, in which the Court stated that it

was “persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of

physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising

the effective protection of the individual’s sexual autonomy. In accordance with contemporary standards and

trends in that area, the member states’ positive obligations under Articles 3 and 8 of the convention must be

seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the

absence of physical resistance by the victim” (§166). The Court also noted as follows: “Regardless of the

specific wording chosen by the legislature, in a number of countries the prosecution of non-consensual sexual

acts in all circumstances is sought in practice by means of interpretation of the relevant statutory terms

(‘coercion’, ‘violence’, ‘duress’, ‘threat’, ‘ruse’, ‘surprise’, among others) and through a context-sensitive

assessment of the evidence” (§161).

192.

Prosecution of this offence will require a context-sensitive assessment of the evidence in order to

establish on a case-by-case basis whether the victim has freely consented to the sexual act performed. Such an

assessment must recognise the wide range of behavioural responses to sexual violence and rape which victims

exhibit and shall not be based on assumptions of typical behaviour in such situations. It is equally important to

ensure that interpretations of rape legislation and the prosecution of rape cases are not influenced by gender

stereotypes and myths about male and female sexuality.

193.

In implementing this provision, parties to the convention are required to provide for criminal legislation

which encompasses the notion of lack of freely given consent to any of the sexual acts listed in sub-paragraphs

It is, however, left to the parties to decide on the specific wording of the legislation and the factors that

they consider to preclude freely given consent. Paragraph 2 only specifies that consent must be given voluntarily

as the result of the person’s free will, as assessed in the context of the surrounding circumstances.

194.

Paragraph 3 spells out the obligation of parties to the convention to ensure that the criminal offences of

sexual violence and rape established in accordance with this convention are applicable to all non-consensual

sexual acts, irrespective of the relationship between the perpetrator and the victim. Sexual violence and rape are

a common form of exerting power and control in abusive relationships and are likely to occur during and after

break-up. It is crucial to ensure that there are no exceptions to the criminalisation and prosecution of such acts

when committed against a current or former spouse or partner as recognised by internal law.

Article 37 – Forced marriage

195.

This article establishes the offence of forced marriage. While some victims of forced marriage are forced

to enter into a marriage in the country in which they live (paragraph 1), many others are first taken to another

country, often that of their ancestors, and are forced to marry a resident of that country (paragraph 2). For this

reason, the drafters felt it important to include in this provision two types of conduct: forcing a person to enter

into a marriage and luring a person abroad with the purpose of forcing this person to enter into marriage.

196.

The type of conduct criminalised in paragraph 1 is that of forcing an adult or a child to enter into a

marriage. The term “forcing” refers to physical and psychological force where coercion or duress is employed.

The offence is complete when a marriage is concluded to which at least one party has – owing to the above

circumstances – not voluntarily consented to.

197.

Paragraph 2 criminalises the act of luring a person abroad with the intention of forcing this person to

marry against her or his will. The marriage does not necessarily have to be concluded. The term “luring” refers to

any conduct whereby the perpetrator entices the victim to travel to another country, for example by using a

pretext or concocting a reason such as visiting an ailing family member. The intention must cover the act of

luring a person abroad, as well as the purpose of forcing this person into a marriage abroad. The drafters felt

that this act should be covered by the criminal law of the parties so as to take into account the standards

established under other legally binding international instruments.

Article 38 – Female genital mutilation

198.

Owing to the nature of female genital mutilation (FGM), this is one of the criminal offences that break

with the principle of gender neutrality of the criminal law part of this convention. It sets out the criminal offence of

female genital mutilation, the victims of which are necessarily women or girls. It aims to criminalise the traditional

practice of cutting away certain parts of the female genitalia which some communities perform on their female

members. The drafters considered it important to establish female genital mutilation as a criminal offence in this

convention because this practice causes irreparable and lifelong damage and is usually performed without the

consent of the victim.

199.

Sub-paragraph

criminalises the act of excising, infibulating or performing any other mutilation to the

whole or any part of the labia majora, labia minora or clitoris including when performed by medical professionals,

as enshrined in the WHO World Health Assembly Resolution 61.16 on accelerating actions to eliminate female

genital mutilation. The term “excising” refers to the partial or total removal of the clitoris and the labia majora.

“Infibulating”, on the other hand, covers the closure of the labia majora by partially sewing together the outer lips

of the vulva in order to narrow the vaginal opening. The term “performing any other mutilation” refers to all other

physical alterations of the female genitals.

200.

Sub-paragraph

on the other hand, covers the act of assisting the perpetrator to perform acts in sub-

paragraph

by coercing or procuring a woman to undergo the excision, infibulation or mutilation of her labia

majora, labia minora or clitoris. This part of the provision is limited to adult victims only.

201.

Sub-paragraph

criminalises the act of assisting the perpetrator to perform acts in sub-paragraph

inciting, coercing or procuring a girl to undergo the excision, infibulation or mutilation of her labia majora, labia

minora or clitoris. This part of the provision is limited to girl victims only and includes situations in which anyone,

in particular parents, grandparents or other relatives coerce their daughter or relative to undergo the procedure.

The drafters felt it important to differentiate between adult and child victims because they did not wish to

criminalise the incitement of women to undergo any of the acts listed in sub-paragraph

202.

In applying sub-paragraph

and sub-paragraph

an individual is not to be taken to have intentionally

committed the offence merely because the offence resulting from the coercion, procurement or incitement was

foreseeable. The individual’s actions must also be able to cause the acts in sub-paragraph

to be committed.

Article 39 – Forced abortion and forced sterilisation

203.

This article makes certain intentional acts related to women’s natural reproductive capacity a criminal

offence. This is another provision that breaks with the principle of gender neutrality of the criminal law part of this

convention.

204.

Sub-paragraph

establishes the criminal offence of forced abortion performed on a woman or girl. This

refers to the intentional termination of pregnancy without the prior and informed consent of the victim. The

termination of pregnancy covers any of the various procedures that result in the expulsion of all the products of

conception. To come within the remit of this provision, the abortion must be carried out without the prior and

informed consent of the victim. This covers any abortion that is performed without a fully informed decision taken

by the victim.

205.

Sub-paragraph

on the other hand, establishes the criminal offence of forced sterilisation of women

and girls. This offence is committed if surgery is performed which has the purpose or effect of terminating a

woman’s or a girl’s capacity to naturally reproduce if this is done without her prior and informed consent. The

term sterilisation refers to any procedure which results in the loss of the ability to naturally reproduce. As in sub-

paragraph

the sterilisation must be carried out without the prior and informed consent of the victim. This

covers any sterilisation that is performed without a fully informed decision taken by the victim in line with

standards set in the Convention for the Protection of Human Rights and Dignity of the Human Being with regard

to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No.164).

206.

It is not the intention of this convention to criminalise any medical interventions or surgical procedures

which are carried out, for example, with the purpose of assisting a woman by saving her life or for assisting a

woman who lacks capacity to consent. Rather, the aim of this provision is to emphasise the importance of

respecting women’s reproductive rights by allowing women to decide freely on the number and spacing of their

children and by ensuring their access to appropriate information on natural reproduction and family planning.

Article 40 – Sexual harassment

207.

This article sets out the principle that sexual harassment be subject to criminal or “other” legal sanction,

which means that the drafters decided to leave the parties to choose the type of consequences the perpetrator

would face when committing this specific offence. While generally considering it preferable to place the conduct

dealt with by this article under criminal law, the drafters acknowledged that many national legal systems

consider sexual harassment under civil or labour law. Consequently, parties may choose to deal with sexual

harassment either by their criminal law or by administrative or other legal sanctions, while ensuring that the law

deals with sexual harassment.

208.

The type of conduct covered by this provision is manifold. It includes three main forms of behaviour:

verbal, non-verbal or physical conduct of a sexual nature unwanted by the victim. Verbal conduct refers to words

or sounds expressed or communicated by the perpetrator, such as jokes, questions or remarks, and may be

expressed orally or in writing. Non-verbal conduct, on the other hand, covers any expressions or communication

on the part of the perpetrator that do not involve words or sounds, for example facial expressions, hand

movements or symbols. Physical conduct refers to any sexual behaviour of the perpetrator and may include

situations involving contact with the body of the victim. As in Article 36, any of these forms of behaviour must be

of a sexual nature in order to come within the remit of this provision. Furthermore, any of the above conduct

must be unwanted on the part of the victim, meaning imposed by the perpetrator. Moreover, the above acts must

have the purpose or effect of violating the dignity of the victim. This is the case if the conduct in question creates

an intimidating, hostile, degrading, humiliating or offensive environment. It is intended to capture a pattern of

behaviour whose individual elements, if taken on their own, may not necessarily result in a sanction.

209.

Typically, the above acts are carried out in a context of abuse of power, promise of reward or threat of

reprisal. In most cases, victim and perpetrator know each other and their relationship is often characterised by

differences in hierarchy and power. The scope of application of this article is not limited to the field of

employment. However, it should be noted that the requirements for liability can differ depending on the specific

situation in which the conduct takes place.

Article 41 – Aiding or abetting and attempt

210.

The purpose of this article is to establish additional offences relating to aiding or abetting of the offences

defined in the convention and the attempted commission of some.

211.

Paragraph 1 requires parties to the convention to establish as offences aiding or abetting the

commission of any of the following offences established in accordance with the convention: psychological

violence (Article 33), stalking (Article 34), physical violence (Article 35), sexual violence, including rape (Article

36), forced marriage (Article 37), female genital mutilation (Article 38.a), and forced abortion and forced

sterilisation (Article 39).

212.

The drafters wished to emphasise that the terms “aiding or abetting” do not only refer to offences

established by a party in its criminal law, but may also refer to offences covered by administrative or civil law.

This is of particular importance since, pursuant to Article 78.3, parties may provide for non-criminal sanctions in

relation to psychological violence (Article 33) and stalking (Article 34).

213.

With regard to paragraph 2, on attempt, the drafters felt that treating certain offences as attempt gave

rise to conceptual difficulties. Moreover, some legal systems limit the offences for which the attempt is punished.

For these reasons, it requires parties to establish as an offence the attempt to commit the following offences

only: serious cases of physical violence (Article 35), sexual violence including rape (Article 36), forced marriage

(Article 37), female genital mutilation (Article 38.a), and forced abortion and forced sterilisation (Article 39).

214.

With regard to physical violence (Article 35) the drafters acknowledged that the offence as established

by the convention has a very broad scope. It also covers cases of simple assault for which an attempt is difficult

to construct. Parties therefore have the discretion to establish as an offence the attempt to commit physical

violence only for serious cases of physical violence. The convention also does not preclude parties from

covering attempt by other offences.

215.

As with all the offences established under the convention, aiding and abetting and attempt must be

intentional.

Article 42 – Unacceptable justifications for crimes, including crimes committed in the name of so-called

“honour”

216.

The drafters enshrined in this convention an important general principle: nobody under the jurisdiction of

the courts of one of the parties to this convention will be allowed to validly invoke what he or she believes to be

an element of his or her culture, religion or other personal reason to justify the commission of what is simply an

element of a criminal offence, that is, violence against women. In order to address crimes committed in the

name of so-called “honour” the drafters intended to ensure that crimes committed to punish a victim for her or

his behaviour are not justified. Consequently, this article sets out the obligation for parties, in paragraph 1, to

ensure that culture, custom, religion, tradition or so-called “honour” are not regarded as justification for any of

the acts of violence covered by the scope of this convention. This means that parties are required to ensure that

criminal law and criminal procedural law do not permit as justifications claims of the accused justifying his or her

acts as committed in order to prevent or punish a victim’s suspected, perceived or actual transgression of

cultural, religious, social or traditional norms or customs of appropriate behaviour.

217.

In addition, this provision requires parties to ensure that personal convictions and individual beliefs of

judicial actors do not lead to interpretations of the law that amount to a justification on any of the above-

mentioned grounds. Paragraph 1 thus reinforces for the particular area of criminal law the obligation contained in

Article 12.5 of the convention.

218.

To avoid criminal liability, these acts are often committed by a child below the age of criminal

responsibility, which is instigated by an adult member of the family or community. For this reason, the drafters

considered it necessary to set out, in paragraph 2, the criminal liability of the instigator(s) of such crimes in order

to avoid gaps in criminal liability. Paragraph 2 applies to acts established in accordance with this convention

where the child is the principal perpetrator, it does not apply to offences established in accordance with Articles

38.b, 38.c and 41.

