A/HRC/17/22
children after she reported years of violence and threats to the police – was the first case
where the Court applied the notion of due diligence to domestic violence. The Court
deemed the State responsible for failure of the police to take action. In Bevacqua and S. v.
Bulgaria, the Court acknowledged the limitations of private prosecution of domestic
violence, confirming domestic violence as a matter of public concern and the State’s
responsibility for failing to impose sanctions. In Branko Tomasic and others v. Croatia, the
Court confirmed that the State had the obligation to protect the victims, noting the failure to
provide adequate mental health care to the perpetrator. In the landmark case Opuz v.
Turkey, the Court found a breach of the principle of due diligence, arguing that prosecution
should have continued even in the face of repeated withdrawal of complaints from the
alleged victim and confirmed gender-based violence as discrimination. In the most recent
case of A v. Croatia concerning prolonged domestic violence and the effectiveness of
protective orders, the Court found that the State’s failure to effectively enforce these
measures violated the convention.
23.
Ms. Coomber also referred to three rape cases before the Court. In C. R. and S. W. v.
the United Kingdom, the Court underlined the State duty to protect women, including by
criminalizing marital rape. Aydin v. Turkey confirmed that the crime of rape against a
female detainee constitutes torture prohibited by the convention. Finally, in M.C. v.
Bulgaria, the Court decided that physical resistance from the victim should not be a
necessary requirement for convictions for rape, the focus lying on the lack of consent as a
constituent element of the offence. Ms. Coomber concluded that with such limited
jurisprudence, the discrepancy between the European Court of Human Rights case law on
rape and domestic violence and the challenges and experiences of women on the ground
was immense. She highlighted the challenge of finding women prepared to pursue litigation
in light of the length of judicial proceedings and limited access to justice. Ms. Coomber
pleaded for the strengthening of legal aid programmes, investments in the training of police
and prosecutors to work with victims of violence against women, and a gender balance in
the criminal justice system.
24.
Ms. Rouhana talked about her participation in the drafting of a new law to protect
women from family violence in Lebanon. She explained that authority regarding family law
was delegated to the many different recognized religious groups that shared the same
patriarchal background. She added that the penal code still discriminated against women in
many aspects and tolerated harmful practices, such as providing for mitigating excuses for
crimes committed under the pretext of honour, or allowing for marital rape. Domestic
violence was also not specifically addressed in the penal code, providing for a context of
unlimited authority of men over women.
25.
Ms. Rouhana said the process of drafting this law started in 2007 as a result of
collaborative efforts of a committee of experts from the internal security forces, judges and
lawyers, and civil society representatives. After two years of continuous advocacy and
lobbying, the draft law was approved by the Council of Ministers in April 2010 and was
pending approbation of the joint Parliament Committees and the general assembly of the
Parliament. She said the law was designed to criminalize practices harmful to women but
tolerated by traditional or religious cultures, and to extend protection to all familial
relationships and include preventive, protective and punitive aspects.
26.
Ms. Rouhana finally stressed that, even if the law was approved, there would still be
major challenges to its implementation, mainly the unstable political and security situation
in Lebanon, which had a negative impact on social issues in general and women’s issues in
particular. Financial resources would be essential to implement the law effectively.
However she recognized that much more needed to be done on a more general level, such
as dealing with legal illiteracy and poor service delivery, change of attitudes, and educating
women on their own rights. She also acknowledged the shortfalls of the draft law itself; i.e.
7
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