Johanna Westeson - The ICHRP

More documents

Recommendations

Info

charge (Art 14). The court issues the protection order if there is “sufficient basis to believe that the respondent may commit an act of family violence” and if the order is necessary to protect the security, health and well being of the victim (Art 17). A carefully designed judicial procedure is set up to guarantee due process in the issuance and administration of the orders, including the right to appeal. In conclusion, Albania has set up a law that both recognizes the complexity of the phenomenon of intimate partner violence and establishes a model by which the state can effectively respond to the problem, while maintaining due process guarantees for the alleged perpetrator. In the United Kingdom, legislation and policy address the problem of domestic and intimate partner violence with a focus on victim’s rights, employing a wide definition of who a victim may be and specifically including same-sex partners in this definition. Focus has been placed on different kinds of judicial orders that can be issued by courts in order to restrict the agency of the perpetrator and expand the agency of the victim or potential victim. Domestic and intimate partner violence is addressed by several pieces of criminal and civil legislation, including the Offences Against the Persons Act 1861, the Family Law Act 1996 and the Protection from Harassment Act 1997. In 2004, these laws were complemented by the Domestic Violence, Crime and Victims Act 2004. The relevant legislation does not contain a definition of domestic violence. According to the United Kingdom Home Office, however, domestic violence should be understood as any threatening behaviour, violence or abuse between adults who are or have been in a relationship, or between family members. It can affect anybody, regardless of their gender or sexuality. The violence can be psychological, physical, sexual or emotional. It can include honour based violence, female genital mutilation, and forced marriage. 500 The 2004 Act reinforces the rights of victims and witnesses of domestic violence. It amends existing legislation to make the breach of a non-molestation order a criminal offense (Section 1), 501 and to make same-sex and non-cohabiting partners eligible for nonmolestation and occupation orders (Section 3 and 4). 502 A non-molestation order prohibits “a person (the respondent) from molesting another person who is associated with the respondent,” 503 the application for which can be made by the “associated person” (that is, the victim or potential victim of violence or harassment) to the court. In determining whether to issue a non-molestation order, the court must regard all relevant circumstances, including the need to secure the health, safety and well being of the applicant or any relevant child. 504 An occupation order can enforce the applicant’s right to remain in the common dwelling against the respondent, in practice preventing a violent partner from staying in the shared home. 505 Furthermore, the 2004 Act makes it possible to impose restraining orders (preventing the recipient from doing anything specified by the order) on 500 According to UK Home Office, at http://www.homeoffice.gov.uk/crime-victims/reducing-crime/domesticviolence/. Last visited on 6 May 2010. 501 Amending Part 4 of the Family Law Act 1996 (c. 27). 502 Amending Part 4 of the Family Law Act 1996 (c. 27). 503 Section 42(1)(a), Family Law Act 1996 (c. 27). 504 Section 42(5), Family Law Act 1996 (c. 27). 505 Sections 33-41, Family Law Act 1996 (c. 27). 170
a person who has been acquitted of an offense, if the court considers it necessary to do so to protect a person from harassment by the defendant (Section 12(5)). 506 Cases of domestic violence are brought by the Crown Prosecution Service to Specialist Domestic Violence Courts, which represent a coordinated approach to the problem of domestic violence and in which the police, prosecutors, court staff, the Probation Service and specialist support services for victims are all involved. The specialized courts are not regulated by law: they were initiated by the Home Office and operate in accordance with a Resource Manual. 507 While there is no single model for how they should be run, they aim to place the victim at the center of all services and to handle domestic abuse cases fast and effectively by efficient coordination between the different agencies. All personnel have received special training on domestic abuse. 