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Council of Europe

last updated June 15, 2006

The Council of Europe's human rights legal system is founded on two treaties: the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) and the European Social Charter (Charter). Ratification of the European Convention is now de facto a requirement for membership in the Council of Europe. The European Convention lists fundamental civil and political rights while the Charter outlines economic and social rights.

The Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5) entered into force through the Council of Europe (COE) in 1953.  It lists a number of fundamental civil and political rights. The European Convention applies equally to men and women.  Article 14 of the treaty states, "(t)he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." The European Convention guarantees the right to be free from torture, inhuman or degrading treatment. (Article 3) “States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution.” (M.C. v. Bulgaria).  The treaty also sets forth a woman's right to an effective legal remedy before a national authority if her human rights are violated (Article 13). The European Convention establishes the European Court of Human Rights which is the enforcement mechanism for the European Convention.  

Violence against women, including sexual assault, was the subject of the Third European Ministerial Conference in Rome in 1993: "Strategies for the elimination of violence against women in society: the media and other means." At the conclusion of that conference, the Ministers adopted the Declaration on Policies for Combating Violence Against Women in a Democratic Europe which included a recommendation that the COE draft and implement a plan of action to combat violence against women.

The COE established a Group of Specialists to investigate the issue and produce the Plan of Action. The Group of Specialists' final report, “Equality Between Women and Men: Priorities for the Future” (EG-S-FP (99) 1), describes efforts that have been undertaken in Europe to combat violence against women, discusses the success of these efforts and obstacles to success, evaluates options that are available to enforce anti-discrimination provisions, and makes recommendations for future action.

The Plan of Action to Combat Violence Against Women (EG-S-VL (98)), June 1998, was finalized in 1998. The report describes the Group of Specialists' findings with respect to the nature of violence against women, the scope of the problem, the work that has been undertaken, and current challenges and problems. The report also describes the COE's Plan of Action for Member States. The Plan of Action recommends a number of strategies to combat sexual assault, including legislative, judicial and law enforcement reforms. The Plan also emphasizes the importance of prevention, education, assistance to victims and treatment of perpetrators.

In April 2000, the Parliamentary Assembly of the Council of Europe adopted Recommendation 1450 on violence against women in Europe. In this Recommendation, the Parliamentary Assembly called on the Committee of Ministers to create a European program to combat violence against women, with the aim of, among other things, " establishing legal recognition of marital rape and making it a criminal offence; ensuring greater protection for women, for example by means of orders restraining violent husbands from entering the marital home and measures to properly enforce penalties and sentences; [and] ensuring greater flexibility as regards both access to justice and the availability of various procedures, with provision for ex officio action by the authorities, in camera hearings and court benches made up equally of female and male judges."  In its Reply to the Parliamentary Assembly's Recommendation 1450, the Committee of Ministers stated that it "cannot but join the Assembly in condemning all forms of violence against women."

Recommendation No R (2002) 5, The Protection of Women Against Violence, was adopted by the Committee of Ministers on 30 April 2002. In that resolution, the Committee "[r]eaffirm[ed] that violence towards women is the result of an imbalance of power between men and women and is leading to serious discrimination against the female sex within society and within the family" and "[a]ffirm[ed] that violence against women both violates and impairs or nullifies the enjoyment of their human rights and fundamental freedoms." The Recommendation called on Member States to:

  • Review their legislation and policies with a view to [ensuring the fulfillment of women's rights];
  • Recognise that states have an obligation to exercise due diligence to prevent, investigate and punish acts of violence, whether those acts are perpetrated by the state or private persons, and provide protection to victims;
  • Recognise that male violence against women is a major structural and societal problem, based on the unequal power relations between women and men and therefore encourage the active participation of men in actions aiming at combating violence against women;
  • Encourage all relevant institutions dealing with violence against women (police, medical and social professions) to draw up medium- and long-term co-ordinated action plans, which provide activities for the prevention of violence and the protection of victims;
  • Promote research, data collection and networking at national and international level;
  • Promote the establishment of higher education programmes and research centres including at university level, dealing with equality issues, in particular with violence against women;
  • Improve interactions between the scientific community, the NGOs in the field, political decision-makers and legislative, health, educational, social and police bodies in order to design co-ordinated actions against violence;
  • Adopt and implement the measures described in the appendix to this recommendation in the manner they consider the most appropriate in the light of national circumstances and preferences, and, for this purpose, consider establishing a national plan of action for combating violence against women . . . .

In an Appendix, the Recommendation listed a number of specific steps that could be taken by Member States to combat violence against women.

The Council of Europe's (COE) report “Gender Equality: a core issue in changing societies” (MEG-5 (2003) 3), a document developed at the Fifth European Ministerial Conference on Equality between Women and Men held in Skopje on 22-23 January 2003, sets forth the Committee of Ministers' recommendations to the Steering Committee for Equality between Women and Men on violence against women. The third objective outlined in the document is preventing and combating violence against women. Towards this goal, the Council recommended that the Committee develop COE norms and standards on violence and continue to develop activities to combat violence against women.

