Gender-based violence: Does the practice meet the law?

How freely and equally can women live, without the fear of harassment, violent assault, physical harm, economic exploitation or murder, when one in three women at European level has experienced physical or sexual violence, mainly by her partner (FRA 2014)?

In Greece, the percentage of women who have suffered physical or sexual violence amounts to 35.5%, according to a survey conducted by the National Centre for Social Research (EKKE) in 2023.

Violence against women is, unfortunately, still present and assumes particularly alarming proportions. It constitutes a multidimensional, multifaceted, constantly escalating but inadequately addressed violation of fundamental human rights.

At an international level, a woman's right to live free from violence is enshrined in international agreements, such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979) and the United Nations Declaration on the Elimination of Violence against Women (1993).

The Istanbul Convention

The first legally binding international act to combat violence against women and the most extensive international framework that addresses the different forms of violence against women in a comprehensive and detailed way is the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, signed in 2011 (Istanbul Convention).

The Convention aims to harmonise national legislations and develop administrative practices in order to prevent and combat violence, so that victims of violence can enjoy equal protection in all Council Member States.

This international act identifies violence against women as a violation of human rights and a form of discrimination. Failure of states to take appropriate measures to combat it makes them liable. Greece transposed the Convention into its legislation with Law no. 4531/2018. The European Union acceded to the Convention in June 2023 in order to further strengthen its purposes and thus gave it a considerable value both from a political and legal point of view [the accession of the European Union does not exempt Member States from the obligation to ratify it. Among EU Member States, Bulgaria, Czech Republic, Hungary, Latvia, Lithuania and Slovakia have not yet ratified the Convention].

The Convention provides a legal definition for violence against women (physical, sexual, psychological, economic). It is the first international treaty to determine the term “gender” (the socially created roles, behaviours and attributes, namely the norms that a certain society considers appropriate for men and women). It broadens the definition of family (to include current or ex-partners even when they do not live together). It attaches particular importance to prevention and the protection of victims. It criminalises behaviours and establishes a comprehensive framework of measures, both legal and political, to prevent such violence, support victims and punish perpetrators. Moreover, it imposes specific obligations.

Among them we can point out the possibility to move the victim away from the perpetrator, the obligation to establish reception centres for victims throughout the country, the obligation of states to ensure training for professionals who deal with victims of violence, the coordinated collaboration of multiple bodies and the establishment of standardised procedures in order to achieve an integrated and adequate management of violence incidents, the implementation of treatment programmes for perpetrators, the special provision for the issuance or the renewal of residence permits for foreign women victims of domestic violence, the obligation of law-enforcement agencies to provide immediate, timely and adequate protection to victims as well as the obligation for effective investigation, prosecution and punishment of offences of violence without any unjustified delay.

GREVIO Report 

The establishment of a monitoring mechanism (GREVIO) constitutes an innovation and serves as a safeguard for the implementation of the Convention. This is an independent body entrusted with monitoring the implementation of the Convention by the signatory Member States. 

In its first evaluation report for Greece (published on 14th November 2023), GREVIO expresses strong concern about the implementation of the Convention. It analyses the situation in our country in detail. In addition, it introduces findings and makes recommendations to the national authorities.

The report puts forward 71 recommendations and proposals concerning 47 out of the 61 articles of the Convention that were examined. Eighteen (18) of those recommendations (namely a percentage of 25.3%) are extremely urgent, because the legislation and/or existing policies or practices in force within our country either contradict some provisions of the Convention, or they are contrary to the Convention, while in some cases there are no relevant provisions at all. Thirty-four (34) recommendations (namely a percentage of 47.9%) are urgent because there are deficiencies that need to be corrected as soon as possible. Eighteen (18) recommendations (namely a percentage of 25.3%) are urgent at a second stage, while there is one (1) proposal (representing a percentage of 1.4%) regarding the improvement of the implementation, as the relevant provisions are considered sufficient (see European Anti-Violence Network, page 1).

This analysis shall highlight the following elements of the evaluation report: 

GREVIO welcomes some positive measures taken to implement the Istanbul Convention, such as the establishment of 74 specialized police units (GREVIO report, p. 6), as well as amendments to Greece’s legal framework on violence against women, including the adoption of a definition (albeit incomplete) both of rape and harassment in the workplace, based on the notion of freely given consent (GREVIO report, paragraph 218).

