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The Committee on
the Elimination of Discrimination against Women, established under article
17 of the Convention on the Elimination of All Forms of Discrimination
against Women,
Meeting on 26 January 2005
Having concluded its consideration of communication No. 2/2003, submitted to
the Committee on the Elimination of Discrimination against Women by Ms. A.T.
under the Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination against Women,
Having taken into account all written information made available to it by
the author of the communication and the State party,
Adopts the following:
Views under Article 7, paragraph 3, of the Optional Protocol
[Procedural Background]
1.1 The author of the communication dated 10 October 2003, with
supplementary information dated 2 January 2004, is Ms. A.T., a Hungarian
national born on 10 October 1968. She claims to be a victim of a violation
by Hungary of articles 2 (a), (b) and (e), 5 (a) and 16 of the Convention on
the Elimination of All Forms of Discrimination against Women. The author is
representing herself. The Convention and its Optional Protocol entered into
force for the State party on 3 September 1981 and 22 March 2001,
respectively.
1.2 The author urgently requested effective interim measures of protection
in accordance with article 5, paragraph 1, of the Optional Protocol, at the
same time that she submitted her communication, because she feared for her
life.
The Facts As Presented
2.1 The author states that for the past four years she has been subjected to
regular severe domestic violence and serious threats by her common law
husband, L.F., father of her two children, one of whom is severely
brain-damaged. Although L.F. allegedly possesses a firearm and has
threatened to kill the author and rape the children, the author has not gone
to a shelter reportedly because none in the country are equipped to take in
a fully disabled child together with his mother and sister. The author also
states that there are currently no protection orders or restraining orders
available under Hungarian law.
2.2 In March 1999, L.F. moved out of the family apartment. His subsequent
visits allegedly typically included battering and/or loud shouting,
aggravated by his being in a drunken state. In March 2000, L.F. reportedly
moved in with a new female partner and left the family home- taking most of
the furniture and household items with him. The author claims that he did
not pay child support for three years, which forced her to claim the support
by going to the court and to the police, and that he has used this form of
financial abuse as a violent tactic in addition to continuing to threaten
her physically. Hoping to protect herself and the children, the author
states that she changed the lock on the door of the family's apartment on 11
March 2000. On 14 and 26 March 2000, L.F. filled the lock with glue and on
28 March 2000, he kicked in a part of the door when the author refused to
allow him to enter the apartment. The author further states that, on 27 July
2001, L.F. broke into the apartment using violence.
2.3 L.F. is said to have battered the author severely on several occasions
beginning in March 1998. Since then, ten medical certificates have been
issued in connection with separate incidents of severe physical violence
that the author submits constitutes a continuum of violence - even after L.F.
left the family residence. The most recent incident took place on 27 July
2001 - when L.F. broke into the apartment and subjected the author to a
severe beating, which necessitated her hospitalization.
2.4 The author states that there have been civil proceedings regarding
L.F.'s access to the family's residence, a 2 ˝ room apartment (of 54/56
square metres) jointly owned by L.F. and the author. Decisions by the court
of the first instance (Pesti Központi Kerületi Bíróság) were rendered on 9
March 2001 and 13 September 2002 (supplementary decision). On 4 September
2003, the Budapest Regional Court (Fýrvarosi Bíróság) issued a final
decision authorizing L.F. to return and use the apartment. The judges
reportedly based their decision on the following grounds: (1) lack of
substantiation of the claim that L.F. regularly battered the author; and (2)
that L.F.'s right to the property, including possession, could not be
restricted. Since that date, and on the basis of the earlier attacks and
verbal threats by her former partner, the author claims that her physical
integrity, physical and mental health, and life have been at serious risk
and that she lives in constant fear. The author reportedly submitted to the
Supreme Court a petition for review of the 4 September 2003 decision that
was pending at the time of her submission of supplementary information to
the Committee on 2 January 2004.
2.5 The author states that she also initiated civil proceedings regarding
division of the property, which have been suspended. She claims that L.F.
refused her offer to be compensated for half of the value of the apartment
and turn over ownership to her. In these proceedings the author reportedly
submitted a motion for injunctive relief (for her exclusive right to use the
apartment), which was rejected on 25 July 2000.
