V.K. v. Bulgaria, UN Doc CEDAW/C/49/D/20/2008 (17 August 2011) Summary
The Committee on the Elimination of Discrimination against Women has found that Bulgaria’s failure to protect V.K. effectively against domestic violence amounted to violations of articles 2(c)-2(f) of the Convention on the Elimination of All Forms of Discrimination against Women, read in conjunction with article 1, and article 5(a), read in conjunction with article 16(1) and General Recommendation No 19 on violence.
V.K. claimed that her husband, F.K., subjected her to domestic violence, initially psychological, emotional and economic abuse and later physical violence. Following continued abuse, V.K. filed an application for protective measures and financial maintenance with the Warsaw District Court but the proceedings remained unresolved. During this time, the abuse continued and included an attempt to strangle V.K. F.K. subsequently initiated divorce proceedings against his wife and claimed custody of both their children. Police were called on multiple occasions in response to F.K.’s abusive behaviour. V.K. succeeded in obtaining an order for immediate protection under the Bulgarian Law on Protection against Domestic Violence. However, domestic courts refused to grant V.K. a permanent protection order on the basis that there was no imminent threat to the life or health of V.K. and her children because they had not been subjected to domestic violence in the month prior to applying for the order.
Following unsuccessful attempts to obtain redress at the domestic level, V.K. submitted a communication to the Committee in which she alleged violations of articles 2 (state obligations), 5 (wrongful gender stereotyping) and 16 (equality in marriage and family relations) of CEDAW, read in conjunction with article 1 (definition of discrimination).
Freedom from gender-based violence against women
In its views, the Committee reiterated that gender-based violence is a form of discrimination against women that States Parties to CEDAW are required to address. It further reiterated that States Parties have a due diligence obligation to prevent, investigate, punish and remedy acts of violence committed by private actors.
The Committee noted that Bulgaria had adopted the Law on Protection against Domestic Violence, but had failed to implement it in practice so as to afford V.K. and other women effective protection against domestic violence. In condemning this failure, the Committee explained that “the political will that is expressed in such specific legislation must be supported by all State actors, including the courts, who are bound by the obligations of the State party.”
The Bulgarian courts’ refusal to issue a permanent protection order against V.K.’s husband was central to the Committee’s finding that the State Party had violated article 2 of CEDAW. According to the Committee, the refusal was based on the assumption that there was no imminent threat to the life or health of V.K. and her children because they had not been subjected to domestic violence in the month prior to applying for the order. The Committee noted, however, that CEDAW “does not require a direct and immediate threat to the life or health of the victim. Such violence is not limited to acts that inflict physical harm, but also covers acts that inflict mental or sexual harm or suffering, threats of any such acts, coercion and other deprivations of liberty.” The Committee noted further that, while applications under the Law on Protection against Domestic Violence for an immediate protection order require “a direct, immediate or impending threat to the life or health of the aggrieved person”, no such threat is required to issue a permanent protection order. According to the Committee, Bulgaria’s courts had “applied an overly restrictive definition of domestic violence that was not warranted by the Law and was inconsistent with the obligations of the State party under article 2 (c) and 2 (d) [of] the Convention….” The Committee explained that
both courts focused exclusively on the issue of direct and immediate threat to the life or health of the author and on her physical integrity while neglecting her emotional and psychological suffering. Moreover, both courts unnecessarily deprived themselves of an opportunity to take cognizance of the past history of domestic violence….The courts also applied a very high standard of proof by requiring that the act of domestic violence must be proven beyond reasonable doubt, thereby placing the burden of proof entirely on the author, and concluded that no specific act of domestic violence had been made out on the basis of the collected evidence. The Committee observes that such a standard of proof is excessively high and not in line with the Convention, nor with current anti-discrimination standards which ease the burden of proof of the victim in civil proceedings relating to domestic violence complaints.
The Committee also concluded that the unavailability of domestic violence shelters in Bulgaria amount to a violation of articles 2(c) and 2(e) of CEDAW.
Freedom from wrongful gender stereotyping
In its views, the Committee reiterated the links between wrongful gender stereotyping and the freedom from gender-based violence against women as well as the right to a fair trial. Affirming its findings in Karen Tayag Vertido v The Philippines, the Committee noted that States Parties can be held accountable under CEDAW for judicial decisions that are based on gender stereotypes, rather than law and fact. “Stereotyping,” the Committee said, “affects women’s right to a fair trial and the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence.”
Considering the facts, the Committee found that the refusal to grant a permanent protection order was based on gender stereotypes related to domestic violence. It found further that the divorce proceedings had been influenced by gender stereotypes related to the roles and behaviour expected of men and women within marriage and family relations. According to the Committee, reliance on these gender stereotypes amounted to discrimination and also resulted in the re-victimization of V.K, in violation of articles 2(d) and 2(f) of CEDAW as well as article 5(a), read in conjunction with article 16(1) and the Committee’s General Recommendation No 19 on violence against women.
Relevance to the Victorian Charter
In Australia, one in three women over the age of 15 years has experienced gender-based violence in their lifetime. Over 40 per cent of these women, around 1.2 million women, have experienced that violence at the hands of a current or former partner. Whilst domestic violence cannot be eliminated through law alone, it is an essential component of any response to this human rights violation.
The Victorian Charter provides a key tool in the struggle against gender-based violence, even though it does not include express protections against this human rights abuse. Several of its rights are relevant to domestic violence, including rights to non-discrimination and equality (s 8), the right to life (s 9), and the freedom from torture and cruel, inhuman or degrading treatment (s10). It is important that these rights are interpreted in a way that provides women with meaningful protection against gender-based violence.
The decision is available at: http://www2.ohchr.org/english/law/docs/CEDAW-C-49-D-20-2008.pdf
Simone Cusack is Senior Policy & Research Officer in the Australian Human Rights Commission’s Sex and Age Discrimination Unit