Article 43 – Application of criminal offences

219.

A large number of the offences established in accordance with this convention are offences typically

committed by family members, intimate partners or others in the immediate social environment of the victim.

There are many examples from past practice in Council of Europe member states that show that exceptions to

the prosecution of such cases were made, either in law or in practice, if victim and perpetrator were, for

example, married to each other or had been in a relationship. The most prominent example is rape within

marriage, which for a long time had not been recognised as rape because of the relationship between victim and

perpetrator.

220.

For this reason, the drafters considered it necessary to establish the principle that the type of

relationship between victim and perpetrator shall not preclude the application of any of the offences established

in this convention.

Article 44 – Jurisdiction

221.

This article lays down various requirements whereby parties must establish jurisdiction over the offences

with which the convention is concerned.

222.

Paragraph 1a is based on the principle of territoriality. Parties are required to punish the offences

established in accordance with the convention when they are committed on their territory.

223.

Sub-paragraphs

and

are based on a variant of the principle of territoriality. They require parties to

establish jurisdiction over offences committed on ships flying their flag or aircraft registered under their laws.

This obligation is already in force in the law of many countries, ships and aircraft being frequently under the

jurisdiction of the state in which they are registered. This type of jurisdiction is extremely useful when the ship or

aircraft is not located in the country’s territory at the time of commission of the crime, as a result of which

paragraph 1a would not be available as a basis for asserting jurisdiction. In the case of a crime committed on a

ship or aircraft outside the territory of the flag or registry party, it might be that without this rule there would not

be any country able to exercise jurisdiction. In addition, if a crime is committed on board a ship or aircraft which

is merely passing through the waters or airspace of another state, there may be significant practical

impediments to the latter state’s exercising its jurisdiction and it is therefore useful for the registry state to also

have jurisdiction.

224.

Paragraph 1d is based on the principle of nationality. The nationality theory is most frequently applied by

countries with a civil law tradition. Under this principle, nationals of a country are obliged to comply with its law

even when they are outside its territory. Under sub-paragraph

if one of its nationals commits an offence

abroad, a party is obliged to be able to prosecute her or him. The drafters considered this a particularly

important provision in combating certain forms of violence against women. Indeed, some states in which women

and girls are subjected to rape or sexual violence, forced marriage, female genital mutilation, crimes committed

in the name of so-called “honour” and forced abortion and forced sterilisation, do not have the will nor the

necessary resources to successfully carry out investigations or they lack the appropriate legal framework.

Paragraph 2 enables these cases to be tried even where they are not criminalised in the state in which the

offence was committed.

225.

Paragraph 1e applies to persons having their habitual residence in the territory of the party. It provides

that parties shall establish jurisdiction to investigate acts committed abroad by persons having their habitual

residence in their territory, and thus contributes to the punishment of acts of violence committed abroad.

Article 78.2 on reservations allows parties not to implement this jurisdiction or only to do so in specific cases or

conditions.

226.

Paragraph 2 is linked to the nationality or residence status of the victim. It is based on the premise that

the particular interests of national victims overlap with the general interest of the state to prosecute crimes

committed against its nationals or residents. Hence, if a national or person having habitual residence is a victim

of an offence abroad, the party shall endeavour to establish jurisdiction in order to start proceedings. However,

there is no obligation imposed on parties, as demonstrated by the use of the expression “endeavour”.

227.

Paragraph 3 represents an important element of added value in this convention, and a major step

forward in the protection of victims. The provision eliminates, in relation to the most serious offences of the

convention, the usual rule of dual criminality where acts must be criminal offences in the place where they are

committed. Its aim is to combat in particular certain forms of violence against women which may be – or are

most frequently – committed outside the territory of application of this convention, such as forced marriage,

female genital mutilation, forced abortion and forced sterilisation. Therefore, this paragraph applies exclusively

to the offences defined in Article 36 (sexual violence including rape), Article 37 (forced marriage), Article 38

(female genital mutilation) and Article 39 (forced abortion and forced sterilisation) committed by nationals of the

party concerned. Article 78.2 on reservations allows parties not to implement this jurisdiction or only to do so in

specific cases or conditions.

228.

In paragraph 4, the drafters wished to prohibit the subordination of the initiation of proceedings of the

most serious offences in the state of nationality or of habitual residence to the conditions usually required of a

complaint of the victim or the laying of information by the authorities of the state in which the offence took place.

The aim of this provision is to facilitate the prosecution of offences committed abroad. As some states do not

possess the necessary will or resources to carry out investigations on certain forms of violence against women

and domestic violence, the requirement of a complaint of the victim or the filing of charges by the relevant

authorities often constitutes an impediment to prosecution. This paragraph applies exclusively to the offences

defined in Article 36 (sexual violence including rape), Article 37 (forced marriage), Article 38 (female genital

mutilation) and Article 39 (forced abortion and forced sterilisation) committed by nationals of the party

concerned. Article 78.2 on reservations allows parties not to implement this jurisdiction or only to do so in

specific cases or conditions.

229.

Paragraph 5 concerns the principle of

aut dedere aut judicare

(extradite or prosecute). Jurisdiction

established on the basis of paragraph 5 is necessary to ensure that parties that refuse to extradite a national

have the legal ability to undertake investigations and proceedings domestically instead, if asked to do so by the

party that requested extradition under the terms of the relevant international instruments. Paragraph 4 does not

prevent parties from establishing jurisdiction only if the offence is punishable in the territory where it was

committed, or if the offence is committed outside the territorial jurisdiction of any state.

230.

It may happen that in some cases of violence covered by the scope of this convention more than one

party has jurisdiction over some or all of the participants in the offence. For example, a woman may be lured into

the territory of another state and forced to marry against her will. In order to avoid duplication of procedures and

unnecessary inconvenience for victims and witnesses or to otherwise facilitate the efficiency or fairness of

proceedings, the affected parties are, in accordance with paragraph 6, required to consult in order to determine

the proper venue for prosecution. In some cases it will be most effective for them to choose a single venue for

prosecution; in others it may be best for one country to prosecute some alleged perpetrators, while one or more

other countries prosecute others. Either method is permitted under this paragraph. Finally, the obligation to

consult is not absolute; consultation is to take place “where appropriate”. Thus, for example, if one of the parties

knows that consultation is not necessary (e.g. it has received confirmation that the other party is not planning to

take action), or if a party is of the view that consultation may impair its investigations or proceedings, it may

delay or decline consultation.

231.

The bases of jurisdiction set out in paragraph 1 of this article are not exclusive. Paragraph 7 permits

parties to establish other types of criminal jurisdiction according to their domestic law.

Article 45 – Sanctions and measures

232.

This article is closely linked to Articles 33 to 41, which define the various offences that should be made

punishable under criminal law. However, it applies to all types of sanctions, regardless of whether they are of a

criminal nature or not. In accordance with these obligations imposed by those articles, Article 45 requires parties

to match their action with the seriousness of the offences and lay down sanctions which are “effective,

proportionate and dissuasive”. This includes providing for prison sentences that can give rise to extradition

where this is appropriate. The drafters decided to leave it to the parties to decide on the type of offence

established in accordance with the convention that merits a prison sentence. It should be noted that, under

Article 2 of the European Convention on Extradition (ETS No. 24), extradition is to be granted in respect of

offences punishable under the laws of the requesting and requested parties by deprivation of liberty or under a

detention order for a maximum period of at least one year or by a more severe sanction.

233.

In addition, paragraph 2 provides for other measures which may be taken in relation to perpetrators. The

provision lists two examples: the monitoring or supervision of convicted persons and the withdrawal of parental

rights, if the best interests of the child, which may include the safety of the victim, cannot be guaranteed in any

other way. The reference to the “best interest of the child” in the latter example is in line with the ruling of the

European Court of Human Rights in the

Zaunegger v. Germany

judgment of 3 December 2009, which stated

that in the majority of member states “decisions regarding the attribution of custody are to be based on the

child’s best interest” (§ 60). In particular, measures taken in relation to parental rights should never lead to

endangering or causing harm to the child. Although the granting of parental rights and contact with the child are

often related issues, the drafters bore in mind that some parties may distinguish these issues in their internal

law, and thus allow a parent to have contact with the child without granting her or him parental rights. In

particular in cases of domestic violence against one parent and witnessed by a child, it may not be in the best

interest of the child to continue contact with the abusive parent. Ensuring contact with the abusive parent may

not only have a negative impact on the child, but may also pose a serious risk to the safety of the abuser’s

victim, because it often gives the perpetrator a reason to contact or see the victim and may not be in line with a

restraining or barring order in place. It is important to ensure that all legal measures taken to protect victims are

consistent and are not thwarted by legal measures taken in other contexts.

Article 46 – Aggravating circumstances

234.

Article 46 requires parties to ensure that the circumstances mentioned in sub-paragraphs

may be

taken into consideration as aggravating circumstances in the determination of the penalty for offences

established in the convention. These circumstances must not already form part of the constituent elements of

the offence. This principle applies to cases where the aggravating circumstances already form part of the

constituent elements of the offence in the national law of the party.

235.

By the use of the phrase “may be taken into consideration”, the drafters wished to highlight that the

convention places an obligation on parties to ensure that these aggravating circumstances are available for

judges to consider when sentencing perpetrators although there is no obligation on judges to apply them. In

addition, the reference to “in conformity with the relevant provisions of internal law” is intended to underline the

fact that the various legal systems in Europe have different approaches to aggravating circumstances and

therefore permits parties to retain some of their legal concepts. This gives flexibility to parties in implementing

this provision without, in particular, obliging them to modify their principles related to the application of sanctions

in the criminal law systems.

236.

The first of the aggravating circumstances, stated in sub-paragraph

is where the offence was

committed against a former or current spouse or partner as recognised by internal law, by a member of the

family, a person cohabiting with the victim or a person having abused her or his authority. This would cover

various situations where the offence was committed by the former or current marital partner or non-marital

partner as recognised by internal law. It would also include members of the victim’s family, such as parents and

grandparents and children or persons having a family-related dependent relationship with the victim. “Any

person cohabiting with the victim” refers to persons living within the same household other than family members.

A person “having abused her or his authority” refers to anyone who is in a position of superiority over the victim,

including, for example, a teacher or employer. The common element of these cases is the position of trust which

is normally connected with such a relationship and the specific emotional harm which may emerge from the

misuse of this trust when committing an offence within such a relationship. In this paragraph the reference to

“partners as recognised by internal law” means that, as a minimum, former or current partners shall be covered

in accordance with the conditions set out in internal law, bearing in mind that it is the intimacy and trust

connected with the relationship that makes it an aggravating circumstance.

237.

The second aggravating circumstance, in sub-paragraph

concerns offences that are committed

repeatedly. This refers to any of the offences established by this convention as well as any related offence which

are committed by the same perpetrator more than once during a certain period of time. The drafters thereby

decided to emphasise the particularly devastating effect on a victim who is repeatedly subjected to the same

type of criminal act. This is often the case in situations of domestic violence, which inspired the drafters to

require the possibility of increased court sentences. It is important to note that the facts of an offence of a similar

nature which led to a conviction of the same perpetrator may not be considered as a repeated act referred to

under sub-paragraph

but constitute an aggravating circumstance of their own under sub-paragraph

238.

The third aggravating circumstance, in sub-paragraph

refers to offences committed against a person

made vulnerable by particular circumstances (see paragraph 87 for the indicative list of possible vulnerable

persons).

239.

The fourth aggravating circumstance, in sub-paragraph

covers offences committed against a child or

in the presence of a child, which constitutes a form of victimisation of the child in itself. The drafters wished to

highlight the particularly culpable behaviour if any of the offences established by this convention are committed

against a child.

240.

The fifth aggravating circumstance, in sub-paragraph

is where the offence was committed by two or

more people acting together. This indicates a collective act committed by two or more people.

241.

The sixth aggravating circumstance, in sub-paragraph

refers to offences preceded or accompanied by

extreme levels of violence. This refers to acts of physical violence that are particularly high in intensity and

present a serious risk to the life of the victim.

242.

