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The Show and Order Podcast explores the relationship between domestic abuse and human rights. They discuss the European Court of Human Rights' stance on domestic abuse and its classification as a violation and potential torture. They also talk about the increase in domestic abuse during the COVID-19 pandemic and the inconsistency of the ECHR's approach to domestic violence cases. There are discussions about the articles of the ECHR that are involved and recent cases that highlight these inconsistencies. Overall, there is a need for reform in addressing domestic abuse and its recognition as a violation of human rights. Welcome to the Show and Order Podcast, where we explore the complex relationship between domestic abuse and human rights. I'm Jake, and joining me are Dan, Peter, and Chloe. In today's episode, we delve into the critical examination of the European Court of Human Rights' stance on domestic abuse. The European Court of Human Rights has taken a debut in developing legislative frameworks to address domestic abuse in its member states in recent years. But in the midst of all this, concerns have been raised by the consistency of the Court's jurisprudence on this crucial issue. Today, we have come here to learn about the nuances surrounding the European Convention on Human Rights, the ECHR, classification of domestic abuse as a violation, and the ongoing discussion about whether or not it qualifies as torture, under Article 3. In today's episode, we will look at the background of domestic abuse, the status of the ECHR's attitude towards torture. We will compare this to other charters, and then delve into the inconsistency of the ECHR jurisprudence towards Article 3, and notes on what reform we think is necessary. Dan, do you want to give us a bit of background on the history of this topic? Yeah, absolutely. Evidence of domestic violence can be found as far back as written history goes. However, the COVID-19 pandemic has heightened awareness of the crisis of domestic abuse worldwide, and families were confined to their homes without access to those who may be able to see the signs of abuse and violence, and were unable to obtain the assistance necessary to escape violent situations. New statistics have shown the vast increase of domestic abuse reporting during the pandemic. COVID has increased male unemployment and the stress of childcare and homeschooling, increased financial insecurity, and maladaptive coping strategies, increasing the possibility of abuse, or increasing the degree of violence for women, who have previously been victims of violence from both male partners and their male counterparts. The UN chief stated that there was a horrifying surge in domestic violence, which was highlighted during the first day of the pandemic. Eighteen studies yielded a total of 37 estimates, the results of which showed an overwhelming increase in reports of domestic violence. Specifically, 29 of the 37 study estimates showed a significant increase. To summarize, there is substantial evidence that the implementation of stay-at-home or lockdowns orders led to an increase in domestic violence events. This conclusion is supported by multiple research projects conducted in various cities, states, and nations across the globe. Is it just women affected by domestic abuse? No, domestic abuse is often associated with abuse of women, but the child abuse statistics within the home also rose significantly during the pandemic. Although the specialist estimation suggested an increase in child maltreatment and abuse cases, school closures of isolated students at home seem to have contributed to this decrease, with the availability of people that the abusees are able to contact significantly reducing due to being trapped within the home. According to Article 1 of the ECHR, people have the right to live without violence. All people are born free and equal in their dignity and rights. According to Article 5, no one should be subjected to torture or cruel, inhuman, or degrading treatment or punishment. This norm only outlined in general terms the inadmissibility of violence. Nevertheless, this is the first step at a global level as a basis for prevention of violence. The following are required indicators of domestic abuse. 1. Persons suffering from domestic violence can only be family members. For example, this law does not apply to neighbours, cohabitants, including divorced persons who continue to live together, persons who meet but are not married, etc. 2. The act of the rapist must be illegal. It must be contrary to current legislation. 3. The act has led or could lead to a violation of the rights of a family member as a person and a citizen. 4. The guilt of the abuser shall be manifested in the form of intent, not negligence. Since the frequency and intensity of domestic violence depend on the perpetrator's capacity to dominate their victims over an extended length of time in their daily lives, it is more likely during times when families spend more time together, such as Christmas holidays. Governing lockdowns, contact restrictions, move-in limitations, all aimed at reducing the spread of infection are the primary causes of the pandemic's effects. French official Marlene Schipa claims that closure is an ideal environment for the rise of domestic violence. It is undeniable that due to the pandemic and the corresponding lockdowns that domestic abuse has increased, so I suppose we must analyse the steps that the EU and the ECHR can take to rectify the situation with the possibility of linking domestic abuse with torture. Are there many inconsistencies regarding domestic violence and the ECHR? Despite