Spring Semester 2020
Independent Written Essay within the Field of Constitutional law and Human Rights, 15 hp [Master‟s Programme in Constitutional Law and Human Rights, 60 hp]
Supervisor: Therese Enarsson
Self-defense claim in Domestic violence case
An analysis of domestic violence with self-defense claim and
article 2 and 3 of European Convention on Human Rights
Tarikawit Fikadu Mamo
2
Contents
1. Introduction 1.1 Purpose
1.2 Method and material 1.3 Theoretical framework
2. Self-defense claim in domestic violence
2.1 One-incident approach: the nature of domestic violence 2.2 Killing the offender: self-defense
2.3 Domestic violence link with Self-defense
3. European Court on Human Rights interpretation of Article 2 and 3 in relation to self-defense claim
3.1 Balancing right to life
3.2 Re-living the fear of abuse
4. Discussion: ECtHR perspective of State‟s obligation in the matter 5. Conclusion
Bibliography
3 Women once bruised and broken. But the bruises heal, the bones mend……don‟t they?
Maybe . . . those that you see What about the bruises inside?
The broken confidence, the lack of esteem, the degradation of self?
The guilt?
The shame!
The lack, complete and total, of trust?
What about the loss of belief in oneself – as a worthwhile human being?
The wounds the world can‟t see
Are the wounds most devastating, the wounds most destructive
.
1
1 Carline, A., & Am, P. E. (2014). Shades of Grey – Domestic and Sexual Violence Against Women: p. 63, Cited in P. Easteal, Less Than Equal: Women and the Australian Legal System, Sydney: Butterworths, 2001, p.107.
4
Abbreviation
ECtHR – European Court of Human Rights
ECHR – European Convention on Human Rights
BWS – Battered Women Syndrome
5
1 Introduction
Domestic violence is a worldwide problem that most women undergo in their lifetime,2 which ranges from physical to psychological.3 This problem affects women more than any other group and contributes to the cause of “illness, poverty, homelessness, and disability in women around the world.”4 In Europe, the problem is widespread and more likely violates four articles of the European Convention on Human Rights (ECHR), article 2- right to life, article 3- Prohibition of torture, article 8- right to respect for private and family life, and article 14- Prohibition of discrimination.5 The European Court of Human Rights (ECtHR) by breaking the dichotomy of the private/ public sphere established a comprehensive jurisprudence to address domestic violence.6 Accordingly, the ECtHR developed principles in its case law that address domestic violence that will contribute toward the criminal justice system.7
In domestic violence cases, “Homicide is emphatically gendered.”8 Women are more likely to be victims of homicide and killed by a former or current partner.9 Conversely, where women kill their former or current partners, the history of domestic violence is often a reason, and they claim to have acted in self-defense.10 The reality of the women who endures domestic violence and kill their former or current partners have different view and experience of their household from other (non-victim‟s) women who does not experience domestic violence in their households. However, Courts tend to view the self-defense claim as unreasonable11 and assess the domestic violence “victim‟s reality of violence with non- victim‟s view.”12 In doing so, this understanding of Court‟s interpretation of self-defense in
2 Carline A., & Am, P. E. (2014). Shades of Grey – Domestic and Sexual Violence Against Women: p. 63.
See Mclean, M. (2005). Domestic Violence and Repeat Victimization. International Review of Victimology, 12(1), p.1.
3 Harne, L., & Radford, J. (2008). Tackling domestic violence: theories, policies and practice. Maidenhead:
Open University Pres. p. 1-7.
4 Meyersfeld, B. (2012). Domestic Violence and International Law. Oxford; Portland, OR: Hart Publishing.
p. 1.
5 McQuigg, R. J. A. (2011). International Human Rights Law and Domestic Violence: the Effectiveness of International Human Rights Law. London: Routledge. p. 48. See art. 2- right to life, art. 3- Prohibition of torture, article 8-right to respect for private and family life, and art. 14- Prohibition of discrimination. See the discussion in chapter 2.
