ECtHR or CEDAW: Spoilt for Choice in Moldova?

By Irina Crivet (PhD Candidate, Koç University, Istanbul, Turkey)

The proliferation of international and regional human rights bodies has given the victims of human rights violations the chance to pick and choose where they can send their complaints. Whilst these choices are limited by geographical locations of individuals and the states’ acceptance of right to individual petition before multiple bodies, today some individuals and their lawyers have more than one choice. Moldova is one such country. Individuals can submit applications either before the European Court of Human Rights (ECtHR) – or before  quasi-judicial human rights bodies of the United Nations, the UN Treaty Bodies (UNTBs).

This blog post examines the effects of this proliferation for Moldovan victims of domestic violence who can take cases both before the ECtHR and the Committee on the Elimination of Discrimination against Women (CEDAW or the Committee). In doing so, I first examine the ECtHR case law regarding domestic violence in Moldova and the status of views adopted by UNTBs against Moldova. Then, I develop four possible reasons that could justify the applicant’s choice for selecting CEDAW over the ECtHR. Lastly, I explain what this shift could possibly mean. This blog post argues that the capacity of UNTBs to generate specific measures is the best explanation for the turn to CEDAW in Moldova.

Domestic Violence in Moldova: ECtHR or CEDAW? 

Moldova became a member of the Council of Europe (CoE) and the European Convention on Human Rights (ECHR) on 13 July 1995 and 24 July 1997, respectively. It ratified all the core international human rights instruments and accepted the competence of UNTBs to examine individual communications for all, except the Committee on Economic, Social, and Cultural Rights and Committee on the Rights of the Child.[1] The ECtHR receives annually an average of 1000 Moldovan applications but only a few of them are declared admissible. The most common types of violations found by the ECtHR in Moldovan cases concern non-enforcement of judgments; poor detention conditions; ill treatment, inadequate investigation of ill treatment, and deaths; and irregular annulment of final judicial decisions. In contrast, there were no Moldovan communications decided by any of the UNTBs up until 2017. During the sixty-sixth session, the CEDAW delivered a view regarding the first Moldovan case submitted to an UNTB, L.R. v. The Republic of Moldova, which concerns the lack of state intervention in a case of domestic violence.

Before 2017, the ECtHR also received Moldovan applications from victims of domestic violence in Eremia v. The Republic of Moldova, Mudric v. The Republic of Moldova, B. v. The Republic of Moldova, and T.M. and C.M. v. The Republic of Moldova. The above cases were declared admissible and the Court considered whether the applicants were subjected to treatment contrary to article 3 of the Convention, namely ill-treatment in the form of domestic violence. It found the violations of article 3 (prohibition of torture, namely ill-treatment in the present cases) in all the cases; violations of article 8 (the right to respect for private and family life) in Eremia and Mudric cases; and violations of article 14 (prohibition of discrimination) in conjunction with article 3 (ill-treatment) in Eremia, Mudric and T.M. and C.M. cases; and asked the state for financial redress for all the applicants. One can now only wonder why the CEDAW applicant – L.R. – chose to send her complaint regarding domestic violence allegations to a quasi-judicial body instead of a court that had already pronounced favourably on the matter. In other words, why would a CoE victim of domestic violence apply to the CEDAW but not to the ECtHR?

Possible Reasons

I identify four reasons which could explain choosing to apply to an UNTB instead of the ECtHR:

  1. Inadmissibility without substantive reasoning: An applicant submits a complaint to the ECtHR, but the application is manifestly ill-founded and declared inadmissible by the ECtHR within the meaning of article 35 § 3 (a) of the ECHR. For this reason, and knowing that the UNTBs have been open to addressing such complaints when the ECtHR does not pronounce on the substance, the applicant sends the complaint to an UNTB. Yet, this was not the case in R., as the applicant first went to CEDAW. She was not a failed Strasbourg applicant.
  2. Risk of unfavourable outcome from ECtHR: Similar complaints were declared admissible by the ECtHR, but the outcome of the judgment was unfavorable to the applicant. Other applicants claiming violations of the same matters might choose to send their applications to an UNTB due to the fear of their applications not to be decided in their favour. Again, this was not the case of R., the ECtHR having decided in favor of the applicants in previous domestic violence cases.
  3. Time factor: An applicant chose to send a communication to an UNTB because it is more likely that one receives a decision sooner from the ECtHR. It is a known fact that the ECtHR has an impressive backlog of cases compared to the UNTBs’ communications. However, while the ECtHR works full time, the UNTBs meet only 2-3 times a year. Receiving justice at the international level is also not that fast. The Moldovan applicant sent a communication to the CEDAW on 1 September 2011 and it was decided on 17 February 2017. It took six years to the CEDAW to deliver the views, thus, the time factor cannot be a good reason to choose CEDAW against ECtHR. While this could have been a reason, it was disapproved by the facts of the case.
  4. Remedial scope: An applicant may choose to send a communication to the CEDAW because the Committee is more likely to suggest comprehensive general measures and give recommendations to the state. Usually the ECtHR does not indicate comprehensive general measures, and this is left to the post judgment exchanges between states and the Committee of Ministers. The Court did not indicate any general measures beside financial redress in any of its Moldovan domestic violence cases. Although the ECtHR found violations of the relevant articles it held that it

“is not the court’s role to replace national authorities and to choose in their stead from among the wide range of possible measures that could be taken to secure compliance with their positive obligations under Article 3 of the Convention (…)under Article 19 of the Convention and in accordance with the principle that the Convention is intended to guarantee not theoretical or illusory, but practical and effective rights, the Court has to ensure that a State’s obligation to protect the rights of those under its jurisdiction is adequately discharged (…)” (Eremia §52; Mudric §41, B. §44; T.M. and C.M. §37).

