Self-defense claim in Domestic violence case, Exams of Human Rights

Download Self-defense claim in Domestic violence case and more Exams Human Rights in PDF only on Docsity! Spring Semester 2020 Independent Written Essay within the Field of Constitutional law and Human Rights, 15 hp [Master‟s Programme in Constitutional Law and Human Rights, 60 hp] Supervisor: Therese Enarsson Self-defense claim in Domestic violence case An analysis of domestic violence with self-defense claim and article 2 and 3 of European Convention on Human Rights Tarikawit Fikadu Mamo 2 Contents 1. Introduction 1.1 Purpose 1.2 Method and material 1.3 Theoretical framework 2. Self-defense claim in domestic violence 2.1 One-incident approach: the nature of domestic violence 2.2 Killing the offender: self-defense 2.3 Domestic violence link with Self-defense 3. European Court on Human Rights interpretation of Article 2 and 3 in relation to self-defense claim 3.1 Balancing right to life 3.2 Re-living the fear of abuse 4. Discussion: ECtHR perspective of State‟s obligation in the matter 5. Conclusion Bibliography 5 1 Introduction Domestic violence is a worldwide problem that most women undergo in their lifetime, 2 which ranges from physical to psychological. 3 This problem affects women more than any other group and contributes to the cause of “illness, poverty, homelessness, and disability in women around the world.” 4 In Europe, the problem is widespread and more likely violates four articles of the European Convention on Human Rights (ECHR), article 2- right to life, article 3- Prohibition of torture, article 8- right to respect for private and family life, and article 14- Prohibition of discrimination. 5 The European Court of Human Rights (ECtHR) by breaking the dichotomy of the private/ public sphere established a comprehensive jurisprudence to address domestic violence. 6 Accordingly, the ECtHR developed principles in its case law that address domestic violence that will contribute toward the criminal justice system. 7 In domestic violence cases, “Homicide is emphatically gendered.” 8 Women are more likely to be victims of homicide and killed by a former or current partner. 9 Conversely, where women kill their former or current partners, the history of domestic violence is often a reason, and they claim to have acted in self-defense. 10 The reality of the women who endures domestic violence and kill their former or current partners have different view and experience of their household from other (non-victim‟s) women who does not experience domestic violence in their households. However, Courts tend to view the self-defense claim as unreasonable 11 and assess the domestic violence “victim‟s reality of violence with non- victim‟s view.” 12 In doing so, this understanding of Court‟s interpretation of self-defense in 2 Carline A., & Am, P. E. (2014). Shades of Grey – Domestic and Sexual Violence Against Women: p. 63. See Mclean, M. (2005). Domestic Violence and Repeat Victimization. International Review of Victimology, 12(1), p.1. 3 Harne, L., & Radford, J. (2008). Tackling domestic violence: theories, policies and practice. Maidenhead: Open University Pres. p. 1-7. 4 Meyersfeld, B. (2012). Domestic Violence and International Law. Oxford; Portland, OR: Hart Publishing. p. 1. 5 McQuigg, R. J. A. (2011). International Human Rights Law and Domestic Violence: the Effectiveness of International Human Rights Law. London: Routledge. p. 48. See art. 2- right to life, art. 3- Prohibition of torture, article 8-right to respect for private and family life, and art. 14- Prohibition of discrimination. See the discussion in chapter 2. 6 Ibid., p. 43-44. 7 Ibid 8 Carline and AM, op. cit., p. 128. 9 Ibid 10 Ibid 11 Ibid., p. 130-137. 12 Ibid., p. 153. 6 the case of domestic violence directed the women who are victims of domestic violence to plead guilty of manslaughter instead of claiming self-defense just to avoid the risk of murder conviction as default. 13 Moreover, there is inconsistency in the court decisions where women committed homicides against their abusers. The women who were the victim of domestic violence claim to have acted in self-defense when they kill the offender in a non-confrontational situation to prevent future violence (bodily harm or death). 14 Yet, the traditional self-defense definition does not consider the distinguishable characteristics of domestic violence when it takes legal action. 15 As a result, “domestic violence (abuse) offenses tend to be prosecuted using other offenses, including homicide offenses, sexual or non-sexual offenses against the person, or even breach of the peace.” 16 Therefore, the disparity of the self-defense law ultimately generates the changeable results to the victim‟s self-defense claims. Some are found guilty, while others are acquitted. 