Emerging Voices: The European Court of Human Rights and Women Affected by Enforced Disappearances of Their Relatives

by Grazyna Baranowska

[Grazyna Baranowska is a Senior Researcher at the Poznań Human Rights Centre of the Institute of Law Studies of the Polish Academy of Sciences.]

The nature of enforced disappearances is that it affects whole families, rather than only the individuals who disappeared. While the majority of the forcibly disappeared are men, these disappearances have a strong economic, socials and psychological effects on the wives/partners of the disappeared.

The impact of enforced disappearances on women has been recognized by the Working Groups on Enforced and Involuntary Disappearances. In the Preamble to the General comment on women affected by enforced disappearances it is stated that:

“(…) gender equality and the empowerment of women are essential tools to address the situation that women victims of enforced disappearances face. A gender perspective is crucial in explaining, understanding and dealing with unique disadvantages and obstacles that women face in the exercise of their human rights and to outline solutions to try and address these issues. (…)The experience of the Working Group demonstrates that the effects of enforced disappearances are lived and faced in different ways by women and girls due to gender roles, which are deeply embedded in history, tradition, religion and culture (…).”

International law considers the ‘victims of enforced disappearances’ to be both the disappeared persons and any individuals who have suffered harm as a direct result of a disappearance (art. 24.1 International Convention for the Protection of All Persons from Enforced Disappearance, ICPPED). Even though ICPPED does not have a gendered perspective, the effects of disappearances on women had been discussed since the second session of the Committee of Enforced Disappearances in March 2012. The results of these discussions have been included in the document on relationship with NGO’s: the Committee encouraged integration of a gender perspective in submissions and consultation of women’s organization and women human rights defenders.

The European Court of Human Rights also recognizes that disappearances violate  the rights of a disappeared persons’ families As stated by the ECtHR: “The phenomenon of disappearances imposes a particular burden on the relatives of missing persons who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty” (Varnava v. Turkey). In Çakıcı v. Turkey, the ECtHR  found that art. 3 of the ECHR was violated with regard to the disappeared persons’ relatives when their suffering has a character and dimension distinct from the emotional distress stemming inevitably from the violation itself.

The court established ‘special factors’ in this context, covering: (1) the proximity of the family tie, (2) the particular circumstances of the relationship, (3) the extent to which family members witnessed the events, (4) their involvement in the attempts to obtain information and (5) the way in which the authorities responded to those enquiries (Çakıcı v. Turkey, par. 98).

Those factors have been developed in subsequent judgments. Recently, the ECtHR has tended to focus on the last aspect – the authorities’ reaction and attitude to the situation when it is brought to their attention (Khachukayevy v. Russia, par. 73; Khava Aziyeva v. Russia, par. 96).

During the first decade of disappearance cases before the ECtHR, the Court attached great importance to the involvement of the applicant in the attempts to obtain information and direct contact with authorities (see for example Nenkayev and others v. Russia, par. 168).  However, this has changed over time. In the applications against Russia, which currently constitute the vast majority of disappearances cases, very often whole families are applicants and the ECtHR has in most cases not differentiated between the applicants, even when some of them were more involved in the inquiries. Nevertheless there are still cases when all of the ‘special factors’ are brought up by the ECtHR.

The “special factors” established by the ECtHR are not gender-sensitive: requiring involvement in the attempts to obtain information might be difficult for a woman especially when – after the disappearance of her partner – she is the single parent of small children. This is further exacerbated in patriarchal societies, were male relatives traditionally represent women in their contact with authorities. Furthermore the illiteracy rate is higher among women in the countries from which the enforced disappearance cases to the ECtHR origin from and in minority communities (such as Kurds and Chechens) the language barrier is an additional obstacle, especially for women.

Due to these factors, a  substantial number of applicants before the ECtHR in cases against Turkey are men. These cases thus result in finding that men– often the brothers of disappeared—as opposed to the wives, are thevictims of violations of article 3 of the ECHR. When the wife is an applicant, she is usually accompanied by male members of the family, as has been the case in the majority of applications against Russia. There is a very limited number of cases submitted solely by women.

Therefore, although women are strongly affected by enforced disappearances of their male relatives/partners, they are less often authors of applications and if men are representing them in contact with authorities due to the ‘special factors’, they are less likely to be found victims of violation of art. 3 of the ECHR. A striking example of such a way of reasoning was a judgment, in which the ECtHR found no violation of article 3 of the ECHR because the wife of the disappeared failed to demonstrate that she was involved in the ongoing investigation pertaining to the disappearance of the husband (Nesibe Haran, 83).

In order to recognize the suffering of women relatives of disappeared persons, it would be beneficial to rethink the “special factors.” This could be done through resigning from the requirement of involvement in the attempts to obtain information. Alternatively the ECtHR could analyze how the applicant is affected by the disappearance and its consequences. This would make it possible for the applicants and their representative to show the particularly difficult situation for the female relatives of the disappeared person. The Court could also – just like other international bodies – completely abandon the “special factors.”

Second, the ECtHR could reconsider analyzing a violation of the rights of family members of a disappeared person under article 8 of the ECHR, guaranteeing right to respect for private and family life. This has been raised previously by a number of applicants, but it has rejected by the ECtHR. Article 8 of the ECHR could be used to recognize the vulnerable situation of female relatives of disappeared persons.

A third possibility would be to recognize at the enforcement stage the particular effect enforced disappearances of family members have on women. In the judgment Alakhanova and others v. Russia the ECtHR provided “guidance on certain measures that had to be taken by the Russian authorities to address the systemic failure to investigate disappearances in the Northern Caucasus.” Currently the Committee of Ministers expects Russia to address those measures in order to implement the disappearances judgments. Therefore, actions that countries should take in order to address specific needs of female relatives of disappeared persons face could be included in the ECtHR judgment.

http://opiniojuris.org/2016/09/05/emerging-voices-the-european-court-of-human-rights-and-women-affected-by-enforced-disappearances-of-their-relatives/

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