6 Ibid., p. 43-44.
7 Ibid
8 Carline and AM, op. cit., p. 128.
9 Ibid
10 Ibid
11 Ibid., p. 130-137.
12 Ibid., p. 153.
6 the case of domestic violence directed the women who are victims of domestic violence to plead guilty of manslaughter instead of claiming self-defense just to avoid the risk of murder conviction as default.13
Moreover, there is inconsistency in the court decisions where women committed homicides against their abusers. The women who were the victim of domestic violence claim to have acted in self-defense when they kill the offender in a non-confrontational situation to prevent future violence (bodily harm or death).14 Yet, the traditional self-defense definition does not consider the distinguishable characteristics of domestic violence when it takes legal action.15 As a result, “domestic violence (abuse) offenses tend to be prosecuted using other offenses, including homicide offenses, sexual or non-sexual offenses against the person, or even breach of the peace.”16 Therefore, the disparity of the self-defense law ultimately generates the changeable results to the victim‟s self-defense claims. Some are found guilty, while others are acquitted. 17
1.1 Purpose
The purpose of this paper is to discuss, women‟s right of self-defense who are in heterosexual relationships, when killing their abusers in non-confrontational circumstance.
The disparity between the self-defense legislative framework and its interpretation on domestic violence cases result diverse outcomes for the self-defense claim made by women who were victims of domestic violence. Moreover, self-defense claim made by the women who were victims of domestic violence and acted under the influence of such violence are treated as per the traditional definition of the self-defense requirement that disregard the unique feature of the domestic violence. For that reason, the paper explores where self- defense claims in domestic violence cases can be raised and justified.
The paper also analyzes the self-defense claim and states‟ obligations in relation to ECHR article 2- right to life and article 3- prohibition of torture, and inhuman or degrading treatment or punishment, to establish which circumstances and requirements vindicate the self-defense claim for the victims of domestic violence who kill their abuser.
13 Ibid., p. 130-131.
14 Belew, C. M. (2010). Killing one‟s abuser: premeditation, pathology or provocation? , 59(3), p. 769-770.
15 See Section 2.1.
16Tadros, V. (2005). The Distinctiveness of Domestic Abuse: A Freedom-Based Account. Defining Crimes, 65(3), p. 990.
17 Ibid.
7
1.2 Method and material
The paper explores the relation between domestic violence and self-defense claim raised by women who kill their abuser in non-confrontational manner. In doing so, to draw the very nature of the domestic violence, self-defense, and their interpretation the paper studies different legal research articles. Since the topic of the paper is a widespread subject, the legal research articles from both Inter-American and European literature that addresses the issue in their regional human right system perspective are utilized. Despite the fact that the paper focuses on the European perspective of domestic violence and self-defence, the Inter- American literature are used to contextualize the general concept of self-defense claim and domestic violence relation, as the topic is more developed and raised in many case law in their legal system. Further, articles by different scholars are used to provide an elaboration and understanding of the court‟s perspective in its arguments and judgments.
In addition, the case laws of ECtHR are studied. I chose old and new key cases of ECtHR, which define the concept right to life with its self-defense exception and prohibition of torture as regard to the perspective of article 2 and 3 of ECHR. The case laws are also used to draw conclusion how those rights are contextualized with respect to states obligation.
1.3 Theoretical framework
Women more likely become victims of domestic violence than men. Domestic violence is the violence that takes place in intimate relationship that perceived for long period of time with the display of the repetitive behavior of the violence in systematic manner.18 A woman who kills her former or current partner in non-confrontational circumstance often claims that she acted in response to a reasonable perception of danger. Hence, they claim self-defense.19
The traditional meaning of self-defense covers the masculinity version of defending one‟s right to life by excluding the distinguishing criteria of the domestic violence victim who acted in self-defense.20 Further, the criminal justice system disregards the unique link between the women who kill their abuser and her been in domestic violence household which she experience emotional and physical violence. besides Nevertheless, the women who experience domestic violence that acted in self-defense in non-confrontational circumstance is
18 See discussion in section 2
19 Mihajlovich, op. cit., p. 1272.
20 See discussion in section 2
8 still acted out of self-preservation, which is an essential point that the criminal justice system to consider.21
2. Self-defense claim in domestic violence
2.1 One Incident Approach?: The nature of domestic violence
The Council of Europe established the Istanbul convention to promote the protection of women against violence, which defines domestic violence:
“All acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim.”22
Accordingly, domestic violence is a form of violence that befalls in the family home and within an intimate relationship between the former and current partners.23 The victims of domestic violence often live with the offender, involved with the offender emotionally, also financially dependent. This may cause the victims to be threatened since the victims are likely be assaulted and see the offender again.24
In addition, the nature of domestic violence is often different from other form of violence by very “distinguishing element of the domestic violence that the abuse occurs over a period of time.”25 The victim of this violence had a relationship with the offender or is known to them, be it a partner or an acquaintance, and therefore the violence tend not to be a single or a
„one-off event‟.26 Instead, the violence tends to be cyclical within a cohabitating couple since it can be triggered at any moment and by any circumstances. Consequently, the victim lives in