It also recalled that “the Court will not replace the national authorities in choosing particular measure designed to protect a victim of domestic violence” (Eremia §58; Mudric §49; B. §51; T.M and C.M. §45.).

In contrast, the CEDAW, in L.R. v. the Republic of Moldova, prescribed both individual measures regarding the applicant’s situation ranging from measures to guarantee the physical and mental integrity and to provide reparation for the physical and mental harm suffered and a wide range of legislative, executive, and judicial measures. (L.R. §14). It first asked the state to fulfil general CEDAW obligations (L.R. §14b.(i)), starting with legislative measures requiring the state to bring its national legislation in full compliance with the CEDAW’s standards (L.R. §14b.(ii)) and amending the relevant provisions of the Criminal Code (L.R. §14b.(iii)); Secondly, it asked for the implementation of  executive measures regarding the investigation of allegations of domestic violence (L.R. §14b.(iv)) and the protection of domestic violence victims, including remedies and rehabilitation (L.R. §14b.(v)); Thirdly, it enquired for measures regarding the offenders such as rehabilitation, conflict-resolution, and housing options (L.R. §14b.(vi)), education and training for all the stakeholders concerned with a view to preventing and addressing domestic violence against women (L.R. §14b.(vii) and (viii)) and the elimination of the practice of compulsory in-patient psychiatric examination (L.R. §14b.(ix)). The last two measures referred to the national strategy for preventing violence against women and girls, as recommended by CEDAW in order to implements its Concluding Observations of October 2013 (CEDAW/C/MDA/CO/4-5) (L.R. §14b.(x-xi)). Hence, if the application was made to secure comprehensive general measures, this has succeeded.

What this shift means?

While “one swallow does not make a spring”, it is noteworthy to observe that the applicant preferred the Committee over the Court in order to obtain recommendation of general measures (L.R. §5.17). This is also confirmed by the applicant’s counsel, Mr. Alexandru Postica, and Ms. Lilia Poting, both representatives of the Moldovan NGO Promo-Lex responsible for domestic violence communications/judgments before the Committee and the Court.[2] Thus, there are instances, such as the present one, where straightforward recommendations by the Committee are sought. This raises questions regarding domestic implementation of these quasi-judicial decisions without giving a state a room for manoeuvre; the Committee is quite directive and detailed regarding remedial measures, especially when compared with the ECtHR. By indicating the types of general remedies necessary to prevent future similar violations, the Committee might face the states’ unwillingness to implement the decisions due to their legal status. While many scholars still consider that UNTBs’ views are ‘soft law’ and not legally binding on the States parties, a growing body of experts regards them as authoritative interpretations of the treaties. Recent developments in this area confirm that the States Parties do not agree on the status of the UNTBs’ views: on one hand, we see Spain accepting the UNTBs’ decisions as legally binding (Spain decision). Brazil, on the other hand, is rejecting the binding nature of the UNTBs’ views (Brazil interim measures). Despite one step forward and one step back, the UNTBs’ views are expected to be complied with by the states parties that willingly accepted, signed and ratified the Optional Protocols of UN Treaties which established Committees authorised to receive individual complaints. We must observe in the upcoming years whether the Moldova is reluctant or not to implement the CEDAW’s view.

In sum, the example of the Moldovan domestic violence cases illustrates that, in the CoE, an applicant seeking justice must choose between the UN quasi-judicial bodies and the ECtHR, both with their respective advantages and disadvantages. While the UN quasi-judicial bodies are willing to prescribe both individual and general measures, if the applicant is interested therein, they potentially face reluctance by the state regarding the implementation of a non-legally binding decision. The Strasbourg Court, on the other hand, does issue legally binding judgments, but due to the respect for the margin of appreciation doctrine and the principle of subsidiarity, it will typically only prescribe individual measures.

 

[1] Moldova has ratified UN Treaties such as ICCPR, CAT and its two Optional Protocols, CEDAW, CERD, CESCR, CRC and its Optional Protocols, and CRPD. It also accepted the individual complaints procedures to ICCPR, CAT, CEDAW and CERD.

[2] Moldova has a well engaged civil society regarding the implementation of human rights judgments. I got in touch with the representatives of the Promo-Lex, NGO responsible for all the cases mentioned above, and Ms. L.R.’s counsel. Though an exchange of emails they confirmed that the reasons behind their choice were “the time of response to the individual complaint and, in particular, the possibility of indicating not only the individual case of the applicant (but generally the situation of domestic violence in the Republic of Moldova and the problems faced by the victims) and obtaining general recommendations from the Committee.”

 

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