Especificaciones de caso de uso

In recent years norms and standards on countering domestic violence have also been developed at European level, both within the EU and in the Council of Europe. In a 2009 European Parliament Resolution on violence against women, member states were called upon to improve national laws and policies addressing violence against women and other groups vulnerable to violence, including, among others, homosexual women.157 It urged member states to recognise as a crime “rape against women, including within marriage and intimate informal relationships”.158 Since then, several European instruments have been adopted that address domestic violence protection more specifically, including the Victims’ Directive, the Rights and Equality Regulation, and the Istanbul Convention.

152

Galea Borg 2017b (question 2.7). 153 _{Domos 2017b (question 2.7).} 154

Adamietz 2017b (question 2.7). 155

Plesmid 2017b (question 2.7); Frihagen 2017b (question 2.7); Valleala 2017b (question 2.7). 156

Frigahen 2017b (question 2.7); Valleala 2017b (question 2.7); Adamietz 2017b (question 2.7); Lima 2017b (question 2.7). 157

Resolution of the European Parliament on the elimination of violence against women, P7_TA(2009)0098, 26 November 2009, paras. 1 and 16.

158_{Idem, paras. 24-25. Norway, Finland, Germany and Greece are among the jurisdictions surveyed that had already} criminalised rape within marriage by 2009. See Frigahen 2017b (question 2.7); Valleala 2017b (question 2.7); Adamietz 2017b (question 2.7); Lima 2017b (question 2.7).

77 3.2.1 The Victims’ Directive

The 2012 Victims’ Directive lays down minimum rules and standards on the rights, support and protection of victims of crime in the EU.159 It defines key concepts applicable to cases of domestic violence, which are also reflected in the law of many jurisdictions surveyed. The Directive recognises the need for special protection measures for victims of violence committed in a close relationship.160 The Directive states about violence committed in a close relationship that “it is committed by a person who is a current or former spouse, or partner or other family member of the victim, whether or not the offender shares or has shared the same household with the victim. Such violence could cover physical, sexual, psychological or economic violence and could result in physical, mental or emotional harm or economic loss.”161 And the Directive requires that victims of violence in close relationships have a right to special protection measures during criminal proceedings.162

For examples of protection measures found in the jurisdictions surveyed, see paragraph 3.1 above.

3.2.2 The Rights and Equality Regulation

In order to contribute to further development related to equality and human rights, the EU Parliament and Council in 2013 adopted a Regulation to this effect.163 Through this Regulation member states commit themselves to establishing a programme on Rights, Equality and Citizenship for the period 2014 – 2020. Some of the specific objectives are to finance a broad spectrum of initiatives in member states aimed at preventing and combatting, among other things, “all forms of violence against children, young people and women, as well as violence against other groups at risk, in particular groups at risk of violence in close

relationships, and to protect victims of such violence”.164 Besides combatting violence in close relationships, another specific objective is the prevention and combatting of

159

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime (entered into force: 15 November 2012).

160_{Idem, preamble, para. 18} 161_{Idem, preamble, para. 18} 162

Idem, art. 23; see also para. 18 of the preamble. 163

Regulation1381/2013 of the European Parliament and of the Council of 17 December 2013 establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020 (entered into force: 29 December 2013), see art. 3.

164

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“homophobia and other forms of intolerance”.165 And promoting the effective implementation of the non-discrimination principle, including, among other grounds, sexual orientation in Article 21 of the Charter of Fundamental Rights of the European Union.166 Through this programme evidence will be generated to improve policy making at national and EU level.167 Evidence generated through this programme could therefore be used to effect policy change in member states that do not yet clearly have specific domestic violence protection for same-sex cohabiting partners (see paragraph 3.3).

3.2.3 The Istanbul Convention

In the Council of Europe context, the Istanbul Convention168 aims at preventing domestic violence against women. It is the first legally binding treaty in Europe that contains standards on domestic violence protection. The Convention aims to “protect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic

violence”.169 States parties are obliged to apply the Convention for the protection of women, but are also “encouraged to apply this Convention to all victims of domestic violence”.170 It defines domestic violence, in similar wording as the Victims’ Directive, as “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”.171 Furthermore, states parties, in the

implementation of this Convention and when adopting protection measures against domestic violence shall do so without discrimination on any ground including, among other grounds, sexual orientation.172 The Convention enshrines the principle that states parties should not make investigations or prosecution for, among other things, physical or sexual violence, dependent on the victim filing a complaint (as is still the case in a few jurisdictions surveyed – see paragraphs 3.1, 3.3.3 and 3.4); instead, states should allow for ex officio proceedings (as

165

Idem, arts. 4(b). 166

Idem, art. 4 (a). 167

Idem, preamble, para. 17.

168 _{Council of Europe, Council of Europe Convention on Preventing and Combating Violence against Women and Domestic}

Violence, 11 May 2011, CETS No. 210 (entered into force: 1 August 2014). 169

Idem, art. 1(a). 170 Idem, art. 2(2). 171 Idem, art. 3(b). 172 Idem, art. 4(3).

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are possible for example in Malta).173 Some protection measures mentioned in the Convention include barring, restraining and protection orders, similar to measures found in some of the jurisdictions surveyed. To date, the Convention has been signed by 44 countries and ratified by 22.174 The three jurisdictions in this survey that have no or unclear protection for same-sex partners (Bulgaria, Poland and Romania, see paragraphs 3.3 and 3.4 below) have all signed the Convention, but only in Poland and Romania has it entered into force.175 The latter two jurisdictions therefore have a treaty obligation to provide some form of protection against domestic violence to same-sex partners. Greece and Slovenia, where registered same-sex partners are protected, but cohabiting same-sex partners have no or uncertain protection, are signatories to the Convention, but only in Slovenia has it entered into force.176