Legal Analyst
Torn between Law and politics as defined by Danish legal researchers Jonas Christoffersen and Mikael Rask Madsen in their 2011 study, the European Court of Human Rights (hereafter “ECHR”) has frequently made headlines due to its involvement in opposing Rishi Sunak’s Rwanda Asylum Plan, Poland’s Judicial overhaul or its Laws on same-sex couples.
Armen Harutyunyan, one of the 46 judges at the ECHR, highlights that the progressive values upheld by the ECHR are increasingly called into question. Rising populism and nationalistic rhetoric are eroding the defense of minority interests as “the will of the majority does not only determine the content of the law, but also its appropriateness as law”, explains Harutyunyan.
Nonetheless, the court established in 1959, being responsible for interpreting the European Convention on Human Rights (1950), has also intervened over the years to address deficiencies in the National jurisdictions of Member States of the Council of Europe including safeguarding Women's rights within these jurisdictions from arbitrary or defective adjudications.
In a factsheet released in November 2023, the ECHR acknowledged that the promotion of gender equality is a pivotal element of its mission, as evidenced by the compilation of dozens of relevant law cases.
Protecting Women’s Private Lives
Safeguarding individuals' private lives constitutes a fundamental mission of the ECHR, encompassing a distinct gender component. This mission is particularly evident in its commitment to upholding the rights of women, ensuring their entitlement to the renowned motto, "My body, My choice." The ECHR recently gained attention in the news in December 2023 for its ruling in M. L. v. Poland wherein it contested the decision of the Polish Constitutional Court from October 2020 that led to a near-total ban on abortion in Poland.
The case was brought by a Polish woman (“M. L.”) who initially qualified for an abortion due to her fetus suffering from Trisomy 21 (also referred to as “Down syndrome”). However, her right to undergo an abortion was subsequently denied following the Polish Constitutional Court's enforcement of more stringent provisions that dismiss genetic malformation as a viable criterion. In response, she decided to travel abroad to seek an abortion in a private clinic.
The claimant argued, among other points, that the judgment of the Constitutional Court violated her right to private and family life as outlined in Article 8 of the European Convention on Human Rights, which asserts that:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There 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, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
On December 14, 2023, the ECHR decisively ruled that the Polish Constitutional Court’s unlawfully interfered with the applicant’s right to private and family life. This verdict aligns with a precedent set in March 2007 in Tysiąc v. Poland, where the Court determined that Poland failed to comply with its positive obligations to secure to the applicant the effective respect for her private life. The Court emphasised that "the very nature of the issues involved in decisions to terminate a pregnancy is such that the time factor is of critical importance," and noted that “absence of such preventive procedures in the domestic law can be said to amount to the failure of the State to comply with its positive obligations under Article 8” even though, it should be noted that Article 8 of the European Convention on Human Rights does not confer, by any means, a specific right to abortion as established in A, B, and C v. Ireland.
Poland has frequently fallen under the scrutiny of the ECHR for violating the provisions of Article 8 due to its restrictive abortion policies and its failure to ensure effective access to abortion, thereby indirectly impeding it (see. P. and S. v. Poland, 2012). However, violations of Article 8 have not only surfaced in connection with Poland's constraining abortion policies but also more broadly in cases of sexual harassment across every part of Europe.
In Söderman v. Sweden (2013), the applicant alleged that the Swedish State had breached to comply with its obligation under Article 8 to provide her with remedies against her stepfather’s violation of her personal integrity when he had attempted secretly to film her naked in their bathroom when she was 14 years old in 2002. Her stepfather was acquitted as his actions were not covered by any provisions in Swedish law at that time, which did not prohibit filming individuals without their consent even if the individual was a minor, prior to 2005.
The ECHR concluded that Sweden had indeed violated Article 8 and emphasized as evidence that the previous version of the sexual molestation provision had not protected the applicant from the act in question, allowing her stepfather to film her naked at home without any remedy.
On the other hand, Article 8 does not grant rights to privacy for sexual offenders if exercising these rights might pose a risk to the well-being of women. In Gardel v. France (2009), the ECHR unanimously held that the requirement for individuals convicted of sexual crimes to annually provide proof of their address and promptly report any changes of their address on a national automated register of sex offenders for a duration of at least 20 to 30 years did not constitute a violation of Article 8.
Additionally, the right to privacy is not violated in the instance of the publicity surrounding a criminal trial, which provided an opportunity to explore for the first time in Poland the potential risks associated with dates arranged with individuals met on the internet (see. H.-Ł. v. Poland, December 2015). In this case, a recidivist offender having obtained a leave from prison, engaged in dating or attempted to date several women under different names and phone numbers. He was later convicted of killing one of the women he had dated, and the trial gained public attention. Subsequently, the accused man filed multiple civil claims seeking protection of his personal rights against various publishers who publicised the trial. He argued that his right to privacy had been violated by the media under Article 8 provisions. However, the ECHR unanimously rejected his application.