21 Ibid.
22 Council of Europe Convention on preventing and combating violence against women and domestic violence, art 3 (b).
23 Tadros, op. cit., p. 992.
24 Mclean, p. 52.
25 Carline and AM, op. cit., p. 63. See Mclean, p. 53.
26 Ibid., p. 63-64.
9 fear that their daily lives encounter violence.27 However, the victims stay in the relationship with the offender where they are abused, which the researcher explained as BWS.28
BWS is “a set of emotional characteristic or behavioral pattern of a woman who is in abusive relationship with a man.”29 These emotional characteristics of women in BWS indicates a learned helplessness concept which woman develop a passive behavior or lack of response or felt powerless neither to stop the repeated abuse nor escape the abusive relationship.30 Further, the abuses tend to be cyclical or pattern that intensified through time that is explained in the BWS notion of cycle of violence.31 Thus, it can be claimed that the nature of domestic violence is a systematic violence that happens within an intimate relationship where the violence is more likely to be repetitive than non-domestic violence.32
However, the criminal justice following the one-incident approach is often directed to dismiss the domestic violence cases by lack of evidence or escalate the situation to the point that the victims take the matter into their own hands.33
2.2 Killing the offender: Self-defense
The self-defense concept can be defined as “a legal doctrine that, in limited circumstances, would render an otherwise criminal act of violence acceptable.”34 The traditional doctrine of self-defense is an act that is necessary, proportionate, and imminent used against unjust attack. The elements of this definition are often assessed „according to a reasonableness standard.‟35 This means the act can be justified where there is not only reasonable but also an honest belief that there was imminent danger from the perspective of a reasonable person.36
27 General recommendation of the committee of experts of the MESECVI (no. 1), Self-defense and gender based violence according to article 2 of the Belém do Pará Convention, 2018, p.7-9.
https://www.oas.org/en/mesecvi/docs/MESECVI-CEVI-doc.249-EN.pdf
28 Ewing, C. P. (1990). Psychological self-defense: A proposed justification for battered women who kill. Law and Human Behavior, 14(6), 582. See also section 2.2.
29 Mihajlovich, Mira (1987). Does Plight Make Right: The Battered Woman Syndrome, Expert Testimony and the Law of Self-Defense, Indiana Law Journal, 62( 4), p. 1257.
30 Ibid., p. 1258-1259
31 Ibid.
32 Tadros, op. cit., p. 994.
33 Carline and AM, op. cit., p. 128-154.
34 Joan H. Krause, distorted reflection of battered women who kill: A response to Professor Dressler, Ohio state journal of criminal law, 4(555), p. 557.
35 Kaufman, W. R. (2007). Self-Defense, Imminence, and the Battered Woman, New Criminal Law Review. An International and Interdisciplinary Journal, 10(3), p. 344.
36 Ibid.
10 Likewise, the common law requires that the person who acted in self-defense has an honest belief that her/ his action is necessary and that they have reasonable ground for that belief.37 However, the reasonableness of the act is often interpreted in the perspective of the judges‟
personal values instead of the persons who acted in self-defense.38
The approach of right and forfeiture explains self-defense based on the right to life. As per this approach, the right to life is dependent on the conduct and conditions.39 As a result, a person does not retain a right where he/she poses an immediate danger to a person‟s right to life instead he/ she own right to life is forfeited.40 Yet, this does not mean the right of the offender is forfeited, where the victims acted and kill in self-defense instead “the right to life is forfeited (or not possessed) simply by virtue of becoming an unjust immediate threat to the life of another.”41 Thus, it is permissible to kill in self-defense but this does not indicate the offender is being punished or deserve to die rather it is a system to fight back unjust immediate attack.42Hence, it can be held that the concept of „imminence‟ or „immediate‟
attack that surrounds the self-defense concept serves to limit the claim of self-defense by avoiding the excessive way to force and avoid the loss of a person‟s life in self-defense claim.
Therefore, the very self-defense principle is mainly based on two elements. First, the act of the threat shall be immediate against one‟s right to life. Second, the act is against the unjust act of the other person under a reasonable man standard.
