Domestic violence is a generally uncontrolled phenomenon around the globe. Though it is silently chastised, the invisible boundary which prevents the law from “interfering” in private matters, acts as an obstacle to active prevention. Societal attitudes such as “the law doesn belong in the bedroom” perpetuate such a state of affairs. Even the European Convention on Human Rights (ECHR) seemingly did nothing to allay the situation since Article 8 (right to respect for private and family life) states “[t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country.” Consequently, action against perpetrators of domestic violence is rarely taken. Even further, a systematic failure to report such incidences results in an overall failure to address the issue at all.
In cases of domestic violence, the conflict of two basic rights the right to health versus the right to family autonomy and privacy [1] is conducive to heated debate. It is argued that the enforcement of the former through imposition of a positive duty on states to intervene in such cases or prosecute offenders results in the alleged infringement of the latter. This is because requiring states to take affirmative action in cases of domestic violence removes the victim right to choose not to prosecute the offender. How far can such a requirement be regulated and when should state obligation give way to personal choice?
The European Court of Human Rights (ECtHR) dealt with this dichotomy in the case of Airey v Ireland [2] . The case involved the question of whether there coexisted a positive obligation under Article 8 of the ECHR to provide access to legal proceedings for a victim of domestic abuse, along with the negative obligation of not exercising undue influence on an individual private life. Interestingly, the Court held that such an obligation did in fact exist. It reasoned that a state failure to exercise its positive obligation, may infringe its negative obligation to allow everyone enjoyment of peaceful family life. In fact, it has been pointed out that Article 8 is a qualified right unlike Articles 2 and 3 of the ECHR which are absolute rights. Therefore perpetrators of domestic violence must forfeit their right to uninterrupted personal life in order to protect the victim’s absolute rights to life and freedom from torture [3] . Similarly, in the case of Marckx v. Belgium [4] , the ECHR, held that although the object of Article 8 was “essentially that of protecting the individual against arbitrary interference by the public authorities, … it does not merely compel the State to abstain from such interference; in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for family life.” [5]
In accordance with these cases, there is a general agreement among scholars that there should be a positive obligation on states to protect individuals from violence, even though states may not actually be thus bound through domestic or international legislation [6] . A number of international conventions support affirmative action by states to control and end gender-based violence. Among such conventions are: U.N. Declaration of the Elimination of Violence Against Women and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment. As the World Health Organisation recommends, all states should “establish, implement and monitor action plans to address violence against women, including violence by intimate partners” [7] . It is therefore clear, that international sentiment does not regard private life as being immune from government intervention. However, controversy arises in cases where a victim of such violence implicitly or explicitly rejects state assistance. Should, then, the need arise for the state to override the individual choice and if so, at what point does such a need arise?
The ECtHR directly addressed these questions in 2009 when it was presented with the landmark case of Opuz v Turkey [8] . Prior to this case, the ECHR experience of dealing with issues of domestic violence was limited, though it had dealt with cases of victims of state violence. However, the case of Opuz v Turkey was rare in that the defendant was a non-state actor – the claimant spouse. Therefore, in order to find the state in violation of a Convention right, it had to be proved that the State had failed to protect the claimant from the actions of a private person [9] . This however, required some standard as to when it becomes mandatory for a state to extend its protection or pursue prosecution in the event that a victim drops a case. Due to the nature of the offense, many victims of domestic violence either do not initiate proceedings against the offender or drop proceedings soon after initiation due to threats of further violence. It is therefore even more crucial that a mechanism exists to protect victims.
The Court in Opuz required that “For a positive obligation to arise, it must be established 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 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”. [10] The bar for intervention was therefore based on the requirement of knowledge. Further the Court emphasized a list of factors which must be taken into account by authorities when making the decision to pursue prosecution. These included the seriousness of the offence, the type of injuries sustained and the manner in which the injuries were inflicted, the state of the individual relationship with the offender and whether there was a continuing threat to the health and safety of the individual. Taking these factors into account, the Court held that authorities had a duty to intervene. This was despite Turkey assertion that “the authorities could not be expected to separate the applicant and her husband and convict the latter while they were living together as a family, as this would amount to a breach of their rights under Article 8 of the Convention.” [11] The Court, in reply to this made clear that “in domestic violence cases perpetrators rights cannot supersede victims human rights to life and to physical and mental integrity” [12] This is a clear indication that the Court held the individual right to freedom from torture as being of a higher value than the perpetrator right to freedom from state interference in his private life.
