Failure to protect woman against domestic violence a violation of CEDAW (A.T. v. Hungary)

 

A.T., a Hungarian national, claimed that her former partner, L.F., subjected her to domestic violence over a period of more than four years.  A.T. was issued ten medical certificates during this time connected to separate incidents of severe physical violence, including an incident on 27 July 2001, which resulted in her hospitalization.  Despite reported death threats from her former partner, A.T. was unable to seek refuge in a shelter because none were equipped to take in A.T. and her two children, one of whom was living with severe brain damage.  A.T. was also unable to obtain a protection or restraining order, as no such orders were legally available in Hungary.   

In 1999, A.T. commenced criminal proceedings against L.F. for two reported incidents of battery and assault causing bodily harm.  Following the alleged incident in July 2001, a local hospital also filed criminal proceedings against L.F.  The proceedings languished in domestic courts for more than three years without resolution.  A.T. later initiated two sets of civil proceedings.  The first set of proceedings concerned the division of family property, which were suspended indefinitely.  The second set of proceedings concerned L.F.’s access to the family residence.  In 2003, the Budapest Regional Court granted L.F. access to the family apartment based on its finding that A.T. had failed to substantiate her claim of domestic violence and L.F.’s right to property, which, according to the Court, could not be restricted.  The Supreme Court later dismissed A.T.’s appeal.

In 2003, A.T. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that Hungary had violated articles 2(a), 2(b), 2(e) (state obligations), 5(a) (gender stereotyping), and 16 (marriage and family relations) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  A.T. claimed that L.F. had subjected her to ‘regular severe domestic violence and serious threats’ and that Hungary had ‘passively neglected its “positive” obligations under [CEDAW] and supported the continuation of a situation of domestic violence against her.’  A.T. further claimed that

the irrationally lengthy criminal procedures against L.F., the lack of protection orders or restraining orders under … Hungarian law and the fact that L.F. ha[d] not spent any time in custody constitute[d] violations of her rights under the Convention as well as general recommendation 19….  She maintain[ed] that these criminal procedures can hardly be considered effective and/or immediate protection.

Interim measures

When A.T. submitted her communication, she included a request for interim measures ‘to avoid possible irreparable damage to her person, that is to save her life’. The Committee transmitted the request to Hungary, which responded by stating that it had established contact with A.T., retained a lawyer for her in the civil proceedings, and initiated contact with child welfare services.  Following a further submission from A.T. questioning the adequacy of the measures adopted by Hungary, the Committee made a follow-up request urging Hungary to offer A.T. a safe place to live.  Hungary repeated its earlier response to the Committee.

Hungary’s observations on admissibility

Hungary did not contest the admissibility of the communication.  It did, however, question whether A.T. had made effective use of domestic remedies, but conceded that its remedies were ineffective in providing her with immediate protection against domestic violence.  

CEDAW Committee’s decision on admissibility

The CEDAW Committee determined that the communication was admissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).

Exhaustion of domestic remedies

In finding the communication admissible, the CEDAW Committee waived the requirement in article 4(1) of the Optional Protocol to exhaust domestic remedies.  In so doing, it observed that there was no remedy available to A.T. in Hungary that would have effectively protected her against the ongoing violence perpetrated by L.F.  The Committee also explained that the three-year delay in criminal proceedings was unreasonable, especially considering that A.T. had ‘been at risk of irreparable harm and threats to her life’ because of the absence of temporary protection measures and Hungary’s failure to detain L.F.  In addition, the Committee found that, whilst the criminal proceedings against L.F. were ongoing, their final outcome was unlikely to bring A.T. effective relief with respect to her life-threatening situation of domestic violence.

Effects of alleged violation were ongoing (ratione temporis)

On its own initiative, the Committee considered whether the communication was admissible ratione temporis pursuant to article 4(2)(e) of the Optional Protocol; that is to say, whether the facts of the communication occurred after the entry into force of the Optional Protocol for Hungary or were of a continuous nature.  The Committee observed that, although with one exception, the reported incidents of violence took place prior to the entry into force of the Optional Protocol for Hungary, the facts demonstrated a clear continuum of regular violence that continued to place her life in danger.  That A.T. remained at risk of further violence following the Protocol’s entry into force helped to substantiate her claim regarding the ongoing nature of the violence against her.  

Hungary’s observations on the merits

In its observations on the merits, Hungary acknowledged that there were gaps in its domestic protections against domestic violence, but emphasized its recent efforts to address those gaps, which included passing two Parliamentary resolutions and preparation of a draft law for a new protective remedy for victims/survivors of domestic violence.   

CEDAW Committee’s views

The Committee concluded that Hungary’s failure to protect A.T. effectively against domestic violence violated articles 2(a), 2(b) and 2(e) of CEDAW and article 5(a), read in conjunction with article 16.  It also noted breaches of its General Recommendation No. 19.

Freedom from gender-based violence (2(a), 2(b) and 2(e))

The Committee found Hungary in violation of its positive obligations to protect A.T. against domestic violence.  Recalling its General Recommendation No. 19, it affirmed that gender-based violence against women is a form of sex discrimination that States Parties are required to eliminate.  It also affirmed that States Parties are accountable for the conduct of private actors ‘if they fail to act with due diligence to prevent violations of rights or to investigate and punish…’ violations by such actors, including domestic violence. 

Turning its attention to the facts, the Committee noted that the remedies available in Hungary were incapable of providing A.T. with immediate protection against domestic violence and fell short of international standards.  The Committee acknowledged the recent adoption of measures to address domestic violence but noted that these measures had yet to benefit A.T.  It also condemned the low priority afforded by domestic courts to domestic violence and stressed that ‘[w]omen’s human rights to life and to physical and mental integrity cannot be superseded by other rights, including the right to property and the right to privacy.’  

Freedom from wrongful gender stereotyping (arts. 5(a) and 16)

The Committee condemned widespread gender stereotyping in Hungary that had the effect of positioning women as subordinate to men.  It linked that stereotyping to the violence experienced by A.T. and Hungary’s failure to take effective steps to put an end to it.  Based on its findings, the Committee concluded that Hungary had violated its obligations under article 5(a) of CEDAW, read in conjunction with article 16 on marriage and family relations.

Communication No. 2/2003, UN Doc. CEDAW/C/32/D/2/2003 (26 January 2005)

Decision


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