2.6 The author states that there have been two ongoing criminal procedures
against L.F., one that began in 1999 at the Pest Central District Court (Pesti
Központi Kerületi Bíróság) concerning two incidents of battery and assault
causing her bodily harm and the second that began in July 2001 concerning an
incident of battery and assault that resulted in her being hospitalized for
a week with a serious kidney injury. In her submission of 2 January 2004,
the author states that there would be a trial on 9 January 2004. Reportedly,
the latter procedure was initiated by the hospital ex officio. The author
further states that L.F. has not been detained at any time in this
connection and that no action has been taken by the Hungarian authorities to
protect the author from him. The author claims that she has not been privy
to the court documents as a victim and, therefore, cannot submit them to the
Committee.
2.7 The author also submits that she has requested assistance in writing, in
person and by phone, from the local child protection authorities, but that
her requests have been to no avail, since the authorities allegedly feel
unable to do anything in such situations.
The Claim
3.1 The author alleges that she is a victim of violations by Hungary of
articles 2 (a), (b) and (e), 5 (a) and 16 of the Convention on the
Elimination of All Forms of Discrimination against Women for its failure to
provide effective protection from her former common law husband. She claims
that the State party passively neglected its "positive" obligations under
the Convention and supported the continuation of a situation of domestic
violence against her.
3.2 She claims that the irrationally lengthy criminal procedures against L.F.,
the lack of protection orders or restraining orders under current Hungarian
law, and the fact that L.F. has not spent any time in custody, constitute
violations of her rights under the Convention as well as violations of
General Recommendation 19 of the Committee. She maintains that these
criminal procedures can hardly be considered effective and/or immediate
protection.
3.3 The author is seeking justice for herself and her children, including
fair compensation, for suffering and for the violation of the letter and
spirit of the Convention by the State party.
3.4 The author is also seeking the Committee's intervention into the
intolerable situation, which affects many women from all segments of
Hungarian society. In particular, she calls for the (i) introduction of
effective and immediate protection for victims of domestic violence into the
legal system, (ii) provision of gender-sensitivity and Convention on the
Elimination of All Forms of Discrimination against Women/Optional Protocol
training programmes, including for judges, prosecutors, police and
practising lawyers, and (iii) provision of free legal aid to victims of
gender-based violence, including domestic violence.
3.5 As to the admissibility of the communication, the author maintains that
she has exhausted all available domestic remedies. She refers, however, to a
pending petition for review that she submitted to the Supreme Court in
respect of the decision of 4 September 2003. The author describes this
remedy as an extraordinary remedy and one which is only available in cases
of a violation of the law by lower courts; such cases reportedly take some
six months to be resolved. The author believes that it is very unlikely that
the Supreme Court will find a violation of the law because allegedly
Hungarian courts do not consider the Convention to be law that is to be
applied by them. She submits that this should not mean that she has failed
to exhaust domestic remedies for the purposes of the Optional Protocol.
3.6 The author contends that, although most of the incidents complained of
took place prior to March 2001 when the Optional Protocol entered into force
for Hungary, they constitute elements of a clear continuum of regular
domestic violence and that her life continues to be in danger. She alleges
that one serious violent act took place in July 2001 - that is after the
Optional Protocol came into force for Hungary. She also claims that Hungary
has been bound by the Convention since becoming party to it in 1982. The
author further argues that Hungary has in effect assisted in the
continuation of violence through lengthy proceedings, the failure to take
protective measures, including timely conviction of the perpetrator and the
issuance of a restraining order, and the court decision of 4 September 2003.
Request for Interim Measures of Protection in Accordance with Article 5,
Paragraph 1 of the Optional Protocol
4.1 On 10 October 2003, with her initial submission, the author also
urgently requested effective interim measures as may be necessary in
accordance with article 5, paragraph 1, of the Optional Protocol to avoid
possible irreparable damage to her person, i.e. to save her life, which she
feels is threatened by her violent former partner.