staggering statistics revealing that violence against women is a global phenomenon, there is no universally agreed binding treaty explicitly prohibiting violence against women. Physical and sexual violence against women perpetrated by their intimate partners or other private individuals is a widespread global issue, impacting more than one-third of women worldwide. In 2013, the WHO published a report estimating that 35.6% of women worldwide experience either physical and or sexual violence by their intimate partner or non-partner sexual abuse. Despite this, it does not fall within the realm of torture. Academic Rachel Gerber has called domestic violence the invisible epidemic and the ECHR's inability to find a place for domestic violence under Article 3 is increasing this invisibility. What articles are involved? While the ECHR has built up a substantial body of jurisprudence on domestic violence, the issues may violate potentially four articles, either Articles 2, 3, 8 or 14. This confuses things for both victims as well as judges. 17 cases directly focus on the issues of domestic violence and all of these have gone to full hearing. Up until 2013, the ECHR appeared to have an incoherent approach as described by Dr. Rona McQuig when it came to using either Article 3 or 8. The court seemed to take a view in its early jurisprudence on this issue that if it decided that a violation of the Convention should be found, it did not matter to any great extent on which specific article this finding was held to be based. Are there any recent cases which show these inconsistencies? Yes, in the Rumour in Italy case, the ECHR concluded that the Italian authorities had implemented a legislative framework to address domestic violence effectively. Therefore, the court found no violation of Article 3 either alone or in conjunction with Article 14 of the ECHR. Prior to this case, the court was starting to make consistent use of Article 3 in domestic violence cases than it ever had before. The main rationale of such an approach seems to be that it acts as a time-saving method. Many other cases are found to be in breach of only Article 1 of the ECHR. So a time-saving method is not an excuse? Absolutely. In the 2013 case of Vallioline and Lithuania, here the Lithuanian government acknowledged its failure to adequately respond to a situation involving domestic violence and submitted a unilateral declaration accepting a violation of Article 8 of the ECHR. However, it argued that it was not in violation of Article 3, asserting that the injuries sustained by the applicant were merely trivial. This implies that the government viewed a breach of Article 8 as less serious than a violation of Article 3. Despite the government's position, the ECHR refused to accept the unilateral declaration and found the state to be in breach of Article 3. Notably, a dissenting judge, Judge Yossine, disagreed with the majority, suggesting that domestic violence cases are typically examined under Article 8 rather than Article 3. Notably, a dissenting judge, Judge Yossine, disagreed with the majority, suggesting that domestic violence cases are typically examined under Article 8 rather than Article 3. She argues that the ECHR's approach was based on principle rather than practicality. The ECHR's decision to reject the unilateral declaration and find a violation of Article 3 was necessary to counter arguments that domestic violence cases should be predominantly analysed under Article 8. Cheers, that sounds more inconsistent than a Dublin bus. Yes, and in the case of Alelin and Lithuania, the ECHR missed a key opportunity to provide clarity on the reasoning to use different articles for domestic violence. For example, in the case of Opus and Turkey and the case of ES and others versus Slovakia, the Court relied on Article 3 to find breaches. At the same time, cases such as Bekava and the case of ES and Bulgaria, as well as Kaluza and Turkey and E and Croatia, the Court did find violations but refrained from examining the cases under Article 3 and found violations of Article 8 only. The Court effectively flipped this action over and stated that it was necessary to examine the complaint under Article 8 as it found a violation under Article 3. The Court also failed to explain the reason for this interjudgment. Are there any cases where all four of the articles are involved? There is indeed. A seminal case in terms of domestic violence is that of Bekava and Bulgaria. It was therefore argued that the State had violated Articles 3, 8, 13 and 14 of the ECHR. It was also alleged that there had been a breach of Article 6. In this case, the Court solely examined the complaints under Article 8. But why did the ECHR choose Article 8? There appeared to be a trend of the ECHR leaning towards Article 8 in past cases involving domestic violence. This indicates that the Court may not have realized the seriousness of domestic violence. This means that many victims have had to deal with sloppy judgments. The Court sometimes chooses to find a breach of one provision of the ECHR while omitting consideration of other provisions raised in arguments. In cases like Bekava and Bulgaria, the ECHR focuses solely on Article 8, which protects the right to respect for private and family life, rather than examining allegations under other relevant articles like Article 3, which prohibits torture and inhuman or degrading treatment. This apparent preference for Article 8 over Article 3 may stem from the practicality of establishing a breach. It can be easier to demonstrate a violation of Article 8 than Article 3 due to differing thresholds for severity and intensity of harm. In the 2021 judgment of Tunakova and others and