Conceptualising Torture in Domestic Violence Cases: The ECHR’s Dynamic Approach

Abstract

From 2007, when the first judgment strictly related to domestic violence was enacted before the ECHR, domestic violence is considered to be a human rights violation. The possibility for such a conceptualisation was previously rooted in positive obligations doctrine which shifted the postulates of human rights law. From the obligation to merely refrain from the abuse, states now have an obligation to protect an individual from the abuse of another individual. Enabling the horizontal effect of the rights from the Convention, the ECHR broadened up the scope of human rights tackling all sorts of cases which occur between individuals, such as domestic violence. However, certain elements of such constructs remain uncoherent and some immature aspects of this doctrine may cause some challenging issues in its practical implementation. Although the ECHR has established criteria on assessing whether a conduct is torture, degrading or inhuman behaviour, such an assessment lacked in the recent domestic violence judgments. Clearly, the dynamic and evolutive approach of the ECHR did not yet followed a substantial change in before mentioned domestic violence conceptualisation. In this paper, author analyses an early ECHR jurisprudence regarding Art. 3. of the Convention as well as the structure and the content of positive obligations which enabled domestic violence to be perceived as human rights violation. The author provides a brief review of the development of domestic violence concept as violation of torture.