4.2 On 20 October 2003 (with a corrigendum on 17 November 2003), a note
verbale was sent to the State party for its urgent consideration, requesting
the State party to provide immediate, appropriate and concrete, preventive
interim measures of protection to the author, as may be necessary to avoid
irreparable damage to her. The State party was informed that, as laid down
in article 5, paragraph 2, of the Optional Protocol, this request did not
imply a determination on admissibility or on the merits of the
communication. The Committee invited the State party to provide information
no later than 20 December 2003 of the type of measures it had taken to give
effect to the Committee's request under article 5, paragraph 1 of the
Optional Protocol.
4.3 In her supplementary submission of 2 January 2004, the author states
that, apart from being interrogated by the local police at the police
station in her vicinity on the day before Christmas, she had not heard from
any authority concerning the ways and means through which they would provide
her with immediate and effective protection in accordance with the
Committee's request.
4.4 By submission of 20 April 2004, the State party informed the Committee
that the Governmental Office for Equal Opportunities (hereinafter 'Office')
established contact with the author in January 2004, in order to inquire
about her situation. It turned out that at that time, the author had had no
legal representative in the proceedings, and thus the Office retained a
lawyer with professional experience and practice in cases of domestic
violence for her.
4.5 The State party further informed the Committee that on 26 January 2004,
the Office set up contact with the competent family- and child-care service
at the Ferencváros local Government in order to halt the domestic violations
against the author and her children. The State party stated that urgent
measures were enforced for securing the safety and the personal development
of the children.
4.6 On 9 February 2004 the Office sent a letter to the Notary of Ferencváros
local Government containing a detailed description of the author's and her
children's situation. The Office requested the Notary to convene a so-called
"case-conference" with the aim of determining the further necessary measures
for promoting effective protection of the author and her children. As at 20
April 2004, the Office had not had a reply to that letter.
4.7 On 13 July 2004, on behalf of the Working Group on Communications, a
note verbale with a follow-up to the Committee's request of 20 October and
17 November 2003 was sent to the State party, conveying the Working Group's
regret that the State party had furnished little information on the interim
measures taken to avoid irreparable damage to the author. The Working Group
requested that A.T. be immediately offered a safe place for her and her
children to live and that the State party ensure that the author receive
adequate financial assistance, if needed. The State party was invited to
inform the Working Group as soon as possible of any concrete action taken in
response to the request.
4.8 By its note of 27 August 2004, the State party repeated that it had
established contact with the author, retained a lawyer for her in the civil
proceedings and established contact with the competent Notary and child
welfare services.
State Party's Submission on Admissibility and Merits
5.1 By its submission of 20 April 2004, the State party gives an explanation
of the civil proceedings to which reference is made by the author, by
stating that in May 2000 L.F. instituted trespass proceedings against the
author because she had changed the doorlock of their common flat and
prevented him access to his possessions. The Notary of Ferencváros local
Government ordered the author to cease interfering with L.F.'s property
rights. She applied to the Pest Central District Court (Pesti Központi
Kerületi Bíróság) in order to set aside this decision and to establish her
entitlement to use the flat. The District Court (Pesti Központi Kerületi
Bíróság) dismissed the author's claims on grounds that L.F. was entitled to
the use of his property and the author could have been expected to try to
settle the dispute by lawful means, instead of the arbitrary conduct she had
resorted to. In a supplementary judgment of 13 September 2002 the District
Court (Pesti Központi Kerületi Bíróság) established that the author was
entitled to use the flat but it was not competent to establish that she was
entitled to the exclusive use of the flat because she had not submitted a
request to that effect. The judgment of 4 September 2003 of the Budapest
Regional Court (Fýrvarosi Bíróság) confirmed the District Court (Pesti
Központi Kerületi Bíróság)'s decision. The author submitted a petition for
review by the Supreme Court on 8 December 2003 and these proceedings were
thus still pending as at 20 April 2004, the date of the submission of the
State party's observations.
5.2 On 2 May 2000 the author brought an action against L.F. before the Pest
Central District Court (Pesti Központi Kerületi Bíróság) requesting
separation of their common property. On 25 July 2000 the District Court (Pesti
Központi Kerületi Bíróság) dismissed the author's request for interim
measures on the use and possession of the common flat on grounds that the
other set of proceedings (the "trespass" proceedings) were pending
concerning that issue and that it was not competent to decide the question
in the proceedings concerning the division of the property. The State party
contends that the progress of the proceedings was considerably hindered by
the author's lack of cooperation with her then counsel and failure to submit
the requested documents. Furthermore, it turned out that the couple's
ownership of the flat had not been registered and the civil proceedings were
suspended in this connection.
