Strasbourg Observers

Cyberviolence, domestic abuse and lack of a gender-sensitive approach – Reflections on Buturuga versus Romania

March 11, 2020

By Fleur van Leeuwen (Boğaziçi University)

‘The legal system is designed to protect men from the superior power of the state but not to protect women or children from the superior power of men.’ It is a quote from Harvard psychiatrist Judith Herman in an article on domestic violence in the Guardian last weekend. The androcentric nature of international human rights law has been well documented.[1] Gender mainstreaming was championed in the 1990s as the approach to rectify this deficiency. But although some steps were taken – i.e. domestic abuse is no longer considered to be an issue that falls outside the realm of human rights – the jurisprudence of the European Court of Human Rights (the Court) on domestic violence shows that the required transformation of the system is not yet in sight.[2]

The case of Buturuga versus Romania of the Court of last February offers another classic example in this respect. Although the comments of the Court on cyber violence as an aspect of domestic abuse are noteworthy – the judgment at large is not. The most significant conclusion to be drawn from Buturuga versus Romania is that gender mainstreaming – or (consistently) applying a gender-sensitive approach – remains ostensibly still too difficult a task for the Court.

Facts of the case

In her claim before the Court, Buturuga states that MV subjected her repeatedly to physical violence and death threats during their marriage. The violence allegedly gets worse in November 2013. On 17 December 2013, MV threatens to push Buturuga off a balcony ‘to make it look like suicide’ and, on 22 December 2013, he attacks her again and says he will kill her with an ax. The next day Buturuga goes to the police and files a complaint. On 6 January 2014 she files a new complaint against MV and reiterates her allegations, but according to Buturuga the authorities tried to persuade her to withdraw her complaint on the grounds that her injuries were slight. In March 2014, Buturuga also requests an electronic search of the family computer, stating that MV has wrongfully consulted her electronic accounts, including her Facebook account, and has made copies of her private conversations, documents and photo’s.

In March 2014 the Court of First Instance – per request of Buturuga – issues a six month protection order related to the events of 22 December 2013. Buturuga says that MV broke the order on multiple occasions and that she had informed the police but that this had been to no avail. She files a new criminal complaint against MV for breach of confidentiality of correspondence in September 2014.

By a decision of 17 February 2015 the prosecution dismisses the criminal case against MV. It argues that MV’s behaviour is not serious enough to qualify as an offense and finds that, although the forensic certificate issued on 23 December 2013 proves that the applicant had suffered injuries, it did not establish that this violence was conducted by MV. Buturuga’s complaint of a breach of the confidentiality of her correspondence is dismissed as being out of time.

On 29 October 2015 MV allegedly chases Buturuga on the street. The criminal proceedings are still pending when Buturuga files her complaint with the Court.

Buturuga complains before the Court of a lack of effectiveness in the criminal investigation and holds that her personal safety has not been adequately secured. She also criticises the authorities’ refusal to examine her complaint concerning the violation of her correspondence by her ex-husband.

The merits

The Court examines the complaint of Buturuga under articles 3 (freedom from torture, inhuman and degrading treatment) and 8 (right to private life) of the Convention and looks whether the state has complied with its positive obligations in regards to Buturuga’s complaints of domestic violence. It notes that the authorities addressed the facts of the case under the articles of the new penal code, which punishes violence between individuals, and not the provisions of the code that  punish domestic violence more severely. The Court finds that there are shortcomings in the investigation as it did not take the specific features of domestic abuse into account and holds that the investigative authorities should have taken the necessary steps to identify the person responsible for the injuries proven in the forensic report.

The Court then looks at the investigation into the alleged violation of the confidentiality of correspondence and considers that these allegations call for a substantive examination by the authorities in order to be able to comprehensively understand the phenomenon of domestic violence in all its forms. The Court finds that the authorities have in this case shown ‘un formalisme excessive’ in rejecting any connection with the acts of domestic violence and have thereby failed to take into consideration the various forms that domestic violence may take.

The Court rules that there has been a breach of the state party’s positive obligations under articles 3 and 8 of the Convention.