However, it goes on to determine the need for immediate improvement measures in various areas, such as the establishment and operation of rape crisis centres and sexual violence referral centres, which is particularly alarming, as, based on the findings, there is a wide discrepancy between the high rates of reporting incidents of violence against women and the low rates of conviction, particularly in cases of rape (GREVIO report, paragraph 261).

GREVIO stresses that the number of beds in shelters should be significantly increased and that additional services (e.g. emergency accommodation) should also be provided, in order to accommodate even more women victims of violence (GREVIO report, paragraph 28), as the operation of only 20 shelters for abused women, with only 450 individual beds, falls short of the Istanbul Convention's target of one family place per 10,000 head of population (GREVIO report, paragraph 140) [According to Article 23 of the Istanbul Convention, Member States shall take the necessary legislative or other measures to provide for the setting-up of appropriate, easily accessible shelters in sufficient numbers to provide safe accommodation for and to reach out pro-actively to victims, especially women and their children].

The urgent recommendations to the Greek authorities include, among others: 

The setting up of rape crisis centres and/or sexual violence referral centres providing immediate medical care, trauma support, immediate access to forensic examinations and immediate, short- and long-term psychological assistance by qualified professionals throughout the country (GREVIO report, paragraph 158).

The establishment of standardised procedures – comprising an effective and multi-agency approach that involves specialised services and non-governmental organisations – for risk assessment and safety management in relation to the victims of gender-based violence (GREVIO report, paragraph 277). The adoption of measures to ensure that a victim’s access to different support services is not conditional on her willingness to lodge a complaint (GREVIO report, paragraph 158).

The systematic and mandatory training of all professionals working with victims or perpetrators of all forms of violence, in particular the judiciary, so that they can identify and respond to all forms of violence (GREVIO report, paragraph 92). The introduction of training and guidelines for all relevant professionals in the criminal justice system, so as to ensure that rape and sexual violence are understood as offences based on the absence of consent rather than the use of violence. The removal of difficulties preventing women victims and their children from escaping violence (GREVIO report, paragraph 200).

The establishment of policies and practices based on the recognition that, in a context of domestic violence, joint parenting may be a means for the perpetrator to continue to maintain control and domination over the mother and her children and to perpetrate violence against them (GREVIO report, paragraph 200). The incorporation of risk-assessment and risk-management procedures into the determination of custody and visitation rights and the restriction of these rights when this is necessary to guarantee the safety of the mother and the child (GREVIO report, paragraph 200).

The ending of the practice of removing children from non-abusive parents or the limiting of their parental rights on the grounds of "parental alienation syndrome" or related notions. The provision of appropriate training and guidelines aimed at raising awareness of judges and other relevant professionals about the harmful effects of violence on children exposed to it, given that this exposure renders them victims in their own right, as well as about the lack of a scientific basis for "parental alienation syndrome" (GREVIO report, paragraph 200).

The introduction of a system of retrospective review of cases of gender-based killings of women as well as well as of a system to assess whether gaps in the institutional and/or judicial response contributed to the fatal outcome, with the aim of preventing them in future and holding to account both the perpetrators and the institutions that come into contact with the victims and the perpetrators (GREVIO report, paragraph 278).

Apart from GREVIO, the European Court of Human Rights has also noticed shortcomings in the investigation of sexual crimes by the Greek investigative and judicial authorities in its recent judgment in Case of X v. Greece (application no. 38588/21), 13 February 2024.

The European Directive 2024/1385

Combating violence against women is part of the European Commission's action to protect the EU's core values and ensure respect for the EU Charter of Fundamental Rights [violence against women and domestic violence can infringe many of the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union. These rights include the right to human dignity (Article 1), the right to life (Article 2), the prohibition of torture and inhuman or degrading treatment (Article 4), the prohibition of discrimination, including on grounds of sex (Article 21), and the right of access to justice (Article 47)].

The European Directive on combatting violence against women and domestic violence (2024/1385) has been recently added to the legally binding instruments at EU level to help tackle violence against women. The first EU legislative act that comprehensively addresses violence against women was adopted by the European Parliament on 24-04-2024 by a large majority of 522 votes in favour, 27 votes against and 72 abstentions, and it was published on 24-05-2024 in the Official Journal of the European Union. The recent measures will enter into force twenty days after the publication and Member States must transpose them into their national law within three years.

This new legislative act of the EU aims to achieve the objectives of the Istanbul Convention within the EU's areas of competence. It supports the commitments made by Member States to prevent violence against women by complementing and strengthening the protection provided by the Convention. 

