Publication | Open Access
State Obligations Regarding Domestic Violence: The European Court of Human Rights, Due Diligence, And International Legal Minimums of Protection
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2010
Year
Unknown Venue
Over \t\t\t\tthe last two decades, international human rights instruments, decisions, and \t\t\t\tdedicated advocates have advanced the understanding of domestic violence. Once \t\t\t\tconsidered a private act committed with widespread impunity, domestic violence \t\t\t\tis now viewed as a human rights violation that states have a responsibility to \t\t\t\taddress. This article will trace the history of this progression and the \t\t\t\temergence of a "due diligence" standard to assess a state's response to \t\t\t\tdomestic violence. The first half of the article will examine the recognition \t\t\t\tof the due diligence standard as a rule of customary international law with \t\t\t\tincreasingly defined state obligations. The second half of the article will \t\t\t\tanalyze the evolution of the due diligence standard within the European Court \t\t\t\tof Human Rights (ECHR) and the application of the standard in two landmark \t\t\t\tcases, and \t\t\t\tBoth cases held \t\t\t\tnational governments responsible for failing to exercise due diligence to \t\t\t\tadequately protect individuals from domestic violence. The decisions in these cases not only affirm the use of the due \t\t\t\tdiligence standard as a tool for assessment, but also they begin to clarify the \t\t\t\tpractical obligations of protecting victims from domestic violence as well as \t\t\t\tpreventing, investigating, and prosecuting such violence. In particular, the \t\t\t\tECHR highlights the need for enforceable measures of protection and a \t\t\t\tlegislative framework that enables criminal prosecutions of domestic violence \t\t\t\tin the public interest. Furthermore, the article will analyze the decision in and the Court's \t\t\t\trecognition that a State's to \t\t\t\texercise due diligence to protect women against domestic violence is \t\t\t\tgender-based discrimination, violating women's right to equal protection of the \t\t\t\tlaw.