Strasbourg Observers

The ‘limits of human rights law’: dissenting androcentric voices in Talpis v. Italy

May 30, 2017

By Fleur van Leeuwen, LL.M. Ph.D., human rights researcher and lecturer

In March this year the European Court of Human Rights (Court) concluded that Italy had violated the human rights of Talpis, a Moldovan/Romanian woman living in Italy who had for years endured domestic abuse by the hands of her Moldovan husband. The violence had culminated in the death of her son and a life threatening chest wound to herself. The Court found that the Italian authorities had not acted with the required due diligence to protect the applicant from harm and held that Italy had violated articles 2 (the right to life), 3 (freedom from torture, inhuman and degrading treatment) and 14 (non-discrimination). Two judges did not agree with the decision [on this case, see the blog post by Lourdes Peroni here].

‘The law has its limits, even human rights law’, argues Judge Spano in his dissenting opinion. His assertion: although human rights law already stretches the notions of ‘law’, the judgment of the Court surpasses even those boundaries. He suggests that emotions got the upper hand of the Court in the Talpis case, as he inter alia observes that:

‘it is all too easy to review tragic circumstances with the benefit of hindsight and impute responsibility where, on an objective and dispassionate analysis, there can be none. (Para. 16; Italics added)

 Androcentric human rights interpretation

The dissenting opinion of Judge Spano is a classic example of an androcentric interpretation of human rights law, an interpretation that ignores women’s narratives of human rights violations. This androcentrism is not only apparent in his choice of words – contrasting the judgment at hand with notions of objectivity and dispassionate reasoning – but follows from an incorrect (incident-based) understanding of domestic violence and a gender-insensitive interpretation of the corresponding human rights norms.

Androcentric reasoning has no place in contemporary human rights law. It is supposed to be a thing of the past. International organisations like the United Nations (UN) and the Council of Europe – as well as their respective human rights monitoring bodies – have committed themselves since the mid 1990s to include women’s human rights in the realm of international human rights law after acknowledging that violations of mental and bodily integrity that characteristically affect women were overlooked by the human rights systems. In order to overcome this problem human rights bodies were requested to integrate a gender perspective into their work, requiring them to take into account the ways and contexts in which women experience violations of their human rights and to interpret human rights in such a way as to effectively address these issues.[1] The recent case law of the Court on domestic violence shows a positive trend in this respect, generally recognising the scope and context of domestic abuse and acknowledging the discriminatory content of both the abuse and the (in)action of the authorities.

The dissenting opinion of Judge Spano is at odds with this trend and – if it was to be applied by the Court – would have serious ramifications for the promotion and protection of women’s human rights. His gender-neutral reasoning ignores the gendered context in which many violations of women’s human rights take place, leading to a situation in which issues like the one at hand – attempted femicide – fall outside the scope of human rights law. It is for this reason that Judge Spano’s reasoning deserves close scrutiny.

 The imminence and reality of the risk

 Judge Spano does not agree with the finding of a violation of article 2 of the Convention: the right to life. He holds that the Osman – criteria (i.e. whether the imminence and reality of the risk could have been foreseen by the authorities) have not been met due to the ‘lapses of time’ between the various violent incidents that the authorities have come across. These concern the initial police intervention in June 2012, an incident in August 2012, the official complaint submitted in September 2012, and the lethal events on 25 November 2013. These ‘lapses of time’ challenge the immediacy of the risk, Judge Spano holds. As far as the reality of the risk is concerned the judge argues that the attacks lack the gravity portrayed in the Opuz case and observes that:

‘When contrasted with the gravity of the eight prior attacks identified in Opuz, involving repeated death threats and resulting in life-threatening injuries on several occasions, the constructive knowledge inevitably arising from such a course of events cannot be imputed to the authorities in the present case, who did not possess information on attacks and death threats on this scale.’ (para. 6)

Hence he concludes that:

‘There is a limit on how far positive obligations under Article 2 can extend to shield victims from unforeseen attacks without imposing unrealistic obligations on the police accurately to forecast human behaviour and to act on those prognostications by unduly restricting other Convention rights. Although it may be tempting to dilute legal concepts such as the Osman test when faced with heart- rending facts and give solace to individuals in situations such as that of the applicant, there are reasons why the threshold under the Convention is set high, and, in my view, why it must continue to remain so.’ (Para. 16)

Incident-based understanding of domestic violence

Judge Spano employs a so-called incident-based understanding of domestic violence, an understanding that overlooks the continuum of fear, intimidation and abuse in which the violence takes place and instead looks at each (reported) incident of violence as a separate event. By focusing on ‘lapses of time’ in order to challenge the immediacy of the risk and by questioning the gravity of the attacks, the Judge shows a lack of understanding of the experiences of domestic abuse lived by women worldwide.