The seventh aggravating circumstance, in sub-paragraph

concerns the use or threat of a weapon. By

including this, the drafters emphasise the particularly culpable behaviour of employing a weapon, as it may

cause serious violence, including the death of the victim.

243.

The eighth aggravating circumstance, in sub-paragraph

is where the offence resulted in severe

physical or psychological harm for the victim. This indicates offences which cause particularly serious physical

or psychological suffering, in particular long-term health consequences for the victim.

244.

The last aggravating circumstance, in sub-paragraph

is where the perpetrator has previously been

convicted of offences of a similar nature. By including this, the drafters draw attention to the particular risk of

recidivism for many of the offences covered by the convention, in particular domestic violence.

Article 47 – Sentences passed by another party

245.

Some of the offences established in accordance with this convention can have a transnational

dimension or may be carried out by perpetrators who have been tried and convicted in another country or in

more than one country. At the domestic level, many legal systems provide for a different, often harsher, penalty

where someone has previous convictions. In general, only convictions by a national court count as a previous

conviction. Traditionally, convictions by foreign courts are not necessarily taken into account on the grounds that

criminal law is a national matter and that there can be differences of national law, and because of a degree of

suspicion of decisions by foreign courts.

246.

Such arguments have less force today in that internationalisation of criminal law standards – as a result

of the internationalisation of crime – is tending to harmonise the laws of different countries. In addition, in the

space of a few decades, countries have adopted instruments such as the ECHR whose implementation has

helped build a solid foundation of common guarantees that inspire greater confidence in the justice systems of

all the participating states.

247.

The principle of international recidivism is established in a number of international legal instruments.

Under Article 36.2.iii of the New York Convention of 30 March 1961 on Narcotic Drugs, for example, foreign

convictions have to be taken into account for the purpose of establishing recidivism, subject to each party’s

constitutional provisions, legal system and national law. Under Article 1 of the Council Framework Decision of

6 December 2001 amending Framework Decision 2000/383/JHA on increasing protection by criminal penalties

and other sanctions against counterfeiting in connection with the introduction of the euro, European Union

member states must recognise as establishing habitual criminality final decisions handed down in another

member state for counterfeiting of currency.

248.

The fact remains that at international level there is no standard concept of recidivism and the laws of

some countries do not include the concept at all. The fact that foreign convictions are not always brought to the

courts’ notice for sentencing purposes is an additional practical difficulty. However, Article 3 of the Council

Framework Decision 2008/675/JHA on taking account of convictions in the member states of the European

Union in the course of new criminal proceedings, first establishes in a general way – without limitation to specific

offences – the obligation of taking into account a previous conviction handed down in another (member) state.

249.

Therefore, Article 47 provides for the possibility of taking into account final sentences passed by another

party in assessing a sentence. To comply with the provision parties may provide in their domestic law that

previous convictions by foreign courts are to result in a harsher penalty when they are known to the competent

authority. They may also provide that, under their general powers to assess the individual’s circumstances in

setting the sentence, courts should take those convictions into account. This possibility should also include the

principle that the perpetrator should not be treated less favourably than he would have been treated if the

previous conviction had been a national conviction.

250.

This provision does not place any positive obligation on courts or prosecution services to take steps to

find out whether persons being prosecuted have received final sentences from another party’s courts. It should

nevertheless be noted that, under Article 13 of the European Convention on Mutual Assistance in Criminal

Matters (ETS No. 30), a party’s judicial authorities may request from another party extracts from and information

relating to judicial records, if needed in a criminal matter.

Article 48 – Prohibition of mandatory alternative dispute resolution processes or sentencing

251.

The domestic law of many Council of Europe member states provides for alternative dispute resolution

processes and sentencing – in criminal and in civil law. In particular in family law, methods of resolving disputes

alternative to judicial decisions are considered to better serve family relations and to result in more durable

dispute resolution. In some legal systems, alternative dispute resolution processes or sentencing such as

mediation or conciliation are also used in criminal law.

252.

While the drafters do not question the advantages these alternative methods present in many criminal

and civil law cases, they wish to emphasise the negative effects these can have in cases of violence covered by

the scope of this convention, in particular if participation in such alternative dispute resolution methods is

mandatory and replaces adversarial court proceedings. Victims of such violence can never enter the alternative

dispute resolution processes on a level equal to that of the perpetrator. It is in the nature of such offences that

such victims are invariably left with a feeling of shame, helplessness and vulnerability, while the perpetrator

exudes a sense of power and dominance. To avoid the re-privatisation of domestic violence and violence

against women and to enable the victim to seek justice, it is the responsibility of the state to provide access to

adversarial court proceedings presided over by a neutral judge and which are carried out on the basis of the

national laws in force. Consequently, paragraph 1 requires parties to prohibit in domestic criminal and civil law

the mandatory participation in any alternative dispute resolution processes.

253.

Paragraph 2 of this article aims to prevent another unintended consequence which legal measures may

have on the victim. Many of the perpetrators of the offences established by the convention are members of the

family of the victim. Moreover, they are often the sole breadwinners of the family and therefore the only source of

a possibly limited/small family income. Ordering the perpetrator to pay a fine will consequently have a bearing on

the family income or his ability to pay alimony and may result in financial hardship for the victim. Such a measure

may thus indirectly punish the victim. This provision therefore requires parties to ensure that any fine that a

perpetrator is ordered to pay shall not indirectly lead to financial hardship on the part of the victim. It is important

to note that it does not impinge on the independence of the judiciary and an individual approach to sanctions.

Chapter VI – Investigation, prosecution, procedural law and protective measures

254.

This chapter contains a variety of provisions that cover a broad range of issues related to investigation,

prosecution, procedural law and protection against all forms of violence covered by the scope of this convention,

in order to reinforce the rights and duties laid out in the previous chapters of the convention.

Article 49 – General obligations

255.

The drafters wanted to prevent incidents of violence against women and domestic violence from being

assigned low priority in investigations and judicial proceedings, which contributes significantly to a sense of

impunity among perpetrators and has helped to perpetuate high levels of acceptance of such violence. In order

to achieve this goal, paragraph 1 sets out the obligation to ensure that investigations and judicial proceedings in

relation to all forms of violence covered by the scope of this convention are carried out without undue delay. This

will help to secure vital evidence, enhance conviction rates and put an end to impunity. It is important to note

that while it is essential to ensure swift investigations and proceedings, it is equally important to respect the

rights of victims during these stages. Paragraph 1 therefore requires parties to avoid, as far as possible,

aggravating any harm experienced by victims during investigations and judicial proceedings and to provide them

with assistance during criminal proceedings.

256.

Paragraph 2 complements the obligation by establishing the obligation to ensure that the investigation

and prosecution of cases of all forms of violence covered by the scope of this convention are carried out in an

effective manner. This means, for example, establishing the relevant facts, interviewing all available witnesses

and conducting forensic examinations, based on a multi-disciplinary approach and using state-of-the-art criminal

investigative methodology to ensure a comprehensive analysis of the case. The drafters considered it important

to spell out as part of this obligation the need to ensure that all investigations and procedures are carried out in

conformity with fundamental principles of human rights and with regard to a gendered understanding of violence.

This means, in particular, that any measures taken in implementation of this provision are not prejudicial to the

rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 ECHR.

Article 50 – Immediate response, prevention and protection

257.

Paragraph 1 requires law enforcement agencies to promptly and appropriately react by offering

adequate and immediate protection to victims, while paragraph 2 calls for their prompt and appropriate

engagement in the prevention of and protection against all forms of violence covered by the scope of this

convention, including the employment of preventive operational measures and the collection of evidence.

258.

Compliance with this obligation includes, for example, the following:

the right of the responsible law enforcement agencies to enter the place where a person at risk is

present;

treating and giving advice to victims by the responsible law enforcement agencies in an appropriate

manner;

hearing victims without delay by specially trained, and where appropriate female, staff in premises that

are designed to establish a relationship of trust between the victim and the law enforcement personnel; and

provide for an adequate number of female law enforcement officers, including at high levels of

responsibility.

259.

Effective measures should be taken to prevent the most blatant forms of violence, namely murder or

attempted murder. Each such case should be carefully analysed in order to identify any possible failure of

protection with a view to improving and developing further preventive measures.

Article 51 – Risk assessment and risk management

260.

Concern for the victim’s safety must lie at the heart of any intervention in cases of all forms of violence

covered by the scope of this convention. This article therefore establishes the obligation to ensure that all

relevant authorities, not just the police, effectively assess and devise a plan to manage the safety risks a

particular victim faces on a case-by-case basis, according to standardised procedure and in co-operation and

co-ordination with each other. Many perpetrators threaten their victims with serious violence, including death,

and have subjected their victims to serious violence in the past. It is therefore essential that any risk assessment

and risk management consider the probability of repeated violence, especially deadly violence, and adequately

assess the seriousness of the situation.

261.

The purpose of this provision is to ensure that an effective multi-agency network of professionals is set

up to protect high-risk victims. The risk assessment must therefore be carried out with a view to managing the

identified risk by devising a safety plan for the victim in question in order to provide co-ordinated safety and

support if necessary.

262.

However, it is important to ensure that any measures taken to assess and manage the risk of further

violence allow for the rights of the accused to be respected at all times. At the same time, it is of paramount

importance that such measures do not aggravate any harm experienced by victims and that investigations and

judicial proceedings do not lead to secondary victimisation.

263.

Paragraph 2 extends the obligation to ensure that the risk assessment referred to in the first paragraph

of this article duly takes into account reliable information on the possession of firearms by perpetrators. The

possession of firearms by perpetrators not only constitutes a powerful means to exert control over victims, but

also increases the risk of homicide. This is particularly the case in post-conflict situations or in countries with a

tradition of firearms ownership, which can provide perpetrators with greater access to these weapons. However,

very serious cases of violence against women and domestic violence are committed with the use of firearms in

all other countries as well. For this reason, the drafters felt it essential to place on parties the obligation to

ensure that any assessment of the risks faced by a victim should systematically take into consideration, at all

stages of the investigation and application of protective measures, whether the perpetrator legally or illegally

possesses or has access to firearms in order to guarantee the safety of victims. For example, in issuing

emergency barring orders, restraining or protection orders, and when sentencing following criminal convictions

for any of the forms of violence covered by the scope of this convention, parties may adopt, within their domestic

legal systems, such measures as may be necessary to enable immediate confiscation of firearms and

ammunition. Additionally, in order to cover all weapons that could be used in serious cases of violence,

particularly combat-type knives, parties are encouraged to take into account, as far as possible, the possession

of or access to such weapons.

Article 52 – Emergency barring orders

264.

In situations of immediate danger, the most effective way of guaranteeing the safety of a domestic

violence victim is by achieving physical distance between the victim and the perpetrator. In many cases, this

requires one of the two to leave the joint residence for a period of time, or the perpetrator to leave the victim’s

residence. Rather than placing the burden of hurriedly seeking safety in a shelter or elsewhere on the victim,

who is often accompanied by dependent children, often with very few personal affairs and for an indefinite period

of time, the drafters considered it important to ensure the removal of the perpetrator to allow the victim to remain

in the home. Therefore, this provision establishes the obligation of equipping the competent authorities with the

power to order a perpetrator of domestic violence to leave the residence of the victim and to bar him or her from

returning or contacting the victim. The immediate danger must be assessed by the relevant authorities. The

drafters decided to leave to the parties to decide on the duration of such an order, but the period should be

sufficient to provide effective protection to the victim. Existing examples of such orders in Council of Europe

member states range between 10 days and four weeks, with or without the possibility of renewal. Equally, the

drafters decided to leave the parties to identify and empower, in accordance with their national legal and

constitutional systems, the authority competent to issue such orders and the applicable procedure.

265.

The term “immediate danger” refers to any situations of domestic violence in which harm is imminent or

has already materialised and is likely to happen again.

266.

Lastly, this provision requires parties to ensure that any measures taken in its implementation give due

consideration to the safety of the victim or person at risk. This shows the protective nature of this measure.

Article 53 – Restraining or protection orders

267.

This provision sets out the obligation to ensure that national legislation provides for restraining and/or

protection orders for victims of all forms of violence covered by the scope of this convention. Furthermore, it

establishes a number of criteria for such orders to ensure that they serve the purpose of offering protection from

further acts of violence.