5.3 The State party states that several sets of criminal proceedings were
instituted against L.F. on charges of assault and battery. On 3 October 2001
the Pest Central District Court (Pesti Központi Kerületi Bíróság) convicted
L.F. on one count of assault committed on 22 April 1999 and sentenced him to
a fine of HUF 60000. The District Court (Pesti Központi Kerületi Bíróság)
acquitted L.F. on another count of assault allegedly committed on 19 January
2000 for lack of sufficient evidence. The public prosecutor's office
appealed but the case-file was lost on its way to the Budapest Regional
Court (Fýrvarosi Bíróság). On 29 April 2003 the Budapest Regional Court (Fýrvarosi
Bíróság) ordered a new trial. The proceedings were resumed before the Pest
Central District Court (Pesti Központi Kerületi Bíróság) and were joined to
another set of criminal proceedings pending against L.F. before the same
court.
5.4 A proceeding was brought against L.F. on charges of an assault allegedly
committed on 27 July 2001 causing bruises to the author's kidneys. Though
the investigations were twice discontinued by the police (on 6 December 2001
and 4 December 2002) they were resumed by order of the public prosecutor's
office. Witnesses and experts were heard and a bill of indictment was
brought against L.F. on 27 August 2003 before the Pest Central District
Court (Pesti Központi Kerületi Bíróság).
5.5 The State party states that the two sets of criminal proceedings (i.e.
the criminal proceedings regarding the separate incidents of assault
allegedly committed on 19 January 2000 and 21 July 2001) have been joined.
The Pest Central District Court (Pesti Központi Kerületi Bíróság) has held
hearings on 5 November 2003, 9 January and 13 February 2004; the next
hearing is scheduled for 21 April 2004.
5.6 The State party maintains that although the author did not make
effective use of the domestic remedies available to her and although some
domestic proceedings are still pending, the State party does not wish to
raise any preliminary objections as to the admissibility of the
communication. At the same time, the State party admits that these remedies
were not capable of providing immediate protection to the author from
illtreatment by her former partner.
5.7 Having realized that the system of remedies against domestic violence is
incomplete in Hungarian law and that the effectiveness of the existing
procedures is not sufficient, the State party states that it has instituted
a comprehensive action programme against domestic violence in 2003. On 16
April 2003 the Hungarian Parliament adopted a resolution on the national
strategy for the prevention and effective treatment of violence within the
family, setting forth a number of legislative and other actions to be taken
in the field by the State party. These actions include: introducing a
restraining order into legislation; ensuring that proceedings before the
Courts or other authorities in domestic violence cases are given priority;
reinforcing existing witness protection rules and introducing new rules
aimed at ensuring adequate legal protection for the personal security of
victims of violence within the family; elaborating clear protocols for the
police, child care organs and social and medical institutions; extending and
modernizing the network of shelters and setting up victim protection crisis
centres; providing free legal aid in certain circumstances; working out a
complex nationwide action programme to eliminate violence within the family
that applies sanctions and protective measures; training of professionals;
ensuring data collection on violence within the family; requesting the
judiciary to organize training for judges and to find a way to ensure that
cases relating to violence within the family are given priority; and
launching a nationwide campaign to address indifference to violence within
the family and the perception of domestic violence as a private matter and
to raise awareness of State, municipal and social organs and journalists. In
the resolution of 16 April 2003 by the Parliament, a request, with due
regard to the separation of powers, has been also put forward to the
National Council of the Judiciary to organize training for judges and to
find a way to ensure that cases relating to violence within the family are
given priority. In the resolution, reference is made, among others, to the
Convention on the Elimination of All Forms of Discrimination against Women,
the concluding comments of the Committee on the combined fourth and fifth
periodic report of Hungary adopted at its Exceptional Session in August 2002
and the Declaration on the Elimination of Violence against Women.