2.3 Domestic violence link with Self-defense
Self-defense is a right one can claim before the court, whether the violence is domestic or not. In domestic violence cases, the victims of domestic violence who kill their abuser in non- confrontational situation, often the problem to claim self-defense argument is that, the requirement of imminent or current violence that the traditional delineation of the self-defense concept has to draw self-defense legitimacy is not established.43
37 Carline and AM, op. cit., p. 130-131.
38 Ibid.
39 Leverick, F. (2007). Defending Self-Defence. Oxford Journal of Legal Studies, 27(3), p. 572.
40 Ibid.
41 Ibid.
42 Ibid.
43 Burke, A. S. (2002). Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman. SSRN Electronic Journal, p 225.
11 It has been argued that the requirements do not include or address the perspective of gender since the very nature of the domestic violence is ongoing and set the women in the state of mind that the attack will befall at any moment.44 In light of this, the theory of the BWS is established so that the domestic violence victims justify the claim of self-defense.45 The theory explains the feeling of learned helplessness that urges the victim of domestic violence to remain in the relationship with the abuser.46 Further, this forces the victim to live
“under a constant reign of terror, and may kill during an apparently peaceful moment out of fear that she will not be able to protect herself from the next, inevitable attack.”47
However, this argument might not stand in itself to support the claim of self-defense in domestic violence cases.48 Alafair argued that BWS theory was not establish using empirical evidence that the domestic violence victims lives are in the constant reign of terror, likewise the time frame of the violence is unclear and it is hard to establish that the tension or the fear that the women feel still exits or disappear overtime if she stays in the abusive relationship.49 Further, Alafair reasoned that the theory failed to clarify why the victim of domestic violence perception of danger extends beyond one assault.50 Accordingly, he argues that the modifying the element of self-defense to subjective perception than objective reasonableness to fit the victim of the domestic violence self defence in the non-confrontational situation is undermining the very notion of self-defense claim as justification.51
On the contrary, it has been argued that the traditional self-defense concept is gender- biased and unable to accommodate the victims of domestic violence who kill in a non- confrontational situation. 52 It is also argued that loss of self-control is rather a masculine reaction to violence which shows the traditional self-defense concept biasness toward women by applying subjective test that favor‟s male defendant.53 Moreover, “it is unlikely that the
44 MESECVI (no. 1), op. cit., p.7- 8.
45 Burke, op. cit., p 225.
46 Ibid., p. 230.
47 Ibid., p. 231.
48 Ibid.
49 Ibid., p. 238-239.
50 Ibid., 240
51 Ibid., 240-242.
52Jeffrey Murdoch (2000). Is imminence really necessity? Reconciling traditional self-defense doctrine with battered women syndrome, Imminence and the battered women syndrome, 20, N. Ill. U. L. Rev., p. 192- 193.
53 Carline and AM, op. cit., p. 145.
12 victim of domestic violence would feel that she could lose self-control without placing herself in a significantly more vulnerable position.” 54
3. European Court on Human Rights interpretation of Article 2 and 3 in relation to self-defense claim
3.1 Balancing Right to life
Right to life is a basic concept that is prerequisite for enjoyment of all other human rights.55 As a result, “right to life occupies a high position in the hierarchy of legal norms.”56 Human rights instruments, international, and regional,57 incorporate right to life provision into their instruments for protection of human rights, even if limitation or exception to the enjoyment of the right to life is found in the instruments.58
The ECHR, one of the regional human rights instruments recognizes and protects the right to life, Article 2 states:
1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
Accordingly, it can be claimed that the right to life is not an absolute right, given that it can be taken away lawfully.59 Indeed, Protocol 6 and 13 abolish the death penalty that indicated in the article 2§1. Nonetheless, article 2§2 sets out circumstances in which
54 Carline and AM, op. cit., p. 149.
55 Mavronicola, Taking Life and Liberty Seriously, p. 1028
56 C. Tomuschat, E. Lagrange, and S. Oeter, the Right to Life, Brill, 2010, p. 5.
57 Universal Declaration on Human Right-art. 3, European Convention for the Protection of Human Rights and Fundamental Freedoms-art. 2, American Convention on Human Rights-art.4, African Charter on Human and Peoples‟ Rights-art 4, Arab Charter on Human Rights arts. 5-8, International Covenant on Civil and Political Rights-art. 6.
