Many acts of domestic violence may result in criminal responsibility for the perpetrator.
Criminal responsibility may be invoked for such offences as intentional bodily or psychological injury, murder, threatening to commit murder or to inflict serious bodily injury, rape, moral harassment, sexual assault and others.
Making perpetrators responsible for domestic violence demonstrates the ability of the State to enforce human rights. The failure of the State to conduct appropriate criminal or administrative proceedings and convict the perpetrator may result in a violation of human rights.
Criminal responsibility & Human rights
The right to life, the prohibition of inhumane or degrading treatment and the right to private and family life
Conducting effective criminal proceedings and calling perpetrators of domestic violence to criminal responsibility is an essential remedy of the State to protect the rights of victims and to prevent human rights violations. If the pertinent authorities fail to protect the victim by effectively investigating, charging, trying and, if appropriate, convicting the perpetrator, it may result in a violation of the right to life, the prohibition of inhumane or degrading treatment and the right to private and family life.
example There was a violation of the prohibition of inhumane treatment in a case where the authorities had taken a passive attitude towards the victim’s allegations of domestic violence. The public prosecutor had waited five months before issuing a warrant for the applicant’s ex-husband to be brought in for questioning. The criminal proceedings had been opened more than five years and six months after the applicant had lodged a complaint against her husband.
Prohibition of discrimination
Domestic violence is considered to be a form of discrimination against women, as it affects mainly women. If the State (in this case – the pertinent authorities) fails to conduct effective criminal proceedings and call the perpetrator to responsibility, it may result in a violation of the prohibition of discrimination in conjunction with a violation of the right to life, the prohibition against inhumane or degrading treatment, and the right to private and family life.
example There was a violation of the prohibition of discrimination in a case where the authorities had failed to apply the relevant legal provisions and had found instead that the victim had provoked the domestic violence against her and considered that the violence was not serious enough to fall within the scope of the criminal law. This approach had deprived the national legal framework of its purpose and was inconsistent with international standards on violence against women. This passivity reflected the discriminatory attitude towards the applicant and showed the lack of commitment to address domestic violence in general.
Right to a fair trial
If the victims of domestic violence have been recognized as victims in criminal proceedings, they have a number of rights pertinent to a fair trial. For example, under certain circumstances, they have the right to free legal aid. If the failure of the State to ensure those fair trial guarantees towards the victims has resulted in an unfair process for the victims, it may lead to the violation of the right to a fair trial.
About this section
This section of the Guide will explain the types of criminal offenses which may be committed in the context of domestic violence and how to invoke the responsibility of the perpetrator.