Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 67
State responsibility, and stated that it was “implicit in article 7
that States Parties have to take positive measures to ensure
that private persons or entities do not inflict torture or cruel,
inhuman or degrading treatment or punishment on others
within their power”. 177
In the case of Yildirim v Austria, 178 in which the applicant was
murdered by her husband after suffering several years of
domestic violence, the CEDAW Committee expanded on the
content of the standard of positive action required by the
State’s duty of due diligence for the actions of non-State
actors. The CEDAW Committee noted that Austria had
“established a comprehensive model to address domestic
violence that includes legislation, criminal and civil-law
remedies, awareness raising, education and training, shelters,
counselling for victims of violence and work with perpetrators”.
These formal measures, while necessary, were nonetheless
found to be insufficient by themselves when the political will
they expressed, was not supported by State actors in
adherence to Austria’s due diligence obligations. 179
The same principles apply to the right not be subjected to
torture and cruel, inhuman and degrading treatment or
punishment. Unlawful violence, including sexual violence,
committed by State agents will generally amount to proscribed
ill-treatment; certain conduct, such as rape, can clearly be
classified as torture. 180 Violence, particularly sexual violence
and rape, committed by private citizens, where the State fails
to exercise due diligence to prevent, investigate, and prosecute
177
Ibid, paragraph 8.
178
Yildirim v Austria, above note 171, paragraph 12.1.2. See also
Goecke v Austria, above note 171, paragraph 12.1.2.
179
Yildirim v Austria, above note 171, paragraph 12.1.2.
180
Aydin v Turkey, above note 120; Raquel Martí de Mejía v Peru,
Inter-American Commission on Human Rights Case 10.970, Report No
5/96 (1 March 1996).