17 1.1 Purpose The purpose of this paper is to discuss, women‟s right of self-defense who are in heterosexual relationships, when killing their abusers in non-confrontational circumstance. The disparity between the self-defense legislative framework and its interpretation on domestic violence cases result diverse outcomes for the self-defense claim made by women who were victims of domestic violence. Moreover, self-defense claim made by the women who were victims of domestic violence and acted under the influence of such violence are treated as per the traditional definition of the self-defense requirement that disregard the unique feature of the domestic violence. For that reason, the paper explores where self- defense claims in domestic violence cases can be raised and justified. The paper also analyzes the self-defense claim and states‟ obligations in relation to ECHR article 2- right to life and article 3- prohibition of torture, and inhuman or degrading treatment or punishment, to establish which circumstances and requirements vindicate the self-defense claim for the victims of domestic violence who kill their abuser. 13 Ibid., p. 130-131. 14 Belew, C. M. (2010). Killing one‟s abuser: premeditation, pathology or provocation? , 59(3), p. 769-770. 15 See Section 2.1. 16 Tadros, V. (2005). The Distinctiveness of Domestic Abuse: A Freedom-Based Account. Defining Crimes, 65(3), p. 990. 17 Ibid. 7 1.2 Method and material The paper explores the relation between domestic violence and self-defense claim raised by women who kill their abuser in non-confrontational manner. In doing so, to draw the very nature of the domestic violence, self-defense, and their interpretation the paper studies different legal research articles. Since the topic of the paper is a widespread subject, the legal research articles from both Inter-American and European literature that addresses the issue in their regional human right system perspective are utilized. Despite the fact that the paper focuses on the European perspective of domestic violence and self-defence, the Inter- American literature are used to contextualize the general concept of self-defense claim and domestic violence relation, as the topic is more developed and raised in many case law in their legal system. Further, articles by different scholars are used to provide an elaboration and understanding of the court‟s perspective in its arguments and judgments. In addition, the case laws of ECtHR are studied. I chose old and new key cases of ECtHR, which define the concept right to life with its self-defense exception and prohibition of torture as regard to the perspective of article 2 and 3 of ECHR. The case laws are also used to draw conclusion how those rights are contextualized with respect to states obligation. 1.3 Theoretical framework Women more likely become victims of domestic violence than men. Domestic violence is the violence that takes place in intimate relationship that perceived for long period of time with the display of the repetitive behavior of the violence in systematic manner. 18 A woman who kills her former or current partner in non-confrontational circumstance often claims that she acted in response to a reasonable perception of danger. Hence, they claim self-defense. 19 The traditional meaning of self-defense covers the masculinity version of defending one‟s right to life by excluding the distinguishing criteria of the domestic violence victim who acted in self-defense. 20 Further, the criminal justice system disregards the unique link between the women who kill their abuser and her been in domestic violence household which she experience emotional and physical violence. besides Nevertheless, the women who experience domestic violence that acted in self-defense in non-confrontational circumstance is 18 See discussion in section 2 19 Mihajlovich, op. cit., p. 1272. 20 See discussion in section 2 10 Likewise, the common law requires that the person who acted in self-defense has an honest belief that her/ his action is necessary and that they have reasonable ground for that belief. 37 However, the reasonableness of the act is often interpreted in the perspective of the judges‟ personal values instead of the persons who acted in self-defense. 38 The approach of right and forfeiture explains self-defense based on the right to life. As per this approach, the right to life is dependent on the conduct and conditions. 39 As a result, a person does not retain a right where he/she poses an immediate danger to a person‟s right to life instead he/ she own right to life is forfeited. 40 Yet, this does not mean the right of the offender is forfeited, where the victims acted and kill in self-defense instead “the right to life is forfeited (or not possessed) simply by virtue of becoming an unjust immediate threat to the life of another.” 41 Thus, it is permissible to kill in self-defense but this does not indicate the offender is being punished or deserve to die rather it is a system to fight back unjust immediate attack. 42 Hence, it can be held that the concept of „imminence‟ or „immediate‟ attack that surrounds the self-defense concept serves to limit the claim of self-defense by avoiding the excessive way to force and avoid the loss of a person‟s life in self-defense claim. Therefore, the very self-defense principle is mainly based on two elements. First, the act of the threat shall be immediate against one‟s right to life. Second, the act is against the unjust act of the other person under a reasonable man standard. 2.3 Domestic violence link with Self-defense Self-defense is a right one can claim before the court, whether the violence is domestic or not. In domestic violence cases, the victims of domestic violence who kill their abuser in non- confrontational situation, often the problem to claim self-defense argument is that, the requirement of imminent or current violence that the traditional delineation of the self-defense concept has to draw self-defense legitimacy is not established. 