Cyberviolence and the dubious role of article 8

The Convention does not contain an explicit prohibition of domestic violence or, for that matter, of violence against women and for that reason the Court must reread the existing provisions to apply them to the specific circumstances that typically affect women. In doing so it is not sufficient that the Court merely ‘adds’ these experiences to the scope of the Convention. Rather the way the Court addresses these violations in its judgments needs to transform. As Edwards observes, this means that the Court must endorse a contextual analysis to any case.[3]

The issue in the case at hand is whether the domestic authorities should have conducted an investigation into the alleged ‘cyber violence’, i.e. the accessing and saving of Buturuga’s electronic data, photo’s and conversations by MV, as part of their wider investigation into the domestic violence allegations against him. Romania argues that these are separate issues and that it therefore had no obligation to do so whereas Buturuga rightfully argues that they are not and holds that the authorities should have pursued the matter. It is to be commended that the Court sides with Buturuga in the matter and links the cyber violence to the other allegations of domestic abuse. In the judgment it observes that that cyberviolence is recognised as an aspect of violence against women and can take many forms including

‘ICT-related violations of privacy, intrusion into the victim’s computer and the taking, sharing and manipulation of data and images, including intimate data’ (para. 74).

It holds that in the context of domestic violence, cyberviolence is often carried out by intimate partners and ‘accepts the applicant’s argument that acts such as monitoring, accessing or saving a partner’s correspondence without authorisation may be taken into account when investigating acts of domestic violence.’ (para. 74) The Court concludes that the authorities have shown excessive formalism in rejecting any connection with the acts of domestic violence and that they thus failed to take into account the various forms that domestic violence may take (para. 78). Hence the Court recognises the multifaceted nature of domestic abuse and acknowledges that ‘cyber violence’ may be one of the forms in which this abuse manifests itself. This is to be applauded as this resonates with women’s lived experiences of domestic abuse.

Yet, conversely, the structuring of the Courts reasoning and its reference to article 8 of the Convention portray a different picture. As the Court decides to address the complaint of Buturuga under articles 3 and 8 of the Convention and divides its examination of the case in two sections: one on ‘the investigation of ill-treatment’ and one on ‘the investigation into the violation of the confidentiality of correspondence’ it, prima facie, appears to consider the ‘domestic abuse’ and the ‘cyber violence’ as separate issues with one falling under the heading of article 3 of the Convention and the other under article 8. This notion is strengthened by the Court’s conclusion that:

‘The investigation into the acts of violence had failed, and no examination on the merits of the complaint of breach of confidentiality of correspondence, which, in the opinion of the Court was closely linked to the complaint of violence, had not been conducted. There has therefore been a breach of the positive obligations under articles 3 and 8 of the Convention and a violation of these provisions.’ (emphasis added) (para. 79)

Hence what one could take away from this judgment is that cyber violence is an issue that is to be addressed (separately) under article 8 of the Convention rather than under article 3. This is not a welcome precedent. Looking at the context in which the cyber violence at hand is manifested and the feelings of fear and anguish it must incur it deserves to be framed as ill-treatment rather than one of privacy. As this is the first case in which the Court discusses cyberviolence in the context of domestic abuse, it is unfortunate that the Court does not clarify its reasons for addressing the case under both provisions. It would have been useful to see the Court frame cyberviolence against women explicitly as an issue under article 3 of the Convention.

Gender-based discrimination

More poignant from a gender-perspective, however, is the Court’s omission to address the discriminatory context in the case at hand. There are clear indications of such circumstances in the facts of the case, like Buturuga’s allegation that the authorities tried to persuade her to withdraw her complaint as they considered her injuries not serious enough and the fact that the domestic court found MVs behaviour not serious enough to qualify as an offense. Moreover, in 2017 in Balsan versus Romania – its previous decision on a domestic violence case against Romania – the Court found that official statistics show that domestic violence is tolerated and perceived as normal by a majority of people in Romania and that only a rather small number of reported incidents are followed by criminal investigations. (para. 83) It also held there that the authorities did not fully appreciate the seriousness and extent of the problem of domestic violence in Romania and held that their actions reflected a discriminatory attitude towards the applicant as a woman.(para. 85). It consequently found a violation of article 14 of the Convention.