58 Mavronicola, op. cit., p. 1028-1029
59 Ibid
13 deprivation of life can be justified and found lawful, whether the loss of life is intended or not.60 Likewise, the fundamental character of this right enquires any exceptions that justify the loss of the right must be construed narrowly and strictly.61
In the context of a woman victim of domestic violence who killed her abuser in non- confrontational circumstances begs a question whether the claims of self-defense is justified by article 2 „defense of any person from unlawful violence‟ of the ECHR. This does not mean that article 2§2 “define instances where it is permitted to kill an individual, but describes the situations where it is permitted to “use force” which may result, as an unintended outcome, in the deprivation of life.”62 Therefore, balancing „life against life‟ and affected life interest is a predicament that ECtHR confronted in its case law.63
In the case of Stewart v. United Kingdom, by recognizing the circumstance sets in article 2 that justifies the violation of the right to life, it addresses how this justification must be construed.64 The same is also explained in the case of McCann and Others v, The United Kingdom. The ECtHR notes that the use of force is justified where “the force used must be
„absolutely necessary‟ and strictly proportionate to the achievement of the aims set out in 2§2 and where deliberate lethal force is used, taking into consideration not only the actions of the person who actually administer but also all surrounding circumstance.”65
Based on the ECtHR interpretation of article 2§2, it seems that three requirements have to be met to justify the „use of force‟, i.e., the use of force must be absolutely necessary, proportionate to the achievement of the aims and shall take into consideration all surrounding circumstance. Yet, it seems that “in the context of the use of force between non-State actors, an array of different and complex circumstances may be at play, in which the distribution of power and vulnerability between victim and perpetrator may vary and where presumptions as to the distribution of „killing‟ power are not appropriate.”66 Thus, it is more problematic to
60 Ibid., p .1027.
61 Ibid., p.1029-1033.
62 Guide on Article 2, European Court of Human Rights, 2020, para. 94. Stewart v. United Kingdom, Application no. 10044/82, para. 15.
63 Tomuschat, C., Lagrange, E., & Oeter, S. (2010). The right to life. Leiden: Martinus Nijhoff Publishers.
p. 89-90.
64 Case of Stewart v. United Kingdom, Application no. 10044/82, para. 11-19.
65 Case of McCann and Others v. The United Kingdom, Application no. 18984/91, para. 148-150.
66 Mavronicola, op. cit., p. 1046.
14 apply absolute necessity test where violence occurred between individuals that are not state- actors.67
By extension, this requirement tries to balance individual‟s right to life who take part in the situation. That means the person who acts in self-defense to relieve her/ him from the violation of right to life shall show, the assessment probability of her/ his acts to be absolutely necessary and proportionate to protect her/his right to life.68
Article 2§2 seems not to observe the requirement of imminence or express the time frame for the right to life has to be deprived rather focuses in the other criteria that the use of force is justified.
As per the BWS theoretical framework stated above, a woman who kills her abusive partner in non-confrontational situation is often a victim of long-going domestic violence that tends to develop the feeling of powerlessness and learned helplessness.69 In addition, the victim stays in the abusive relationship because she comprehends the futile attempt to escape will cause future violence. 70 Besides, the victim may perceive using force is the option to avoid future violence since that is the ultimate aim of the victim.71 By doing so, the victim of the domestic violence acted to protect her right to life and torture or ill-treatment in belief that her right to life is endangered, since the abuser may act at any moment of a time.72 Moreover, the women who are in the household of abusive relationships, where violence is persistent, are always in danger of losing their limbs or even worse their life. Also, the feeling of powerlessness, fear and threat that develop in the abusive relationship seems to the women who kills the abuser in non-confrontational situation, a way of protecting the loss of their right to life from materializing.
67 Ibid.
68 Mavronicola, op. cit., p. 1476-1479
69 Burke, op. cit., p. 221-224.
70 Ibid.
71 Belew, op. cit., p. 58-59. Its above no. 12
72 MESECVI (no. 1), op. cit., p.7-9.; Also see the discussion on Section 3.2.
15
3.2 Re-living the fear of abuse
Article 3 of the European Convention on Human Right stipulates, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”73 Such prohibition is specified in all relevant international human rights and humanitarian instruments.74 Likewise, the prohibition forms a part of customary international law, which recognizes torture as a crime.75
The term „torture‟ is defined under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment article 1 as:
“any act which severe pain or suffering, whether physical or mental, intentionally inflicted on a person for such purpose as…punishing for an act she or a third person has committed or is suspected of having committed, or intimidating or coercing her or a third person...”
