The Istanbul Convention, Domestic Violence and Human Rights by McQuigg Ronagh;

Author:McQuigg, Ronagh;
Language: eng
Format: epub
Publisher: Taylor & Francis Group

Civil law measures

As Connelly and Cavanagh comment, ‘Engaging with the civil law enables women to actively respond to current abuse and seek to stop future abuse without reliance on the criminal law and its agents.’126 The importance of civil law measures is recognised by the Istanbul Convention. Under Article 29, states parties must take measures to provide victims with adequate civil remedies, both against perpetrators and against state authorities that have failed to take appropriate preventive or protective measures. Article 53(1) states: ‘Parties shall take the necessary legislative or other measures to ensure that appropriate restraining or protection orders are available to victims of all forms of violence covered by the scope of this Convention.’ Under Article 53(2), such orders must be available for immediate protection and without undue financial or administrative burdens being placed on the victim; issued for a specified period or until modified or discharged; where necessary, issued on an ex parte basis which has immediate effect; available irrespective of, or in addition to, other legal proceedings; and allowed to be introduced in subsequent legal proceedings. Article 53(3) places an obligation on states parties to take measures to ensure that breaches of restraining or protection orders are subject to ‘effective, proportionate and dissuasive criminal or other legal sanctions’.

The need for adequate civil law measures has also been recognised by the UN human rights bodies. For example, in its General Recommendation No. 19, the CEDAW Committee stated that ‘[e]ffective legal measures, including . . . civil remedies’127 were necessary to protect women from violence occurring in the private sphere. Likewise, the report of the Special Rapporteur on violence against women containing the framework for model legislation on domestic violence, went into a substantial amount of detail regarding the restraining orders and protection orders that states should make available.128 According to this report, such orders should have the capacity inter alia to compel the offender to vacate the family home, regulate the offender’s access to dependent children, restrain the offender from contacting the victim and compel the offender to pay the victim’s medical bills.129 Likewise, Article 7(c) of the Convention of Belém do Pará encompasses the placing of an obligation on states parties to ‘include in their domestic legislation . . . civil . . . provisions that may be needed to prevent, punish and eradicate violence against women’.

Article 31 of the Istanbul Convention addresses the area of custody and visitation rights, an issue that is of particular relevance to domestic violence. This provision states: ‘Parties shall take the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the scope of this Convention are taken into account.’130 In addition: ‘Parties shall take the necessary legislative or other measures to ensure that the exercise of any visitation or custody rights does not jeopardize the rights and safety of the victim or children.’131 Article 45(2) allows for the ‘withdrawal of parental rights, if the best interests of the child, which may include the safety of the victim, cannot be guaranteed in any other way’.

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