5.8 In a second resolution, the Parliament has also stated that prevention
of violence within the family is a high priority in the national strategy of
crime prevention and describes the tasks of various actors of the State and
of the society. These include: prompt and effective intervention by the
police and other investigating authorities; medical treatment of
pathologically aggressive persons and application of protective measures for
those who live in their environment; operation of 24-hour "SOS" lines;
organization of rehabilitation programmes; organization of sport and leisure
time activities for youths and children from violence-prone families;
integration of non-violent conflict resolution techniques and family-life
education into the public educational system; establishment and operation of
crisis intervention houses as well as mother and child care centres and
support for the accreditation of civil organizations by municipalities; and
launching of a media campaign against violence within the family.
5.9 The State party further states that it has implemented various measures
to eliminate domestic violence. These measures include registration of
criminal proceedings (ROBOTZSARU) in a manner that will facilitate the
identification of trends in offences related to violence within the family,
as well as the collection of data, the expanded operation of family
protection services by 1 July 2005, including units for ill-treated women
without children in Budapest, which is to be followed by seven regional
centres. The first shelter is planned to be set up in 2004. The Government
has prepared a Draft Law that will enter into force on 1 July 2005,
providing for a new protective remedy for victims of domestic violence,
namely a temporary restraining order to be issued by the police and a
restraining order to be issued by the Courts, accompanied by fines if
intentionally disregarded, and has decided to improve the support services
available to such victims.
5.10 Additionally, the State party states that special emphasis has been put
on the handling of cases of domestic violence by the police. The State party
observes that the efforts made in this field have already brought about
significant results which were summed up by the National Headquarters of the
Police in a Press Communication in December 2003. NGOs have also been
involved in the elaboration of the governmental policy to combat domestic
violence.
The Author's Comments on the State Party's Observations on Admissibility and
Merits
6.1 By her submission of 23 June 2004, the author states that, in spite of
promises, the only step that has been taken under the Decree/Decision of
Parliament on the Prevention of, and Response to Domestic Violence is the
entry into force of the new protocol of the police, who now respond to
domestic violence cases, but still not in line with the Convention;
batterers are not taken into custody, as this would be considered a
violation of their human rights. Instead, according to the media, the police
mostly mediate on the spot.
6.2 The author further states that the parliamentary debate on the draft law
on restraining orders has been postponed until the autumn. Resistance to
change is said to be strong and decision-makers allegedly still do not fully
understand why they should interfere in what they consider to be the private
affairs of families. The author suggests that a timely decision in her case
may help decision-makers understand that the effective prevention of, and
response to domestic violence are not only demands of victims and "radical"
NGOs but also of the international human rights community.
6.3 The author reports that her situation has not changed and she still
lives in constant fear as regards her former partner. From time to time L.F.
has harassed her and threatened to move back into the apartment.
6.4 The author submits that the local child protection authority minutes of
the official case conference of 9 May 2004 regarding her case state that it
cannot put an end to her threatening situation using official measures. It
recommends that she continue to ask for help from the police, ask for
medical documentation of injuries, ask for help from her extended family and
keep the authority informed. The child protection authority also reportedly
states that it would summon L.F. and give him a warning in case the
battering continues.
6.5 As at 23 June 2004, according to the author the criminal proceeding
against L.F. were still ongoing. A hearing scheduled for 21 April was
postponed to 7 May and, as the judge was reportedly too busy to hear the
case, the criminal proceedings were again postponed until 25 June 2004. The
author believes that, whatever the outcome, the criminal proceedings have
been so lengthy and her safety so severely neglected that she has not
received the timely and effective protection and the remedy to which she is
entitled under the Convention and General Recommendation No. 19 of the
Committee.
6.6 The author refers to the civil proceedings, in particular to the
petition for review by the Supreme Court that she considers to be an
extraordinary remedy but submitted nonetheless. She states that, in response
to the Committee's intervention, the State party covered the legal costs of
supplementing her petition with additional arguments.
6.7 On 23 March 2004, the Supreme Court dismissed the petition, arguing,
among other things, that the jurisprudence is established with regard to the
legal issue raised in the petition.
