The New EU Directive on Combating Violence Against Women and Domestic Violence

A new EU Directive on combating violence against women and domestic violence is a landmark development says Dr Ronagh McQuigg.

Violence against women and girls constitutes one of the most prevalent human rights violations globally.  Within the European Union (EU), one in three women have experienced violence, mostly in the form of domestic abuse.  On 14 May 2024, the EU adopted a Directive on combating violence against women and domestic violence.  This is a landmark development, as the Directive constitutes the first piece of EU legislation which specifically addresses these issues.

Nevertheless, given that all of the EU member states are also parties to the Council of Europe, a system of law which since 11 May 2011 has included the Convention on Preventing and Combating Violence Against Women and Domestic Violence (commonly referred to as ‘the Istanbul Convention’), the question may be asked of to what extent the new Directive provides ‘added value’ to efforts to combat these forms of abuse.

 

States Encompassed by the Directive    

Firstly, it must be remembered that, although all EU member states are also parties to the Council of Europe, a small number of these states – Bulgaria, the Czech Republic, Hungary, Lithuania and the Slovak Republic – have not ratified the Istanbul Convention.   However, under Article 49 of the new Directive, all EU member states must bring into force all laws, regulations and administrative provisions necessary to comply with the Directive by 14 June 2027.  Given that there are no binding treaty provisions at the United Nations (UN) level which refer expressly to violence against women, the adoption of the new Directive by the EU means that for the first time the EU member states which have not ratified the Istanbul Convention are now subject to legally binding obligations at an international level which specifically address violence against women and domestic violence.       

 

Groups Protected

It is important to note that in the Directive’s title, ‘domestic violence’ is separated out from ‘violence against women’ more broadly.  Under Article 2(b) of the Directive, ‘domestic violence’ is interpreted in a gender-neutral manner as ‘all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit, irrespective of biological or legal family ties, or between former or current spouses or partners, whether or not the offender shares or has shared a residence with the victim’.

Under Article 2(c), the term ‘victim’ is also defined in a gender-neutral way as ‘any person, regardless of their gender, who has suffered harm directly caused by violence against women or domestic violence, including children who have suffered harm because they have witnessed domestic violence’.  Likewise, Recital 12 of the Preamble to the Directive emphasises that the term ‘victim’ should refer to ‘all persons, regardless of their gender’.  This means therefore that the measures in the Directive which relate to domestic abuse apply to both female and male victims.

This approach differs somewhat from the approach which was adopted by the drafters of the Istanbul Convention.  As with the new Directive, the full title of the Istanbul Convention separates out ‘domestic violence’ from ‘violence against women’ more generally, and likewise this instrument recognises that men may also be victims of domestic abuse.  Indeed the definition of ‘domestic violence’ found in Article 3(b) of the Istanbul Convention is almost identical to that contained in Article 2(b) of the new Directive, and is similarly gender-neutral. Nevertheless, although Article 2(2) of the Istanbul Convention asserts that

‘Parties are encouraged to apply this Convention to all victims of domestic violence’,

this provision also states that,

‘Parties shall pay particular attention to women victims of gender-based violence in implementing the provisions of this Convention.’

However, under the EU Directive there is no such distinction between female and male victims of domestic abuse.  Rather, states are obliged to implement the relevant provisions of the Directive in such a manner as to protect all victims of domestic abuse equally.  As is expressly stated in Recital 12 of the Preamble to the Directive, persons other than women and girls who fall victim to the forms of violence addressed in this instrument should

‘benefit from the same measures for victims provided for in this Directive’.

It seems therefore that the protection offered by the Directive to male victims of domestic abuse is greater than that provided by the Istanbul Convention.

 

Cyber Violence 


Many of the aspects addressed by the Directive are also encompassed by the Istanbul Convention, such as in relation to protection of victims and access to justice; the provision of support to victims; prevention and early intervention; and coordination between agencies involved in addressing violence against women and domestic abuse.  However, very importantly, the Directive places obligations on EU member states to criminalise certain forms of online behaviour which amount to cyber violence, namely the non-consensual sharing of intimate or manipulated material, cyber stalking, cyber harassment and cyber incitement to violence or hatred.