268.

Although this provision refers to restraining “or” protection orders, the drafters bore in mind that the

national legislation of certain parties may provide for the combined use of restraining and protection orders. A

restraining or protection order may be considered complementary to a short-term emergency barring order. Its

purpose is to offer a fast legal remedy to protect persons at risk of any of the forms of violence covered by the

scope of this convention by prohibiting, restraining or prescribing a certain behaviour by the perpetrator. This

wide range of measures covered by such orders means that they exist under various names such as restraining

order, barring order, eviction order, protection order or injunction. Despite these differences, they serve the

same purpose: preventing the commission of violence and protecting the victim. For the purpose of this

convention, the drafters decided to use the term restraining or protection order as an umbrella category.

269.

The drafters decided to leave the parties to choose the appropriate legal regime under which such

orders may be issued. Whether restraining or protection orders are based in civil law, criminal procedure law or

administrative law or in all of them will depend on the national legal system and above all on the necessity for

effective protection of victims.

270.

Paragraph 2 contains a number of specifications for restraining and protection orders. The first indent

requires these orders to offer immediate protection and to be available without undue financial or administrative

burdens placed on the victim. This means that any order should take effect immediately after it has been issued

and shall be available without lengthy court proceedings. Any court fees levied against the applicant, most likely

the victim, shall not constitute an undue financial burden which would bar the victim from applying. At the same

time, any procedures set up to apply for a restraining or protection order shall not present insurmountable

difficulties for victims.

271.

The second indent calls for the order to be issued for a specified or a determined period or until modified

or discharged. This follows from the principle of legal certainty that requires the duration of a legal measure to be

spelt out clearly. Furthermore, it shall cease to be in effect if changed or discharged by a judge or other

competent official.

272.

The third indent requires parties to ensure that in certain cases these orders may be issued, where

necessary, on an

ex parte

basis with immediate effect. This means that a judge or other competent official would

have the authority to issue a temporary restraining or protection order based on the request of one party only. It

should be noted that, in accordance with the general obligations provided for under Article 49.2 of this

convention, the issuing of such orders must not be prejudicial to the rights of the defence and the requirements

of a fair and impartial trial, in conformity with Article 6 ECHR. This means in particular that the person against

whom such an order has been issued should have the right to appeal it before the competent authorities and

according to the appropriate internal procedures.

273.

The fourth indent seeks to ensure the possibility for victims to obtain a restraining or protection order

whether or not they choose to set in motion any other legal proceedings. For example, where such orders exist,

research has shown that many victims who want to apply for a restraining or protection order may not be

prepared to press criminal charges (that would lead to a criminal investigation and possibly criminal

proceedings) against the perpetrator. Standing to apply for a restraining or protection order shall therefore not be

made dependent on the institution of criminal proceedings against the same perpetrator. Similarly, it should not

be made dependent on the institution of divorce proceedings, etc. At the same time, the fact that criminal or civil

proceedings concerning the same set of facts are underway against the same perpetrator shall not prevent a

restraining or protection order from being issued. This, however, does not exclude the right of the parties to

provide in national legislation that after receiving a motion to issue a restraining or protective order, criminal

proceedings may be instituted.

274.

The fifth indent requires parties to take measures to ensure that the existence of a restraining or

protection order may be introduced in any other legal proceedings against the same perpetrator. The aim of this

provision is to allow for the fact that such an order has been issued against the perpetrator to be known to any

other judge presiding over legal proceedings against the same person.

275.

Paragraph 3 aims to ensure respect for restraining and protection orders by requiring “effective,

proportionate and dissuasive” sanctions for any breach of such orders. These sanctions may be of a criminal

law or other legal nature and may include prison sentences, fines or any other legal sanction that is effective,

proportionate and dissuasive.

276.

Lastly, since establishing the truth in domestic violence cases may, at times, be difficult, parties may

consider limiting the possibility of the adversary or perpetrator to thwart attempts of the victim to seek protection

by taking the necessary measures to ensure that, in cases of domestic violence, restraining and protection

orders as referred to in paragraph 1 may not be issued against the victim and perpetrator mutually. Also, parties

should consider banning from their national legislation any notions of provocative behaviour in relation to the

right to apply for restraining or protection orders. Such concepts allow for abusive interpretations aimed at

discrediting the victim and should be removed from domestic violence legislation. Finally, parties may also

consider taking measures to ensure that standing to apply for restraining or protection orders referred to in

paragraph 1 is not limited to victims. These measures are of particular relevance in relation to legally incapable

victims, as well as regarding vulnerable victims who may be unwilling to apply for restraining or protection orders

for reasons of fear or emotional turmoil and attachment.

Article 54 – Investigations and evidence

277.

In judicial proceedings evidence relating to the sexual history and sexual conduct of a victim is

sometimes exploited in order to discredit the evidence presented by the victim. The defence sometimes uses

previous sexual behaviour evidence in order to challenge the respectability, the credibility and the lack of

consent of victims. This particularly regards cases of sexual violence, including rape. Presenting this type of

evidence may reinforce the perpetuation of damaging stereotypes of victims as being promiscuous and by

extension immoral and not worthy of the protection provided by civil and criminal law. This may lead to

de facto

inequality, since victims, who are overwhelmingly women, are more likely to be provided with this protection if

they are judged to be of a respectable nature.

278.

The drafters felt it essential to emphasise that a victim’s past sexual behaviour should not be considered

as an excuse for acts of violence against women and domestic violence allowing to exonerate the perpetrator or

to diminish his liability. However, they were conscious of the fact that, in some parties to the convention, the

admissibility and consideration of evidence lies within the discretion of the judge, whereas in others, it is strictly

predetermined by the rules of criminal procedural law. Article 54 entails the obligation for parties to take the

necessary legislative or other measures to ensure that evidence relating to the sexual history and sexual

conduct of the victim shall be permitted or considered only when it is relevant and necessary. This means that

the provision restricts the admissibility of such evidence, in both civil or criminal proceedings, to cases where it is

relevant to a specific issue at trial and if it is of significant probative value. Therefore, it does not rule out the

admissibility of such evidence. Where judges admit previous sexual history evidence, it should only be

presented in a way that does not lead to secondary victimisation. Victims should have access to legal recourse

without suffering additional trauma because of their sexual history and conduct.

Article 55 –

Ex parte

and

ex officio

proceedings

279.

Conscious of the particularly traumatising nature of the offences covered by this article, the drafters

sought to ease the burden which lengthy criminal investigations and proceedings often place on the victims

while at the same time ensuring that perpetrators are brought to justice. The aim of this provision is therefore to

enable criminal investigations and proceedings to be carried out without placing the onus of initiating such

proceedings and securing convictions on the victim.

280.

Paragraph 1 places on parties the obligation to ensure that investigations into a number of categories of

offences shall not be “wholly dependent” upon the report or complaint filed by a victim and that any proceedings

underway may continue even after the victim has withdrawn her or his statement or complaint. The drafters

decided to use the term “wholly dependent” in order to address procedural differences in each legal system,

bearing in mind that ensuring the investigations or prosecution of the offences listed in this article is the

responsibility of the state and its authorities. In particular, the drafters were of the opinion that acts resulting in

severe bodily harm or deprivation of life must be addressed promptly and directly by competent authorities. The

fact that many of the offences covered by this convention are perpetrated by family members, intimate partners

or persons in the immediate social environment of the victim and the resulting feelings of shame, fear and

helplessness lead to low numbers of reporting and, subsequently, convictions. Therefore, law enforcement

authorities should investigate in a proactive way in order to gather evidence such as substantial evidence,

testimonies of witnesses, medical expertise, etc., in order to make sure that the proceedings may be carried out

even if the victim withdraws her or his statement or complaint at least with regard to serious offences, such as

physical violence resulting in death or bodily harm.

281.

Paragraph 1 of this article is open to reservations in respect of Article 35 regarding minor offences,

pursuant to Article 78.2 of this convention. The drafters wished to make a clear distinction between serious

offences of physical violence resulting in severe bodily harm or deprivation of life which would then be excluded

by this possibility of reservation and other, minor, offences of physical violence which do not lead to such

consequences. However, it is left to parties to determine what constitutes “minor offences” of physical violence.

282.

With a view to empowering victims and to encouraging them to go through with criminal proceedings,

paragraph 2 requires parties to ensure that victim organisations, specifically trained domestic violence

counsellors or other types of support/advocacy services may assist and support victims during investigations

and judicial proceedings. Good practice examples have shown that victims who are supported or assisted by a

specialist support service during investigations and proceedings are more likely to file a complaint and testify

and are better equipped to take on the emotionally challenging task of actively contributing to the outcome of

proceedings. The type of service which this paragraph refers to is not of a legal, but a practical/psychological

nature. It includes psychologically/emotionally preparing victims to endure testifying in front of the accused,

accompanying victims to court and/or assisting them in any other practical and emotional way.

Article 56 – Measures of protection

283.

This provision is inspired by Article 31.1 of the Convention on the Protection of Children against Sexual

Exploitation and Sexual Abuse (ETS No. 201). Paragraph 1 contains a non-exhaustive list of procedures

designed to protect victims of all forms of violence covered by the scope of this convention during proceedings.

These measures of protection apply at all stages of the proceedings, both during the investigations, whether

they are carried out by law enforcement agencies or judicial authorities, and during trial proceedings. Although

there is no legal necessity to do so, as it is always open to parties to adopt measures more favourable than

those provided for in any part of the convention, the drafters wished to make it clear that the measures of

protection referred to are indicative. Parties are thus free to grant additional measures of protection. It is

important to highlight that throughout Article 56.1, where there is mention that measures need to be taken in

accordance with internal law or “where possible”, the convention gives parties the freedom to employ whatever

means they consider best to achieve the provision’s objectives. This is the case of sub-paragraphs

c, d, g

and

284.

First of all, sub-paragraph

contains the obligation for parties to take the necessary legislative or other

measures in order to provide for the protection of victims, as well as that of their families and witnesses. Parties

must ensure that victims are safe from intimidation, retaliation and repeat victimisation.

285.

In relation to sub-paragraph

the drafters stressed the importance of the obligation to inform victims

when the perpetrator is released temporarily or permanently, or escapes, at least in cases where the victims and

the family might be in danger. This does not prevent parties from informing victims in other circumstances where

this seems necessary (for instance, in cases where there is a risk of retaliation or intimidation or when, because

the victim and the perpetrator live near each other, they might accidentally find themselves face to face with

each other). Some legal systems require the prior application by the victim to receive this information. In these

cases parties shall inform the victim of this possibility.

286.

Furthermore, sub-paragraph

sets out the right of victims (and their families or legal representatives in

the case of child victims) to be informed of developments in the investigations and proceedings in which they are

involved as victims. In this respect, the provision provides that victims should be informed of their rights and of

the services at their disposal and the follow-up given to their complaint, the charges, the general progress of the

investigations or proceedings, and their role as well as the outcome of their cases. Although this is not included

in the provision, parties should ensure that this information be provided in a language that they understand (see

comments on Article 19).

287.

With regard to sub-paragraph

this provision aims to enable victims to be heard, to supply evidence

and to choose the means of having their views, needs and concerns presented and considered. Parties shall

take the necessary measures to ensure that the presentation and consideration of the victims’ views, needs and

concerns is assured directly or through an intermediary.

288.

Sub-paragraph

deals more specifically with general assistance to victims to ensure that their rights

and interests are duly presented and taken into account at all stages of investigations and judicial proceedings.

289.

The obligation contained in sub-paragraph

entails taking the necessary measures in order to ensure

that the victims’ privacy is protected. This requires taking measures, where appropriate and in accordance with

internal law, to prevent the public dissemination of any information that could lead to the identification of victims.

The drafters wished to stress, however, that the protection of the victim's image and privacy extends to the risk

of “public” disclosure, and that these requirements should not prevent this information being revealed in the

context of the actual proceedings, in order to respect the principles that both parties must be heard and the

inherent rights of the defence during a criminal prosecution.

290.

Sub-paragraph

is designed to protect victims, in particular by preventing their being further

traumatised through contact, on the premises of the investigation services and in court, with the alleged

perpetrator of the offence. This provision applies to all stages of the criminal proceedings (including the

investigation), with certain exceptions: the investigation services and the judicial authority must be able to waive

this requirement, in particular when the victim wishes to attend the hearing or when contact between the victim

and the alleged perpetrator is necessary or useful for ensuring that the proceedings take place satisfactorily (for

example, when a confrontation appears necessary).

