THE ISTANBUL CONVENTION

LOUISE HOOPER
The Istanbul Convention affects migrant women in three substantive
ways:
• The principles and standards set out are applicable to women whilst
present or resident in the host state (Art 4.3);
• Specific provision is made for residence permits to be granted in a
variety of circumstances including where residence was dependant on
a spouse/partner and that relationship has broken down through
violence, and in respect of forced marriage (Art 59);
• Specific provision is made for consideration of gender based asylum
claims and a non-refoulement provision is included (Arts 60 and 61).
Purpose of Istanbul Convention
The purpose of the Istanbul Convention is the protection of women
against all forms of violence, as well as the prevention, prosecution
and elimination of violence against women and domestic violence.
(Article 1 IC)
Prevention
Protection
Prosecution
Integrated Policies
Who does the Istanbul Convention Protect?
Article 4.3 of the Istanbul Convention makes clear that:
The implementation of the provisions of this Convention by the Parties,
in particular measures to protect the rights of victims, shall be secured
without discrimination on any ground such as sex, gender, race, colour,
language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth, sexual orientation,
gender identity, age, state of health, disability, marital status, migrant
or refugee status, or other status
Standards and Core Principles
• Due diligence (Art 5.2)
• Gender Equality
• Victim-Centred approach (Arts 18.3, 56)
• Gendered understanding of DV (Art 2)
• Children as victims and witnesses (Arts 26, 31)
• Co-ordinated and multi-agency approach (Arts 7.1, 18.2, 9)
• Comprehensive and co-ordinated policies (Arts 7-11)
Victim centred
approach
- Safety is paramount
This is ‘the systematic - the victim’s wishes, safety and well-being
take priority in all matters and procedures.
focus on the needs and
concerns of a victim to
A victim-centred approach is achieved by:
ensure the • providing the support of victim advocates
compassionate and and service providers,
• empowering survivors as engaged
sensitive delivery of participants in the process; and
services in a non- • providing them an opportunity to play a
role in seeing their abusers brought to
judgmental matter.’ justice.
 Gendered
approach
A ‘gendered approach’ does not
mean denying that men and boys
do not experience violence or
domestic violence but recognizes
that there are inequalities and
significant differences between
the way in which the men and
women perpetrate and experience
violence.
Some examples of those
inequalities include:
Differences in income and
employment opportunities
Differences in childcare and
domestic responsibilities
Differences in the access to public
space
Societal norms governing perceived
notions of acceptable behaviours
Multiple Socio-
Discrimination economic Race
status

Sex & Unconscious

Unconscious
Gender bias
bias Disability

Migration SOGI
status
 pregnant
women and
women with
young children
persons living in
The elderly rural or remote
areas

Particularly Vulnerable
Groups persons with
disabilities,
including
Children
mental or
cognitive
impairments

Vulnerable
groups
Homeless substance
persons abusers

gay men,
lesbian women,
bi-sexual and Sex workers
transgender
persons

migrants –
persons of
including
national or
undocumented
ethnic minority
migrants and
background
refugees
Specific provision for migrant and asylum
seeking women

• Article 59: Residence Status

• Article 60: Gender-Based Asylum Claims
• Article 61: Non Refoulement
Article 59- Residence Status
• provision for grant of autonomous residence permit in case of
dissolution of marriage or relationship where woman’s status
otherwise dependant on spouse or partner
• suspension of proceedings relating to expulsion to enable woman to
make autonomous application for residence permit
• renewable permit where necessary owing to their personal status or
because stay is necessary owing to criminal or civil proceedings
• resumption of residence status where lost through forced marriage
Article 60: Gender based asylum claims
• ensure that gender-based violence against women may be
recognised as a form of persecution and as a form of serious harm
giving rise to complementary/ subsidiary protection.
• ensure that a gender-sensitive interpretation is given to each of the
Convention grounds
• develop gender-sensitive reception procedures and support services
for asylum-seekers as well as gender guidelines and gender-sensitive
asylum procedures, including refugee status determination and
application for international protection.
Gender based violence against women
• Violence against women (VAW) is understood as a violation of human
rights and a form of discrimination against women and shall mean of acts
of gender-based violence that result in, or are likely to result in, physical,
sexual, psychological, or economic harm or suffering to women, including
threats of such acts, coercion, or arbitrary deprivation of liberty, whether
occurring in public or in private life”. (Article 3.a)

