A/HRC/7/3
page 15
level of severity prohibited by article 3”44 of the European Convention on Human Rights. The
Court further stated that “the failure to provide adequate protection constitutes a violation of
article 3 of the Convention”.45
47. But even if there are national laws against domestic violence in place, law enforcement
agencies and the prosecution services may still not consider cases of domestic violence as
serious violations and may be therefore reluctant to bring complaints, conduct investigations and
prosecute perpetrators. In 2001 the Inter-American Commission on Human Rights considered
the case of Maria da Penha, who had suffered physical and psychological violence at the hands
of her husband since 1983. He twice tried to kill her and left her paralysed at the age of 38.
Fifteen years later, the judicial investigation initiated by Maria da Penha had not been concluded.
In this case, the Inter-American Commission held that the legislation was inadequate and that the
State was responsible for not having acted with due diligence and added that “discriminatory
judicial ineffectiveness creates a climate that is conducive to domestic violence, since society
sees no evidence of willingness by the State, as the representative of the society, to take effective
action to sanction such acts”.46
48. As can be seen from the above, international law has developed considerably over the
years to become more gender-inclusive. In 1996, the Special Rapporteur on violence against
women stated that: “the argument that domestic violence should be understood and treated as a
form of torture and, when less severe, ill-treatment, is one that deserves consideration by the
rapporteurs and treaty bodies that investigate these violations together perhaps with appropriate
NGO experts and jurists”.47 In 2000, the Human Rights Committee indicated that domestic
violence can give rise to violations of the right not to be subjected to torture or ill-treatment
under article 7 of the ICCPR.48 In line with this statement the Committee has mentioned the need
for States to adopt specific legislation combating domestic violence,49 including legislation
criminalizing marital rape.50 More specifically, it has called upon States to ensure that their
justice systems incorporate restraining orders to protect women from violent family members,
44
European Court of Human Rights, case No. 100/1997/884/1096, A. v. the United Kingdom,
judgement 23 September 1998, para. 21.
45
Ibid., para. 24.
46
Inter-American Commission on Human Rights, case No. 12.051, Maria da Penha v.
Brazil, 16 April 2001.
47
E/CN.4/1996/53, para. 50.
48
Human Rights Committee general comment No. 28 (2000) on article 3 (The equality of rights
between men and women), para. 11.
49
See CCPR/CO/75/YEM, para. 6; CCPR/CO/79/LKA, para. 20; and CCPR/CO/80/DEU,
para. 14.
50
See CCPR/CO/79/LKA, para. 20.
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