Page 12 - Klinika nr 39–40 (44–45)/2025

WPŁYW KLINIK NA PRZYSZŁOŚĆ SPOŁECZNĄ

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different from the way women and girls experience it” . Nowa- and communities now see the human rights system as an effective
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days, the Council of Europe, in the enacted Istanbul Convention instrument in preventing all forms of gender discrimination .
has explicitly regulated in Article 60 that parties shall take the nec- Thus, it is now clear that the jurisprudence of the ECHR is paying
essary legislative or other measures to ensure that gender-based vi- increasing attention to women’s rights, shaping necessary stand-
olence against women may be recognised as a form of persecution ards for Council of Europe member governments in this regard. In
within the meaning of Article 1, of the 1951 Convention relating recent years, the Court has repeatedly found violations of women’s
to the Status of Refugees and as a form of serious harm giving rights by States parties to the ECHR , setting standards for fem-
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rise to complementary/subsidiary protection. Parties shall ensure inist perspectives on the law. In particular, in its jurisprudence ,
that a gender-sensitive interpretation is given to each of the Con- it has emphasised the positive obligation of each State party
vention grounds and that whenever it is established that the per- to the Convention to protect women against violence, including
secution feared is grounded on one or more of these grounds, ap- domestic violence, even though it takes place in the private sphere
plicants shall be granted refugee status according to the applicable of life, recognising this form of violence as a form of gender dis-
relevant instruments. Parties shall take the necessary legislative or crimination. Several of the Court’s rulings concerned women’s re-
other measures to develop gender-sensitive reception procedures productive rights , and even such specific issues as home births .
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and support services for asylum-seekers as well as establish gen- A flagship example of a ruling that has undoubtedly been influ-
der guidelines and gender-sensitive asylum procedures, including enced by the long-standing legacy of feminist jurisprudence, with
refugee status determination and application for international its disclosure of discriminatory law, is the case of Opuz v. Turkey
protection. of 09 September 2009. (Application No. 33401/02). In this judg-
This example shows very clearly the evolution of assigning ment, the Court, in finding a violation of Article 14 ECHR, ex-
meaning to the content of the law – in this case international plicitly stated that violence against women is a form of gender
law – which was initially interpreted in a way that did not take discrimination, and pointed out that the behaviour of the authori-
into account the experience of violence faced by women, one of ties, in violation of Articles 2 and 3 of the Convention (concerning
the most common sources of their migration, through interpre- the right to life and freedom from torture), was directed by the fact
tative changes that included gender as a criterion for claiming ref- that the victims were women. The Court further found that the vi-
ugee status, and finally to the adoption of the content of the law olence experienced by the applicant and her mother was a form of
explicitly indicating the need to ensure that gender-based vio- violence directed at them because they were women, i.e., consti-
lence against women may be recognised as a form of persecution tuted gender-based violence and therefore a form of discrimina-
within the meaning of Article 1, of the 1951 Convention relating tion against women. It further showed that the authorities’ obli-
to the Status of Refugees. gation to apply the Protection ensured by the Domestic Violence
A second example which illustrates the impact of conducting femi- Act was different for women and men.
nist legal research concerns the significance of the European Court An example of a case illustrating the increasing acceptance of
of Human Rights in protecting the fundamental rights and free- a feminist interpretation of the normative content of the Euro-
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doms of all citizens and nationals of the Council of Europe coun- pean Convention on Human Rights is the case of N v Sweden .
tries about the inclusion of women’s perspectives and experiences In this case, the applicant, an Afghan woman, and her husband
– a fact that was not so evident from the beginning of the Eu- came to Sweden in 2004. The couple’s applications were rejected
ropean Court of Human Rights. Indeed, initially, many feminist several times. In 2005, the applicant woman separated from her
circles were distrustful in their assessment of human rights doc- husband. In 2008, her divorce petition was rejected by the Swedish
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trine . This distrust was justified by the historical and cultural ex-
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clusion of women from all areas of social life . After many years, 55 See on this topic e.g. N. Buchowska, International and European standards for
however, these same circles saw the potential to provide an op- the protection of women’s rights, in B. Guzik, N. Buchowska, P. Wiliński, Prawo
portunity for legal change in the human rights system as a way of wobec wyzwań współczesności, vol. 5, Poznań 2008, pp. 70‒72; M. Smolin, Zasada
równości płci. A comparative study of the Council of Europe and European Union
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shaping the law and its application . After many years, the human standards, Warsaw 2013.
rights system began actually to be used for the protection of wom- 56 The Convention for the Protection of Human Rights and Fundamental Freedoms
en’s rights and is now an essential element in shaping the changes drawn up in Rome on 4.11.1950, subsequently amended by Protocols Nos. 3, 5,
and 8 and supplemented by Protocol No. 2 (Journal of Laws of 1993, No. 61, item
resulting from the inclusive integration of gender in the theoretical 284, as amended) is the most important legal act underpinning the entire Coun-
and practical study of law. cil of Europe system. This Convention, as rightly noted by M.A. Nowicki, „is for
On an even more positive note, there has been an evolution in the countries gathered in the oldest organisation – the Council of Europe – a real
constitutional charter of fundamental rights and freedoms, civil and political.
the understanding and approach to the human rights system, The guardian of their observance by states through the special control mecha-
whereby firstly, international action has recognised, and continues nism provided for in the Convention is the European Court of Human Rights –
according to the term used by one parliamentarian during the Strasbourg debate
to recognise, the need for a „gendered” view of many phenomena – the golden crown of Europe”.
that exclude women from being treated equally in the public space, 57 See e.g. Opuz v. Turkey, ECtHR judgment of 9.06.2009, application no.
such as domestic violence, sexual violence, or the failure to provide 33401/02; E.S and Others v. Slovakia, ECtHR judgment of 15.09.2009, appli-
cation no. 8227/04; M.C. v. Bulgaria, ECtHR judgment of 4.12.2003, complaint
access to reproductive health. Secondly, women’s organisations no. 39272/98. See also A. Bodnar, Domestic violence in the light of judgments of
the European Court of Human Rights, in L. Mazowiecka, (ed.), How to effectively
protect victims of domestic violence, Warsaw 2013.
58 See, e.g., Tysiąc v. Poland, ECtHR judgment of 20.03.2007, application no.
51 See The gender dimension of asylum claims, The gender dimension of asylum 5410/03; R.R. v. Poland, ECtHR judgment of 26.05.2011, application no.
claims, January 2025, p. 2. 27617/04; P. and S. v. Poland, ECtHR judgment of 30.10.2012, application no.
52 E. Zielińska, Handel kobietami jako naruszenie praw kobiet, Handel ludźmi. Pre- 57375/08.
vention and prosecution, ed. by Z. Lasocik, Warsaw 2006, p. 177. 59 See, e.g., Dubská and Krejzová v. Czech Republic, judgment of the Grand Cham-
53 See B. Namysłowska-Gabrysiak, Handel ludźmi w celu wykorzystania seksualnego. ber of the ECtHR of 15.11.2016, combined application nos. 28859/11 and
Zagadnienia karnoprawne i kryminologiczne, Warsaw 2018, pp. 4 et seq. 28473/12; Pojatina v. Croatia, judgment of the ECtHR of 4.10.2018, application
54 E. Zielińska, Handel kobietami jako naruszenie praw kobiet, Handel ludźmi. Pre- no. 18568/12.
vention and prosecution, ed. by Z. Lasocik, Warsaw 2006, p. 177. 60 N. v. Sweden, Judgment 20.7.2010, Case Nr 23505/09.

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