The Directive lays down, for the first time, a single framework and common rules in the European area to effectively address violence against women across the entire EU, as the relevant standards have been so far fragmented in various legislative acts. Furthermore, it recognises in its preamble that the existing provisions at Union and national level have proven to be insufficient. 

The thematic areas covered in the Directive as well as the measures enacted in relation to the goals it pursues follow basically the models and the structure of the Istanbul Convention and reflect the legislative changes that need to be adopted by the contracting parties as well as the policies the latter should undertake to implement these changes, namely the criminalisation of the relevant offences and the imposition of penalties, the protection and support of victims, the access to justice, an enhanced data collection, prevention, coordination and cooperation. 

Moreover, it is important to stress the legal definition of victim that is broader than that of the Istanbul Convention and includes as well as protects not only women who suffer violence but also children who witness it. In order to support and protect children, an obligation is introduced for Member States dictating them to maintain places which allow safe contact between a child and a holder of parental responsibility who is an offender or suspect of violence against women and has the right to communicate with the child (Article 32).

As far as preventive measures are concerned, the Directive imposes the obligation on Member States to train and inform relevant professionals, namely police and court officers, lawyers, judges and prosecutors, health professionals (paediatricians, obstetricians, gynaecologists) as well as media workers (Article 38). These measures are also provided for in the Istanbul Convention and GREVIO makes recommendations for their strengthening.

In order to collect data in the European area, Member States shall conduct general population surveys on gender-based violence every five years, on the basis of a uniform methodology drawn up by Eurostat. The surveys shall include, as a minimum, the annual number of reported offences and convictions, the number of femicides as well as the number and capacity of reception centres per Member State (Article 44). 

Member States commit to approve national action plans for preventing and combating gender-based violence by 14-06-2029 (Article 39), whereas the Commission shall submit a report examining whether the rules need to be revised upon the completion of 5 years, during which the Directive shall be implemented, namely by 14-06-2032 (Article 45). 

Cyberviolence crimes against women

With an approach leading to intense criminalisation – which is questioned by international experience as to whether it is appropriate and effective in addressing the phenomenon – and without covering the whole spectrum of violence against women, the Directive lists and standardises as crimes specific forms and behaviours of gender-based violence. 

These criminal provisions should be transposed into the national legislation of Member States, in case they are not already included. In this way, female genital mutilation (Article 3), forced marriage (Article 4), non-consensual sharing of intimate or manipulated material (Article 5), cyber stalking (Article 6), cyber harassment (Article 7), cyber incitement to violence or hatred directed against a group of persons or a member of such a group, defined by reference to gender (Article 8), inciting, aiding and abetting as well as attempt to incite violence or hatred in the cyberspace (Article 9) are standardised and criminalised. 

The commission of these offences is punishable by terms of imprisonment of one to five years, while a list of aggravating circumstances leading to more severe penalties is provisioned for offences committed against or in the presence of a child, offences committed against a vulnerable person, a former or current spouse or partner, a public representative, a journalist or a human rights defender, as well as offences committed by an offender who is a former or current spouse or partner, or where the intention of the offender was to punish the victim for the victim’s sexual orientation, gender, colour, religion, social origin or political beliefs (Article 11).

Female genital mutilation, forced marriage and stalking had previously been criminalised in the Istanbul Convention and this has been transferred to Greek criminal law. 

In addition to the above, the Convention includes also the offences of forced abortion and forced sterilisation (39), physical (35) and psychological violence (33), sexual harassment (Article 40) and sexual violence, including rape (Article 36). 

Crimes of cyber violence against women are not specifically covered by the Istanbul Convention and are standardised through the Directive. As noted in the explanatory memorandum to the proposal for the Directive, cyber violence is just as prevalent: in 2020, it was estimated that one in two young women experienced gender-based cyber violence. Women, in general, experience cyber violence more frequently based on their sex or gender, in particular sexual forms of cyber violence. Women are systematically targeted online by violent right wing extremist groups and terrorist groups intending to spread hatred against them. The so-called ‘incel’ (involuntary celibate) movement, for instance, incites to violence against women online and promotes such violence as heroic acts.

As a measure to protect victims of cyber violence, the Directive provisions the prompt removal of cyber violence/cyber harassment material and the disabling of the offender's access by issuing direct orders to hosting service providers, while giving the latter the possibility to challenge them before the courts of the Member State of the competent authority that issued the order (Article 23).