508 Austria provides another example of domestic violence legislation that collects provisions from different regulations in one comprehensive act, seeking to provide victims or potential victims of domestic violence with effective protection. It offers an elaborate scheme of protective measures that are available to a wide group of persons, and emphasizes coordination between different state agencies in order to render the protection effective. The first Austrian Protection from Violence Act 509 came into force in 1997. It has been amended several times. The last amendment in June 2009 resulted in the adoption of the Second Protection from Violence Act, 510 further strengthening the protection awarded to victims as well as regulating sexual crimes against minors. Both the first and second Acts are still in force. The Acts bring together provisions on, inter alia, eviction and barring orders (regulated by the Security Police Act), longer term protection by means of a protection order or temporary injunction (regulated by the Enforcement Code), intervention centers that offer free counselling services and support to victims, and various criminal law provisions. The Security Police Act protects any victim of intimate partner violence who lives in the same residence as the perpetrator. This includes spouses, partners, children and other relatives, as well as other lodgers. Since 2003, Austria grants unregistered cohabitating 506 Amending Section 5 of the Protection from Harassment Act 1997 (c. 40). 507 Specialist Domestic Violence Court Programme. Resource Manual. 2 nd edition, March 2008. Available at http://www.crimereduction.homeoffice.gov.uk/domesticviolence/domesticviolence059a.pdf. Visited on 6 February 2010. 508 Ibid. See also National Policing Improvement Agency, Guidance on Investigating Domestic Abuse, 2008, pp. 103-109. Available at http://www.acpo.police.uk/asp/policies/Data/Domestic_Abuse_2008.pdf. Visited on 6 February 2010. 509 GeSchG (NR: GP XX RV 252 AB 407 S. 47. BR: 5300 AB 5311 S. 619.), 30 December 1996 510 2. GeSchG (NR: GP XXIV IA 271/A AB 106 S. 16. BR: 8072 AB 8085 S. 768.) 8 April 2009. Neither law exists in English translation. However, there is reliable information about the first version of the law with references to relevant provisions in the Austrian Government leaflet, available at http://www.stopvaw.org/sites/3f6d15f4-c12d-4515-8544- 26b7a3a5a41e/uploads/Austrian_DV_Law_Leaflet.pdf, in Birgitt Haller et al, “The Austrian Protection against Domestic Violence Act 1996”, from Crime Policy in Europe, Council of Europe, 2004, and in Council of Europe, Legislation in the Member States of the Council of Europe in the Field of Violence Against Women, EG (2004)2, pp. 17-18, and in Birgitt Haller, ”The Austrian Legislation Against Domestic Violence”, report written in June 2005 for Coordination Action Against Human Rights Violations, p. 3. Available at http://www.ikf.ac.at/english/austrian_legislation_against_domestic_violence.pdf, last visited on 13 May 2010. Information about relevant changes by the second version of the law provided in email correspondence from Dr. Birgitt Haller, Institute of Conflict Research, Vienna, on 8 February 2010. 171
Page 1 and 2:
SEXUAL HEALTH AND HUMAN RIGHTS: EUR
Page 3 and 4:
ACKNOWLEDGMENTS This report was wri
Page 5 and 6:
In choosing these eight topics, and
Page 7 and 8:
amputation, or arbitrary imprisonme
Page 9 and 10:
headquarters situated in Strasbourg
Page 11 and 12:
unfounded applications: the applica
Page 13 and 14:
margin. 18 This standard has been k
Page 15 and 16:
financial, and democratic supervisi
Page 17 and 18:
EU and the Euro as its currency. Th
Page 19 and 20:
3. Domestic legal systems As mentio
Page 21 and 22:
METHODOLOGY The WHO project on sexu
Page 23 and 24:
Because this report, and the projec
Page 25 and 26:
grounds for discrimination. Gender
Page 27 and 28:
assume large parts of her household
Page 29 and 30:
In Lustig-Prean and Beckett v. the
Page 31 and 32:
asis of family responsibilities (Ar
Page 33 and 34:
promote social justice and protecti
Page 35 and 36:
ground that the scheme did not cove
Page 37 and 38:
ut also to discrimination arising f
Page 39 and 40:
Many constitutions call for equalit
Page 41 and 42:
The three criminal provisions inclu
Page 43 and 44:
eassignment is defined broadly, ref
Page 45 and 46:
iv.4. Gender identity discriminatio
Page 47 and 48:
harassed workers out of their emplo
Page 49 and 50:
epealed accordingly, but the conten
Page 51 and 52:
and reactive) steps to protect the
Page 53 and 54:
features of sexual harassment have
Page 55 and 56:
harassment to make a claim against
Page 57 and 58:
4. Regional non-binding material Th
Page 59 and 60:
he or she he has “no disease caus
Page 61 and 62:
In other European countries, calls
Page 63 and 64:
Article 10 addresses reasons for pe
Page 65 and 66:
her country of origin and cannot re
Page 67 and 68:
compromised medical privacy or doub
Page 69 and 70:
whether or not the participants wer
Page 71 and 72:
uns contrary to EU non-discriminato
Page 73 and 74:
provision criminalizing sexual rela
Page 75 and 76:
2B. CRIMINALIZATION OF HIV TRANSMIS
Page 77 and 78:
Swedish courts had determined that
Page 79 and 80:
infected the women. In the lower co
Page 81 and 82:
Several prosecutions of cases of HI
Page 83 and 84:
unprotected sex), and can prohibit
Page 85 and 86:
The case, when reaching the Court,
Page 87 and 88:
material on the internet blurring,
Page 89 and 90:
a balancing act on behalf of the le
Page 91 and 92:
4. Domestic legislation, case law,
Page 93 and 94:
5. Concluding remarks Given the sca
Page 95 and 96:
2. Council of Europe Jurisprudence
Page 97 and 98:
leaves room for forced examinations
Page 99 and 100:
3A. SAME-SEX MARRIAGE, PARTNERSHIP,
Page 101 and 102:
The Court made clear that there is
Page 103 and 104:
extend the scope of this Convention
Page 105 and 106:
violating the principle of non-disc
Page 107 and 108:
held that the law was introducing a
Page 109 and 110:
