The Role of the European Court of Human Rights in the Protection of Women Fleeing Gender-Based Violence in their Home Countries

Abstract

More than one million persons crossed the Mediterranean Sea in 2015 into the European Union (‘EU’) leading many to describe the situation as the worst refugee crisis in Europe since the Second World War. The role of International Human Rights Law in ensuring the protection of asylum seekers from return to countries where they would face prohibited treatment is consequently of particular interest. In 2015, approximately 27.7% of persons claiming asylum in the EU were women and girls and reports suggest most flee war, armed conflict, persecution and sexual or gender-based violence. In the context of increasing reliance by asylum seekers and refugees on the European Court of Human Rights (‘the Court’) as a protection mechanism against return to ill-treatment, torture and persecution, examination of the Court’s approach is essential. Adopting a gender analysis based on feminist legal theory, this paper explores the case law of the Court relating to gender-based violence and discrimination against women. Using a comparative approach, the paper analyses how principles and concepts developed in ‘domestic’ cases are applied in ‘expulsion’ cases, in order to query the impact of the Court as a mechanism for the effective protection of women seeking refuge in Europe. The paper considers the extent to which International Human Rights Law as interpreted by the Court responds to the international protection needs of those at risk of gender-based violence. It compares how the principles regarding the prohibition of gender-based violence and discrimination against women developed by the Court in ‘domestic’ cases are applied to ‘expulsion’ cases where the breach of Article 3 ECHR is feared as a result of treatment in the receiving country. Protection against gender-based violence from a ‘male network’ and the Court’s reliance on this concept in ‘expulsion’ cases is explored in particular.