• As a violation of human dignity and, in its worst forms, a violation of right

to life, it represents an extreme expression of inequality on the ground of
sex, leading to discrimination on the ground of gender. Furthermore, the
Istanbul Convention also recognizes in its Preamble that violence against
women is the result of historically imbalanced power relations between
women and men.
• Psychological violence (Art 33)
• Stalking (Art 34)
• Physical Violence (Art 35)
• Sexual violence including rape (Art 36)
• Forced marriage (Art 37)
• Female Genital Mutilation (Art 38)
• Forced abortion and forced sterilization (Art 39)
• Sexual harassment (Art 40)
• Domestic Violence (Art 3b)
Domestic Violence
The term covers intimate-partner violence between current or former
spouses or partners, as well as inter-generational violence, for example
between parents and their children. Although the term ‘domestic’ may
appear to limit its application to acts that occur in a household, it is
recognized that violence often occurs between intimate partners,
couples who are dating, and who do not necessarily live together.
Therefore, a joint residence of the victim and perpetrator is not
required, even when talking about inter-generational violence. Article 3
(b) of the Istanbul Convention defines this form of violence.
Gender Sensitive interpretation
• Race/Nationality:
e.g. sexual violence and control of reproduction in cases of racial and ethnic
‘cleansing’
• Religion
e.g. crimes committed in the name of so-called ‘honour’
• Particular Social Group
e.g. In the context of FGM, forced marriage, domestic violence
• Political opinion
e.g. non conforming to social norms, speaking out against traditional gender
roles
Standards of Protection
Often women’s asylum claims are refused on the grounds that they will
be able to obtain ‘sufficient’ or ‘effective’ protection from the
authorities in their home country. The following assessment relates to
the standards of protection a state is required to provide to asylum
seeking or refugee women within its jurisdiction and may be of
assistance when assessing whether protection in the country of origin
is ‘effective’. Where lack of protection results in a breach of Article 3
ECHR it would equally result in a lack of protection for the purposes of
the refugee convention.
Protection of Migrant/Asylum seeking women
within the state
• Provisions of Istanbul Convention relation to protection, support and
prosecutions apply equally to migrant and asylum seeking women

• Includes shelter and support provisions

• Judicial measures to ensure fair trials including provision of legal aid

and interpreters
May require:

• Adequate and effective identification procedures

• Often best achieved through standard operating procedures/manuals
and guidance
• Effective multi disciplinary coordination between border/immigration
agencies and other state agencies
• Preventive measures in reception facilities
• Monitoring to ensure appropriate and effective implementation
• Referrals to more specialised support services including medical
services
• Preventive work with potential offenders
The following cases are some examples of the ECHR
finding a lack of protection in cases of VAW and DV:

• Opuz v Turkey (2009) requirement to investigate and protect against

domestic violence, breaches of arts 2,3 and 14
• M.C. v Bulgaria (2003) breach of art 3 where failure to investigate and
prosecute non-consensual sexual acts where no physical resistance. Note
focus on consent in Istanbul Convention
• Eremia and ors v Moldova (2013) failure to protect from the violent and
abuse behavior of husband and father, a police officer, breach of art 3
• B V v Belgium (2017) failure to carry out effective investigation in breach of
art 3, rape and indecent assault
Other useful resources:
Domestic Violence available (in English) here:
http://www.echr.coe.int/Documents/FS_Domestic_violence_ENG.pdf

Violence against Women available (in English) here:

http://www.echr.coe.int/Documents/FS_Violence_Woman_ENG.pdf

See also the Directive of the European Parliament and of the Council
establishing minimum standards on the rights, support and protection
of victims of crime (Link: http://eur-lex.europa.eu/legal-
content/EN/ALL/?uri=CELEX:52011PC0275
Domestic Violence
• Domestic violence is often a hidden phenomenon and whilst men and
boys may experience domestic violence the majority of the victims
worldwide are women. It can be the reason for a woman leaving her
country of origin, can be experienced during her journey or after
arrival in the host country either during or after the asylum process.
Seeking asylum is a stressful process that can increase the risk of
domestic violence.

