Failure to protect woman against domestic violence a violation of CEDAW (V.K. v. Bulgaria)
V.K., a Bulgarian national, claimed that her husband, F.K., subjected her to varied forms of domestic violence. In 2006, V.K. moved to Poland with her husband and their children. In 2007, following continued abuse, V.K. filed an application for protective measures and financial maintenance with the Warsaw District Court, but the proceedings went unresolved. F.K. reportedly continued to abuse V.K., which included attempting to strangle her.
In June 2007, F.K. initiated divorce proceedings against V.K. and claimed custody of their children. Again, the abuse continued. Police were called on multiple occasions in response to F.K.’s abusive behaviour and local hospitals issued several medical certificates to V.K. V.K. subsequently sought refuge for herself and the children in a shelter and legal assistance from a local women’s rights centre. F.K. later denied V.K. access to her son for a two-month period and abused the centre’s staff on several occasions in an attempt to determine the location of his daughter. V.K. eventually succeeded in finding her son and, shortly thereafter, returned to Bulgaria to seek protection against further abuse.
V.K. was unable to seek immediate refuge because the only shelter in southern Bulgaria was overcrowded. She succeeded in obtaining an immediate protection order under the Bulgarian Law on Protection against Domestic Violence. However, domestic courts refused to grant her a permanent order because, in their view, there was no imminent threat to her life or health or that of her children, since she had not been subjected to domestic violence in the month prior to applying for the order.
In October 2008, V.K. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed that Bulgaria’s failure to provide her effective protection against domestic violence constituted violations of articles 1 (definition of discrimination), 2(a)-2(c) and 2(e)-2(g) (state obligations), 5 (wrongful gender stereotyping) and 16 (equality in marriage and family relations) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with General Recommendation No. 19 (violence against women). V.K. alleged that, despite the adoption of the Law on Protection against Domestic Violence, Bulgarian courts ‘continue to neglect their obligation to punish perpetrators of domestic violence’ and that ‘lack and inadequacy of legal training are among the reasons for the failure of the judicial system … to provide her with effective protection against domestic violence.’ Among other things, V.K. also claimed that Bulgaria had failed to adopt a comprehensive approach to addressing gender stereotyping, and ensure that victims/survivors have access to immediate protection against violence, including refuges.
On 12 February 2009, the CEDAW Committee requested Bulgaria to take interim measures to avoid irreparable damage to V.K. and her children while the communication was under consideration. It further requested Bulgaria to ensure the protection and physical integrity of V.K. and her children.
Bulgaria’s observations on admissibility
Bulgaria contested the admissibility of the communication on several grounds.
Bulgaria claimed that V.K. had failed to sufficiently substantiate the allegations in her communication, as required by article 4(2)(c) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol). According to the State Party, V.K. had made ‘sweeping allegations of a general nature without direct relevance to her case.’
Bulgaria further claimed that most of the alleged incidents took place in Warsaw, Poland, which was outside of its jurisdiction.
CEDAW Committee’s decision on admissibility
The CEDAW Committee declared the communication admissible, after finding that V.K. had ‘provided sufficient elements to substantiate her claims for purposes of admissibility.’
Bulgaria’s observations on the merits
In its observations on the merits, Bulgaria claimed that it had taken appropriate measures to provide adequate protection against domestic violence, including by adopting its Law on Protection against Domestic Violence. It further claimed that V.K. had failed to provide sufficient evidence to substantiate a permanent protection order.
CEDAW Committee’s views
The Committee concluded that Bulgaria had failed to protect V.K. effectively against domestic violence, in violation of articles 2(c)-2(f) of CEDAW, read in conjunction with article 1, and article 5(a), read in conjunction with article 16(1) and General Recommendation No. 19.
Freedom from gender-based violence against women
In its views, the CEDAW Committee reiterated that gender-based violence against women is a form of discrimination that States Parties are required to eliminate. It further reiterated that States Parties have a due diligence obligation to prevent, investigate, punish and remedy acts of violence committed by private actors.
Turning to the facts, the Committee noted that Bulgaria’s adoption of the Law on Protection against Domestic Violence was a necessary measure to provide protection against domestic violence. However, it explained that, in order for V.K. to enjoy gender equality in practice, ‘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 Committee concluded that the failure of Bulgarian courts to issue V.K. a permanent protection order and the unavailability of shelters in southern Bulgarian had meant that V.K. was denied equality in practice.
The refusal of the courts to issue a permanent protection order was central to the Committee’s finding that Bulgaria had violated article 2 of CEDAW. In its view, 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.
It noted further that, while applications 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.
The Committee determined that 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….’ It explained:
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.
In addition, the Committee 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 CEDAW 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 are 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 also found that the divorce proceedings had been influenced by gender stereotypes related to the roles and behaviours 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.
Communication No. CEDAW/C/49/D/20/2008 (17 August 2011)