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Article 8: Right for all to effective remedy by competent tribunal


Case Study: DOMESTIC VIOLENCE
  • Domestic violence is a serious, long-standing problem in most countries, with particular impact on women. Every year, thousands of women are beaten, raped or psychologically abused by their intimate partners.

Context

In countries all over the world each year, thousands of women are beaten, raped or psychologically abused by their intimate partners. As many as two out of three women world-wide have suffered domestic violence.

The United Nations defines domestic violence as: "the use of force or threats of force by a husband or boyfriend for the purpose of coercing and intimidating a woman into submission. The violence can take the form of pushing, hitting, choking, slapping, kicking, burning or stabbing."

Under international and domestic law, these women are not able to seek effective remedy within the legal system.

Domestic Abuse in Peru

Nearly half the women living in Peru had been physically assaulted by their partners. Outside the major cities, the proportion goes up to 61%.

These figures are the preliminary results of an ongoing study carried out by the World Health Organisation (WHO).

Peru is not the only country where this happens. The WHO is also conducting surveys in Brazil and Thailand, where comparable results are expected.

Measures to Combat the Problem

According to WHO, Peru has one of the highest incidences of domestic violence.

At the domestic level, Peru adopted the Law for Protection from Family Violence in 1993. The law, one of the first of its kind to be adopted in Latin America, was intended to ensure that victims of domestic violence have swift and effective access to protection and justice, but its impact has been disappointing.

Peru has also signed and ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.

Prosecuting Violence

Although strengthened in 1997, Peru's Law for Protection from Family Violence still contains flaws. It does not protect women from marital rape or stalking, nor does it apply to women who are harassed or beaten by intimate partners if they are not living together.

To be more effective, the judicial system in Peru needs to strengthen the definition of family violence and provide for more rigorous overseeing and training of police, forensic doctors, state prosecutors and judges.

Progressive laws are important, but they are not sufficient if they are not effectively put into practice. This is the true test of Peru's commitment to prosecuting domestic violence and fulfilling the right to effective remedy by a competent tribunal.

Lacking Legal Protection

In the majority of nations there has been a failure in the criminal justice system to acknowledge the criminality of domestic abuse and to protect women from this offence.

In many cases, police, prosecutors and judges from every region demonstrate an unwillingness to understand the causes and consequences of domestic violence and to enforce the laws against it.

The view of some law enforcement officials is that domestic violence is not a serious crime but rather a private problem to be dealt with by the woman herself.

Many victims of domestic violence have identified that the criminal justice system has been an obstacle for them in seeking to eliminate violence from their lives.

International legal standards have defined domestic violence as a human rights violation, thereby invoking the protection offered by human rights treaties and other instruments.

New international legal standards on domestic violence specifically require states to review and reform their criminal justice system's treatment of battered women in order to meet their government's obligations under human rights law.

Measures

The Beijing Platform for Action, for example, states that domestic violence is a human rights violation and that governments are obligated as member states of the United Nations to effectively address this violence.

The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women and the Declaration on the Elimination of Violence Against Women, are further examples of bodies of international law that obligate states to effectively respond to violence against women.