By contrast, the Istanbul Convention contains no express reference to cyber violence.  On 20 October 2021, the Group of Experts on Action against Violence against Women and Domestic Violence (commonly referred to as ‘GREVIO’), which constitutes one of the monitoring bodies of the Istanbul Convention, issued a General Recommendation on the digital dimension of violence against women.  In this document, GREVIO recommended that states parties to the Convention,

‘Consider reviewing any relevant legislation in place and adopt new legislation where needed to prevent, provide protection from and prosecute the digital dimension of violence against women’, and ‘ensure that the legal framework relating to violence against women refers and applies to all forms of violence committed in the digital sphere’.

However, as the General Recommendation is not part of the Istanbul Convention itself, these statements made by GREVIO are simply recommendations based on GREVIO’s view of how the Istanbul Convention should be interpreted and are not legally binding on states.  Also, the General Recommendation does not outline specific criminal offences which should be created.  This is nevertheless unsurprising.  Given that the Istanbul Convention does not refer specifically to cyber violence, it is unlikely that GREVIO could interpret the Convention in such a manner as to place obligations on states parties to create specific offences in this field.  By contrast, under the new Directive, all EU member states are legally obliged to ensure that the above-mentioned forms of cyber violence are criminalised.

The fact that the EU Directive contains extensive consideration of cyber violence whereas the Istanbul Convention, which was adopted only 13 years previously, contains no express mention of this specific concept, demonstrates the extent to which recognition has grown of the ways in which perpetrators of violence against women may use technology in their abuse.  As was stated by GREVIO in its General Recommendation,

‘Information and communication technology (ICT) has enabled the perpetration of violence against women on a scale previously unknown’.

If the Istanbul Convention had been adopted a decade later, it is certain that this instrument would have expressly placed obligations on states parties to criminalise specific forms of cyber violence.  Indeed, the very fact that GREVIO chose the digital dimension of violence against women as the topic for its first General Recommendation demonstrates the importance which is now accorded to this issue.  For example, research carried out by Refuge in 2021 found that one third of women in the UK have experienced online abuse.  The inclusion in the new Directive of obligations on EU member states to criminalise particular types of cyber violence is certainly meritorious and should contribute towards combating this type of abuse.

 

Monitoring Compliance

 It is also worth noting that there are significant differences as regards monitoring of state compliance with an EU Directive and with the Istanbul Convention.  The primary monitoring mechanism under the Istanbul Convention is a procedure whereby states parties must submit reports concerning their compliance with this instrument.  However, should states persistently fail to comply with their obligations under the Convention, there is ultimately little that the monitoring bodies (GREVIO and the Committee of the Parties) can do to force states to comply.  However, if an EU member state fails to implement a Directive properly, the European Commission can launch a formal infringement procedure against the state in question.  If the matter remains unresolved, the Commission may refer the case to the Court of Justice of the EU, and may request the Court to impose financial sanctions.  The fact therefore that there is ultimately a judicial enforcement mechanism in respect of an EU Directive may mean that there is a stronger incentive for states to comply fully with the new Directive than there is for them to comply with their obligations under the Istanbul Convention.

 

A Welcome Development

The new EU Directive is certainly a welcome development as regards addressing violence against women and domestic violence.  The Directive encompasses a number of states which are not parties to the Istanbul Convention, and seems to provide stronger protection for male victims of domestic abuse than that which is provided under the Istanbul Convention.

Also, crucially, the Directive places obligations on EU member states to criminalise particular forms of cyber violence, an issue which is not expressly addressed by the Istanbul Convention.  As was stated by GREVIO in its General Recommendation,

‘Gender-based violence against women perpetrated in the digital sphere has a serious impact on women’s and girls’ lives, including psychological and physical health, their livelihoods, their physical safety and their reputation’.

The obligations contained in the new Directive which specifically address the issue of cyber violence are therefore of immense importance.  In addition, the fact that there is ultimately a judicial enforcement mechanism in respect of the Directive may provide a strong incentive for states to comply fully with the obligation contained therein.  The new EU Directive is clearly a landmark development, and it is to be hoped that it will play a significant role in addressing and combating violence against women and domestic violence.

 

The featured image has been used courtesy of a Creative Commons license.