In 2006, the Council of Europe released a report titled: Combating Violence against Women: Stocktaking study on the measures and actions taken in Council of Europe member States. The report addressed the extent of the problme of violence against women, the legal and safety measures in place to protect victims, the measures taken to deter and punish perpetrators, State progress and recommendations. The focus of the report is on "domestic violence, harassment, sexual assault and rape, and on the protection of women and their children." The report found "an alarming deficit in appropriate services for victims of rape in most European countries." However, the report also found a trend toward more statutory language that encompassed a broader understanding of sexual violence and also that "considerable progress has been made in Europe from the traditional view that condoned any kind of sexual use or abuse of a wife by her husband as his “conjugal right.”  Twelve European countries no longer have legislation that excludes marital rape from criminal prosecution.

Akkoc v. Turkey Judgment of 2000

Aydin v. Turkey Judgment of 25 September 1997
On September 25, 1997, the European Court of Human Rights issued a judgment in the case of Aydin v. Turkey holding the government of Turkey in violation of Articles 3 and 13 of the Europeann Convention for the Protection of Human Rights and Fundamental Freedoms. The case arose from the rape and ill-treatment of the applicant while she was being detained for questioning, and the subsequent failure of the Turkish prosecutors to sufficiently investigate the applicant's allegations, thus effectively denying her the opportunity to obtain reparations before the Turkish civil or administrative courts.

Interpreting Articles 3 and 13 of the European Human Rights Convention

The Court reiiterated its belief that Article 3 "enshrines one of the fundamental values of democaratic societies and as such it prohibits in absolute terms torture or inhuman or degrading treatment or punishment." The Court noted that there exists no exception to this fundamental rule "even having regard to the imperatives of a public emergency threatening the life of the nation or to any suspicion, however well-founded, that a person may be involved in terrorist or other criminal activities." In regard to Article 13 of the Convention, the Court recalled that the Article "guarantees the availability at the national level of a remedy to enforce te substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order." The effect of the Article is to "require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief," while allowing the State some discretion as to how it conforms to its obligations. However, the Court has concluded that Artcle 13 imposes an obligation on States to execute "a thorough and effective investigation of incidents of torture" because of the "fundamental importance of the prohibition of torture and the especially vulnerable position of torture victims."

Court Findings:

Applying the obligations of Articles 3 and 13 of the Convention, the Court found that the evidence proved beyong a reasonable doubt that the applicant was raped and ill-treated while in custody by an official of the State in violation of Article 3. By failing to carry out a thorough and complete inquiry into applicant's allegations, the State was also in violation of Article 13 of the Convention. The Court found that the State authorities failed to take "meaningful measures" in order to establish the truthfulness of applicant's allegations. No corroborating evidence was sought, and the medical reports were not focused on whether the applicant was raped. The Court concluded that "a thorough and effective investigation into an allegation of rape in custody implies also that the victim be examined by competent, independant medical professionals," and that requirement was not met in this case. The Court held that Turkey was to pay the applicant damages in the amount of 25,000 pounds within three months of the judgment, as well as to pay the applicant's legal representatives.

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For a copy of the judgment, please see the European Court of Human Rights website. For more information on the European Court of Human Rights, please see the International Law: European Human Rights System Section of this website.

M.C. v. Bulgaria Judgment of 4 December 2003
On December 4, 2003, the European Court of Human Rights issued a judgment in the Case of M.C. v. Bulgaria holding the government of Bulgaria in violation of Articles 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The case arises from the failure of Bulgarian prosecutors to investigate sufficiently rape allegations because there was no direct evidence of significant physical resistance.  M.C., the applicant in this case, alleges that this is reflective of a predominant practice of prosecuting rape perpetrators only in the presence of significant physical resistance in contravention of the European Human Rights Convention, the policy of the Committee of Ministers of the Council of Europe and established principles of international criminal law.

Interpreting Articles 3 and 8 of the European Human Rights Convention:

The Court has interpreted Article3's prohibition of torture to require States to "take measures designed to ensure that individuals within their jurisdication are not subjected to ill-treatment, including ill-treatment administered by private individuals."  The Court has interpreted Article 8's protection of the right to respect for private and family life to require "efficient criminal-law provisions" to deter "grave acts such as rape, where fundamental values and essential aspects of private life are at stake."

Interpreting Articles 3 and 8 together, "[t]he Court considers that States have a positive obligation ... to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution." 

Court Findings:

Applying this obligation to the facts of the case of M.C., and without making a determination on the guilt of the alleged perpetrators, the Court today found "that the effectiveness of the investigation of the applicant's case and, in particular, the approach taken by the investigator and the prosecutors in the case fell short of the requirements inherent in the States' positive obligations--viewed in light of the relevant modern standards in comparative and international law--to establish and apply effectively a criminal-law system punishing all forms of rape and sexual abuse", including in cases where there is no evidence of resistance.  The Court awarded to the applicant damages, costs and expenses in the amount of 12,110 Euros. 

Execution of the Judgment:

The Council of Europe Committee of Ministers will be supervising the execution of the Court's judgment in this case and will soon complete the case with a final resolution detailing steps Bulgaria will take to comply with the judgment.

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For a copy of the judgment, please see the European Court of Human Rights website.  For more information on the European Court of Human Rights, please see the International Law: European Human Rights System Section of this website.

 

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