43 37 Carline and AM, op. cit., p. 130-131. 38 Ibid. 39 Leverick, F. (2007). Defending Self-Defence. Oxford Journal of Legal Studies, 27(3), p. 572. 40 Ibid. 41 Ibid. 42 Ibid. 43 Burke, A. S. (2002). Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman. SSRN Electronic Journal, p 225. 11 It has been argued that the requirements do not include or address the perspective of gender since the very nature of the domestic violence is ongoing and set the women in the state of mind that the attack will befall at any moment. 44 In light of this, the theory of the BWS is established so that the domestic violence victims justify the claim of self-defense. 45 The theory explains the feeling of learned helplessness that urges the victim of domestic violence to remain in the relationship with the abuser. 46 Further, this forces the victim to live “under a constant reign of terror, and may kill during an apparently peaceful moment out of fear that she will not be able to protect herself from the next, inevitable attack.” 47 However, this argument might not stand in itself to support the claim of self-defense in domestic violence cases. 48 Alafair argued that BWS theory was not establish using empirical evidence that the domestic violence victims lives are in the constant reign of terror, likewise the time frame of the violence is unclear and it is hard to establish that the tension or the fear that the women feel still exits or disappear overtime if she stays in the abusive relationship. 49 Further, Alafair reasoned that the theory failed to clarify why the victim of domestic violence perception of danger extends beyond one assault. 50 Accordingly, he argues that the modifying the element of self-defense to subjective perception than objective reasonableness to fit the victim of the domestic violence self defence in the non-confrontational situation is undermining the very notion of self-defense claim as justification. 51 On the contrary, it has been argued that the traditional self-defense concept is gender- biased and unable to accommodate the victims of domestic violence who kill in a non- confrontational situation. 52 It is also argued that loss of self-control is rather a masculine reaction to violence which shows the traditional self-defense concept biasness toward women by applying subjective test that favor‟s male defendant. 53 Moreover, “it is unlikely that the 44 MESECVI (no. 1), op. cit., p.7- 8. 45 Burke, op. cit., p 225. 46 Ibid., p. 230. 47 Ibid., p. 231. 48 Ibid. 49 Ibid., p. 238-239. 50 Ibid., 240 51 Ibid., 240-242. 52 Jeffrey Murdoch (2000). Is imminence really necessity? Reconciling traditional self-defense doctrine with battered women syndrome, Imminence and the battered women syndrome, 20, N. Ill. U. L. Rev., p. 192- 193. 53 Carline and AM, op. cit., p. 145. 12 victim of domestic violence would feel that she could lose self-control without placing herself in a significantly more vulnerable position.” 54 3. European Court on Human Rights interpretation of Article 2 and 3 in relation to self-defense claim 3.1 Balancing Right to life Right to life is a basic concept that is prerequisite for enjoyment of all other human rights. 55 As a result, “right to life occupies a high position in the hierarchy of legal norms.” 56 Human rights instruments, international, and regional, 57 incorporate right to life provision into their instruments for protection of human rights, even if limitation or exception to the enjoyment of the right to life is found in the instruments. 58 The ECHR, one of the regional human rights instruments recognizes and protects the right to life, Article 2 states: 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Accordingly, it can be claimed that the right to life is not an absolute right, given that it can be taken away lawfully. 59 Indeed, Protocol 6 and 13 abolish the death penalty that indicated in the article 2§1. Nonetheless, article 2§2 sets out circumstances in which 54 Carline and AM, op. cit., p. 149. 55 Mavronicola, Taking Life and Liberty Seriously, p. 1028 56 C. Tomuschat, E. Lagrange, and S. Oeter, the Right to Life, Brill, 2010, p. 5. 57 Universal Declaration on Human Right-art. 3, European Convention for the Protection of Human Rights and Fundamental Freedoms-art. 2, American Convention on Human Rights-art.4, African Charter on Human and Peoples‟ Rights-art 4, Arab Charter on Human Rights arts. 5-8, International Covenant on Civil and Political Rights-art. 6. 58 Mavronicola, op. cit., p. 1028-1029 59 Ibid 15 3.2 Re-living the fear of abuse Article 3 of the European Convention on Human Right stipulates, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 73 Such prohibition is specified in all relevant international human rights and humanitarian instruments. 74 Likewise, the prohibition forms a part of customary international law, which recognizes torture as a crime. 