6.8 The author refutes the State party's argument that she did not submit a
request for the exclusive use of the apartment. The court of the second
instance (Fýrvarosi Bíróság) ordered the court of the first instance (Pesti
Központi Kerületi Bíróság) to re-try the case, namely because it had failed
to decide on the merits of the request. She believes that it is clear from
the context and from her court documents, including decisions, that she had
requested sole possession of the apartment to avoid a continuation of the
violence. However, she states that under the established law and
jurisprudence in the State party, battered individuals have no right to the
exclusive use of the jointly-owned/leased apartments, on grounds of domestic
violence.
6.9 The author requests that the Committee declare her communication
admissible without delay and decide on the merits that the rights under the
Convention have been violated by the State party. She requests that the
Committee recommend to the State party to urgently introduce effective laws
and measures towards the prevention of, and effective response to domestic
violence in her specific case and generally. The author furthermore seeks
compensation for long years of suffering that have been directly related to
the severe and serious violations of the Convention. The author believes
that the most effective way would be to provide her with a safe home, where
she could live in safety and peace with her children, without constant fear
of her batterer's "lawful" return and/or substantial financial compensation.
6.10 By her submission of 30 June 2004, the author informs the Committee
that the criminal proceeding against L.F. have been postponed until 1
October 2004 in order to hear the testimony of a policeman because the judge
thinks that there is a slight discrepancy between two police reports.
6.11 By her submission of 19 October 2004, the author informs the Committee
that the Pest Central District Court (Pesti Központi Kerületi Bíróság)
convicted L.F. of two counts of causing grievous bodily harm to her and
fined him for the equivalent of approximately 365US$.
Supplementary Observations of the State Party
7.1 By note dated 27 August 2004, the State party argues that, although all
tasks that the Decree/Decision of Parliament on the Prevention of, and
Response to Domestic Violence prescribes have not yet been completely
implemented, some positive steps, including new norms in the field of crime
prevention and Act LXXX (2003) on the conditions under which legal
assistance is given to those in need, have been taken. These documents are
said to provide an opportunity to establish a national network of
comprehensive legal and social support for future victims of domestic
violence.
7.2 The State party confirms that the Draft Act on Restraining Orders that
applies to cases of violence within the family has been postponed to the
autumn session of Parliament.
7.3 The State party admits that the experience of the Office and the
information it has shows that domestic violence cases as such do not enjoy
high priority in court proceedings.
7.4 Based on the experience of the Office in the present case as well as in
general, it is conceded that the legal and institutional system in Hungary
is not ready yet to ensure the internationally expected, coordinated,
comprehensive and effective protection and support for the victims of
domestic violence.
Issues and Proceedings Before the Committee Consideration of Admissibility
8.1 In accordance with rule 64 of its rules of procedure, the Committee
shall decide whether the communication is admissible or inadmissible under
the Optional Protocol to the Convention. Pursuant to rule 72, paragraph 4,
of its rules of procedure, it shall do so before considering the merits of
the communication.
8.2 The Committee has ascertained that the matter has not already been or is
being examined under another procedure of international investigation or
settlement.
8.3 With regard to article 4, paragraph 1 of the Optional Protocol, the
Committee observes that the State party does not wish to raise any
preliminary objections as to the admissibility of the communication and
furthermore concedes that the currently existing remedies in Hungary have
not been capable of providing immediate protection to the author from
ill-treatment from L.F. The Committee agrees with this assessment and
considers that it is not precluded by article 4, paragraph 1, from
considering the communication.
8.4 The Committee, nevertheless, wishes to make some observations as to the
State party's comment in its submission of 20 April 2004 that some domestic
proceedings are still pending. In the civil matter of L.F.'s access to the
family's apartment, according to the author's submission of 23 June 2004,
the petition for review by the Supreme Court was dismissed on 23 March 2004.
The civil matter on the distribution of the common property, on the other
hand, has been suspended over the issue of registration for an undisclosed
period of time. The Committee considers, however, that the eventual outcome
of this proceeding is not likely to bring effective relief vis-ŕ-vis the
current lifethreatening violation of the Convention of which the author has
complained. In addition, the Committee notes that two sets of criminal
proceedings against L.F. on charges of assault and battery allegedly
committed on 19 January 2000 and 21 July 2001 were joined and, according to
the author, were decided on 1 October 2004 by convicting L.F. and imposing a
fine equivalent to approximately 365 US$. The Committee has not been
informed as to whether the conviction and/or sentence may or will be
appealed. Nonetheless, the Committee is of the view that such a delay of
over three years from the dates of the incidents in question would amount to
an unreasonably prolonged delay within the meaning of article 4, paragraph
1, of the Optional Protocol, particularly considering that the author has
been at risk of irreparable harm and threats to her life during that period.
