May 05, 2026
By Katarzyna Sękowska-Kozłowska
Starting with its seminal judgment in Opuz v. Turkey of 2009, the European Court of Human Rights (‘ECtHR’ or ‘the Court’) acknowledged that passivity on the part of state authorities in addressing domestic violence may amount to a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights (‘ECHR’). Subsequently, the Court delivered over a dozen judgments further developing its jurisprudence in this area. As I’ve argued in this paper, although not entirely consistent, this body of case law provides a fairly comprehensive picture of the arguments, data, and sources that may be used to demonstrate that a state’s conduct reflects structural gender bias in handling violence against women.
However, as can be seen from the Court’s recent judgment in J.S. v. Slovakia (22 January 2026), although constructing the argument that domestic violence is a gender-related, systemic problem in a given country may appear relatively straightforward, in practice it requires precise, data-driven evidence. As I would like to use this case as an example of a sound line of argument that was, however, not sufficiently developed, I will first provide a more detailed overview of the standard developed to date by the Court in examining alleged violations of Article 14 in domestic violence cases. I will then analyse the extent to which these requirements were met in the Slovak case.
As mentioned, the Court applied a non-discrimination lens to domestic violence for the first time in Opuz v. Turkey. Its reasoning in that case relied on several factors. First, it considered international standards framing violence against women as a form of gender-based discrimination, such as the CEDAW Convention. Second, it examined the general approach to domestic violence in Turkey. Third, it assessed whether the victims had been discriminated against as a result of the authorities’ failure to provide equal protection of the law. It concluded that domestic violence primarily affects women and that the general, discriminatory judicial passivity in Turkey created a climate conducive to such violence and influenced the applicant’s situation.
The Court’s reasoning benefited greatly from its evolving understanding of substantive equality. This shift in approach was significantly influenced by earlier cases on racial discrimination, particularly those concerning Roma children in education, such as D.H. and Others v. the Czech Republic.
The subsequent case law has continued to build on and expand this framework for adjudicating gender discrimination in domestic violence cases, primarily in the context of claims under Article 14 in conjunction with Articles 2 and 3. The Court’s assessment has followed a two-track approach, focusing on the individual treatment experienced by victims on the one hand and the general attitude of the authorities on the other. The latter refers to a “broader pattern demonstrating systematic failures by the authorities”, including “institutional attitudes or systemic patterns of discrimination” (see, e.g., M.A. v. Iceland, para. 98), which in effect gives content to the notion of “structural” (see, e.g., here) or “systemic discrimination” (see e.g. here).
While in Opuz v. Turkey the Court outlined the interplay between proving individual and structural discrimination, its subsequent case law, particularly in Moldovan cases, revealed inconsistencies in striking a balance between these two aspects (e.g., Eremia v. the Republic of Moldova, Mudric v. the Republic of Moldova). An important breakthrough came with Volodina v. Russia (see more here), where the Court held that “once a large-scale structural bias has been shown to exist, the applicant does not need to prove that she was also a victim of individual prejudice” (para. 114). However, the applicant must first establish “a prima facie case of structural bias or disproportionate effect, capable of shifting the burden of proof to the State” (M.A. v. Iceland, para. 103). If there is insufficient evidence of structural discrimination, she must instead demonstrate individual discrimination (Volodina v. Russia, para. 114).
There is a relatively rich body of case law available to guide applicants on the type of evidence they should provide to establish a prima facie case in domestic violence cases. In principle, such proof comprises two elements: an objective element, involving the provision of quantitative data indicating a large-scale, structural problem, and a subjective element, which requires demonstrating that this problem stems from a biased attitude on the part of the authorities.
As regards data, this primarily concerns evidence indicating that, in a given country, domestic violence predominantly affects women. Such data may be drawn from various stages of domestic proceedings. For example, it may include sex-disaggregated data on victims and perpetrators in domestic violence cases registered by prosecutors (Tkhelidze v. Georgia, para. 56), data on the number of protection orders requested (Bălșan v. Romania, para. 46) and/or issued by courts (A.E. v. Bulgaria, para. 57), or even statistics on the number and gender of individuals calling domestic violence hotlines (A.E.v. Bulgaria,para. 60).
In view of the lack of comprehensive official statistics, applicants cannot be expected to produce such data themselves (Y and Others v. Bulgaria, para. 126). However, they should make efforts to fill this gap, for example by relying on data provided by NGOs or academic research. Other important sources of information include findings of international human rights bodies, such as CEDAW, GREVIO, or UN Special Rapporteurs.
A subjective element, i.e., demonstrating a biased attitude on the part of the authorities, seems considerably more challenging. Although the ECtHR does not use the term “indirect discrimination” in cases related to domestic violence, its reasoning closely parallels that applied in cases where indirect discrimination was found. For instance, in Tunikova and Others v. Russia, it reiterated that “a general policy or a de facto situation which has disproportionately prejudicial effects on a particular group may constitute discrimination against that group within the meaning of Article 14 of the Convention, even where it does not specifically target that group and where no discriminatory intent has been established” (para. 127). Therefore, the applicant’s task is less to reveal the intent behind the state’s actions and more to demonstrate the effect these actions (or inactions) have had on women.
In reality, apart from Opuzand other Turkish cases (e.g., M.G. v. Turkey), it is very difficult to extract straightforward examples of state (in)actions that have disproportionately prejudicial effects. These are usually conglomerates of diverse factors rather than specific laws or practices that explicitly target women. For instance, in Bălșan v. Romania, the Court considered official statistics confirming the general tolerance of domestic violence in Romanian society, as well as data showing that only a relatively small number of reported incidents led to criminal investigations and that the availability of shelters for victims was severely limited.
There are also other arguments that applicants may invoke. These include repetitive violations identified by the ECtHR in domestic violence-related cases against a state (e.g., A.E. v. Bulgaria, para. 118) or a state’s reluctance to ratify the Istanbul Convention. Although the ECtHR emphasizes that it is not in a position to decide whether state parties should ratify an international treaty, as such a decision is inherently political, it has also stated that “the refusal of the Bulgarian authorities to ratify the Istanbul Convention … can still be seen as indicative of the level of their commitment to fighting domestic violence effectively” (A.E. v. Bulgaria, para. 121).
Thus, as we can see, although proving systemic gender-based violence before the ECHR is not as straightforward as it may appear at first glance, applicants potentially have a variety of sources and arguments at their disposal. However, as illustrated by J.S. v. Slovakia, litigation must be thoroughly constructed in order to achieve success.
A few words about the facts. The applicant, J.S., claimed that domestic courts had failed to promptly and thoroughly investigate her allegations of domestic violence by T., her former husband. Her main argument was that the domestic courts had downplayed the violence she suffered and had refused to give due weight to her statements, those of her children, and the expert conclusions. She contended that the assessment of evidence was influenced by prejudice and stereotypes against women who experience violence (para. 28). She alleged a violation of Article 3, as well as Articles 3 and 8 in conjunction with Articles 13 and 14 of the ECHR. The Court unanimously found a violation of Article 3 in its procedural aspect. As for the complaint of a violation of Article 14 in conjunction with Articles 3 and 8, the Court found it manifestly ill-founded. Regarding the remaining claims, it held that there was no need to examine them on the merits.
As for the alleged violation of Article 3, the Court accepted part of the arguments presented by the applicant. In particular, it found that the first-instance court had been overly formalistic in reaching its conclusions, showed no awareness of the specific characteristics of domestic violence, and failed to analyse the circumstances of the case from a gender-based perspective or to make a context-sensitive assessment of the credibility of the various statements (para. 58). This manifested, inter alia, in the court’s disregard of evidence of violence directed against the applicant, including her husband’s own admission that he had “occasionally slapped her and verbally harassed her”. In the ECtHR’s own words: “While accepting that there had been violence, the court relied on its alleged reciprocity to exclude its criminal character, thereby demonstrating a lack of a gender-sensitive approach in the case” (para. 57). Combined with the slow pace of the criminal proceedings, this revealed a failure on the part of the authorities to discharge their positive obligations under Article 3 of the Convention (para. 63).