75 The term „torture‟ is defined under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment article 1 as: “any act which severe pain or suffering, whether physical or mental, intentionally inflicted on a person for such purpose as…punishing for an act she or a third person has committed or is suspected of having committed, or intimidating or coercing her or a third person...” By extension, torture is an act or omission purposefully causes pain or powerlessness of the victim, which render futile the victim to escape the situation. 76 Based on this definition, and generic understanding of domestic violence 77 the United Nation stated that “the pain or suffering caused by domestic violence often fall nothing short of that inflicted by torture and other cruel, inhuman or degrading treatment or punishment.” 78 On the other hand, the ECtHR did not take major steps of deeming domestic violence to be reflected as a torture 79 and has been construed article 3 based on case-by-case formula as illustrate in below case laws which give leeway for domestic violence to no be consider as torture. In the case of Opuz v. Turkey, ECtHR states that ill-treatment to fall under the scope of article 3, it should attain a minimum level of severity. It continues to elaborate that this 73 ECHR Article 3. 74 Matt Pollard (2005). The Absolute and Comprehensive Prohibition of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Swedish Forum on Human Rights, p.2. See Geneva Convention art. 3, International Covenant on Civil and Political Rights art. 7, European Convention on Human Rights art. 3, American Convention Human Right art. 5, African Charter on Human and Peoples‟ Rights art. 5. 75 Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet, United Nations, Geneva, 2002, p. 3. 76 United Nation General Assembly , Relevance of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment to the context of domestic violence, A/74/148, 2019, https://undocs.org/A/74/148 77 See section 2.1. 78 Ibid above no. 52, para. 8. 79 McQuigg, op. cit.,, p. 48. 16 minimum level is relative, which depends on circumstance of the case, for instance, “the nature and context of the treatment, its duration, it‟s physical and mental effects and, in some instances, the sex, age and state of health of the victim.” 80 Opuz, the applicant, complained her husband caused her pain, suffering, and fear because of the violence perpetrated upon her by him. 81 Further, the applicant had experienced ill-treatment more than five times that had been reported to the pertinent authority that caused criminal charge to be brought before the national court in different occurrence. 82 Thus, the ECtHR notes the physical injury and psychological pressure the applicant suffered are sufficient enough to fall under the scope of article 3. 83 In Costello-Roberts v. United Kingdom, the ECtHR established the minimum level of severity recognized where the treatment or humiliation is more than the usual that “inherent in any punishment.” 84 Thus, the scope of article 3 entails that not all punishment can be categorized as ill-treatment. 85 The same assessment can be observed in the case Volodina v. Russia, but with more advance description to embrace the wide-ranging effect of the ill- treatment, which does not always have to be physical or mental suffering. Accordingly, it denotes that ill-treatment comprises, “treatment which humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or which arouses feelings of fear, anguish or inferiority capable of breaking an individual‟s moral and physical resistance, even in the absence of actual bodily harm or intense physical or mental suffering.” 86 Moreover, all the cases cited above, established vulnerable individuals, women and children in particular, are more likely entail the minimum level of severity in ill-treatment category. 87 Thus, when the court contented that the circumstance of the cases gravity heightened, it considers the act as violation of article 3 of the ECHR. This implies that the court construed Article 3 in the way that “„does not prohibit‟ the use of force in certain circumstances.” 88 Moreover, this does not mean the ECtHR considers merely the vulnerability, the minimum level of ill-treatment of the victim when it comes to assessing the fact to determine 80 Case of Opuz v. Turkey, Application no. 33401/02, para. 158. 81 Ibid., para. 154-155. 82 Ibid., para. 9-58. 83 Ibid., para.161. 84 Case of Costello-Roberts v. United Kingdom, Application no. 13134/87, para. 30. 85 Ibid. 86 Case of Volodina v. Russia, Application no. 41261/17, para. 73. 87 See case of Volodina v. Russia, Application no. 41261/17. Costello-Roberts v. United Kingdom, Application no. 13134/87 and Opuz v. Turkey, Application no. 33401/02. 88 Mavronicola, N (2013). 'Güler and Öngel v Turkey, p. 374. 17 the violation of article 3 but also it contemplates the state‟s response or legislative framework to the act. 89 In the case Rumor v. Italy, the ECtHR finds the state in no violation of article 3 of the convention. The court specified the state “had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework was effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity.” 90 Based on the above point of view, it can be assumed that the ECtHR consider domestic violence as violation of the ECHR article 3 where the act‟s ill-treatment is justified by minimum level of severity. As the nature of domestic violence more likely involve systematic violence in the cyclic manner, which is repetitive and last for a long period of time, the victim besides physical injury often develop BWS, the feeling of passiveness and powerlessness, to the point that the she cannot escape the abusive relationship. 