Recent research indicates that the rates of femicide by partners or family members have differed only slightly in Europe since 2010. Progress for the past decade has been minimal, with certain regions, particularly in Eastern Europe facing consistently high numbers of femicides (p. 20). The use of lethal force within the family is also a gendered trend, as nearly 60% of all women murdered in 2023 were victims of a partner or family member (p. 22). This post argues that the European Court of Human Rights (ECtHR) should account for the gendered nature of domestic violence when determining whether a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) has occurred.

The ECtHR has acknowledged the positive obligations of states in the context of domestic violence cases, to protect the right to life (Article 2 ECHR) of domestic abuse victims (Landi v Italy, [63]). This obligation includes providing effective remedies against any authority that fails to take necessary measures concerning domestic violence (Landi, [63]). The Court however, declined to find a violation of Article 14 in conjunction with Article 2, citing the lack of statistical evidence offered by the applicant that demonstrated any systematic discrimination. This is part of a wider pattern by the ECtHR. In A v Croatia, the Court declared the applicant’s Article 14 complaint as manifestly ill-founded due to the absence of “sufficient statistical or other information disclosing […] discriminatory treatment of women who are victims of domestic violence on the part of the Croatian authorities” [97]. Similarly, in Y v Bulgaria the Court mentioned that the provision of “statistical data […] which show that domestic violence affects mainly women” can shift the burden of proof on the state when proving discrimination [122]. Yet scholars have rightly argued that this places a disproportionate burden on victims, who are required to “demonstrate by statistics that they are a victim of discrimination”.

Indeed, the ECtHR requires proving allegations of discrimination beyond reasonable doubt (Nachova v Bulgaria, [147]), a burden which can only be reversed if an applicant raises this issue sufficiently through such statistical data. However, could this requirement be itself discriminatory? Ironically, the Court emphasises that a general policy that has disproportionately prejudicial effects on a particular group may be considered to constitute discrimination, even where it is not specifically aimed at that group and there is no discriminatory intent (Volodina v Russia, [109]).

Arguably, by implementing a rigorous application of the principle affirmanti incumbit probatio (“the claimant bears the proof”), the Court may be disproportionately affecting domestic abuse victims, who due to their vulnerable status may face difficulties in producing statistical evidence that would satisfy, beyond reasonable doubt, that the burden should be reversed. Instead, the Court could take advantage of its option of taking judicial notice of certain facts (a practice that has been used by the Court before (see Klass v Germany, [48]). Given the well-established, and unfortunately persistent tendency whereupon domestic violence in Europe primarily victimises women, the argument can be made that judicial notice of this phenomenon could be taken by the Court. Naturally, each state should still be able to adduce evidence to rebut the presumption of discrimination in such cases. It still seems more reasonable under the present circumstances, to require states to refute an allegation of discrimination, rather than making applicants provide the Court with statistical evidence demonstrating its existence.  The current jurisprudential approach may be seen as overburdensome on claimants since statistics may not be readily available.

While the proposal to have the ECtHR take judicial notice of the gendered nature of domestic violence offers a practical solution to the evidentiary challenges faced by victims, one must acknowledge potential concerns. The Court may be hesitant to adopt judicial notice due to the risk of oversimplifying individual cases, particularly in countries with varying levels of data collection and awareness about domestic violence. However, given the well-documented, systemic nature of gender-based violence, such a presumption could help alleviate the disproportionate burden placed on victims. While the Court may be cautious in expanding its role, the persistence of gendered violence across Europe justifies a more proactive stance to ensure that the Convention’s protections are effectively applied to vulnerable women. This approach would not only streamline the process but also reflect a more equitable and practical response to the realities of domestic abuse.