Introduction
Vulnerable women asylum seekers are entitled to state protection when fleeing a significant threat to their safety, whether due to war, gender-based violence (GBV), or persecution. This right is protected by the principle of non-refoulement, which means that individuals should not be returned to a country where there are substantial grounds to believe they are at risk of substantial, irreparable harm. The European Convention on Human Rights does not explicitly address the non-refoulement principle, but the Court’s case law has developed an approach identical to that in international law. Specifically, the Court has found that returns to countries where applicants risk facing treatment that would violate Article 3, are not permitted.
International law has developed positively to consider GBV a severe human rights violation and to assess the specific, gendered experience of women asylum seekers. This is significant given the failure of the 1951 Refugee Convention to consider the unique plight of refugee women. Nonetheless, the reality is often less positive. In particular, the practice of the European Court of Human Rights in relation to non-refoulement cases for women asylum seekers is inconsistent. It leads to the application of a double standard in comparison to domestic cases for women who have experienced GBV.
Roels argues that the European Court of Human Rights’ case law relating to the question of non-refoulement in cases concerning sexual and gender-based violence perpetuates rape myths (Roels, 2024). She notes that these persist in both criminal justice jurisprudence and within the refugee and human rights context. This article will explore how the Court, both in its perpetuation of rape myths and its inconsistent and overly critical approach to women’s testimonies, applies a double standard to the issue of sexual or gender-based violence as violations of Article 3. It will assess how the internal contradictions of the Court’s jurisprudence in cases concerning asylum and sexual violence ultimately lead to ineffective protection and undermine the consistency of its case law, particularly considering that Article 3 enshrines one of the most fundamental values of democratic societies. It will also consider how this case law is inconsistent with the requirements of a gender-sensitive assessment of asylum cases stipulated in relevant international law, and suggest how the Court could improve upon its practice.
Gender-based Violence in Non-Asylum Cases
It is well-established in the ECtHR’s case law that women who are victims of domestic violence or GBV are vulnerable and entitled to state protection. The Court determined this in the case of Opuz v. Turkey, after the applicant suffered severe domestic abuse along with her mother. Despite repeated complaints, the police and prosecuting authorities ultimately took little action, and the applicant’s mother was murdered by her father. In determining that Turkey had a positive obligation to protect the applicant and her mother from the actions of a private, non-state actor, the Court applied Osman v. UK. In Osman, the Court found that states have a positive obligation to protect against the actions of third parties if the authorities knew or ought to have known of a real and immediate risk to life. Moreover, the Court made clear that the violence suffered by the applicant, which took the form of physical injury and psychological pressure, was sufficiently serious to amount to ill-treatment under Article 3. Whilst the Court has often been reluctant to expand its case law in regards to domestic and gender-based violence, this case paved the way for numerous judgments concerning states’ obligations to protect women who have become, or might become, victims of GBV.
This is reflected in other international law instruments. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has recognised that the prohibition of GBV has evolved into a principle of customary international law which binds all states. This has similarly been recognised by the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women. Equally, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also makes explicit that GBV and sexual violence constitute torture, and has acknowledged the specific risks faced by women in this regard.
HBV and Asylum under International Law
The wider international law landscape has developed to recognise the significant role of GBV for those seeking asylum specifically. Article 61 of the Istanbul Convention requires state parties to respect the non-refoulement principle in cases concerning GBV. Other international law instruments also emphasise its importance. For example, the UNHCR has recognised that women asylum-seekers who face harsh or inhuman treatment due to having “transgressed” the social norms in their country of origin might be considered a “particular social group” in need of protection under the 1951 United Nations Refugee Convention.
In addition, the CJEU has recently handed down three significant preliminary opinions, which affirm the importance of CEDAW and the Istanbul Convention and actively and practically bolster the rights of women seeking asylum. The CJEU found that the conditions faced by women in Afghanistan are so severe that any Afghan woman seeking asylum meets the requirements under EU law to be granted asylum. In another case, it made explicit the importance of CEDAW as a relevant treaty for the purposes of Article 78(1) TFEU, meaning that EU states must interpret asylum law according to its provisions. Moreover, it has also affirmed that women who have fled their country of origin and developed a shared belief in gender equality can be considered ‘a particular social group’, who may be entitled to refugee status since these beliefs might result in persecution in their country of origin. In these cases, the CJEU explicitly incorporated a gender-sensitive lens into its appraisal of EU law in relation to asylum-seeking women, hence developing the law to improve protections for refugee women seeking asylum in the EU.
The ECtHR’s
Although the ECtHR has prevented returns of applicants to their countries of origin based on a risk of GBV constituting a violation of Article 3, it has repeatedly been reluctant to do so. This reticence has led to its case law developing inconsistently and also in a way that diverges significantly from other international courts and the expectations of international law. This approach means that the Court has ultimately adopted a gender insensitive assessment of Article 3 violations in cases concerning asylum-seeking women at risk of GBV.