By extension, torture is an act or omission purposefully causes pain or powerlessness of the victim, which render futile the victim to escape the situation.76Based on this definition, and generic understanding of domestic violence77 the United Nation stated that “the pain or suffering caused by domestic violence often fall nothing short of that inflicted by torture and other cruel, inhuman or degrading treatment or punishment.”78
On the other hand, the ECtHR did not take major steps of deeming domestic violence to be reflected as a torture79 and has been construed article 3 based on case-by-case formula as illustrate in below case laws which give leeway for domestic violence to no be consider as torture. In the case of Opuz v. Turkey, ECtHR states that ill-treatment to fall under the scope of article 3, it should attain a minimum level of severity. It continues to elaborate that this
73 ECHR Article 3.
74 Matt Pollard (2005). The Absolute and Comprehensive Prohibition of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Swedish Forum on Human Rights, p.2.
See Geneva Convention art. 3, International Covenant on Civil and Political Rights art. 7, European Convention on Human Rights art. 3, American Convention Human Right art. 5, African Charter on Human and Peoples‟ Rights art. 5.
75 Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet, United Nations, Geneva, 2002, p. 3.
76 United Nation General Assembly , Relevance of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment to the context of domestic violence, A/74/148, 2019, https://undocs.org/A/74/148
77 See section 2.1.
78Ibid above no. 52, para. 8.
79McQuigg, op. cit.,, p. 48.
16 minimum level is relative, which depends on circumstance of the case, for instance, “the nature and context of the treatment, its duration, it‟s physical and mental effects and, in some instances, the sex, age and state of health of the victim.”80 Opuz, the applicant, complained her husband caused her pain, suffering, and fear because of the violence perpetrated upon her by him.81 Further, the applicant had experienced ill-treatment more than five times that had been reported to the pertinent authority that caused criminal charge to be brought before the national court in different occurrence.82 Thus, the ECtHR notes the physical injury and psychological pressure the applicant suffered are sufficient enough to fall under the scope of article 3.83
In Costello-Roberts v. United Kingdom, the ECtHR established the minimum level of severity recognized where the treatment or humiliation is more than the usual that “inherent in any punishment.”84Thus, the scope of article 3 entails that not all punishment can be categorized as ill-treatment.85 The same assessment can be observed in the case Volodina v.
Russia, but with more advance description to embrace the wide-ranging effect of the ill- treatment, which does not always have to be physical or mental suffering. Accordingly, it denotes that ill-treatment comprises, “treatment which humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or which arouses feelings of fear, anguish or inferiority capable of breaking an individual‟s moral and physical resistance, even in the absence of actual bodily harm or intense physical or mental suffering.”86 Moreover, all the cases cited above, established vulnerable individuals, women and children in particular, are more likely entail the minimum level of severity in ill-treatment category.87 Thus, when the court contented that the circumstance of the cases gravity heightened, it considers the act as violation of article 3 of the ECHR. This implies that the court construed Article 3 in the way that “„does not prohibit‟ the use of force in certain circumstances.”88
Moreover, this does not mean the ECtHR considers merely the vulnerability, the minimum level of ill-treatment of the victim when it comes to assessing the fact to determine
80 Case of Opuz v. Turkey, Application no. 33401/02, para. 158.
81 Ibid., para. 154-155.
82 Ibid., para. 9-58.
83 Ibid., para.161.
84 Case of Costello-Roberts v. United Kingdom, Application no. 13134/87, para. 30.
85 Ibid.
86 Case of Volodina v. Russia, Application no. 41261/17, para. 73.
87 See case of Volodina v. Russia, Application no. 41261/17. Costello-Roberts v. United Kingdom, Application no. 13134/87 and Opuz v. Turkey, Application no. 33401/02.
88 Mavronicola, N (2013). 'Güler and Öngel v Turkey, p. 374.
17 the violation of article 3 but also it contemplates the state‟s response or legislative framework to the act.89 In the case Rumor v. Italy, the ECtHR finds the state in no violation of article 3 of the convention. The court specified the state “had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity.”90
Based on the above point of view, it can be assumed that the ECtHR consider domestic violence as violation of the ECHR article 3 where the act‟s ill-treatment is justified by minimum level of severity. As the nature of domestic violence more likely involve systematic violence in the cyclic manner, which is repetitive and last for a long period of time, the victim besides physical injury often develop BWS, the feeling of passiveness and powerlessness, to the point that the she cannot escape the abusive relationship.91 Moreover, as per the definition of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, torture does not only means physical pain but also mental. Consequently, victims of domestic violence, often suffer BWS, which apt to the protection of ECHR article 3.
