Many Thanks to Simone Cusack, Who Is Currently Completing an LL.M. in Ourinternational

Date: Mon, 12 Feb 2007 15:37:39 -0500
From: "REPROHEALTHLAW-L : Reproductive and Sexual Health Law Programme"
Subject: [RHLAW] CEDAW: AT v. Hungary domestic violence

Many thanks to Simone Cusack, who is currently completing an LL.M. in ourInternational Reproductive and Sexual Health Law Programme, forcontributing this original case comment for members of the listserve.

Ms. A.T. v Hungary, CEDAW Communication No. 2/2003,UN Doc. CEDAW/C/32/D/2/2003 (26 January 2005)

Summary

Ms. A.T. v Hungary, a domestic violence case against Hungary marks amomentous occasion in the international protection of women’s rights. Thefirst merits-based communication examined under the CEDAW Optional Protocoland, by extension, the first communication to find a state in violation ofits obligations under CEDAW, A.T. represents the beginnings of a new phasein the protection of women’s rights.

Factual Background

The events culminating in the Committee’s view in A.T. began in March1998, when, it was alleged, that A.T.’s common law husband, L.F., embarkedupon a continuum of domestic violence, lasting close to half a decade. Theperiod of sustained violence reported to have unfolded, led to the draftingof ten medical certificates connected to separate incidents of severephysical violence, including an incident on 27 July 2001, which resulted inA.T.’s hospitalization. Unable to seek refuge in a shelter because of anabsence of facilities equipped to care for her fully disabled child and,rendered powerless by a lack of protection or restraining orders, A.T. wasforced to remain in the family home. Left with limited options, in 1999,A.T. commenced criminal proceedings against L.F. for two reported incidentsof battery and assault causing bodily harm. Following the alleged incidentin July 2001, additional criminal proceedings were filed against L.F. by alocal hospital. Whilst these proceedings had not been finally determinedat the time A.T. submitted her communication, the Committee was latterinformed that that the two sets of criminal proceedings had been joined andthat L.F. had been convicted of two counts of causing grievous bodily harm.Two sets of civil proceedings were also initiated, one concerning thedivision of family property, which was suspended indefinitely and, another,regarding L.F.’s access to the family residence, which was later dismissed.

Unsatisfied with the response from the domestic courts, A.T. submitted acomplaint to the Committee alleging violations of arts. 2, 5, and 16 ofCEDAW. A.T. claimed that L.F. had subjected her to “regular severedomestic violence and serious threats” and that Hungary had “passivelyneglected its ‘positive’ obligations under the Convention and supported thecontinuation of a situation of domestic violence against her.” In makingher complaint, A.T. sought individual justice for herself and her children,including in the form of compensation, and also a general response capableof addressing “the intolerable situation” of violence affecting women “fromall segments of Hungarian society.”

View and Recommendations

In its view, the Committee concluded that Hungary’s failure to provideA.T. with effective protection from L.F. amounted to a breach of art. 2,and art. 5(a) in conjunction with art. 16, of CEDAW.The question of whether Hungary could be held accountable for its failureto protect A.T. from violence by a non-state actor was key to theCommittee’s finding of a violation under art. 2. Recalling its GeneralRecommendation No. 19, the Committee re-iterated that the obligationsincumbent on states under CEDAW are not limited to action by or on behalfof states, but extend to “private acts if they fail to act with duediligence to prevent violations of rights or to investigate and punish…”violations. In this connection, the Committee emphasized that theobligations assumed by states extend to gender-based violence, regardlessof whether the specific provisions within CEDAW expressly mention violence.The Committee also re-iterated its concern that the remedies available inHungary were incapable of providing immediate protection to A.T., and thatHungary’s legal and institutional arrangements did not meet internationallyaccepted standards. In this regard, the Committee referred to itsConcluding Observations on Hungary’s combined fourth and fifth periodicreport, where it criticized Hungary for its failure to implement measuresdesigned to combat gender-based violence.

The Committee also concluded that the facts of the communication revealeda violation of art. 5(a), together with art. 16. In reaching this decision,the Committee noted how “traditional attitudes by which women are regardedas subordinate to men contribute to violence against women,” and, in thisconnection, referred to its earlier Concluding Observations, where itemphasized the “persistence of entrenched traditional stereotypes regardingthe role and responsibilities of women and men in the family….” Recallingits previous discussion on arts. 5 and 16 in General Recommendation No. 19,the Committee, by implication, also highlighted how “[t]raditionalattitudes by which women are regarded as subordinate to men or as havingstereotyped roles perpetuate widespread practices involving violence orcoercion, such as family violence and abuse […].” Directing its attentionto the facts, the Committee noted that “…the communication reveal[ed]aspects of the relationships between the sexes and attitudes towards womenthat the Committee recognized vis-à-vis the country as a whole.”

Remedies

Following its finding that Hungary had breached its obligations underCEDAW, the Committee issued several recommendations intended to remedy theviolations complained of by A.T., as well as the situation of violence inHungary more generally. Responding to A.T.’s individual situation, theCommittee recommended that Hungary take immediate and effective measures“to guarantee the physical and mental integrity of A.T. and her family” andto ensure that A.T. was provided with a safe home, appropriate childsupport, and legal assistance. The Committee also recommended that A.T.receive reparation proportionate to the harm undergone and to the gravityof the violations. More generally, the Committee recommended that Hungary:ensure women’s rights, including the right to be free from all forms ofdomestic violence; take all necessary measures to implement and evaluateits national strategy on family violence; provide regular training on CEDAWand its Protocol to judges, lawyers and law enforcement officials;implement the Committee’s Concluding Observations; effectively investigateand prosecute allegations of domestic violence; provide access to justicefor victims; and, finally, provide offender rehabilitation programs.

The entire decision is available online

at: