Recently (25 November to 10 December), the world marked 16 days of activism against gender-based violence (GBV). The UN recognizes intimate partner violence and technology-facilitated violence against women as some of the most common forms of violence against women (VAWG) globally.
During the world’s 16 days of activism against GBV, on 3 December 2024, the European Court of Human Rights (ECtHR) delivered its judgment in a case of intimate-partner, technology-facilitated violence (revenge porn) against a young woman, M.Ș.D. v. Romania. The ECtHR found a violation of Article 8 of the European Convention on Human Rights (ECHR): the criminal legal framework was “inadequate, not affording the applicant protection against acts of online harassment committed by her former intimate partner consisting of the non-consensual public dissemination of intimate photographs of her”.
However, the ECtHR refused to discuss whether the authorities’ established failure to conduct a proper investigation was discriminatory, even though the investigator in the case had explicitly blamed the victim for the criminal acts: by sending her ex photographs of herself in “indecent poses”, M.Ș.D. herself had substantially helped make their relationship one “centred on an exacerbated sexuality” (§42). The ECtHR refused to discuss whether this victim-blaming was discriminatory even though a domestic court had held that it showed disdain, demeaning and revictimising victims (§147). The ECtHR confined itself to calling the victim-blaming not “relevant or useful […], nor decisive for the resolution of the case” (§148).
The ECtHR simply refused to deal with the alleged sex discrimination, holding that it was “not necessary to examine [it] separately”, as those allegations were “closely connected” to its findings under Article 8 (§164). Apart from “not necessary” and referring to its Article 8 findings, which contained not a word on the criminal acts amounting to VAWG or the official victim-blaming being sexist, the ECtHR gave no reasons for its refusal to respond to M.Ș.D.’s discrimination complaint.
This ECtHR refusal to engage with discrimination inherent in VAWG cases is not isolated. In Tërshana v. Albania (2020), it did the same (§172). It found that an acid attack on a woman in the street was ineffectively investigated in breach of Article 2 ECHR (procedural). However, it declined to discuss the underlying discrimination despite acknowledging the general situation of VAWG and impunity in Albania.
More examples: a critique of J.I. v. Croatia, in which the ECtHR found ‘no separate issue under Article 14’ (§108) in response to a Roma woman’s claim that the police disregarded her victim rights based on her intersecting identities; a critique of C. v. Romania, a case of sexual harassment, in which the ECtHR did not find it necessary to examine C.’s discrimination complaint as she “did not provide any material to allow the Court to assess the existence of potential discrimination” (§90) even though the ECtHR found the authorities’ response to be ‘insensitive and irreverent’, ‘stigmatising’ and revictimizing C., and otherwise flawed, and declared a procedural violation of Article 8; and a critique of J.L. v. Italy, in which the ECtHR found it unnecessary to apply Article 14 (§147), disregarding the survivor’s assertion that rape acquittals, with judges victim-blaming her, were gender-discriminatory.)
The “not necessary” or “no separate issue” ECtHR approach to equality is not confined to GBV cases. On 19 September 2024, the ECtHR found, in Formela and Others v. Poland, a violation of two Lesbian couples’ Article 8 rights: Poland had failed to comply with its positive obligation to ensure that the women had a specific legal framework recognising and protecting their unions. At the same time, the Court discarded the women’s claim to have their equality rights adjudicated too, holding that ‘it is not necessary to examine separately whether […] there has also been a violation of Article 14 in conjunction with Article 8’ (§32). It provided no further reasons for this refusal to answer the applicants’ allegation that the denied legal recognition of their relationships was discriminatory. This unreasoned ‘no need to’ refusal exemplifies the Court’s standard approach to multiple equality claims (as well as to other allegations) by survivors.
For instance, the Court recently ruled in W.W. v. Poland, a trans rights case summarised by Transgender-Europe, finding in favour of the applicant as regards her right to private life allegations (Article 8 ECHR). However, it refused to examine her right to life, right to an effective remedy, and discrimination allegations (Articles 2, 13 and 14 ECHR), finding ‘no need’ to do so (§99). It acted similarly in another recent trans case too: Savinovskikh and Others v. Russia (§93).
This post does not discuss the above cases but takes them as recent symptomatic examples of a structural issue in ECtHR law.
Statement
ECtHR law disrespects survivors’ autonomy to (fully) frame their own victimhood by summarily dismissing certain allegations, sidelining them as ‘unnecessary’. Survivors do not fully determine what claims (constituents of their victimhood) the ECtHR answers in terms of specific ECHR rights/ limbs. The ECtHR controls survivors’ narratives, curating their victimisation, editing parts of it out, divesting survivors of their right to own the ECHR discourse on their experience. The implicit premise of ECtHR law seems to be that, for a victim, it is enough to win (on whatever grounds the ECtHR sees fit); s/he is in no position to disapprove of a partial ECtHR answer to her claims. This amounts to ignoring survivors’ right to be heard on (all) the issues they consider decisive, negating their rightful control over their own cases.
Conflict with dominus litis and fair trial principles
In this way, ECtHR law departs from universal fair hearing standards, including the judicial duty to provide reasoned answers to all a party’s main arguments and the right of dominus litis, the aggrieved party initiating the case, to choose the remedy (including a reasoned judicial declaration on a specific invoked right/ limb).
The principle of dominus litis recognises that the aggrieved party initiating the case has the decision-making power to direct the case, shaping its outcomes. Master-of-the-lawsuit ownership includes the choice of remedy. A chosen remedy might be a judicial declaration on a specific invoked (ECHR) right, including an (ECtHR) answer to key arguments.
It is an ECtHR-recognised fundamental principle of law that claims must be able to be brought to a judge for (effective) consideration: litigants must be able to argue their case, with the requisite effectiveness. This right, including the right to a judicial response to one’s arguments, is read in line with the basic principle of international law forbidding the denial of justice. It is a basic (ECHR) fair trial principle that courts must give reasons for their decisions. There can be no justification for interpreting this restrictively: a withholding of due reasons amounts to arbitrariness, negating the rule of law. The right to a judicial response must be effective: the court must duly consider – really ‘hear’ – the party’s arguments. This is included in the party’s right to present the observations which they regard as relevant to their case. The court has a duty to properly, diligently examine those submissions and the evidence adduced, and respond with sufficient reasons – sufficient to justify its decisions. ‘A reasoned decision shows the parties that their case has truly been heard. A failure of a [..] court to address important legal arguments or to give reasons [falls] under the heading of “arbitrariness”.’ The courts are required to examine pleas concerning ECHR rights with ‘particular rigour and care’. (See the ECtHR Guide on Article 6 ECHR (civil limb), §327, 329, 333, 337, 448-49, 453.)
Compromised integrity
ECtHR law recognises these standards as regards domestic courts but neglects its own duty to provide a diligent, full answer to the survivor as dominus litis. Instead, it arbitrarily withholds due reasons when deciding a ruling on certain invoked rights is ‘not necessary’. This especially applies to politically challenging claims of discrimination that disrupt core privilege (see the symptomatic cases referenced above).
Patronising of survivors
Winning ECtHR ‘applicants’ are not effectively recognised as right holders duly acknowledged by an appropriately responsive court. (Emblematically, survivors are termed ‘applicants’, a powerless term compared to ‘claimant’, for example. To ‘claim’ is to requisition what is rightfully one’s own – what one is owed. To ‘apply’ is to request a service, to be granted a favour or a chance, to be given a gratuity by a benefactor. It is the opposite of (actively) owning (a right) and demanding to be acknowledged as its owner. It is the opposite of being in power, a rightholder, a master of the suit.)
Instead, especially if compensation is awarded, they are implicitly seen as recipients having been given (enough), rather than claimants rightfully repossessing what they own.
It is on this implicit basis – that for applicants it is enough to win – that allegations the ECtHR tends to avoid – notably, substantive violations of certain articles and discrimination – are discarded on a ‘no need’ basis as determined by the ECtHR. ECtHR law does not understand that it is the survivor as dominus litis who decides if an argument is necessary to articulate their victimhood, and, therefore, a judicial response to that argument is required for a proper justice process.
A form of revictimisation
Effectively, survivors have no power to invoke all relevant ECHR articles/ limbs, i.e. their chosen remedies. Instead, the ECtHR decides how to frame their violations: the framing of victimhood depends on ECtHR discretion. Survivors are not in control, their power to narrate their own experience being shrinked instead of restored. The taking away of a survivor’s control over their own pursuit of justice is tantamount to revictimising them.
(See, among others, Trauma Informed Justice: A Knowledge and Skills Framework for Working with Victims and Witnesses (2023): ‘To enable full participation […] on the part of victims and witnesses, a trauma-informed justice system will […] support the recovery of those affected by trauma by providing them with a different experience of relationships, one in which they are offered […] choice and empowerment rather than control […].’ (p. 13) ‘Experiences within the justice process […] that engender feelings of […] lack of control, powerlessness, or domination, no matter how subtle [emphasis added], can bring back distressing memories of the trauma and associated feelings, leading to re-traumatisation […].’ (p. 33)
ECtHR law does not recognise that survivor-centric, survivor-empowering justice is required.
Favouring states
Indeed, it decentres and disempowers survivors by not acknowledging them as their respondents’ equals. ECtHR law is marked by entrenched pro-state biases under-privileging survivors, especially on politically controversial issues, such as, for example, the political othering of minoritised racial identities and other systemic inequalities. (See, for example, a critique of two key 2021 ECtHR cases.) Survivors are not the masters of the ECtHR process, being (implicitly) cast as its (expected to be grateful) recipients. ECtHR law controls their space for (self-)empowerment, and, therefore, recovery.
A possible paradigm shift
ECtHR law critiques should interrogate the undermined status of ‘applicants’ as being (dis)entitled to a diligent ECtHR answer to all their claims, especially ones regarding structural inequalities. People are not inferior to states; not in a human rights paradigm. They are dominant when litigating. ECtHR law should treat them accordingly.
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The author of this blog post drafted the Transgender-Europe third-party intervention in W.W. v. Poland.