4. Discussion: ECtHR perspective of States obligation in the matter
The European Court on Human Rights in its case law shed some light and established principle as regard to the Human rights enshrined in the ECHR. As a result, the court established and robust the positive obligation of the states along with the negative obligation evidently specified in article 2 of the convention.92 The positive obligation of the states in overall addressed generally into four categories, that is, framework obligation, operational duties, investigative obligation, and duties of redress.93
The framework obligation explains that the state should establish the legislative framework that can deter the person who violated the right to life as well as redress the unlawful taking of life.94 State also have positive obligation of operational duties that entails states to take reasonable actions to protect right to life from being at risk where the pertinent
89 Case of Rumor v. Italy, Application no. 72964/10,
90 Ibid., para. 76.
91 Mihajlovich, op. cit., p. 1257.
92 Mavronicola, op. cit., p. 1031.
93 Ibid., p. 1031-1033
94 Ibid.
18 authorities have knowledge about it. 95 Further, states have an investigative positive obligation that must be effective with the aim of establishing how the right to life is violated or justified based on the state‟s legislative framework so that the victim is redressed for the violence competently.96
Thus, the ECtHR expects states to set effective legislative framework that requests the authority to act in reasonable manner where they knew or ought to have known about the violation of right to life, and in instant where the right to life is violated, the state must provide effective investigations to address and redress the circumstances. 97
Often, state addresses the positive obligation of right to life by adopting criminal law legislations. Yet, for instance, in Opuz case, the court finds the legislative framework fell short to the state‟s inherent positive obligation to establish effective system that punish the person violated such right and provide redress for the victim.98 Further, irrespective of lack of effective legislation to punish the wrongdoer, the court concludes that the pertinent authority fells to realize the operational and investigational duties of the state to protect the victim of domestic violence.99
Likewise, the ECtHR laid a positive obligation on the state based on article 3 of the ECHR. In its case law, it stated that states have a “positive obligations to ensure that individuals within their jurisdiction are protected against all forms of ill-treatment prohibited under Article 3, including where private individuals administer such treatment.”100 Moreover, the court addresses state‟s obligation under Istanbul Convention “to take the necessary legislative or other measures to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the scope of this Convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.”101
In the context of the woman who kills her abuser because of the pain or fear due to BWS, the legislative framework which acknowledge self-defense that are open to take BWS as one element of self-defense is in line with the positive obligation laid down in article 2.
95 Ibid.
96 Ibid.
97 Ibid.
98 Case of Opuz v. Turkey, Application no. 33401/02, para. 145.
99 Ibid.
100 Case of Rumor v. Italy, 2014, Application no. 72964/10, para. 58
101 Case of Talpis v. Italy, Application no. 41237/14, para. 129.
19 Consequently, it can be argued that this legislative framework may encourage the pertinent authority to do effective investigation that balances the right to life a woman who kills the abuser and the man who is killed by the woman he abused alongside the torture and ill- treatment experienced by the woman who acted in self-defense.
Moreover, “the ECtHR is not the authority responsible for setting or administering the substantive contours of criminal liability for acts or omissions endangering or resulting in loss of life in a domestic context.”102 Instead, States are responsible for framing legislative framework, like criminal code, that can address the criminal aspect of the situation. In doing so, states play very vital role.
102 Mavronicola, op. cit., p. 1050.
20
Conclusion
Even if the right to life is a basic right, given that we all need to be alive to enjoy other human rights, does not make the right to life an absolute right. Lawfully, right to life can be taken away either by state agent or by private individual and self-defense is one of the lawful excuses that can be exercise out of self-preservation.
Woman who kills her abuser in non-confrontational circumstances, the lawful excuse seems ambivalent to see her perspective of self-preservation. Often, the right to self-defense does not take into account of women who were victims of domestic violence and understand their act of killing as rational and reasonable in their perspective. Nevertheless, the concept of BWS sheds some light to the rational and behavioral pattern of women who kills their abuser in act of self-preservation from torture, ill-treatment, and loss of life.
The act of self-preservation or self-defense is one of the right specified in ECHR article 2§2 as an exception to right to life. As per the article, a person can claim self-defense or use force where it is absolutely necessary, proportionate to the achievement of the aims considering all surrounding circumstances. Conversely, the traditional self-defence claim in addition to the requirements laid down in ECHR article 2§2, it requires the use force where the danger inflicted to the right to life is imminent or immediate. This traditional meaning of self-defense disregards the unique link between the women who kill their abuser and her been in domestic violence household.
Likewise, the women who kill their abuser in the act of preservation or self-defence often experience domestic violence. This domestic violence to be considered as torture according to ECHR article 3 the violence or pain inflicted, either physical or mental, shall satisfy minimum level of severity in ill-treatment category. Often domestic violence opt this minimum levels severity since the distinguishable elements of the domestic violence is the violence being systematic and occurs for long period of time.