291.

Sub-paragraph

lays out the obligation of providing victims, where necessary, with independent and

competent interpreters. Some legal systems require a sworn-in interpreter to establish independence. Owing to

the difference in status of victims in the different judicial systems, the drafters considered it important to make it

clear in the text of the convention that this applies when victims are parties to the proceedings or when they are

giving evidence. Many victims do not speak, or barely speak, the language of the country where they were

subject to acts of violence against women and domestic violence. Ignorance of the language adds to their

isolation and is one of the factors preventing them from claiming their rights. In such cases access to interpreters

is needed to help them during investigations and judicial proceedings. This is an essential measure for

guaranteeing access to rights, which is a prerequisite for access to justice, and parties should envisage

providing victims with interpreters free of charge.

292.

Finally, sub-paragraph

places an obligation on parties to ensure that victims are able to testify in the

courtroom without being present or at least without the presence of the alleged perpetrator. The law in some

countries provides for audiovisual recording of hearings of victims and safeguarding such hearings by such

means as limiting who is allowed to attend the hearing and view the recording; allowing the victim to request a

break in recording at any time; and making a full, word-for-word transcription of the hearing on request. Such

recordings and written records may then be used in court instead of having the victim appear in person. Some

legal systems likewise allow victims to appear before the court by videoconference. The victim is heard in a

separate room, possibly in the presence of an expert and technicians. To limit as far as possible the

psychological impact on the victim of being in the same room as the perpetrator or being with them by

videoconference, the sightlines of both can be restricted so that the victim cannot see the perpetrator and/or vice

versa. If, for instance, the victim were to appear at the hearing, she or he could give evidence from behind a

screen or give evidence where the perpetrator does not appear in the courtroom. Parties must therefore ensure

the obligation laid out in this provision, where available, through the use of appropriate communication

technologies.

293.

In the case of child victims and child witnesses, paragraph 2 states that parties must take special care of

their needs and ensure their rights to special protection measures as a child will usually be more vulnerable than

an adult and likelier to be intimidated. Consequently, special protection measures must give due regard to the

best interests of the child, which may include measures such as not obliging a child to testify in the presence of

the perpetrator. With regard to the term “child witness”, see also comments on Article 26.

Article 57 – Legal aid

294.

In the immediate aftermath of violence many victims of violence against women and domestic violence

may be forced to leave all their belongings or jobs behind at a moment’s notice. Judicial and administrative

procedures are often highly complex and victims need the assistance of legal counsel to be able to assert their

rights satisfactorily. In these cases, it might be difficult for victims to effectively access legal remedies because of

the high costs which can be involved in seeking justice. For this reason the drafters believed it essential to place

an obligation on parties to provide for the right to legal assistance and to free legal aid for victims under the

conditions provided by their internal law. This provision is inspired by Article 15.2 of the Council of Europe

Convention on Action against Trafficking in Human Beings (ETS No.197).

295.

Article 57 does not give the victim an automatic right to free legal aid. It is for each party to decide the

requirements for obtaining such aid. In addition to this provision, parties must take account of Article 6 ECHR.

Even though Article 6.3.c ECHR provides for free assistance from an officially appointed lawyer only in criminal

proceedings, European Court of Human Rights case law (Airey

v. Ireland

judgment, 9 October 1979) also

recognises, in certain circumstances, the right to free legal representation in a civil matter on the basis of Article

6.1 ECHR, interpreted as establishing the right to a court for determination of civil rights and obligations (see

Golder v. United Kingdom,

judgment of 21 February 1975). The Court’s view is that effective access to a court

may necessitate free legal assistance. Its position is that it must be ascertained whether appearance before a

court without the assistance of a lawyer would be effective in the sense that the person concerned would be able

to present their case properly and satisfactorily. Here the Court has taken into account the complexity of

procedures and the emotional character of a situation – which might be scarcely compatible with the degree of

objectivity required by advocacy in court – in deciding whether someone was in a position to present her or his

own case effectively. If not, he or she must be given free legal assistance. Thus, even in the absence of

legislation granting free legal respresentation in civil matters, it must be assessed whether, in the interest of

justice, an applicant who is without financial means should be granted legal assistance if unable to afford a

lawyer.

Article 58 – Statute of limitation

296.

This provision provides that the limitation period for initiating legal proceedings continues to run for a

sufficient period of time to allow prosecutions to be effectively initiated after the victim has reached the age of

majority. The obligation therefore applies in relation to child victims only, who are often unable, for various

reasons, to report the offences perpetrated against them before reaching the age of majority. The expression

“for a period of time sufficient to allow the efficient initiation of proceedings” means, first, once these children

become adults, they must have a sufficiently long time to overcome their trauma, thus enabling them to file a

complaint and, second, that the prosecution authorities must be in a position to bring prosecutions for the

offences concerned.

297.

In order to meet the requirements of proportionality that apply to criminal proceedings, however, the

drafters restricted the application of this principle to the offences provided in Articles 36, 37, 38 and 39, in

respect of which there is justification for extending the limitation period. Nevertheless, Article 78.2 on

reservations allows future parties to declare that they reserve the right not to apply this principle or to apply it

only in specific cases or conditions in respect of Articles 37, 38 and 39.

Chapter VII – Migration and asylum

298.

Migrant women, including undocumented migrant women, and women asylum-seekers form two

subcategories of women that are particularly vulnerable to gender-based violence. Despite their difference in

legal status, reasons for leaving their home country and living conditions, both groups are, on the one hand, at

increased risk of experiencing violence against women and, on the other hand, face similar difficulties and

structural barriers in overcoming violence.

299.

This chapter contains a number of obligations that aim to introduce a gender-sensitive understanding of

violence against migrant women and women asylum-seekers. For example, it introduces the possibility of

granting migrant women who are victims of gender-based violence an independent residence status.

Furthermore, it establishes the obligation to recognise gender-based violence against women as a form of

persecution and contains the obligation to ensure that a gender-sensitive interpretation be given when

establishing refugee status. In addition, this chapter establishes the obligation of introducing gender-sensitive

procedures, guidelines and support services in the asylum process. Finally, it contains provisions pertaining to

the respect of the

non-refoulement

principle with regard to victims of violence against women.

300.

The provisions laid out in Articles 60 and 61 of this convention are intended to be read so that they are

compatible with the 1951 Convention relating to the Status of Refugees and Article 3 ECHR as interpreted by

the European Court of Human Rights. In addition, these provisions do not go beyond the scope of application of

the said instruments but give them a practical dimension.

Article 59 – Residence status

301.

Research has shown that fear of deportation or loss of residence status is a very powerful tool used by

perpetrators to prevent victims of violence against women and domestic violence from seeking help from

authorities or from separating from the perpetrator. Most Council of Europe member states require spouses or

partners to remain married or in a relationship for a period ranging from one to three years for the spouse or

partner to be granted an autonomous residence status. As a result, many victims whose residence status is

dependent on that of the perpetrator stay in relationships where they are forced to endure situations of abuse

and violence for long periods of time.

302.

The drafters considered it necessary to ensure that the risk of losing their residence status should not

constitute an impediment to victims leaving an abusive and violent marriage or relationship. The obligation

contained in paragraph 1 requires parties to the convention to take the necessary legislative or other measures

to ensure that migrant victims whose residence status is conditional on marriage or on being in a relationship are

granted an autonomous residence permit of a limited validity in the event of the dissolution of the marriage or the

relationship.

303.

Paragraph 1 specifies that an autonomous residence permit should be granted in the event of

particularly difficult circumstances. Parties should consider being a victim of the forms of violence covered by the

scope of this convention committed by the spouse or partner or condoned by the spouse or partner as a

particularly difficult circumstance. The drafters felt it best to let parties establish, in accordance with internal law,

the conditions relating to the granting and duration of the autonomous residence permit, following an application

by the victim. This includes establishing which public authorities are competent to decide if the relationship has

dissolved as a consequence of the violence endured by the victim and what evidence is to be produced by the

victim. Evidence of violence may include, for example, police records, a court conviction, a barring or protection

order, medical evidence, an order of divorce, social services records or reports from women’s NGOs, to name

but a few.

304.

Moreover, paragraph 1 highlights the fact that independent/autonomous permits should be granted

irrespective of the duration of the marriage or the relationship. It contains the obligation to ensure that victims of

all forms of violence covered by the scope of this convention be granted autonomous residence permits in her or

his own right, even if the marriage or the relationship ceases before the end of the probationary period. This will

allow victims to obtain the necessary protection from authorities without fearing that the perpetrator will retaliate

by withdrawing or threatening to withdraw residence benefits under the perpetrator’s control. This is also

particularly important in cases of forced marriages, where victims are forced to remain married for the

probationary period unless they are prepared to be deported upon divorce.

305.

Furthermore, paragraph 1 applies to spouses or partners as recognised by internal law. Unmarried

partners are included in the provision to the extent that several Council of Europe member states grant

residence permits to partners who are able to demonstrate, under the conditions laid down by internal law, that

they have been living in a relationship analogous to marriage or that the relationship is of a permanent nature.

306.

The second paragraph refers to cases where victims who have joined their spouses or partners under a

family reunification scheme face repatriation because of expulsion proceedings initiated against their abusive

and violent spouse or partner. In most Council of Europe member states, the residence status of spouses or

partners is connected to that of the sponsor spouse or partner. This means that the victim continues to be

subjected to abuse in her or his country of origin, resulting in

de facto

denial of protection. This is particularly

relevant in cases where the country of origin has lower prevention, protection and prosecution standards in the

field of violence against women and domestic violence than the host country. The expulsion of such victims not

only has negative implications for their lives, but can also constitute an obstacle to law enforcement authorities

endeavouring to combat violence against women and domestic violence. As a result, paragraph 2 requires

parties to take appropriate measures to ensure that victims who find themselves in such situations be given the

possibility to obtain the suspension of expulsion proceedings against themselves to apply for a residence status

on humanitarian grounds. Paragraph 2 is applicable to cases where the sponsor spouse or partner is a

perpetrator of domestic violence; in these cases, her or his spouse or partner, the victim, will be expelled

together with the perpetrator. The purpose of this paragraph is to provide protection from expulsion; it does not

constitute a residence permit in itself.

307.

Paragraph 3 is inspired by Article 14.1 of the Council of Europe Convention on Action against Trafficking

in Human Beings (ETS No. 197). The paragraph places the obligation on parties to issue victims of domestic

violence with renewable residence permits under the conditions established by internal law. It lays down two

requirements for issuing a residence permit. First, it covers situations where the victim’s personal circumstances

are such that it would be unreasonable to compel them to leave the national territory (sub-paragraph

a).

Whether the victim meets the personal situation requirement is to be decided on account of factors such as the

victim’s safety, state of health, family situation, or the situation in their country of origin among others. Second, it

establishes the requirement of co-operation with the competent authorities in cases where investigation or

criminal proceedings have been initiated against the perpetrator (sub-paragraph

b).

This means that a residence

permit may be granted to the victim if the co-operation and testimony of the victim are necessary in investigation

and criminal proceedings. The duration of the residence permit is to be decided by the parties, though the

established length should be compatible with the provision’s purpose. Moreover, parties to the convention have

the obligation to provide renewable permits. The non-renewal or the withdrawal of a residence permit are subject

to the conditions provided for in the internal law of the party.

308.

Paragraph 4 covers situations where a victim of forced marriage in possession of a residence permit for

a party to the convention is brought into another country resulting in a loss of residence status in the country

where he or she habitually resides. In most Council of Europe member states, a residence permit becomes

invalid if the holder leaves the country for more than a stipulated number of consecutive months. However, this

condition only concerns people who leave the country voluntarily. If victims of forced marriages are taken abroad

involuntarily and thus overstay the guaranteed or expiry period of time outside the party in which they habitually

reside, their residence status will become invalid. For this reason, this paragraph obliges parties to the

convention to provide for the possibility for such victims to regain their residence status on account of them

being forced to leave the country where they habitually reside, in particular in the event of the dissolution or

annulment of the marriage.

309.