Additionally, the Committee takes account of the fact that she had no
possibility of obtaining temporary protection while criminal proceedings
were in progress and that the defendant had at no time been detained.
8.5 As to the facts that are the subject of the communication, the Committee
observes that the author points out that most of the incidents complained of
took place prior to March 2001 when the Optional Protocol entered into force
for Hungary. She argues, however, that the 10 incidents of severe physical
violence that are medically documented and which are part of an allegedly
larger number constitute elements of a clear continuum of regular domestic
violence and that her life was still in danger, as documented by the
battering which took place 27 July 2001 - that is after the Optional
Protocol came into force for Hungary. The Committee is persuaded that it is
competent ratione temporis to consider the communication in its entirety,
because the facts that are the subject of the communication cover the
alleged lack of protection/alleged culpable inaction on the part of the
State party for the series of severe incidents of battering and threats of
further violence that has uninterruptedly characterized the period beginning
in 1998 to the present.
8.6 The Committee has no reason to find the communication inadmissible on
any other grounds and thus finds the communication admissible.
Consideration of the Merits
9.1 The Committee has considered the present communication in light of all
the information made available to it by the author and by the State party,
as provided in article 7, paragraph 1, of the Optional Protocol.
9.2 The Committee recalls its general recommendation No. 19 on violence
against women, which states that "...[T]he definition of discrimination
includes gender-based violence" and that "[G]ender-based violence may breach
specific provisions of the Convention, regardless of whether those
provisions expressly mention violence". Furthermore, the general
recommendation addresses the question of whether States parties can be held
accountable for the conduct of non-State actors in stating that
"...discrimination under the Convention is not restricted to action by or on
behalf of Governments ..." and "[U]nder general international law and
specific human rights covenants, States may also be responsible for private
acts if they fail to act with due diligence to prevent violations of rights
or to investigate and punish acts of violence, and for providing
compensation". Against this backdrop, the immediate issue facing the
Committee is whether the author of the communication is the victim of a
violation of articles 2 (a), (b) and (e), 5 (a) and 16 of the Convention
because, as she alleges, for the past four years the State party has failed
in its duty to provide her with effective protection from the serious risk
to her physical integrity, physical and mental health, and life by her
former common law husband.
9.3 With regard to article 2 (a), (b), and (e), the Committee notes that the
State party has admitted that the remedies pursued by the author, were not
capable of providing immediate protection to her against ill-treatment by
her former partner and, furthermore, that legal and institutional
arrangements in the State party are not yet ready to ensure the
internationally expected, coordinated, comprehensive and effective
protection and support for the victims of domestic violence. While
appreciating the State party's efforts at instituting a comprehensive action
programme against domestic violence and the legal and other measures
envisaged, the Committee believes that these have yet to benefit the author
and address her persistent situation of insecurity. The Committee further
notes the State party's general assessment that domestic violence cases as
such do not enjoy high priority in court proceedings. The Committee is of
the opinion that the description provided of the proceedings resorted to in
the present case, both the civil and criminal proceedings, coincides with
this general assessment. Women's human rights to life and to physical and
mental integrity cannot be superseded by other rights, including the right
to property and the right to privacy. The Committee also takes note that the
State party does not offer information as to the existence of alternative
avenues that the author may have pursued that would have provided sufficient
protection or security from the danger of continued violence. In this
connection, the Committee recalls its concluding comments from August 2002
on the State party's combined fourth and fifth periodic report that states
"... [T]he Committee is concerned about the prevalence of violence against
women and girls, including domestic violence. It is particularly concerned
that no specific legislation has been enacted to combat domestic violence
and sexual harassment and that no protection or exclusion orders or shelters
exist for the immediate protection of women victims of domestic violence".