This case is a landmark in more ways than one: not only did it make clear that states have an affirmative duty to protect victims of domestic violence under certain circumstances, but it also held for the first time, that a failure to do so would constitute a breach of Article 14 of the Convention, that is, the individual right against discrimination. In fact the Court clarified that a state’s legislative framework need not be discriminatory in order for it to be in breach of its Article 14 obligations, but that discrimination arose from “the general attitude of the local authorities, such as the manner in which the women were treated at police stations when they reported domestic violence and judicial passivity in providing effective protection to victims.” Consequently, the question arises: which states are bound by this judgement? The UK ratification of the ECHR in 1966 and its subsequent implementation of the Human Rights Act implies that the UK is in fact bound by the ruling of the Court and must change its domestic laws in accordance with it. Whether it has actually done so however, is debatable.
In 2004, the UK government agencies agreed on a definition of domestic violence which maintained gender neutrality. The definition adopted was “Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality.” [13] However, in September 2012 the Home Office announced that, effective from March 2013, this definition would be widened to include those of 16 years of age and above, as well as include coercive control. This new definition has now been approved and implemented [14] .
While it is obvious that the new definition does widen the scope of domestic violence, it is questionable whether this is a reaction to the Opuz case or merely an indication of changing times, since there is a greater recognition today of the abuse of minors as well as the issue of coercive control in domestic settings, than there was a decade ago. In addition, it is noteworthy that even the pre-Opuz, 2004 definition of domestic violence categorised psychological harm as violence. So in fact, it appears that the UK was ahead of its time, since the standard of domestic violence set out in the Opuz case, included any form of physical or psychological pressure as qualifying as “ill treatment”. The Court went on to say that to fall within the scope of Article 3 of the Convention, the ill treatment must reach a minimum level of severity. However, it clarified this by stating that “the assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim”. In other words, the Court emphasis was on a complete assessment of each individual case (including assessing whether the victim was a member of a “vulnerable group”) as opposed to exhaustively defining domestic violence. It is therefore questionable how far the UK has gone in terms of amending its laws in accordance with the precedent set by the ECtHR or in fact whether it needs to amend its laws at all, in light of the fact that the Opuz standard existed in the UK system even before Opuz was decided.
In other areas of UK legal framework, changes over the years appear to be bringing the UK closer to the Opuz standard. UK law deals with all forms of domestic violence and criminalises both physical and psychological ill treatment. However, in recent years, an increasing commitment to a pro-arrest policy in domestic violence cases has resulted in placing a greater emphasis on punishing the offender rather than helping the victim [15] . In light of this, it is the actions of the Crown Prosecution Service (CPS) which shows the greatest move towards the type of positive state obligations envisioned by the ECtHR. In recent years the CPS has drastically changed its approach to prosecution of perpetrators of domestic violence, and now takes a more pro-active role in compiling evidence and pursuing prosecution even without the victim consent or in the event that the victim withdraws his/her claim. In doing so, the CPS weighs a number of factors [16] . This approach was in fact already in place before the case of Opuz v Turkey and was specifically highlighted by the ECtHR as being the correct approach since it places foremost emphasis on the well being of the victim.
As far as the attitude of the courts in relation to the standard of positive duty is concerned, Mandy Burton has shown concern that national cases [17] subsequent to Opuz v Turkey, appear to suggest that an assessment of what authorities “ought to have known” is based on how much information the victim has presented to the police as opposed to being based on the information that authorities would have discovered had they actively investigated the case. If correct, this shifts the burden onto the victim to present sufficient information to the authorities before pursuing a case [18] .
However, recently, the High Court has referred to an affirmative duty of state authorities to protect a victim of harassment [19] . While the case was not a domestic violence case, the Court referred to an earlier case of domestic violence [20] and held that “it [is] clear that there may be a breach of the state’s positive duty under Article 8 without there being a fundamental failure of the system”. In other words, though the victim in the present case was not a victim of domestic violence per se, the Court applied the principles laid down in Opuz v Turkey and assessed the applicant complete circumstances before concluding that she was indeed a “vulnerable person whose psychological integrity the state had an obligation to protect from further action on his (defendant) part”. The fact that the state failed to pursue prosecution therefore put it in breach of its duty towards her. This suggests that while the UK has not made an outright move towards the Opuz standard, there is definitely a progression towards the acceptance and implementation of a positive duty on the state and its authorities to protect victims of harassment.
It may be concluded that there does indeed exist a positive obligation on states to protect victims of domestic violence, either by carrying out in-depth research and initiating proceedings against an offender or by pursuing prosecution in the event that the victim withdraws their case for fear of further violence. This obligation has now been put on firm footing, with ECtHR backing, however scholars agree that it exists even without this legal foundation as a moral obligation if nothing else. The UK however, has not taken any active steps towards achieving the standard of affirmative action required by the ECtHR and in fact, does not even as yet formally accede to the ECtHR rulings despite having ratified the Convention. However, the UK legal framework is more in line with the ECtHR than some other countries such as Turkey, where the status and treatment of women is still condemnable.