For the criminalisation of the above behaviours, the existing legal bases as defined in Articles 82(2) and 83(1) of the Treaty on the Functioning of the European Union (TFEU) were used as a legal foundation to facilitate mutual recognition of judgments and judicial decisions, as well as police and judicial cooperation in criminal matters having a cross-border dimension. 

The "thorn" of rape

As far as sexual crimes are concerned, the major disadvantage of the Directive is that it does not include a definition of rape, which constitutes one of the main forms of gender-based violence, as one in ten European women has experienced some form of sexual violence since the age of 15 and one in twenty has been raped, according to the European Union Agency for Fundamental Rights. The proposal approved by the European Commission on 8 March 2022 followed the standards of the Istanbul Convention which emphasizes the criterion of consent and suggested to criminalise rape due to lack of consent (Article 5).

In the two-years period, during which the proposal was being processed, from its submission (08-03-2022) to its adoption, the definition of rape was a major point of dispute, as there was a strong disagreement among different political groups and EU countries. Hungary which disagreed on ideological grounds and France and Germany which disagreed on legal grounds (arguing that criminal law falls into the exclusive competence of the Member States rather than that of the EU) were among the dissenting member states, although the last two have ratified the Istanbul Convention, which binds them and defines rape on the basis of lack of consent.

Without an agreement being possible, the definition of rape was removed – to the disappointment of the rapporteurs of the Directive and despite the protests of women's and human rights organisations – and its criminal treatment remained in the exclusive competence and discretion of the Member States. 

In the final text of the Directive, the reference to rape is limited to the provisions regarding the prevention, protection and better access to justice for survivors. More specifically, the Directive provisions: Specific measures to prevent rape and to promote the central role of consent in sexual relationships. Awareness-raising campaigns or programmes with regard to rape (Article 35). Special support (healthcare or psychological support) for victims of sexual violence (Article 26).

Insufficient compliance with the provisions of the Istanbul Convention

The decision to exclude rape on the basis of lack of consent from the Directive is of great legal and political significance at a time when the EU has acceded to the Istanbul Convention and raises questions as to whether this exclusion affects the Directive’s compliance with the standards set by the Convention. 

On the other hand, GREVIO has noted the Greek legislator's failure to fully comply with the provisions of the Convention on offences of sexual violence. 

In particular: In Greek law, sexual offences are criminalised through different provisions of the Criminal Code. Article 336 (as in force after the latest amendments introduced by Law 4855/2021 article 71) provides a double definition of rape and refers to sexual acts. Such acts are defined as intercourse and acts of equal gravity to intercourse. Namely the definition refers to acts that require penetration and does not include any type of sexual act or conduct within the scope of protection. One definition details a serious crime, which can be sanctioned with imprisonment of at least 10 years and which requires the use of physical violence or the threat of serious and imminent danger to life or physical integrity (it does not mention psychological violence or threat). The second definition constitutes a "lesser" form of rape covering any sexual act committed without the consent of the victim and which may lead to an imprisonment term of up to 10 years. Article 338 covers sexual violence committed against a person incapable of resisting. Finally, Article 343 criminalises sexual acts performed by abusing a position of superiority. 

GREVIO welcomes the definition of rape based on the notion of freely given consent (GREVIO report, paragraph 214). However, it is concerned about the persisting challenges in the applicable criminal law, which do not lead to a consistent approach in prosecuting rape cases. GREVIO notes the very low number of convictions for rape – the only data available on sexual violence shows that there were just eight rape convictions in 2020 (GREVIO report, paragraph 214). Furthermore, it reminds that the penalty must be determined by the mere fact that the act is committed without the consent of the victim, regardless of whether it is committed by someone who exercises violence or someone who abuses their power (GREVIO report, paragraph 216). 

It further encourages the Greek authorities to take all necessary measures, including legislative measures, to remove the remaining barriers (use of violence or threats) that limit the effectiveness of the definition of rape based on the notion of freely given consent (GREVIO report, paragraph 218). It also recommends ensuring appropriate sanctions for all acts of sexual nature perpetrated without the consent of the victim, regardless of the latter’s personal characteristics (GREVIO report, paragraph 218).

Instead of an epilogue

It remains to be seen in practice whether the Directive, which comes as a continuation of the Istanbul Convention, as well as the law transposed by the Member States – including Greece – will improve the situation with regard to combatting gender-based violence. 

The struggle for equality and the elimination of discriminations does not only belong to women. It is a struggle that must be fought first by society itself, which will shield its institutions, offer full support to victims and train its members in a suitable way to deconstruct the social mechanism of violence, by which women are forced into an inferior position compared to men.