Russia, the ECHR again added to its ever-expanding jurisprudence on the issue of domestic abuse. In 2007, the Court made it clear that domestic violence does constitute a violation of the ECHR. However, this is still altering between different articles. In the Tunakova case, the ECHR found violations to Article 3 and Article 14. The applicants, who had suffered from severe domestic abuse, argued that their experiences amounted to torture, rather than that of inhumane and degrading treatment. The Court said it was unnecessary in this case because the severity of the abuse clearly fell within Article 3. Should the Court not have just conceptualised domestic abuse as torture here? Absolutely. While Dr Ronan McQuig describes this as a strong judgment, the Court has the opportunity to conceptualise domestic abuse as torture. Another effectively open-goal opportunity was seen in the case of Volodina and Russia, where a violation of Article 3 was found by Judge Pinto de Albuquerque, issued a separate opinion that the applicant went beyond inhumane and degrading treatment when he carried out physical attacks, psychological torments, threats, and even attempted to harm her unborn baby. If that doesn't reach a threshold for torture, it must be impossible to meet. Indeed, as Judge Pinto said, when severe forms of pain and suffering are deliberately inflicted on a person, this must be identified as torture. Does this inconsistent ruling result in any problems closer to home? Unfortunately, the current inflation crisis has a knock-on effect on domestic violence victims in Ireland. A research carried out by NUI Galway Centre for Global Women's Studies found that victims of domestic violence cost a woman 113,475 euros over a 20-year period. It was found that women spend on average 15 years in an abusive relationship and an additional 5 years recovering. Lost income was identified as the primary cost for women survivors, with health costs also prevalent. Financial burdens such as legal costs, debt, property damages or loss, and challenges related to housing and relocation were the main extra costs. Some women even became homeless due to domestic violence. Unpaid child maintenance further punished women financially. The cumulative national cost of domestic violence to survivors over a 20.5-year period was estimated at £56 billion, equivalent to £2.7 billion annually. The Department of Justice have been constantly increasing budgets for TUSLA, specialised training for the Gardaí and DPP, criminal justice reforms and budgets for victim support and awareness, as well as paid domestic leave and benefit plans. While all this is very positive, if the ECHR find a clear, unambiguous home for domestic violence cases, this will enhance protection and address the significant financial costs associated with this pervasive issue. Across the EU, the cost of domestic violence is roughly a staggering £289 billion annually. This money is an insane amount, especially when added together, it shows how prevalent domestic violence really is in Ireland. Surely this has to be a domino effect on political problems here. It certainly does. Unfortunately in Ireland, many women have to flee their family homes and go to refuge centres across the country. For example, RTE reported that a woman had to stay in a refuge in Tralee, as there was none available closer to her original home in Dublin. The places are so scarce in these refuge homes, and the housing crisis is an added complication. From RTE's report, women in Kerry, Bray, Tlamel and Athlone were ready to leave, but they had nowhere to go. Deirdre Barry, a manager of a refuge home in Athlone, stated that the woman is forced to leave and go into refuge while the abuser stays in the family home, but when she is ready to move on from the refuge, there is no affordable accommodation available. The political stay-in in Ireland, which is of course the housing crisis, exacerbates the domestic violence. Women who leave their homes due to violence often struggle to find alternative accommodation. The lack of housing options forces some women to choose between staying with their abusers or facing homelessness. Housing policy and domestic violence services are typically managed separately in Ireland, leading to gaps in support. Yeah, that should be unified really to cut out communication issues. More needs to be done to help clarify domestic abuse and torture, but the level at which abuse is classified as torture is just too high. Like the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT provides that most explicit international definition of torture, which may help to explain why modern international jurisprudence prefers the CAT as preferred interpretation of the torture prohibition. Central to CAT's definition of torture is its requirement that a torturous action inflicts severe mental or physical health pain. The severity of pain has been extensively utilised as a standard setting torture apart from lesser offences in international human rights law. Although the ban on torture is intended to be absolute, the word severe offers minimal interpretive guidance. The CAT's torture test is applied by courts who contend that severity level justifies the imposition of a special stigma to distinguish torturous acts from other forms of cruel, inhuman or degrading treatment that elicit less severe outcomes. To sum it up on the issue of how severe aggravated human treatment has to be for it to amount to torture is virtually impossible. The definition of torture by comparison to less severe actions is one unifying strain in geographically disparate torture jurisprudence. The International Criminal Tribunal for the former Yugoslavia, ICTY, by example