The Court has repeatedly applied overly stringent standards which fail to consider the nature of gender-based violence in its assessment of applicants’ factual evidence. For example, the Court has criticised applicants for their inconsistent factual testimony and only mentioning their experiences of domestic and gender-based violence at a later stage in their asylum claim. In R.H. v. Sweden, the Court even went so far as to suggest that had the applicant’s claims of gender-based violence been true, it was in her interest to present them to the Migrant Board swiftly. This fails to acknowledge the reality of the situation for asylum seekers, many of whom will not have a detailed understanding of relevant legal processes and might not have faith that the system will recognise their claims as valid. Additionally, as noted by Roels, this perpetuates the rape myth that vagueness, incompleteness, or inconsistency are proof of a fabricated story (Roels, 2024). Furthermore, this also fails to acknowledge the role that trauma might play in a victim’s inability to recall their situation accurately, or to feel comfortable enough to share their stories with strangers in a new country.
The Court’s jurisprudence also exhibits concerning internal contradictions in its assessment of the situation for women in their countries of origin. In RBAB v. the Netherlands, the applicants claimed that a return would violate their Article 3 rights due to the risk they would be subject to female genital mutilation in Sudan. The Court highlighted that it had “first and foremost” considered the legal position on FGM in Sudan, noting that the province where the applicants lived had passed laws prohibiting the practice. The Court acknowledged the high prevalence of FGM in Sudan, with rates between 68-88 percent at the relevant time, but suggested that the implementation of recent legislation to combat this had minimised the risk. It did so without assessing the legislation’s efficacy. This fails to meet the Court’s self-imposed standards of “rigour” in Article 3 cases. A substantial proportion of the Court’s own case law relates to the inadequacy of legislation or investigative practices by state authorities. The Court is therefore well aware that the mere introduction of legislation is often insufficient and should examine its implementation more closely in such cases. Not only this, but it also contradicts the Court’s approach to returns to countries where no such legislation exists. In AA and Others v Sweden, Judge Power-Forde’s dissenting opinion criticised the Court for failing to consider the complete lack of legal safeguards for women and the absence of legislation prohibiting GBV, forced marriage, and other violations of women’s rights. If the existence of legislation prohibiting forms of gender-based violence indicates that there is not a strong risk of an Article 3 violation, the complete and utter lack of any such legislation should indicate the risk thereof.
Moreover, the Court’s emphasis on the importance of a ‘male network’ for women in their home country perpetuates another rape myth. The Court has repeatedly referred to the presence of a male network as a factor that diminishes the risk of harm to women upon return to their countries of origin, suggesting that these men will protect the applicants upon their return. However, as Roels points out, the private sphere is not necessarily a safe space for survivors or victims of sexual violence, and most perpetrators of sexual violence are known to the victim (Roels, 2024, p.86). Additionally, in their dissenting opinion in R.H. v Sweden, Judges Zupančič and De Gaetano noted that Somalia is “positively hostile” towards the applicant due to her having had an affair, and that any relatives, particularly males, would be equally so. This further underscores the folly of the majority’s perspective on the role of a male network and demonstrates a far more accurate understanding of the reality for women in these societies. In fact, the very imposition of the importance of a male network acknowledges the fact that these women are not safe independently, and re-situates them in a patriarchal system whereby their safety is subject to the authority of the men in their lives.
Another contradiction in the Court’s case law is its approach to the exhaustion of domestic remedies and the reporting of sexual assault at the domestic level. In A.A. and Others v. Sweden, the Court agreed with Sweden that the first applicant, the mother, had “shown independence” by going to court in Yemen multiple times to file for divorce from her partner, and by managing to obtain the necessary means to leave Yemen. This suggests that the applicant’s independence, namely her willingness and ability to go to the court to divorce her abusive husband, indicates she could live independently and not be subject to treatment violating Article 3 upon her return. Yet, in other cases, the Court has used women’s failure to report sexual assault or to go to the relevant authorities against them, even deeming cases inadmissible in part due to failure to report the sexual violence to the police. This places asylum-seeking women who are survivors of GBV in an impossible situation. If they report their abuse in their home country, this might be used against them to indicate they will be safe upon return, whilst a failure to do so could jeopardise their case. The Court’s overly critical approach to non-reporting misunderstands the position of many women in their countries of origin and the role that the authorities play in sustaining abusive, patriarchal systems. As noted by Judge Power-Forde, it is unfair to demand that applicants exhaust “meagre, discriminatory and ineffective ‘remedies’ before courts that can sanction the marriage of a 12-year-old”. Furthermore, this contravenes CEDAW’s recommendation that failure to contact authorities before fleeing should not prejudice asylum claims, particularly where the relevant authorities systematically fail to respond to GBV complaints.
