A/74/148
by, for instance, allowing husbands to “chastise” their wives or failing to criminalize
marital rape (A/HRC/31/57, para. 55). With reference to article 7 of the International
Covenant on Civil and Political Rights, the Human Rights Committee has repeatedly
condemned the failure of States to prevent and redress domestic violence
(e.g. CCPR/C/JAM/CO/4, para. 23; and CCPR/C/LKA/CO/5, para. 9), and the
Committee Against Torture has done the same with reference to the Convention
against Torture (e.g. CAT/C/GRC/CO/5-6, para. 23). Moreover, in paragraphs 18 and
19 of its general comment No. 2 (2007) on the implementation of article 2 by States
parties, the Committee Against Torture confirmed States ’ due diligence obligations to
prevent, investigate, prosecute and punish acts of torture or other cruel, inhuman or
degrading treatment by non-State actors, including gender-based violence, such as
rape, domestic violence, female genital mutilation and trafficking. Importantly,
according to the Committee, if a person is to be transferred or sent to the custody or
control of an individual or institution known to have engaged in torture or ill treatment, or the State has not implemented adequate safeguards, the State is
responsible, and its officials subject to punishment for ordering, permitting or
participating in this transfer contrary to the State’s obligation to take effective
measures to prevent torture.
13. At the regional level, the European Court of Human Rights has repeatedly found
violations of the prohibition of torture and ill-treatment owing to States’ failure to
take general and specific measures to effectively protect persons from domestic
violence, 9 or because the domestic court’s approach suggested that “isolated and
random” acts of violence could be tolerated within the family. 10 In doing so, the Court
has elaborated States’ positive obligations to protect persons facing domestic
violence. 11 Thus, the Court has found, for example, that States should strive expressly
and comprehensively to protect children’s dignity against domestic violence, most
notably through an adequate legal framework affording protection through effective
deterrence against serious breaches of personal integrity, through reasonable steps to
prevent abuse of which the authorities have, or ought to have, knowledge and through
effective official investigations of credible allegations of ill-treatment. 12 Other cases
in which the Court has found a violation of the Convention for the Protection of
Human Rights and Fundamental Freedoms on the basis of States ’ response to
domestic violence also concerned the right to life, 13 the right to private and family
life 14 and the prohibition of discrimination. 15
14. The Inter-American Commission on Human Rights has found the failure to
protect a victim of domestic violence and her children to be in breach of the American
Declaration of the Rights and Duties of Man, notably the right to life, liberty and
security of person and the right to equality before the law, in particular owing to the
State’s failure to enforce a restraining order against the victim’s husband. 16 The Inter__________________
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10
11
12
13
14
15
16
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See, inter alia, Opuz v. Turkey, App. No. 33401/02, Judgment of 9 June 2009; N. v. Sweden,
App. No. 23505/09, Judgment of 20 July 2010; E.M. v. Romania, App. No. 43994/05, Judgment
of 30 October 2012; Valiulienė v. Lithuania, App. No. 33234/07, Judgment of 26 March 2013;
B. v. Republic of Moldova, App. No. 61382/09, Judgment of 16 July 2013; T.M. and C.M. v.
Moldova, App. No. 26608/11, Judgment of 28 January 2014.
D.M.D. v. Romania, App. No. 23022/13, Judgment of 3 October 2017, paras. 40–53.
See factsheet on domestic violence produced by the European Court of Human Rights.
D.M.D. v. Romania, para. 51.
See, for example, Kontrová v. Slovakia, App. No. 7510/04, Judgment of 31 May 2007; and
Branko Tomašić and Others v. Croatia, App. No. 46598/06, Judgment of 15 January 2009.
See, for example, Bevacqua and S. v. Bulgaria, App. No. 71127/01, Judgment of 12 June 2008;
and A. v. Croatia, App. No. 55164/08, Judgment of 14 October 2010.
See, for example, Eremia v. Republic of Moldova, App. No. 3564/11, Judgment of 28 May 2013.
Jessica Lenahan (Gonzales) et al v. United States of America, report No. 80/11, case 12.626,
Inter-American Commission on Human Rights, 21 July 2011.
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