defines torture by referencing it to other actions such as provoking serious mental and physical suffering that fall short of severe mental and physical suffering required for the offence of torture. In Bernadine, the trial chamber explained that the seriousness of the pain or suffering sets torture apart from other forms of mistreatment. Similarly, the ETHR suggests that in determining whether a particular form of ill-treatment should be qualified as torture, consideration must be given to the distinction between this notion and that of inhuman or degrading treatment. The United States didn't help with the High Barrier either, did they? Not at all, no. The High Barrier set for the definition of torture by US guidance, which was issued during the Reagan administration, classifying torture as existing at the extreme end of cruel, inhuman and degrading treatment or punishment, upholding the extreme levels on which actions can be qualified as torture. In ICTY jurisprudence, once the prosecution approves the occurrence of acts that fall into this category, which include rape and mutilation of body parts, the prosecution is absolved of the burden of providing medical certificates to prove their severity. Because the acts conclusively imply the requisite severity for torture. The precise boundary that shall be drawn to distinguish cruel treatment from torture varies greatly throughout the European courts. Enhanced questioning strategies and psychological interrogation strategies, in particular, cause a great deal of controversy amongst jurisdictions. To cease the emphasis on psychological abuse elements of torture, physical acts should not be the only form of torture that are analysed. Several medical studies have concluded that purely psychological tactics are capable of causing as much long-term mental damage and emotional suffering as their physical counterparts. Does anyone know on particular groups that suffer the most due to these inconsistencies? Yes, migrant women are at more risk of suffering due to these inconsistencies. One of the defining characteristics of human rights is that anyone is entitled to them by virtue of being human, yet in spite of their inherent universal promise, the rights and interests of migrants are no classic issue in human rights discourse. However, this is not consistent with treatment of migrant women in relation to domestic violence. This is an issue which needs greater attention given the ever-increasing number of migrants entering Europe each year. In the case of AA and others versus Sweden, this case did not follow the case of Opus, even though the facts were similar. Opus was an internal case, whereas AA was an external case, and the court's treatment of each is thus significantly different. This case involved a family from Yemen who sought asylum in Sweden. They claimed that their return to Yemen would be in breach of Article 2 and Article 3 of the ECHR, as they would face domestic violence, forced marriage and honour crimes from their violent husband and father. She previously failed in an attempt to divorce her husband in the local courts. The court found that this would not be a breach of the Convention to return the family to Yemen. The court states that there was not substantial ground for believing that the applicants would be exposed to a real risk of being killed or subjected to treatment contrary to Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, this case did not follow the case of Opus, even though the facts were similar. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the ECHR, as they would face domestic violence, forced marriage and honour crimes from their violent husband and father. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. In the case of AA and others versus Sweden, the court found that their return to Yemen would be in breach of Article 2 and Article 3 of the Convention if deported to Yemen. Ultimately, the shift from negative to positive state obligations could be considered a catalyst in the promotion of women's rights and protection against violence, as it is ultimately one of the key mechanisms which ensures state accountability for adherence to human rights standards. In terms of reform, the ECHR should lower the threshold for torture. They should reform Article 3 so that this threshold will be lowered to include domestic violence permanently. On top of this, they should include a subsection which intentionally recognises the prohibition of torture against women. Academic Edwards has stated that prohibition on torture is ranked among the most important human rights. Including domestic violence in this article would be revolutionary for people suffering worldwide. For example, in countries which appear to be frozen in time, such as Turkey, the ECHR have an obligation to protect the citizens in this country, and in particular the women who are still constantly subject to domestic violence. Human rights activist Diana Magni has stated that without a progressive and systematic response from Parliament to the courts and the police, Turkey's women will continue to die at hands of those closest to them. MS Interweb has said that the lack of enforcement has meant that women on the authorities' radar have been killed by their abusers or are subject to recurrent violence over the years. In 2020, 300 women were murdered, and according to Baker McKenzie, the rate is speeding up. The ECHR needs to bring about this reform sooner rather than later, so we will see a decrease in domestic violence globally. Guys, I would like to thank you all for coming on as guest experts on the Sean Ardour podcast. Until next time when we discuss Article 4, we'll see you guys. Thanks very much.