Pushing for fair, effective legal proceedings in sexual assault cases
Laying the groundwork for fair legal criminal proceedings is of paramount importance, both for women who are victims of sexual offences and as a central mission of the ECHR. In a decision rendered on January 18, 2024, the ECHR unanimously ruled in Allée v. France that the criminal conviction for public defamation of a French woman who had publicly accused a senior executive director of a non-profit organisation of sexual harassment and sexual assault through multiple emails to current employees and an external member, violated Article 10 of the European Convention on Human Rights safeguarding freedom of expression.
The ECHR held that the French national courts’ decisions placed an excessive burden of proof on the woman, by requiring that she provides proof of the facts she aimed to expose. The court emphasised that the public accusations had only limited effects on the reputation of the alleged attacker and, more significantly, that her criminal conviction, by its nature, would have a dissuasive effect likely to discourage individuals from reporting serious matters such as moral or sexual harassment, or even sexual assault.
Unfair proceedings and erroneous court judgments are unfortunately prevalent issues across Europe. In a distressing case, W. v. Slovenia (2014), a woman who had been raped by a group of seven men saw the men being acquitted by a domestic court of all charges. The court justified its decision by asserting that the plaintiff had “not seriously resisted sexual intercourse” (against a group of at least 7 men), had changed her testimony regarding events surrounding one of the rape charges during the proceedings, and that the men could not be considered to have employed force or threats capable of objectively breaking the victim’s resistance.
The Public Prosecutor fortunately appealed the judgment, and the appellate court overturned the acquittal. However, some defendants had emigrated abroad, and despite the woman urging the court to continue criminal proceedings, hearings were adjourned as many defendants failed to appear before the courts. A decade after the crime, the authorities finally issued an international arrest warrant for defendants located abroad, who were found guilty but due to the passage of time, received sentences below the minimum sentences prescribed by law.
The Slovenian government recognised the delay in prosecuting the defendants and offer a compensation that the ECHR deemed unsatisfactory and held that the Slovenian State failed to proceed with the case in a diligent and timely manner and violated its obligations under Article 3, which prohibits inhuman or degrading treatment or punishment. Reciprocally, no immunity such as a so-called “marital immunity” could be invoked to escape conviction and sentence for sexual assault (see. S. W. v. United Kingdom, 1995.)
However, unfair proceedings are not always the consequences of inadequate courts judgments but often arise from public agents’ misdemeanors. In Kontrová v. Slovakia (2007), a married woman with two children filed a criminal complaint against her husband for domestic violence and psychological abuse but a police officer advised her to return to the police station with her husband to modify the complaint to avoid prosecution. Weeks later, the woman urgently called the police station informing police officers that her husband had shotgun and threatened to kill the children and himself, which he did. Domestic courts found that the police officers had indeed failed to act but did not offer any compensation. The ECHR condemned the State's failure to take action pursuant to the emergency calls placed shortly before the murders stating that Kontrová should have been able to apply for compensation where she had suffered harm as a result of police failures, and that the State violated Article 2 safeguarding the right to life.
In certain instances, criminal proceedings for sexual offenses against women are not only delayed or poorly executed but are also deemed unworthy of consideration. In M. C. v. Bulgaria (2003), the ECHR ruled that the State violated Article 3 and 8 provisions as it failed to penalize and effectively prosecute any non-consensual sexual act, even if the victim did not physically resist. The court underscored that it was a universal trend to recognize that the "lack of consent, not force, was critical in defining rape" and emphasized that both the investigation and its conclusions should have centered on the issue of non-consent.
Similarly, in Rantsev v. Cyprus and Russia (2010), the ECHR emphasizes that Article 4 (Prohibition of forced labour and slavery) imposes an obligation on States to take measures to prevent the trafficking of human beings. This includes protecting potential victims, particularly women exploited for sexual purposes, and prosecuting those responsible.
The ECHR also underscores in other instances that these positive obligations require the State to adopt legal measures even in the sphere of relations between individuals. In the landmark case X and Y v. The Netherlands (1985), a mentally handicapped girl was raped but had no legal capacity to appeal against the prosecution’s decision not to press charges. The ECHR ruled that the local legislation suffered from a deficiency regarding the disabled victim, revealing a failure to provide adequate protection.
Finally, the ECHR highlighted that due process of law during criminal proceedings should not violate integrity, unless expressly provided for by law, and require the consent of the interested party (see. Y. F. v. Turkey, 2003, where a violation was held for a gynecological examination not provided for by law, which the arrested woman was not able to refuse.)
All things considered, even though the ECHR is strictly limited to hearing applications from individuals or groups alleging that a contracting state has violated provisions of the European Convention on Human Rights and that some of its judgments have failed to be executed, its rulings have had a decisive influence on issues related to sexual and gender-based violence in various developing jurisdictions. Tuba Inal, a Senior Lecturer at University West in Trollhättan, Sweden, notes that the ECHR has impacted Turkish enacted gender norms (see. “The role of the European Court of Human Rights in changing gender norms in Turkey: the case of women’s maiden names”, Turkish Studies, vol. 21, 2020). This positive influence may have been fortunately facilitated by the relatively high proportion of female judges at the ECHR.
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