European Union and violence against women: has the time come for a comprehensive legal instrument? by Valentina Bonini*

The most relevant legal document adopted so far in the European context to prevent and counteract violence against women and domestic violence is unquestionably the Istanbul Convention, which, in guiding the policies of the states that ratified it, has assigned a pivotal role to the Council of Europe and its institutions: on the one hand, the GREVIO’s monitoring activity suggests the direction of national policies toward more efficient prevention and punishment of violence, as well as protection of the victims (see GREVIO’s activities); on the other hand, the ECtHR’s case law on the topic is moving toward an interpretation of the ECHR provisions in the light of the set of rules and principles enhanced by the Istanbul Convention (see a selection of the leading cases).

Conversely, in the last years the action of the EU, albeit lively for political initiatives regarding the contrast to violence against women (the Gender Action Plan III, adopted in November 2020, makes the fight against gendered violence one of the priorities of the EU’s action), has been very fragmented on a legislative level. Besides some pieces of EU legislation related to violence against women, the problem does not find a comprehensive legal response yet, making the contrast less strong and effective and creating uncertainty about the rights of victims across the EU. Due to the vacillation whether to sign the Istanbul Convention –thus making it binding for all the member states– or to adopt an autonomous document, the EU action has so far remained stuck in fragmented initiatives.

The alternative is getting more likely to be resolved toward the adoption of a European Directive. Indeed, on 8th March 2022, the European Commission has released a proposal for a Directive on combating violence against women and domestic violence.

The proposal, which is going to be discussed within the EU Parliament and the EU Council, is in tune with the Istanbul Convention, largely referring to its structure, basic choices, and regulatory indications, but it adds some specific provisions, for instance, in the field of cyber violence. Hence, an echo of the “four pillars” structure can be found in the Chapters composing the proposal: Chapter 2 requires effective, proportionate, and dissuasive criminal penalties for the gendered offences there recalled (Punishment); Chapter 3 ensures the procedural rights of victims in access to justice (Prosecuting) and provides protection tools both from secondary victimization and repeated offences (Protection); Chapter 5 recognizes the socio-cultural dimension of violence against women, by asking for appropriate action to prevent it through awareness-raising campaigns, education programs and specific training of the professionals working in the field (Prevention); lastly, Chapter 6, while dealing with coordinated policies and cooperation between states and bodies, provides a wide outlook on the integrated Policies required by the Istanbul Convention as well, to give strength and efficiency to the actions of preventing and combating violence against women.

However, it cannot be said the EU Commission’s proposal to be without innovation items: specific provisions are reserved to cyber violence and a broad space is given in Chapter 4 to victim support, requiring a specialized service in the frame of the Directive 2012/29/EU.

The aim pursued by the proposed directive is the implementation of EU-wide rules setting a minimum level of measures to effectively combat violence against women and domestic violence, in order to ensure a high level of security in the area of freedom, security, and justice as laid down in Title Vi of TFEU and to overcome the multitude of national approaches to the problem.

The key areas of the proposal are: 1) harmonization of the criminal response on the EU-level; 2) ensuring victims with access to justice to get protection from further harm; 3) giving victims access to adequate and specific support; 4) a multi-level response reached through EU-level coordination and cooperation among member states, also in the light of EU-wide survey data collection.

In this framework, the proposal requires, in line with articles 36 and 38 of the Istanbul Convention, to criminalize rape based on the lack of consent to the sexual act and female genital mutilation, giving specific relevance to sexual harassment at work as well. Moreover, it pays special attention to cyber violence against women (which is not specifically addressed in the Istanbul Convention), as a new form of violence, spreading via the internet and defined as «any act of violence covered by this Directive that is committed, assisted or aggravated in part or fully by the use of information and communication technologies». Cyberstalking, cyber harassment, non-consensual sharing of intimate images (so-called revenge porn), cyber incitement to violence or hatred needs specific legal answers and, due to their cross-border dimension, asks for a strong harmonization between EU national legislations.

While the proposal focuses on violence against women as a form of violence disproportionately affecting women, it does not exclude men or non-binary persons from becoming victims, as it defines victim as «any person, regardless of sex or gender, unless specified otherwise, who has suffered harm, which was directly caused by acts of violence covered under this Directive».

On the procedural side, several measures are required to ensure access to a criminal justice that must be appropriately equipped to address violence against women and domestic violence, asking both for the legal tools offered and for the capacity of national authorities to treat victims in a gender-sensitive manner: in this perspective, it is required to remove the obstacles making difficult or dangerous for the victim to report the offence and it is provided that the crimes should be effectively investigated and prosecuted (asking for an ex officio prosecuting for rape, in line with art. 55 of the Istanbul Convention). Great attention is reserved to the delicate link between access to justice and victim protection: a careful and specific risk assessment must be conducted in order to avoid secondary victimization and to timely adopt barring and protection orders. Regarding secondary victimization, the evaluation is an integrated part of the individual assessment already experimented with under the Directive 2012/29/EU, but it is supposed to be tailored to the specific needs of the victims of gendered and domestic violence. A general provision aimed at avoiding secondary victimization introduces a ban for any question or enquiries concerning the victim’s sexual past or other aspects of the victim’s private life, prohibiting them both during the investigations and the court trial, without prejudice to the rights of defence.

Furthermore, new measures must be adopted to combat online violence: on the one hand, it should be ensured sufficient expertise to effectively investigate and prosecute such crimes, especially to gather, analyse and secure electronic evidence, and, on the other hand, it must be taken any measure to ensure the prompt removal of violent content from cyberspace, making it possible not only during criminal proceedings but in interim proceedings as well based on an order of the judicial authority.

Since one of the main concerns is related to the needs of those who have been harmed by gendered violence, victim support is a core action, and –in the framework art. 8 of the Directive 2012/29/EU on victim’s rights– it must be offered before, during, and after the criminal trial. Furthermore, the service must be tailored to the specific needs of women victims of violence, asking for further specialized support services in cases of sexual violence, sexual harassment at work, and female genital mutilation, as well as in cases of women fleeing armed conflict, because of the high vulnerability of these groups.

Although the proposed directive is mainly aimed at combating violence by using criminal justice, it adopts a comprehensive approach and, tuning to the Istanbul Convention frequencies, it highlights the need of preventing violence by raising general awareness of the phenomenon and by demanding specific training for the professionals working with victims and with offenders.

Several rules are set down in order to enhance a multi-level and multi-agency approach, which should be realized following both EU-level coordination and cooperation between member states, besides an interactive organization of the national authorities and actions; hence, each member state should designate an official body to coordinate and oversee policies in the area so that an effective coordination of all agencies involved, judicial authorities and non-governmental organizations is ensured.

The Chapters 5 and 6, reserving wide space to prevention and coordinated policies, confirms that violence against women and domestic violence cannot be counteracted only by criminal justice, since these types of violence constitute severe forms of discrimination, making necessary to tackle unbalanced power relationships and to promote equality between women and men.

The goal of ensuring women’s right to live free from violence is strictly related to building a European society which is made free from gender stereotypes.

*Valentina Bonini is Professor of Criminal Procedure at the Department of Law, University of Pisa and Member of the ELaN Teaching Staff

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