Thus, this judgment is another step in the ECtHR’s exposure of bias and stereotypes in the handling of gender-based violence in the courtroom (see, e.g. here), which should be applauded. What is particularly interesting from the perspective of the claimed violation of Article 14 is that, although the lack of a gender-sensitive approach was explicitly highlighted by the Court as one of the factors contributing to the applicant’s ill-treatment, it was not recognized as sufficient evidence of gender-based discrimination directed against her. The Court observed that “she did not submit any evidence demonstrating that the authorities dealing with her particular case had acted in a discriminatory manner or with discriminatory intent towards her, nor did she allege that any of the officials involved in the case under examination had tried to dissuade her from testifying against T. or that they had attempted in any other manner to hamper her efforts to seek protection against violence committed by T.” (para. 73). This echoes findings in previous cases such as M.S. v. Italy and Mudric v. Republic of Moldova, which concerned the conduct of law enforcement authorities, such as the police. In the case of the judiciary, however, the issue is rather the interpretation of facts and law. The Court should consider whether the lack of a gender-sensitive interpretation applied by the courts, which was found to violate Article 3, amounted to gender bias in judicial reasoning, rather than whether the applicant was prevented from or discouraged from pursuing her case.
The Court also examined the applicant’s claim that gender-based violence against women is a systemic problem in Slovakia. She argued that cases of violence against women were underreported and that the number of prosecutions and convictions of perpetrators was low, as indicated in reports on Slovakia by the CEDAW Committee and the CAT, and as illustrated by several past cases of violence against women before the ECtHR that had not been sufficiently investigated (para. 68). In this way, she drew on arguments and sources previously relied upon in other cases. Although the relevant CEDAW and CAT reports were referred to in the judgment (paras. 24–27) and discussed by the Court (paras. 71–72), the Court stated that they had been “unspecified” by the applicant (para. 72). Interestingly, this issue was not challenged by the Government, which only stated that the applicant had raised her arguments in her discrimination complaint “only with reference to a general situation as described in the reports of international organizations without submitting any specific data demonstrating discriminatory treatment on the part of the domestic authorities of women who were victims of domestic violence” (para. 69).
Indeed, both CEDAW and CAT concluding observations on Slovakia do not contain detailed data on domestic violence in the country, which is consistent with their general practice, as these bodies do not aim to establish a comprehensive legal and factual picture of gender-based violence within the state reporting procedure, unlike GREVIO. However, the observations cited in the case highlight systemic problems, such as the lack of a specific definition of domestic violence as a crime in the Criminal Code, insufficient punishments for perpetrators, and limited access to shelters and support for victims (para. 25). These findings are similar to those the ECtHR has relied upon in other cases when identifying systemic discrimination.
Nevertheless, the relevant data could have been submitted from other sources. Even if official data are incomplete, for example, due to the absence of a specific domestic violence crime in the national law, other official data are often available to address this gap (see, e.g., Volodina v. Russia, para. 119), as well as alternative sources such as NGO reports or academic research.
Last but not least, Slovakia is not a state party to the Istanbul Convention. This could be an argument of significance in the applicant’s claim. Interestingly, although it was not raised, the Court itself noted that Slovakia had not ratified the Convention (para. 71).
This brief analysis demonstrates that there were significant arguments and evidence available that could have supported a claim of gender discrimination in this case, particularly at the systemic level. However, it is ultimately up to the applicant (or her representatives) to submit evidence and construct a persuasive argument in order to establish a prima facie case. In this instance, the opportunity was not fully seized: the evidence was too fragmented and unconvincing to render the claim even admissible. Thus, even if it seems obvious that domestic violence predominantly affects women and that most countries fail to fully address it, it remains the applicant’s responsibility to present as much convincing data as possible. Fortunately, there is already significant case-law that may offer guidance in this matter.
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