• The protective requirements apply to migrant and asylum seeking

women with equal force in the host country as they do to nationals of
that country (Art 4.3)
Istanbul Convention and Dublin Procedures
The interrelationship between the Dublin Regulation and the Istanbul
Convention will be important in the following types of cases:
• where the women has fled a violent husband/partner/other family
member present and/or is seeking asylum in the state to which she is to be
returned
• where the woman is part of a family unit and is currently experiencing
domestic violence and it is proposed to transfer the whole family unit
• where the woman has escaped from traffickers/organised criminals and
potentially faces reprisals
• other cases where the woman has already experienced or fears
experiencing gender based harm
• where the woman has been the victim of violence in the sending state
Reception centres and Screening

• Try and ensure women are interviewed separately from their family
(both at screening and during any substantive claim) This is because:
• Women experiencing violence from their partner will generally not
disclose this in front of the partner
• Women who have experienced and/or fear gender based violence
may not disclose in front of family members, including small children
Support Services
States are required by Art 60(3) to develop support services for asylum-
seekers that provide assistance in a gender-sensitive manner and that
cater to their particular needs. This could include taking measures such
as providing additional psycho-social and crisis counselling, as well as
medical care for survivors of trauma since for example, many female
asylum-seekers have been exposed to sexual or other forms of abuse
and are therefore particularly vulnerable. Support services should also
aim at empowering women and enable them to actively rebuild their
lives.
Gender Guidelines
Guidelines provide an essential reference point for relevant actors to
understand how to adopt a gender sensitive approach to the
protection needs of women and girl asylum seekers who have been or
are at risk of gender based violence both in the host state and if
removed. Guidelines should cover the enhancement of awareness and
responsiveness to cultural and religious sensitivities or personal factors
as well as the recognition of trauma and the impact of trauma.
Gender Sensitive Procedures
Good practice in developing gender sensitive procedures would include
• the provision to women of information on asylum procedures;
• the opportunity for women dependents to have a personal interview
separately and without the presence of family members;
• the opportunity for women to raise independent needs for protection
and gender specific grounds leading to a separate application for
international protection;
• the elaboration of gender guidelines on the adjudication of asylum
claims
• training
Interviews
The explanatory report notes that in the context of gender sensitive
procedures best practice would also encompasses:
• gender-sensitive interviews led by an interviewer, and assisted by an
interpreter when necessary;
• the possibility for the applicant to express a preference for the sex of
their interviewer and interpreter which the Parties will accommodate
where it is reasonable to do so;
• the respect of confidentiality of the information gathered through
interviews.
Late Disclosure
Women are often unable to disclose the nature and/or extent of
gender based harm they have experienced until they have built up a
relationship of trust and confidence with an NGO or advisor. Late
disclosure should not automatically be taken as an indicator that the
account lacks credibility
Non-suspensive/accelerated procedures
Because of the nature of gender based claims and the difficulties
women face in disclosing and properly presenting their claims which
are often complex and evidentially difficult they are often inherently
unsuitable for non-suspensive and accelerated procedures. There is a
real danger that women subjected to such procedures will be denied
protection.
Article 61: Non-refoulement
• Failure to identify or process S/GBV claims properly can result in
refoulment
• respect the principle of non-refoulement in accordance with existing
obligations under international law.
• ensure that victims of violence against women who are in need of
protection, regardless of their status or residence, shall not be
returned under any circumstances to any country where their life
would be at risk or where they might be subjected to torture or
inhuman or degrading treatment or punishment.