Thus, understanding the effect of domestic violence and its effect in order to justify women‟s act of killing in non-confrontational circumstance needs both legislator and court recognition.
States have negative and positive obligation which also specified by ECtHR. Among these obligations, introducing legislative reforms is one way of safeguarding women‟s rights in
21 general and right to self-defense in domestic violence cases in particular. Further, state‟s court needs to consider the dynamics and manifestation of the domestic violence where construing the concept of self-defense. By extension, the court should analyses and consider the very nature of the domestic violence where the women who kill the abuser and claims self-defense.
Otherwise, construing the self-defense claim based on its traditional concept appears denying the women who were subjected to domestic violence a right to defend themselves or protect their right to life.
Moreover, for women who have been the victim of domestic violence that causes violation of ECHR article 3- protection against torture and ill-treatment, which is also a customary international law, does she not deserve a benefit of a doubt when she claims self- defense for killing her abuser in non-confrontational circumstance?
.
22
Sources
Literature
Belew, C. M. (2010). Killing one‟s abuser: premeditation, pathology or provocation? , 59(3).
Burke, A. S. (2002). Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman. SSRN Electronic Journal.
Carline, A., & Am, P. E. (2014). Shades of Grey – Domestic and Sexual Violence Against Women.
C. Tomuschat, E. Lagrange, and S. Oeter, the Right to Life, Brill, 2010
Ewing, C. P. (1990). Psychological self-defense: A proposed justification for battered women who kill. Law and Human Behavior, 14(6).
Harne, L., & Radford, J. (2008). Tackling domestic violence: theories, policies and practice.
Maidenhead: Open University Pres.
Jeffrey Murdoch (2000). Is imminence really necessity? Reconciling traditional self-defense doctrine with battered women syndrome, Imminence and the battered women syndrome, 20, N. Ill. U. L. Rev.
Joan H. Krause, distorted reflection of battered women who kill: A response to Professor Dressler, Ohio state journal of criminal law, 4(555).
Kaufman, W. R. (2007). Self-Defense, Imminence, and the Battered Woman, New Criminal Law Review. An International and Interdisciplinary Journal, 10(3).
Leverick, F. (2007). Defending Self-defense. Oxford Journal of Legal Studies, 27(3).
Mavronicola, N. (2017). Taking Life and Liberty Seriously: Reconsidering Criminal Liability Under Article 2 of the ECHR. The Modern Law Review, 80(6).
Mclean, M. (2005). Domestic Violence and Repeat Victimization. International Review of Victimology, 12(1).
23 McQuigg, R. J. A. (2011). International Human Rights Law and Domestic Violence: the
Effectiveness of International Human Rights Law. London: Routledge.
Meyersfeld, B. (2012). Domestic Violence and International Law. Oxford; Portland, OR: Hart Publishing.
Mihajlovich, Mira (1987). Does Plight Make Right: The Battered Woman Syndrome, Expert Testimony and the Law of Self-Defense, Indiana Law Journal, 62( 4),
Tadros, V. (2005). The Distinctiveness of Domestic Abuse: A Freedom-Based Account. Defining Crimes, 65(3).
Tomuschat, C., Lagrange, E., & Oeter, S. (2010). The right to life. Leiden: Martinus Nijhoff Publishers.
Laws
Council of Europe Convention on preventing and combating violence against women and domestic violence
European Convention on Human Right
Case-law from ECtHR
McCann and Others v. The United Kingdom, (Application no. 18984/91), Volodina v. Russia, (Application no. 41261/17), 09/07/2019
Talpis v. Italy, (Application no. 41237/14),02/03/2017 Opuz v. Turkey, Application no. 33401/02,09/06/2009
Stewart v. United Kingdom, Application no. 10044/82, 10/07/1984 Rumor v. Italy, ((Application no. 72964/10), 27/05/2014
Costello-Roberts v. United Kingdom, (Application no. 13134/87), 25/03/1993
24
Other
General recommendation of the committee of experts of the MESECVI (no. 1), Self-defense and gender based violence according to article 2 of the Belém do Pará Convention, 2018.
Guide on Article 2, European Court of Human Rights, 2020.
Matt Pollard (2005). The Absolute and Comprehensive Prohibition of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Swedish Forum on Human Rights.
Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet, United Nations, Geneva, 2002.
United Nation General Assembly , Relevance of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment to the context of domestic violence, A/74/148, 2019.