Finally, it should be noted that Article 78.2 on reservations allows future parties to this convention to

reserve the right not to apply or to apply only in specific cases or conditions the provisions laid down in Article

59.

Article 60 – Gender-based asylum claims

310.

Asylum law has long failed to address the difference between women and men in terms of why and how

they experience persecution. This gender blindness in the establishment of refugee status and of international

protection has resulted in situations where claims of women fleeing from gender-based violence have gone

unrecognised. In the past decade, however, developments in international human rights law and standards, as

well as in case law, have led an increasing number of Council of Europe member states to recognise some

forms of violence against women as a form of gender-related persecution within the meaning of Article 1A.2 of

the 1951 Convention relating to the Status of Refugees. There is no doubt that rape and other forms of gender-

related violence, such as female genital violence, dowry-related violence, serious domestic violence, or

trafficking, are acts which have been used as forms of persecution, whether perpetrated by state or non-state

actors.

311.

Although paragraph 1 enshrines what is already being undertaken in practice, the drafters considered it

important to include the obligation of parties to take the necessary legislative or other measures to ensure that

gender-based violence against women may be recognised as a form of persecution within the meaning of Article

1A.2 and as a form of serious harm. In other words, parties to the convention are required to recognise that

gender-specific violence may amount to persecution, and lead to the granting of refugee status. The recognition

of gender-based violence as a form of persecution within the meaning of Article 1A.2 implies recognising that a

woman may be persecuted because of her gender, that is, because of her identity and status as a woman.

Parties also have the obligation to ensure that gender-based violence against women may be recognised as a

form of serious harm giving rise to complementary/subsidiary protection. This does not imply that all gender-

based violence is automatically considered “serious harm”. This means that international protection may be

granted to women who are third country nationals or who are stateless and who have not qualified as a refugee,

but if returned to their country of origin or where they previously resided would face gender-based violence,

which would amount to inhuman or degrading treatment or seriously threaten the life of the individual.

Consequently, the right to international protection is not limited to protection under the 1951 Convention, but can

also be derived from other well-established international and regional standards such as the ECHR or the

European Union Qualification Directive. At the same time, it is not the intention of this paragraph to overrule the

provisions of the 1951 Convention, in particular with regard to the conditions of granting refugee status imposed

by Article 1 of that convention.

312.

Paragraph 2 complements the obligation laid out in paragraph 1. The obligation contained in this

provision is twofold. On the one hand, it requires parties to ensure that a gender-sensitive interpretation is given

to each of the 1951 Convention grounds. The well-founded fear of persecution must be related to one or more of

the 1951 Convention grounds. In the examination of the grounds for persecution, gender-based violence is often

seen to fall within the ground of “membership of a particular social group”, overlooking the other grounds.

Ensuring a gender-sensitive interpretation implies recognising and understanding how gender can have an

impact on the reasons behind the type of persecution or harm suffered. On the other hand, paragraph 2 requires

parties to allow for the possibility of granting refugee status should it be established that the persecution feared

is for one of these grounds. It is important to note that adopting a gender-sensitive interpretation does not mean

that all women will automatically be entitled to refugee status. What amounts to a well-founded fear of

persecution will depend on the particular circumstances of each individual case. It is particularly important to

note that the refugee status should be granted “according to the applicable relevant instruments”, that is to say,

under the conditions expressly provided by these instruments, such as by Article 1 of the 1951 Convention.

313.

Regarding persecution on the grounds of race or on the grounds of nationality, women may face certain

types of persecution that specifically affect them. Examples are sexual violence and control of reproduction in

cases of racial and ethnic “cleansing”. Concerning persecution on the grounds of religion, women may be

persecuted for not conforming to religious norms and customs of acceptable behaviour. This is particularly true

in cases of crimes committed in the name of so-called “honour”, which affect women disproportionately.

Persecution on the grounds of membership of a particular social group has increasingly been put forward in

gender-related claims and has gradually acquired international support. In considering women fleeing from

gender-related persecution such as female genital mutilation, forced marriage and even serious domestic

violence as forming a “particular social group”, women may be granted asylum. Some women can thus be

identified as a particular group that shares a common innate, unchangeable or otherwise fundamental

characteristic other than the common experience of fleeing persecution. Finally, persecution on the ground of

political opinion can include persecution on the grounds of opinions regarding gender roles. Some women may

be persecuted, for example, for not conforming to society’s roles and norms of acceptable behaviour and for

speaking out against traditional gender roles. When taking the necessary measures in order to ensure a gender-

sensitive interpretation of the refugee definition, parties may refer to the UNHCR Guidelines on International

Protection: Gender-Related Persecution within the context of Article 1A.2 of the 1951 Convention and/or its 1967

Protocol relating to the Status of Refugees, May 2002. Additionally, when ensuring that a gender-sensitive

interpretation is given to each of the convention grounds, parties may, if they wish, extend the interpretation to

individuals who are gay, lesbian, bisexual or transgender, who may also face particular forms of gender-related

persecution and violence.

314.

Paragraph 3 contains several obligations. The first obligation placed on parties is that of developing

gender-sensitive reception procedures that take into account women’s and men’s differences in terms of

experiences and specific protection needs to ensure their right to safety when considering standards of

treatment for the reception of asylum-seekers. Examples of gender-sensitive reception procedures may include

the identification of victims of violence against women as early in the process as possible; the separate

accommodation of single men and women; separate toilet facilities, or, at a minimum, different timetables

established and monitored for their use by males and females; rooms that can be locked by their occupants;

adequate lighting throughout the reception centre; guard protection, including female guards, trained on the

gender-specific needs of residents; training of reception centre staff; code of conduct applying also to private

service providers; formal arrangements for intervention and protection in instances of gender-based violence;

and provision of information to women and girls on gender-based violence and available assistance services.

315.

Paragraph 3 also places the obligation to develop support services for asylum-seekers that provide

assistance in a gender-sensitive manner and that cater to their particular needs. This could include taking

measures such as providing additional psychosocial and crisis counselling, as well as medical care for survivors

of trauma since, for example, many female asylum-seekers have been exposed to sexual or other forms of

abuse and are therefore particularly vulnerable. Support services should also aim to empower women and

enable them to actively rebuild their lives.

316.

Developing and implementing gender guidelines is essential for the relevant actors to understand how

they can include gender-sensitive elements into their policies and practice. Guidelines provide an essential

reference point in order to enhance awareness of special protection needs for women asylum-seekers who have

been victims or are at risk of gender-based violence. Parties must, however, bear in mind that in order to ensure

their success, specific measures should be taken to ensure that such guidelines are implemented. Guidelines

should cover the enhancement of awareness and responsiveness to cultural and religious sensitivities or

personal factors as well as the recognition of trauma.

317.

In order to properly examine asylum claims by women and girls who are victims of gender-based

violence, paragraph 3 entails the obligation to develop gender-sensitive asylum procedures, which include

procedures governing refugee status determination and application for international protection (see also

paragraph 312

in fine).

It encompasses,

inter alia,

the provision to women of information on asylum procedures;

the opportunity for women dependants to have a personal interview separately and without the presence of

family members; the opportunity for women to raise independent needs for protection and gender-specific

grounds leading to a separate application for international protection; the elaboration of gender guidelines on the

adjudication of asylum claims, and training. It also encompasses gender-sensitive interviews led by an

interviewer, and assisted by an interpreter when necessary; the possibility for the applicant to express a

preference for the sex of their interviewer and interpreter which the parties will accommodate where it is

reasonable to do so; and the respect of confidentiality of the information gathered through interviews. For further

guidance, parties may refer to the work of the Parliamentary Assembly in this field, and in particular to

Resolution 1765 (2010) and Recommendation 1940 (2010) on gender-related claims for asylum.

318.

In the previous four paragraphs of this section, a list has been detailed of possible measures that parties

may take when implementing the provisions laid out in paragraph 3. The reason for this is that the drafters

wished to include in the Explanatory Report some examples of good practices which have already been

developed in several states. However, it should be noted that paragraph 3 leaves each party the choice of which

gender-sensitive procedures, guidelines and support services are to be developed.

Article 61 –

Non-refoulement

319.

Enshrined in Article 33 of the 1951 Convention relating to the Status of Refugees, the principle of

non-

refoulement

constitutes a pillar of asylum and international refugee protection and has acquired the status of

customary international law. This means that the principle applies to all states, irrespective of whether or not

they are bound by the 1951 Convention.

320.

The principle of

non-refoulement

is of particular relevance to asylum-seekers and refugees. According to

this principle, subject to certain exceptions and limitations as laid down in the 1951 Convention, states shall not

expel or return an asylum seeker or refugee to any country where their life or freedom would be threatened.

Article 3 of the ECHR also prevents a person being returned to a place where they would be at real risk of being

subjected to torture or inhuman or degrading treatment or punishment. Expelling or returning a person to

persecution contravenes the commitment of the international community to ensure the enjoyment of human

rights of all persons. The

non-refoulement

principle also includes not prohibiting access to the territory of a

country to asylum-seekers who have arrived at its borders or who are prevented to access its borders.

321.

The protection against refoulement applies to any person who is a refugee under the terms of the 1951

Convention. It also applies to asylum-seekers whose status has not formally been determined and who may be

subjected to persecution if returned to their country of origin or of habitual residence. Paragraph 1 entails the

obligation under international law for states to respect the principle of

non-refoulement

in relation to victims of

gender-based violence who may fear persecution if returned.

322.

Paragraph 2 confirms that the obligation to respect the

non-refoulement

principle applies equally to

victims of violence against women who are in need of protection, thus complementing the first paragraph. More

specifically, paragraph 2 reiterates the obligation for parties to take the necessary legal or other measures to

ensure that victims of violence against women and in need of protection shall not be returned under any

circumstances if there were a real risk, as a result, of arbitrary deprivation of life or torture or inhuman or

degrading treatment or punishment. It is important to ensure that these obligations are complied with irrespective

of the status or residence of the women concerned. This means that this protection against return applies to all

victims of violence against women who have not yet had their asylum claim determined as refugees under the

1951 Convention regardless of their country of origin or residence status, and who would face gender-based

violence amounting to the ill-treatment described above if expelled or deported. Even if their claim for asylum is

refused, states should ensure that these persons will not be expelled or deported to a country where there is a

real risk that they will be subject to torture or inhuman or degrading treatment or punishment. This paragraph is

not to be read, however, as contradicting the relevant provisions of the 1951 Convention, and in particular does

not preclude the application of Article 33.2 of that convention.

Chapter VIII – International co-operation

323.

Chapter VIII sets out the provisions on international co-operation between parties to the convention. The

provisions are not confined to judicial co-operation in criminal and civil matters but are also concerned with co-

operation in preventing all forms of violence covered by the scope of this convention and assisting victims of that

violence.

324.

As regards judicial co-operation in general and more specifically in the criminal sphere, the Council of

Europe already has a substantial body of standard-setting instruments. Mention should be made here of the

European Convention on Extradition (ETS No. 24), the European Convention on Mutual Assistance in Criminal

Matters (ETS No. 30), their Additional Protocols (ETS Nos. 86, 98, 99 and 182), European Convention on the

International Validity of Criminal Judgments (ETS No. 70), the Convention on Laundering, Search, Seizure and

Confiscation of the Proceeds from Crime (ETS No. 141) and the Council of Europe Convention on Laundering,

Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (ETS No. 198).

These treaties are cross-sector instruments applying to a large number of offences, and can be implemented to

permit judicial co-operation in criminal matters in the framework of procedures aimed at the offences established

in the convention. As all member states of the Council of Europe are Parties to the European Convention on

Extradition and the European Convention on Mutual Legal Assistance, drafters are generally advised not to

reproduce provisions on mutual legal assistance and extradition in specialised instruments, but to include the

aforementioned general provision and otherwise refer to the horizontal instruments in the explanatory

memorandum accompanying the convention being drafted.

325.

For this reason, the drafters opted not to reproduce, in this convention, provisions similar to those

included in cross-sectoral instruments such as those mentioned above. For instance, they did not want to

introduce separate mutual assistance arrangements that would replace the other instruments and arrangements

applicable, on the grounds that it would be more effective to rely, as a general rule, on the arrangements

introduced by the mutual assistance and extradition treaties in force, with which practitioners were fully familiar.