Bearing this in mind, the Committee concludes that the obligations of the
State party that are set out in article 2 (a), (b) and (e) of the Convention
extend to the prevention of, and protection from violence against women and,
in the instant case, remain unfulfilled and constitute a violation of the
author's human rights and fundamental freedoms, particularly her right to
security of person.
9.4 The Committee addressed articles 5 and 16 together in its general
recommendation No. 19 in dealing with family violence. In its general
recommendation No. 21, the Committee stressed that "the provisions of
General Recommendation 19 ... concerning violence against women have great
significance for women's abilities to enjoy rights and freedoms on an equal
basis with men". It has stated on many occasions that traditional attitudes
by which women are regarded as subordinate to men contribute to violence
against them. The Committee recognized those very attitudes when it
considered the combined fourth and fifth periodic report of Hungary in 2002,
and was concerned about the "persistence of entrenched traditional
stereotypes regarding the role and responsibilities of women and men in the
family...". In respect of the instant case before the Committee, the facts
of the communication reveal aspects of the relationships between the sexes
and attitudes towards women that the Committee recognized vis-ŕ-vis the
country as a whole. For four years and continuing to the present day, the
author has felt threatened by her former common law husband - the father of
her two children. The author has been battered by the same man, i.e. her
former common law husband. She has been unsuccessful, either through civil
or criminal proceedings, to temporarily or permanently bar L.F. from the
apartment where she and her children have continued to reside. The author
could not have asked for a restraining or protection order since neither
option currently exists in the State party. She has been unable to flee to a
shelter because none are equipped to take her in together with her children,
one of whom is fully disabled. None of these facts have been disputed by the
State party and, considered together, they indicate that the rights of the
author under articles 5 (a) and 16 of the Convention have been violated.
9.5 The Committee also notes that the lack of effective legal and other
measures prevented the State party from dealing in a satisfactory manner
with the Committee's request for interim measures.
9.6 Acting under article 7, paragraph 3, of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women,
the Committee is of the view that the State party has failed to fulfill its
obligations and has thereby violated the rights of the author under article
2 (a), (b) and (e) and article 5(a) in conjunction with article 16 of the
Convention on the Elimination of All Forms of Discrimination against Women,
and makes the following recommendations to the State party:
I. Concerning the Author of the Communication
i. Take immediate and effective measures to guarantee the physical and
mental integrity of A.T. and her family; and
ii. Ensure that A.T. is given a safe home in which to live with her
children, receives appropriate child support and legal assistance and that
she receives reparation proportionate to the physical and mental harm
undergone and to the gravity of the violations of her rights;
II. General
i. Respect, protect, promote and fulfill women's human rights, including
their right to be free from all forms of domestic violence, including
intimidation and threats of violence;
ii. Assure victims of domestic violence the maximum protection of the law by
acting with due diligence to prevent and respond to such violence against
women;
iii. Take all necessary measures to ensure that the national strategy for
the prevention and effective treatment of violence within the family is
promptly implemented and evaluated;
iv. Take all necessary measures to provide regular training on the
Convention on the Elimination of All Forms of Discrimination against Women
and the Optional Protocol thereto to judges, lawyers and law enforcement
officials;
v. Implement expeditiously and without delay the Committee's concluding
comments of August 2002 on the combined fourth and fifth periodic report of
Hungary in respect of violence against women and girls, in particular the
Committee's recommendation that a specific law be introduced prohibiting
domestic violence against women, which would provide for protection and
exclusion orders as well as support services, including shelters;
vi. Investigate promptly, thoroughly, impartially and seriously all
allegations of domestic violence and bring the offenders to justice in
accordance with international standards;
vii. Provide victims of domestic violence with safe and prompt access to
justice, including free legal aid where necessary, to ensure them available,
effective and sufficient remedies and rehabilitation; and
viii. Provide offenders with rehabilitation programmes and programmes on
non-violent conflict resolution methods.
9.7 In accordance with article 7 paragraph 4, of the Optional Protocol, the
State party shall give due consideration to the views of the Committee,
together with its recommendations, and shall submit to the Committee, within
six months, a written response, including any information on any action
taken in the light of the views and recommendations of the Committee. The
State party is also requested to publish the Committee's views and
recommendations and to have them translated into the Hungarian language and
widely distributed in order to reach all relevant sectors of society.
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