Although Buturuga did not explicitly invoke a violation of article 14 of the Convention, this should not have prevented the Court from addressing the case under this provision. Besides the clear indications in the case at hand, the relation between domestic violence and gender-based discrimination is widely recognised. The Court has stipulated itself on many occasions that domestic violence affects women disproportionally and that violence against women, including domestic violence, is a form of discrimination against women (e.g. Halime Kiliç versus Turkey, para. 114). And in Volodina versus Russia of July 2019, it explicitly recognised moreover that the prohibition of gender-based violence as a form of discrimination against women has evolved into a principle of customary international law. (para. 110) illustratively, in Balsan versus Romania the Court considered it appropriate to communicate a complaint under article 14 of the Convention of its own motion. (para. 72) As the Court stated itself in Buturuga versus Romania: ‘iura novit curia’ –  the Court is the master of the legal classification of the facts of the case. (para. 44) A discussion under article 14 of the Convention should be a fixed element of any examination on the merits of a domestic violence complaint if the Court is to apply a gender-sensitive approach.

By not addressing the discriminatory context in which the domestic violence in the case at hand thrives, the Court wrongfully treats it as an isolated incident and thus does little to combat domestic abuse as a phenomenon and as a manifestation of substantive inequality in Romanian society. Especially considering its findings in Balsan versus Romania this is a striking omission.

In sum

Judge Pinto de Albuquerque who has long been an advocate of a gender-sensitive approach noted in his concurring opinion in Valiuliene versus Lithuania of 2013 that:

‘(T)he full effet utile of the (Convention) can only be achieved with a gender-sensitive interpretation and application of its provisions which takes into account the factual inequalities between women and men and the way they impact on women’s lives.’

Only six months ago in the case of Volodina versus Russia, the Court took several steps towards such a gender-sensitive approach. In his separate opinion to that judgement, Judge Pinto de Albuquerque argued that, although there was still room for improvement, he lauded the progress made by the Court in this respect. In his conclusion he holds that:

‘It is now time to implement in a consistent manner this gender-sensitive approach, which seeks to eradicate gender inequality and with it the wholly demeaning occurrence of domestic violence.’ (para. 21)

His words unfortunately do not resonate in the Court’s judgment in Buturuga versus Romania.  With a dubious framing of cyberviolence and – more importantly – by not addressing the discriminatory context in the case at hand the judgment lacks a proper gender-sensitive approach. More than 25 years have passed since states acknowledged in the Vienna Declaration and Programme of Action of 1993 the androcentric nature of international human rights law and called upon human rights bodies to include women’s rights in their deliberations and findings. Gender mainstreaming – or applying a gender sensitive approach – should by now be ingrained in the modus operandi of the Court, but as Buturuga versus Romania shows it is not. The required transformation of the human rights system is not yet in sight. Until it does, the legal system will continue to protect men from the superior power of the state but not protect women from the superior power of men.

Dr. Fleur van Leeuwen is a lecturer in law at Boğaziçi University, Department of Political Science and International Relations in Istanbul, Turkey and an affiliated senior researcher at Atria – Institute on Gender Equality and Women’s History in Amsterdam, the Netherlands.


[1] See for example Bunch, Charlotte. “Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights.” Human Rights Quarterly 12.4 (1990): 486-498; Charlesworth, Hilary. “What Are Women’s International Human Rights?” Human Rights of Women: National and International Perspectives. Ed. Rebecca J. Cook. Philadelphia: University of Pennsylvania Press, 1994: 58-84; and Cook, Rebecca, ed. Human Rights of Women: National and International Perspectives. Philadelphia: University of Pennsylvania Press, 1994.

[2] Feminist legal scholars have warned that in the context of ‘gender-mainstreaming’ – also called ‘integrating a gender perspective’ or ‘applying a gender-sensitive approach’ – a mere ‘add and stir’ of women’s human rights is not enough. Rather in order to overcome the androcentric nature of the human rights system a transformation is required. See for example Gallagher, Anne. “Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System.” Human Rights Quarterly 19.2 (1997): 283-333; and Charlesworth, Hilary. “Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations.” Harvard Human Rights Journal 18.1 (2005): 1-18.

[3] Edwards, Alice. Violence against women under international human rights law, Cambridge: Cambridge University Press, p. 335.


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