This chapter therefore includes only provisions that add something over and above the existing conventions.

Article 62 – General principles

326.

Article 62 sets out the general principles that should govern international co-operation.

327.

First of all, it obliges the parties to co-operate widely with one another and in particular to reduce, as far

as possible, the obstacles to the rapid circulation of information and evidence.

328.

Article 62 then makes it clear that the obligation to co-operate is general in scope: it covers preventing,

combating and prosecuting all forms of violence covered by the scope of this convention (sub-paragraph

a),

protecting and providing assistance to victims (sub-paragraph

b),

investigations or procedures concerning

criminal offences established in accordance with the convention (sub-paragraph

and enforcement of relevant

of civil and criminal judgments issued by parties (sub-paragraph

d).

329.

Paragraph 2 is based on Articles 11.2 and 11.3 of the Council of the European Union Framework

Decision of 15 March 2001 on the standing of victims in criminal proceedings. It is designed to make it easier for

victims to file a complaint by enabling them to lodge it with the competent authorities of the state of residence.

330.

These authorities may then either initiate proceedings if their law permits, or pass on the complaint to

the authorities of the state in which the offence was committed, in accordance with the relevant provisions of the

co-operation instruments applicable to the states in question.

331.

Paragraph 3 authorises a party that makes mutual assistance in criminal matters, extradition or

enforcement of civil and criminal judgments conditional on the existence of a treaty to consider the convention

as the legal basis for judicial co-operation with a party with which it has not concluded such a treaty. This

provision, which serves no purpose between Council of Europe member states as regards mutual assistance in

criminal matters and extradition because of the existence of the European Conventions on Extradition and on

Mutual Assistance in Criminal Matters, dating from 1957 and 1959 respectively, and the Protocols thereto, is of

interest because of the possibility provided to third states to accede to the convention.

332.

Lastly, under paragraph 4, the parties must endeavour to include preventing and combating violence

against women and domestic violence in development assistance programmes benefiting third states. Many

Council of Europe member states carry out such programmes, which cover such varied areas as the restoration

or consolidation of the rule of law, the development of judicial institutions, combating crime, and technical

assistance with the implementation of international conventions. Some of these programmes may be carried out

in countries faced with substantial violence against women and domestic violence. It seems appropriate, in this

context, that action programmes should take account of and duly incorporate issues relating mainly to the

prevention of these forms of crimes, including with a view to facilitating the protection of victims in accordance

with Article 18.5.

Article 63 – Measures relating to persons at risk

333.

The main objective pursued by this provision is again to encourage parties to this convention to enhance

the exchange of information and, in addition in this specific case, to prevent certain acts of violence against

women and domestic violence related to a number of offences established by this convention from happening.

Some of the forms of violence covered by the scope of this convention may have a transnational dimension. For

this reason, the drafters identified some of the offences established in this convention, such as forced marriage

or female genital mutilation, and established the principle according to which a party that is in possession of

information providing reasonable evidence that a person is at immediate risk of being subject to any of the acts

of violence referred to should transmit this information to the party where these acts of violence could happen.

The information needs to be based on “reasonable grounds” that an immediate risk exists. The drafters did not

consider it necessary to elaborate in the convention criteria on what constitutes reasonable grounds. It is

therefore left to the parties to establish, according to the information collected on a case-by-case basis, when to

share this information in order to prevent such acts of violence. This information includes details on protection

orders taken for the benefit of the persons at risk.

Article 64 – Information

334.

Article 64 substantiates a principle already present in the international co-operation field, and in

particular in the criminal field, which provides for an efficient and timely exchange of information between states

in order to either prevent a possible offence as established in accordance with this convention, to initiate

investigation on such an offence or to prosecute a perpetrator. In particular, paragraph 1 requires the requested

party to communicate to the requesting party the outcome of any action undertaken. Paragraph 2 leaves to each

party the choice (the wording used, “may”, clearly does not make this action compulsory) whether or not to

forward to another party information related to its own investigations. This may be done “without prior request”

by the other party.

335.

Similarly, paragraph 3 establishes the principle according to which when a party receives information

(which concerns in general a central administrative authority dealing with international co-operation in criminal

matters), this party shall submit that information to the relevant authorities which, according to its internal law,

are competent to deal with this information. In general, the relevant authorities are, for instance, the police,

prosecution service or judge. The relevant authorities will then consider whether or not that information is

appropriate for their investigations or judicial proceedings. It is important to note that the exchange of information

required under this provision is not limited to criminal investigations or proceedings but extends to civil law

action, including protection orders.

Article 65 – Data protection

336.

This provision refers to the question of personal data regarding all forms of violence covered by the

scope of this convention. Because of the possible dangers to individuals, in particular to victims, if data

concerning them were to circulate without any safeguards or checks, Article 65 specifically refers to the

Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108)

as regards the storing and usage of data. The article states that this provision applies pursuant to the obligations

undertaken by the parties under the above-mentioned convention. However, this does not prevent parties that

are not Parties under Convention No. 108 from ratifying this convention. Convention No. 108 provides, in

particular, that personal data are to be stored only for specified lawful purposes and are not to be used in any

way incompatible with those purposes. It also provides that such data are not to be stored in any form allowing

identification of the data subject or for any longer than is necessary for the purposes for which the data are

recorded and stored. Convention No. 108 likewise makes it compulsory to take appropriate security measures

preventing unauthorised access to and alteration or disclosure of data.

Chapter IX – Monitoring mechanism

337.

Chapter IX of the convention contains provisions which aim to ensure the effective implementation of the

convention by the parties. In its interim report, the CAHVIO stated that “the Committee is of the opinion that a

strong and independent monitoring mechanism is of utmost importance to ensure that an adequate response to

this problem is given in all parties to the convention.” Consequently, the drafters considered that the monitoring

system foreseen by the convention should be one of its strengths. The monitoring mechanism is designed to

cover the scope of this convention. The convention sets up a Group of Experts on action against violence

against women and domestic violence (hereafter “GREVIO”) which is an expert body, composed of independent

and highly qualified experts in the fields of human rights, gender equality, violence against women and domestic

violence, criminal law and in assistance to and protection of victims of violence against women and domestic

violence, with the task of “monitoring the implementation of this Convention by the Parties”. The convention also

establishes a Committee of the Parties, composed of the representatives of the parties to the convention.

Article 66 – Group of experts on action against violence against women and domestic violence

(GREVIO)

338.

As indicated above, GREVIO is in charge of monitoring the implementation of the convention by the

parties. It shall have a minimum of 10 and a maximum of 15 members.

339.

Paragraph 2 of this article stresses the need to ensure geographical and gender balance, as well as a

multidisciplinary expertise, when electing GREVIO’s members, who shall be nationals of parties to the

convention. Candidates to the GREVIO are nominated by the parties and elected by the Committee of the

Parties.

340.

Paragraph 3 establishes criteria of election of GREVIO’s members in relation to the number of

ratifications of the convention.

341.

Paragraph 4 underlines the main competences of the experts sitting in GREVIO, as well as the main

criteria for their election, which can be summarised as follows: “independence and expertise”. In particular,

members of GREVIO should represent relevant actors and agencies working in the field of violence against

women and domestic violence. If nominated by the parties, this may include, for instance, NGO representatives.

342.

Paragraph 5 indicates that the procedure for the election of the members of GREVIO (but not the

election of the members itself) shall be determined by the Committee of Ministers. This is understandable as the

election procedure is an important part of the application of the convention. Being a Council of Europe

convention, the drafters felt that such a function should still rest with the Committee of Ministers and the parties

themselves will then be in charge of electing the members of GREVIO. Before deciding on the election

procedure, the Committee of Ministers shall consult with and obtain the unanimous consent of all parties. Such a

requirement recognises that all parties to the convention should be able to determine such a procedure and are

on an equal footing.

343.

Paragraph 6 states that GREVIO establishes its own rules of procedure.

344.

The purpose of paragraph 7 is to allow all members of country visit delegations provided for in Articles

68.9 and 68.14 to be on an equal footing and benefit from the same privileges and immunities. The General

Agreement on Privileges and Immunities of the Council of Europe is open to member states only. However, the

convention is also open to non-member states. With regard to other Council of Europe conventions providing for

country visits, the usual procedure is for the Committee of Ministers to ask for a bilateral agreement to be signed

by non-member states, resulting in a lengthy process that can delay their accession to a convention. For this

reason, and as a precautionary step for the future, this provision is directly included in the body of the

convention to avoid lengthy procedures in order to negotiate bilateral agreements with non-member states.

Article 67 – Committee of the Parties

345.

Article 67 sets up the other pillar of this monitoring system, which is the political body (“Committee of the

Parties”), composed as indicated above.

346.

The Committee of the Parties will be convened for the first time by the Secretary General of the Council

of Europe, within a year of the entry into force of the convention, in order to elect the members of GREVIO. It will

then meet at the request of a third of the parties, of the Secretary General of the Council of Europe or of the

President of GREVIO.

347.

The setting up of this body will ensure equal participation of all the parties alike in the decision-making

process and in the monitoring procedure of the convention and will also strengthen co-operation between the

parties and between them and GREVIO to ensure the proper and effective implementation of the convention.

348.

Paragraph 3 states that the Committee of the Parties establishes its own rules of procedure.

Article 68 – Procedure

349.

Article 68 details the functioning of the monitoring procedure and the interaction between GREVIO and

the Committee of the Parties.

350.

Paragraphs 1 and 2 establish that GREVIO should consider a report on general legislative and other

measures undertaken by each party to give effect to the provisions of this convention with the representatives of

the party concerned. This report is submitted by the party and it is based on a questionnaire developed by

GREVIO. The idea is to have a baseline of legislative and other measures the parties have in place, when

acceding to the convention, with regard to the concrete and general implementation of the convention.

351.

Paragraph 3 makes it clear that the evaluation procedure following the first report and assessment as

indicated in paragraphs 1 and 2 is divided into rounds and that GREVIO will select the provisions the monitoring

will concentrate on. The idea is that GREVIO will autonomously define, at the beginning of each round, the

provisions for the monitoring procedure during the period concerned.

352.

Paragraph 4 states that GREVIO will determine the most appropriate means to carry out the evaluation.

This may include a questionnaire or any other request for information. The term “questionnaire” refers to a set of

written questions or guidelines to gain information of a qualitative and quantitative nature on measures taken in

implementation of the convention. It goes beyond the collection of statistical/numeric data which the monitoring

framework on the implementation of Recommendation Rec(2002)5 on the protection of women against violence

assured. Moreover, this paragraph makes it clear that the party concerned must respond to GREVIO’s requests.

Parties to the convention should not be required to answer on the implementation of Recommendation

Rec(2002)5.

353.

Paragraph 5 establishes the important principle that GREVIO may receive information from NGOs and

civil society as well as national institutions for the protection of human rights.

354.

Paragraphs 6, 7 and 8 introduce the principle that GREVIO should make the best possible use of any

existing source of information. That is also in order to avoid unnecessary duplication of work and activities

already carried out in other instances.

355.

Paragraph 9 underlines that, subsidiarily, GREVIO may organise country visits. The drafters wanted to

make it clear that country visits should be a subsidiary means of monitoring and that they should be carried out

only when necessary, in two specific cases: 1) if the information gained is insufficient and there are no other

feasible ways of reliably gaining the information or 2) if GREVIO receives reliable information indicating a

situation where problems require immediate attention to prevent or limit the scale or number of serious violations

of the convention. These country visits must be organised in co-operation with the competent authorities of the

party concerned, meaning that they are established in advance and that dates are fixed in co-operation with

national authorities which are notified in due time.

356.

Paragraphs 10 and 11 describe the drafting phase of both the report and the conclusions of GREVIO.

From these provisions, it appears clear that GREVIO has to carry out a dialogue with the party concerned when

preparing the report and the conclusions. It is through such a dialogue that the provisions of the convention will

be properly implemented. GREVIO will publish its report and conclusions, together with any comments by the

party concerned. This completes the task of GREVIO with respect to that party and the provisions concerned.

The reports and conclusions of GREVIO, which will be made public as from their adoption, cannot be changed

or modified by the Committee of the Parties.

357.