Above all, these practices mean that the Court has fundamentally amended its approach in Opuz in cases concerning gender-based violence outside of a member state. This suggests a two-tiered system whereby Article 3 violations are assessed more harshly for asylum-seeking women than for women who are citizens of member states. In Opuz, the Court highlighted that victims of domestic violence are vulnerable individuals entitled to State protection. It also emphasised that physical violence and psychological pressure of the type that occurs in domestic abuse amounts to ill-treatment under Article 3. Through its harsh evidentiary standards and perpetuation of rape myths, the Court has failed to recognise situations in which asylum-seeking women face similar risks to those in Opuz. Whilst the Court might justify this on the basis of its obligation to examine the risk Article 3 violations rigorously in non-refoulement cases, it is apparent that the Court applies this rigour only to disprove women’s testimony, rather than substantiate it.
Conclusion
Looking forward, it is imperative that the Court actively incorporates CEDAW’s recommendations and the Istanbul Convention as a relevant international law instrument. This will assist the Court in ensuring a gender-sensitive appraisal for women asylum seekers who are survivors of GBV and domestic violence. Whilst the onus ultimately rests with the Court to improve its practice in this regard, there is a clear opportunity for NGOs and civil society to play a role therein via third-party interventions to highlight the contradictions in the Court’s case law, and the importance of adhering to the standards of other international legal instruments.
It is an unfortunate reality that the issue of asylum and non-refoulement has become highly politicised, which might explain the Court’s reticence to consistently apply the standards it identified in Opuz as relevant to women who are victims of domestic violence or GBV. Yet it is the role of the Court to apply its case law consistently and fairly, and adhere to the rigorous standards it has imposed upon itself, particularly when considering potential violations of Article 3. In its internal contradictions and overly harsh treatment of asylum-seeking women, the Court has failed to ensure that the Convention system consistently guarantees rights for women that are real rather than illusory.
Bibliography
Secondary literature
Roels, L. (2024) ‘Rape Myths in the European Court of Human Rights’ Non-Refoulement Case Law on Sexual and Gender-Based Violence’, International Journal of Refugee Law, 36, 77-92.
Case law
ECtHR:
A.A. and Others v. Sweden, no. 14499/09, 28 June 2012.
Bouyid v. Belgium [GC], no. 23380/09, ECHR 2015.
Chahal v. the United Kingdom, 15 November 1996, § 96, Reports 1996.
Izevbekhai and Others v. Ireland, no. 43408/08, 17 May 2011.
Jabari v. Turkey, no. 40035/98, ECHR 2000-VIII.
Opuz v. Turkey, no. 33401/02, ECHR 2009.
Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998-VIII.
Saadi v. Italy [GC], no. 37201/06, ECHR 2008.
R.B.A.B. and Others v. the Netherlands, no. 7211/06, 7 June 2016.
R.H. v. Sweden, no. 4601/14, § 72, 10 September 2015.
CJEU:
AH, FN, v Bundesamt für Fremdenwesen und Asyl, C‑608/22 & C‑609/22, ECLI:EU:C:2024:828, European Union: Court of Justice of the European Union, 4 October 2024.
K, L v. Staatssecretaris van Justitie en Veiligheid, C-646/21, ECLI:EU:C:2024:487, European Union: Court of Justice of the European Union, 11 June 2024.
WS v. Intervyuirasht organ na Darzhavna agentsia za bezhantsite pri Ministerskia savet, C-621/21, ECLI:EU:C:2024:47, European Union: Court of Justice of the European Union, 16 January 2024.
UN Instruments:
UN Committee on the Elimination of Discrimination Against Women (CEDAW), General recommendation No. 26 on women migrant workers, CEDAW/C/2009/WP.1/R, 5 December 2008.
https://www.refworld.org/legal/general/cedaw/2008/en/61897
Committee on the Elimination of Discrimination against Women (CEDAW), ‘General Recommendation No 32: The Gender-Related Dimensions of Refugee Status, Asylum, Nationality and Statelessness of Women’, UN doc CEDAW/C/ GC/32 (14 November 2014).
https://www.refworld.org/legal/general/cedaw/2014/en/102146
Committee on the Elimination of Discrimination against Women (CEDAW), ‘General Recommendation No 35 (2017) on gender-based violence against women, updating general recommendation No. 19 (1992) UN doc CEDAW/C/GC/35 (26 July 2017).
UN Committee Against Torture (CAT), General Comment No. 2: Implementation of Article 2 by States Parties, CAT/C/GC/2, 24 January 2008.
https://www.refworld.org/legal/general/cat/2008/en/53514
UN Committee Against Torture (CAT), General comment No. 3 (2012) on the implementation of article 14 by States parties, 13 December 2012.
UNHCR Executive Committee General Conclusion No 39 (XXXVI), ‘Refugee Women and International Protection’ (1985)
https://www.refworld.org/policy/exconc/excom/1985/en/41720
Council of Europe
Council of Europe, The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (The Istanbul Convention), November 2014.
Inter-American
Organization of American States (OAS), Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (“Convention of Belem do Para”), 9 June 1994.