It is this incident-based understanding of domestic violence that may also explain why the judge treats the case of Talpis as a homicide instead of an attempted femicide (the intentional murder of a woman because she is a woman). By questioning whether the authorities knew or could have known of an imminent and real risk on the day of the deadly attack Judge Spano overlooks the fact that the murder of the son and the attempted murder of Talpis were the denouement of years of abuse. Years in which the authorities remained inactive. Surely it is the moment that the authorities were made aware of the domestic abuse that the imminence and reality of the threat became a fact. Especially so given the fact that domestic abuse is a serious indicator of risk of femicide.[2] The argument that the Italian authorities could not have foreseen the lethal attack on Talpis simply does not hold up if one applies a nuanced gender-sensitive understanding of domestic violence.

Passivity of the authorities

Similar gender-insensitivity is portrayed in the reasoning of the judge on article 14 – in which he is supported by Judge Eicke. He holds that he

‘cannot subscribe to the majority’s findings that the inaction of the authorities, as manifested in the present case, reflects systemic gender-based discrimination, since there is insufficient evidence to show general and discriminatory passivity of the kind previously established in the Court’s case-law.’ (Para. 18)


‘the judgment fails to take proper account of the Court’s finding in Rumor v. Italy, in the context of Article 3, that “the authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity” (…) the system at issue is the same. Since the impugned failings were not rooted in the discriminatory intent of the authorities but rather in pure passivity, they do not provide grounds for departure from the Article 14 conclusions previously drawn in respect of Italy.’ (Para. 21)

As Lourdes Peroni observed, ‘the dissenters seem to be asking for more specific discriminatory attitudes on the part of  domestic authorities (especially attitudes of the type found in Opuz).’

This understanding of (direct) discrimination is very limited and does not do justice to the different forms of discrimination that exist, including indirect -, systemic -, and intersectional discrimination. All of which could simultaneously be at work in the case at hand.

Besides the question of evidence: i.e. is a discriminatory attitude of authorities only displayed when they tell a victim that domestic violence is not a big issue and she should go home to her husband? or may it also be illustrated by their lack of actions (7 months without investigation)? There is also the question of the burden of proof. It is generally accepted that violence against women is a form of gender-based discrimination often rooted in systemic discrimination. It is also common knowledge that women have a much higher risk of encountering domestic abuse than men. Hence when authorities do not act upon domestic abuse it – indirectly – affects women more. Surely these notions must shift the burden of proof as a prima facie indication of discrimination exists. In cases where the Court finds a violation of article 2 or 3 of the Convention in a domestic violence case due to passivity of the authorities, it is up to the state party concerned to show that the passivity complained of was ‘pure passivity’ and not discrimination. To argue otherwise would be to ignore the complex system of gender stereotypes, laws, and practices in which domestic violence is embedded.

What is even more disheartening is that arguments for discriminatory attitudes were in fact supported by documents of CEDAW and the UN Special Rapporteur on Violence Against Women in the case at hand. But the two judges deemed these not convincing enough to show discrimination.

A just human rights framework

Mosher, in her work on women’s access to justice observes that:

‘Significantly, (access to justice) necessitates moving beyond the reductive, incident-based understanding of domestic violence (…) Rather, a deep appreciation of domestic violence – and of how it is deployed by individual men and enabled by social structures and institutions, law included – is critical. (…) Meaningful access to justice for women – “justice for all” – will remain elusive unless and until a nuanced understanding of domestic violence is widely shared among system actors.’[3]

Androcentric voices like the ones heard in the dissenting opinions have no place in a system that aims to promote and protect the human rights of men and women. By now it should be common practice for all that work in human rights to employ a gender perspective to their work. This is not surpassing ‘the limits of human rights law’, but – on the contrary – is prerequisite for a just human rights framework.


[1] See for example F. van Leeuwen, The United Nations and the Promotion and Protection of Women’s Human Rights: A Work in Progress, in: The Women’s Convention Turned 30 Achievements, Setbacks, and Prospects, I. Westendorp (ed), Intersentia, Cambridge.

 [2] WHO, Understanding and addressing violence against women, 2012., accessed on 24 May 2017.

[3] Mosher, J., Grounding Access to Justice Theory and Practice in the Experiences of Women Abused by Their Intimate Partners, Windsor Yearbook of Access to Justice 32.2(2015), p. 151.

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