Paragraph 12 deals with the role of the Committee of the Parties in the monitoring procedure. It

indicates that the Committee of the Parties may adopt recommendations indicating the measures to be taken by

the party concerned to implement GREVIO’s conclusions, if necessary setting a date for submitting information

on their implementation, and promoting co-operation to ensure the proper implementation of the convention.

This mechanism will ensure the respect of the independence of GREVIO in its monitoring function, while

introducing a “political” dimension to the dialogue between the parties.

358.

Paragraphs 13, 14 and 15 provide for a special procedure according to which GREVIO is entitled to

request the submission of a report by the party concerned related to measures taken by that party to prevent a

serious, massive or persistent pattern of any of the acts of violence covered by the convention. The condition for

requesting a special report is that GREVIO “receives reliable information indicating a situation where problems

require immediate attention to prevent or limit the scale or number of serious violations of the Convention”. On

the basis of the information received (by the party concerned and by any other source of information), GREVIO

may designate one or more of its members to conduct an inquiry and to report urgently to GREVIO. In very

exceptional cases, this inquiry could also include a visit to the country concerned. The main role of the appointed

“rapporteur(s)” should be collecting all necessary information and ascertaining the facts in relation to the specific

situation. The rules of procedure of GREVIO will establish the details of the functioning of this “inquiry

procedure”. However, the main objective is to allow GREVIO to have a more precise explanation and

understanding of situations where, according to reliable information, a considerable number of victims of the

same acts of violence are involved. The findings of the inquiry shall be transmitted to the party concerned and,

where appropriate, to the Committee of the Parties and the Committee of Ministers of the Council of Europe

together with any comments and recommendations.

Article 69 -– General recommendations

359.

Drawing inspiration from Article 2.1 of CEDAW, this article provides for the possibility of GREVIO to

adopt, where appropriate, general recommendations on the implementation of this convention. General

recommendations have a common meaning for all parties and concern articles or themes that are included in

this convention. They are not country-specific. Although these general recommendations are not legally binding,

they serve as an important reference for parties by developing a greater understanding of the different themes in

the convention and offering clear guidance that can contribute to an effective implementation of the provisions

contained in the convention. These recommendations should also be part of future monitoring rounds.

Article 70 – Parliamentary involvement in monitoring

360.

This provision sets out the role of national parliaments in monitoring the implementation of this

convention. In paragraphs 1 and 2, it contains the obligation of parties to the convention to invite national

parliaments to participate in the monitoring (paragraph 1) and to submit the reports of GREVIO to them for

consultation (paragraph 2). The drafters emphasised the important role which national parliaments take on in

implementing the convention, which, in many cases, requires legislative changes. As a result, they considered it

essential to involve national parliaments in assessing the implementation of the convention.

361.

Paragraph 3 of this provision specifies the involvement of the Parliamentary Assembly of the Council of

Europe in the monitoring of measures taken by parties in the implementation of this convention. The first

provision of this kind in a Council of Europe convention, it states that the Parliamentary Assembly shall be

invited to regularly take stock of the implementation of the convention. With this provision, the drafters wished to

recognise the important role which the Parliamentary Assembly played in placing the issue of violence against

women on the political agenda both of the Council of Europe and of its member states. Following the Assembly’s

long-standing commitment to this issue and the high number of recommendations adopted in this field, the

Assembly’s participation in the monitoring of this convention significantly enhances its results.

Chapter X – Relationship with other international instruments

Article 71 – Relationship with other international instruments

362.

Article 71 deals with the relationship between the convention and other international instruments.

363.

In accordance with the 1969 Vienna Convention on the Law of Treaties, Article 71 seeks to ensure that

the convention harmoniously coexists with other treaties – whether multilateral or bilateral – or instruments

dealing with matters which the convention also covers. This includes, for instance, the European Convention for

the Protection of Human Rights and Fundamental Freedoms and its Protocols, the European Social Charter

(revised, ETS No. 163), the Council of Europe Convention on Action against Trafficking in Human Beings

(CETS No. 197), the United Nations Convention on the Elimination of All Forms of Discrimination Against

Women and its Optional Protocol, the Convention on the Rights of the Child and its Optional Protocols on the

involvement of children in armed conflict, and on the sale of children, child prostitution and child pornography,

the International Convention on the Elimination of All Forms of Racial Discrimination and its Optional Protocol,

the 1951 Convention relating to the Status of Refugees and its Optional Protocol and the United Nations

Convention on the Rights of Persons with Disabilities.

364.

This convention is designed to strengthen the protection and ensure the support for victims of violence

against women and domestic violence. For this reason, Article 71.1 aims to ensure that this convention does not

prejudice the obligations derived from other international instruments to which the parties to this convention are

also parties or will become parties, and which contain provisions on matters governed by this convention. This

provision clearly shows, once more, the overall aim of this convention, which is to protect the rights of victims of

violence against women and domestic violence and to assure them of the highest level of protection.

365.

Article 71.2 states positively that parties may conclude bilateral or multilateral agreements – or any other

legal instrument – relating to the matters which the convention governs. However, the wording makes clear that

parties are not allowed to conclude any agreement which derogates from this convention.

Chapter XI – Amendments to the convention

366.

Amendments to the provisions of the convention may be proposed by the parties. They must be

communicated to the Secretary General of the Council of Europe and to all Council of Europe member states, to

any signatory, to any party, to the European Union and to any state invited to sign or accede to the convention.

367.

As a next step, the Committee of Ministers examines the amendment, in view of its adoption. Before

deciding on the amendment, the Committee of Ministers shall consult and obtain the unanimous consent of all

parties to the convention. Such a requirement recognises that all parties to the convention should be able to

participate in the decision-making process concerning amendments and are on an equal footing.

Chapter XII – Final clauses

368.

With some exceptions, the provisions in this chapter are essentially based on the Model Final Clauses

for Conventions and Agreements concluded within the Council of Europe, which the Committee of Ministers

approved at the Deputies’ 315th meeting in February 1980. Articles 73 to 81 either use the standard language of

the model clauses or are based on long-standing treaty-making practice at the Council of Europe.

Article 73 – Effects of this convention

369.

Article 73 safeguards those provisions of internal law and binding international instruments which

provide additional protection to persons against violence against women and domestic violence; this convention

shall not be interpreted so as to restrict such protection. The phrase "more favourable rights" refers to the

possibility of putting a person in a more favourable position than provided for under the convention.

Article 74 – Dispute settlement

370.

The drafters considered it important to include in the text of the convention an article on dispute

settlement, which imposes an obligation on the parties to seek first of all a peaceful settlement of any dispute

concerning the application or the interpretation of the convention.

371.

The various types of peaceful settlement mentioned in the first paragraph of this article (negotiation,

conciliation and arbitration) are commonly recognised under international law. These methods of settlement are

not cumulative, so that parties are not obliged to exhaust all of them before having recourse to other methods of

peaceful settlement. Any procedure for solving disputes shall be agreed upon by the parties concerned.

372.

Paragraph 2 provides that the Committee of Ministers of the Council of Europe may establish a non-

judicial procedure which parties could use if a dispute arises in relation to the application or the interpretation of

the convention. The drafters chose not to refer to judicial procedures such as the one governing the International

Court of Justice, since several states having participated in the elaboration of this convention had not accepted

the mandatory competence of this judicial body and did not wish to do so concerning this specific convention.

However, this article does not preclude parties in dispute from submitting their case to the International Court of

Justice if they should so agree.

Article 75 – Signature and entry into force

373.

Paragraph 1 states that the convention is open for signature not only by Council of Europe member

states but also the European Union and states not members of the Council of Europe (Canada, the Holy See,

Japan, Mexico and the United States) which took part in drawing it up. Once the convention enters into force, in

accordance with paragraph 3, other non-member states not covered by this provision may be invited to accede

to the convention in accordance with Article 76.1.

374.

Paragraph 2 states that the Secretary General of the Council of Europe is the depositary of the

instruments of ratification, acceptance or approval of this convention.

375.

Paragraph 3 sets the number of ratifications, acceptances or approvals required for the convention’s

entry into force at 10. This figure reflects the belief that a significant group of states is needed to successfully set

about addressing the challenge of preventing and combating violence against women and domestic violence.

The number is not so high, however, as to unnecessarily delay the convention’s entry into force. In accordance

with the treaty-making practice of the Organisation, of the 10 initial states, at least eight must be Council of

Europe members.

Article 76 – Accession to the convention

376.

After consulting the parties and obtaining their unanimous consent, the Committee of Ministers may

invite any state not a Council of Europe member which did not participate in drawing up the convention to

accede to it. This decision requires the two-thirds majority provided for in Article 20.d of the Statute of the

Council of Europe and the unanimous vote of the parties to this convention.

Article 77 – Territorial application

377.

Paragraph 1 specifies the territories to which the convention applies. Here it should be pointed out that it

would be incompatible with the object and purpose of the convention for parties to exclude parts of their territory

from application of the convention without valid reason (such as the existence of different legal systems applying

in matters dealt with in the convention).

378.

Paragraph 2 is concerned with extension of application of the convention to territories for whose

international relations the parties are responsible or on whose behalf they are authorised to give undertakings.

379.

In respect of this particular convention and without prejudice to the provisions in Article 44, this

convention does not create any extra-territorial obligations.

Article 78 – Reservations

380.

Article 78 specifies that no reservation may be made in relation to any provision of this convention, with

the exceptions provided for in paragraphs 2 and 3 of this article. The declarations of reservation made pursuant

to paragraphs 2 and 3 should explain the reasons why a reservation was sought by a party.

381.

The articles listed in paragraph 2 of this article are provisions for which unanimous agreement was not

reached among the drafters despite the efforts achieved in favour of compromise. These reservations aim to

enable the largest possible ratification of the convention, whilst permitting parties to preserve some of their

fundamental legal concepts. The provisions concerned are the following: Article 30.2 (state compensation);

Articles 44.1.e, 44.3 and 44.4 (jurisdiction); Article 55.1 (ex

parte

and

ex officio

proceedings); Article 58 (statute

of limitation); Article 59 (residence status). It should be noted that the possibility of reservation has been further

restricted regarding Articles 55 and 58, since reservations to Article 55.1 are permissible only in respect of

Article 35 regarding minor offences, in the same way as reservations to Article 58 are permissible only in respect

of Articles 37, 38 and 39.

382.

Paragraph 3 provides for a specific form of reservation in relation to Articles 33 (psychological violence)

and 34 (stalking). Parties may reserve the right to provide for non-criminal sanctions, instead of the criminal

sanctions, for the behaviours referred to in these articles. Consequently, this possibility of reservation does not

apply to the articles mentioned as a whole, but only to the way they may be implemented by the parties at the

national level.

383.

Paragraph 4, by making it possible to withdraw reservations at any time, aims to reduce future

divergences between legislations which have incorporated the provisions of this convention.

Article 79 – Validity and review of reservations

384.

Reservations are exceptions to the uniform implementation of the standards provided for by the

convention. Therefore, the drafters considered it appropriate to provide for a periodic review of the reservations

in order to encourage parties to lift them or to indicate the reasons for maintaining them. Pursuant to

paragraph 1, reservations referred to in Articles 78.2 and 3 have a limited validity of five years. This duration was

settled in order to strike a balance between, on the one hand, the objective of progressive elimination of existing

reservations with the need, on the other hand, to ensure that parties have sufficient time to re-examine their

reservations at the national level. After this deadline, reservations will lapse unless they are expressly renewed.

In any event, it is necessary for parties to inform the Secretary General of the Council of Europe of their

intentions regarding existing reservations.

385.

Paragraph 2 contains a procedure for the automatic lapsing of non-renewed reservations. Finally,

pursuant to Article 79.3, parties shall provide GREVIO, before its renewal or upon request, with an explanation

giving the grounds justifying the continuation of a reservation. In cases of renewal of a reservation, there shall be

no need for a prior request by GREVIO. In all cases GREVIO will have the possibility of examining the

explanations provided by the party to justify the continuance of its reservations.

Article 80 – Denunciation

386.

In accordance with the United Nations Vienna Convention on the Law of Treaties, Article 80 allows any

party to denounce the convention.

Article 81 – Notification

387.

Article 81 lists the notifications that, as the depositary of the convention, the Secretary General of the

Council of Europe is required to make, and it also designates the recipients of these notifications (states and the

European Union).