Domestic Violence & Human rights

Any act of domestic violence may result in a violation of human rights. Among those rights are the right to life, the prohibition of inhumane or degrading treatment, the right to private and family life, and others.

There are a number of human rights which may be violated as a result of domestic violence. 

Right to life

Everyone has the right to life and the State has an obligation to actively protect it. Where state authorities know, or ought to know, that someone’s life is at real and immediate risk, they should take all necessary and reasonable actions to avoid that risk, which includes both first response and structural assistance. It also has an obligation to investigate any case of unnatural death and take the necessary responsible measures. If a person’s life has been at risk as a result of domestic violence, but the pertinent authorities such as the police or the courts have failed to take the appropriate actions, these situations may result in a violation of the right to life.

Prohibition of inhumane or degrading treatment

Everyone has the right to humane and dignified treatment. This means that the State must actively take immediate and structured protective measures against inhumane or degrading treatment and investigate any cases where such treatment has been meted out by private individuals. Both the lack of active protection and the lack of investigation may result in a human rights violation. Acts of domestic violence may be considered to be inhumane or degrading in cases such as physical ill-treatment, sexual abuse, kidnapping, stalking and threats of assault. 

However, in order for treatment to be deemed inhumane or degrading, the suffering must have reached at least a minimum level of severity. When assessing whether such severity has been reached, such things as the duration of the situation, the physical and psychological effects, the victim's age, gender and condition of health would be taken into account. These criteria are often evaluated together.

Right to private and family life

Everyone has the right to respect for private and family life. The State has a positive obligation to take the necessary protective measures for individuals to be able to enjoy their private and family life. Acts of domestic violence can seriously prevent families from peacefully enjoying their family life and cause them continuing distress and anxiety. If the pertinent state authorities fail to take the necessary protective measures, this may result in a violation of the right to private and family life.

Right to fair trial

Situations of domestic violence may also lead to criminal proceedings. For example, when the perpetrator is called to responsibility by the justice system. If the victims of domestic violence have been recognized as victims in criminal proceedings, they have a number of rights pertinent to a fair trial. For example, under certain circumstances, they have the right to free legal aid. If the failure of the State to ensure fair trial guarantees towards victims has resulted in an unfair process for the victims, it may lead to a violation of the right to a fair trial. 

Similarly, situations of domestic violence may involve civil dispute settlement. In addition, the fair trial rights of the party who has been the victim of domestic violence must be ensured in civil proceedings.

Prohibition of discrimination

Domestic violence is considered to be a form of discrimination against women, as it affects mainly women. Violence against women is any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including the threat of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life. It has been acknowledged that violence against women seriously hampers women from using their rights and freedom on equal terms with men. Widespread prejudices and practices in society use gender-based violence as a form of protection or control of women.

The failure of the State to properly react to domestic violence cases, including the lack of a legal framework regarding domestic violence or the failure to utilize the existing law to adequately react to domestic violence crimes, which fosters a climate conducive for it, to provide protection for victims and/or deny their right to proper compensation, may result in a violation of the prohibition of discrimination in conjunction with the violation of the right to life, the prohibition of inhumane or degrading treatment, and the right to private and family life.

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