91 Moreover, as per the definition of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, torture does not only means physical pain but also mental. Consequently, victims of domestic violence, often suffer BWS, which apt to the protection of ECHR article 3. 4. Discussion: ECtHR perspective of States obligation in the matter The European Court on Human Rights in its case law shed some light and established principle as regard to the Human rights enshrined in the ECHR. As a result, the court established and robust the positive obligation of the states along with the negative obligation evidently specified in article 2 of the convention. 92 The positive obligation of the states in overall addressed generally into four categories, that is, framework obligation, operational duties, investigative obligation, and duties of redress . 93 The framework obligation explains that the state should establish the legislative framework that can deter the person who violated the right to life as well as redress the unlawful taking of life. 94 State also have positive obligation of operational duties that entails states to take reasonable actions to protect right to life from being at risk where the pertinent 89 Case of Rumor v. Italy, Application no. 72964/10, 90 Ibid., para. 76. 91 Mihajlovich, op. cit., p. 1257. 92 Mavronicola, op. cit., p. 1031. 93 Ibid., p. 1031-1033 94 Ibid. 20 Conclusion Even if the right to life is a basic right, given that we all need to be alive to enjoy other human rights, does not make the right to life an absolute right. Lawfully, right to life can be taken away either by state agent or by private individual and self-defense is one of the lawful excuses that can be exercise out of self-preservation. Woman who kills her abuser in non-confrontational circumstances, the lawful excuse seems ambivalent to see her perspective of self-preservation. Often, the right to self-defense does not take into account of women who were victims of domestic violence and understand their act of killing as rational and reasonable in their perspective. Nevertheless, the concept of BWS sheds some light to the rational and behavioral pattern of women who kills their abuser in act of self-preservation from torture, ill-treatment, and loss of life. The act of self-preservation or self-defense is one of the right specified in ECHR article 2§2 as an exception to right to life. As per the article, a person can claim self-defense or use force where it is absolutely necessary, proportionate to the achievement of the aims considering all surrounding circumstances. Conversely, the traditional self-defence claim in addition to the requirements laid down in ECHR article 2§2, it requires the use force where the danger inflicted to the right to life is imminent or immediate. This traditional meaning of self-defense disregards the unique link between the women who kill their abuser and her been in domestic violence household. Likewise, the women who kill their abuser in the act of preservation or self-defence often experience domestic violence. This domestic violence to be considered as torture according to ECHR article 3 the violence or pain inflicted, either physical or mental, shall satisfy minimum level of severity in ill-treatment category. Often domestic violence opt this minimum levels severity since the distinguishable elements of the domestic violence is the violence being systematic and occurs for long period of time. Thus, understanding the effect of domestic violence and its effect in order to justify women‟s act of killing in non-confrontational circumstance needs both legislator and court recognition. States have negative and positive obligation which also specified by ECtHR. Among these obligations, introducing legislative reforms is one way of safeguarding women‟s rights in 21 general and right to self-defense in domestic violence cases in particular. Further, state‟s court needs to consider the dynamics and manifestation of the domestic violence where construing the concept of self-defense. By extension, the court should analyses and consider the very nature of the domestic violence where the women who kill the abuser and claims self-defense. Otherwise, construing the self-defense claim based on its traditional concept appears denying the women who were subjected to domestic violence a right to defend themselves or protect their right to life. Moreover, for women who have been the victim of domestic violence that causes violation of ECHR article 3- protection against torture and ill-treatment, which is also a customary international law, does she not deserve a benefit of a doubt when she claims self- defense for killing her abuser in non-confrontational circumstance? . 22 Sources Literature Belew, C. M. (2010). Killing one‟s abuser: premeditation, pathology or provocation? , 59(3). Burke, A. S. (2002). Rational Actors, Self-Defense, and Duress: Making Sense, Not Syndromes, Out of the Battered Woman. SSRN Electronic Journal. Carline, A., & Am, P. E. (2014). 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