In France, registered partnership i
Page 111 and 112:
eform. Thus, allowing for same-sex
Page 113 and 114:
woman have the right to marry accor
Page 115 and 116:
The law makes clear that the two pa
Page 117 and 118:
opposite sex. While the Hungarian,
Page 119 and 120: In the European region, divorce is
Page 121 and 122: 5. Concluding remarks In Johnson, t
Page 123 and 124: concern that such legislation could
Page 125 and 126: exceptions: countries that have cho
Page 127 and 128: 3E. POLYGAMY/POLYGYNY 1. Introducti
Page 129 and 130: 4. Domestic legislation In France,
Page 131 and 132: In relation to the above, it is rel
Page 133 and 134: In the European region, there are f
Page 135 and 136: United Kingdom, 414 the Court consi
Page 137 and 138: (2) Whoever completes an act of sex
Page 139 and 140: characteristics are important featu
Page 141 and 142: discrimination, whereas laws agains
Page 143 and 144: 2. Council of Europe Jurisprudence
Page 145 and 146: It is possible but not certain that
Page 147 and 148: When an application has been grante
Page 149 and 150: Case law: partnership rights for pr
Page 151 and 152: investigation and the provision of
Page 153 and 154: In a couple of decisions, the Europ
Page 155 and 156: very practical aspect of gender ide
Page 157 and 158: Case law: the right to respect for
Page 159 and 160: pathologizing the issue of transsex
Page 161 and 162: gender. Specific legal issues invol
Page 163 and 164: concerning their young child. Howev
Page 165 and 166: world, with work, health services,
Page 167 and 168: on repeated occasions from her husb
Page 169: Similarly, the European Commission
Page 173 and 174: [w]hoever, on repeated occasions or
Page 175 and 176: International human rights standard
Page 177 and 178: In M.C. v. Bulgaria, 523 the applic
Page 179 and 180: With regard to the failure to effec
Page 181 and 182: Italy offers another example in the
Page 183 and 184: In Russia, the Supreme Court has pr
Page 185 and 186: testimony of the victim in rape tri
Page 187 and 188: number and passport details within
Page 189 and 190: condemnation of immunity for marita
Page 191 and 192: some regions have exempted from pen
Page 193 and 194: The 2007 Council of Europe Conventi
Page 195 and 196: European Social Charter and the Eur
Page 197 and 198: takes place, or whether the prosecu
Page 199 and 200: either to persons who were in fact
Page 201 and 202: permanently changes them will be se
Page 203 and 204: 6. Concluding remarks European laws
Page 205 and 206: event of police abuse, on the other
Page 207 and 208: Greece illustrates this trend. In 2
Page 209 and 210: (a) must treat the fact that the of
Page 211 and 212: 5E. HONOR CRIMES 1. Introduction Pr
Page 213 and 214: making provision for penalties to b
Page 215 and 216: that a decision of the family assem
Page 217 and 218: (Article 62.2). Mitigation of the s
Page 219 and 220: persons, regardless of what kind of
Page 221 and 222:
purpose of exploitation) (Art. 4a).
Page 223 and 224:
victims will be granted “standard
Page 225 and 226:
e guilty of an offence, if the traf
Page 227 and 228:
expanded. For example, a victim can
Page 229 and 230:
last decade, on regional as well as
Page 231 and 232:
sexual health services interacts wi
Page 233 and 234:
provide abortion services at a mini
Page 235 and 236:
Convention. These procedures, the C
Page 237 and 238:
5. Domestic legislation and case la
Page 239 and 240:
pregnant woman is disabled or dies
Page 241 and 242:
document the patient’s opportunit
Page 243 and 244:
Generally, it has been difficult to
Page 245 and 246:
2. to provide advisory and educatio
Page 247 and 248:
not anonymous) treatment even thoug
Page 249 and 250:
5. Concluding remarks It is difficu
Page 251 and 252:
information about contraceptive met
Page 253 and 254:
sex with women) is to provide insuf
Page 255 and 256:
a democratic society, the Court rei
Page 257 and 258:
3. European Union The issues of sex
Page 259 and 260:
eduction of sexual risks, the fight
Page 261 and 262:
5. Concluding remarks The European
Page 263 and 264:
conveyed via texts, images, and spe
Page 265 and 266:
images can be easily known from the
Page 267 and 268:
considered necessary in a democrati
Page 269 and 270:
3. European Union The Council of th
Page 271 and 272:
In 2008, the Criminal Justice and I
Page 273 and 274:
By contrast, in Baczkowski, the Cou
Page 275 and 276:
however, the dominance of criminali
Page 277 and 278:
Other legal regimes are more rights
Page 279 and 280:
The Assembly recommends Council of
Page 281 and 282:
Netherlands, when they had not prev
Page 283 and 284:
number. 896 As of late October 2009
Page 285 and 286:
offence only if it includes exploit
Page 287 and 288:
Zoning laws are determined by local
Page 289 and 290:
sexual intercourse, but other forms
Page 291 and 292:
sex workers (like other adults) hav
Page 293 and 294:
DOMESTIC Albania - Law no. 9669 of
Page 295 and 296:
Portugal - Law No 6/2001 of 11 May
Page 297 and 298:
APPENDIX II: TABLE OF CASES Within
Page 299 and 300:
- Gabrielle Defrenne v Société An
Page 302 and 303:
APPENDIX IV: SELECT BIBLIOGRAPHY Ha
Page 304:
STI AIDS Netherlands, “A Delicate
show all

Johanna Westeson - The ICHRP

Create successful ePaper yourself

Delete template?

Save as template?