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Legal opinion concerning the assessment of the compliance of the Convention on the Prevention and Combating Violence against Women and Domestic Violence with the Constitution of the Republic of Latvia from 1922

1. Introductory remarks

 

The subject of this opinion is the assessment of the compliance of the provisions of the Convention on the Prevention and Combating Violence against Women and Domestic Violence (hereinafter referred to as the Convention)[1] with the Constitution of the Republic of Latvia from 1922 (hereinafter referred to as the Constitution). The authorities of the Republic of Latvia signed the Convention on 18 May 2016, nevertheless, heretofore it has not been ratified in accordance with Art. 68 of the Constitution. In addition, the Latvian authorities have made a reservation regarding the application of the Convention, according to which, in the case of offences specified in Art. 35 of the Convention (physical violence) – provided that they are of a minor nature – Art. 55 sec. 1 shall not apply, pursuant to which the prosecution of crimes charged under Art. 35-39 of the Convention is to occur ex officio[2]. Moreover, the Latvian authorities have made a declaration that the provisions of the Convention shall be applied in accordance with the Constitution of the Republic of Latvia[3].

 

2. General characteristics of the Convention

 

The Convention is the result of work undertaken in 2008 by the resolution of the Ministers’ Deputies of the Council of Europe ad hoc Committee (full name: Ad Hoc Committee on Preventing and Combating Violence against Women and Domestic Violence – CAHVIO)[4]. It was adopted by the Council of Europe’s Committee of Ministers on 7 April 2011, whereas on 11 May 2011, in Istanbul, it was opened for signing. It entered into force in 2014, after the ratification thereof by ten countries, of which at least eight were the member states of the Council of Europe (Art. 75 para. 3 of the Convention).

The convention is composed of a preamble and 81 articles grouped in twelve chapters of the following topics: “Purposes, definitions, equality and non-discrimination, general obligations” (Chapter I); “Integrated policies and data collection” (Chapter II); “Prevention” (Chapter III); “Protection and support” (Chapter IV); “Substantive law” (Chapter V – despite the name the chapter also contains procedural norms); “Investigation, prosecution, procedural law and protective measures” (Chapter VI); “Migration and asylum” (Chapter VII); “International co-operation” (Chapter VIII); “Monitoring mechanism” (Chapter IX which provides for the creation of a Group of experts on counteracting violence against women and domestic violence – the so-called GREVIO); “Relationship with other international instruments” (Chapter X); “Amendments to the Convention” (Chapter XI); “Final clauses” (Chapter XII).

The postulated objectives of the Convention – pursuant to Art. 1 thereof – shall include:

a) protection of women against all forms of violence, and prevention, prosecution and elimination of violence against women and domestic violence;

b) contribution to the elimination of all forms of discrimination against women and to the promotion of substantive equality between women and men, including through the empowerment of women;

c) designing a comprehensive framework, policies and measures for the protection of and assistance to all victims of violence against women and domestic violence;

d) promoting international co-operation with a view to eliminating violence against women and domestic violence;

e) providing support and assistance to organisations and law enforcement agencies to effectively co-operate in order to adopt an integrated approach to eliminating violence against women and domestic violence.

The addressees of the Convention are primarily the entities of international law in the traditional sense of the term[5], i.e. states-parties, and therefore, in principle, it does not create rights and obligations on the part of citizens[6]. This corresponds to the case law of the European Court of Human Rights (hereinafter referred to as the ECHR) which concerned issues related to the use of violence against women. As early as in 2003, in the case of M.C. v. Bulgaria, the ECHR pointed to the obligations on state structures related to the proper conduct of criminal proceedings against violence against women[7]. In the judgment of the ECHR of 9 June 2009, issued in the case of Opuz v. Turkey, it was found that the passive attitude of the Turkish state contributed to the rise of domestic violence[8].

A consequence of making the states-parties of the Convention the main addressees of the standards thereof is the necessity to conduct a specific policy, including legislative policy, aimed at the implementation of the obligations of the Convention through changes in national legislation[9].

Both the proposed objectives of the Convention and the number of solutions of a protective nature do not give rise to major reservations from the point of view of assessing the constitutionality thereof. Efforts to eliminate violence against women which are exposed to a number of crimes, the characteristics of which are shaped in such way that, by the very nature thereof, they mainly concern females (rape, forced abortion, sterilization, so-called honour crimes – see Chapter V of the Convention) shall be referred to with an approval. Similarly, it is impossible to argue with the need to provide adequate protection for the victims of crimes, by providing them with safety against intimidation, retaliation and repeated victimization (Art. 56 para. 1 (a), imposing information obligations on public authorities towards victims (Art. 56 para. 1 (c) and (b) of the Convention), ensuring appropriate powers and protective measures in the course of criminal proceedings (Art. 56 (1) (d)-(e) and (g)-(i) of the Convention), the protection of the image thereof (Art. 56 (1) (f) of the Convention), providing access to legal aid and free legal advice (Art. 57 of the Convention).

At the same time, it is reasonably pointed out that the Convention – arbitrarily emphasizing the alleged influence of the traditional shaping and the division of social duties between men and women on the development of violence against women – ignores or marginalizes the importance of other factors affecting the scale of this phenomenon[10]. The aforementioned especially concerns problems with alcohol which dramatically increase the risk of the occurrence of domestic violence[11]. Other types of addictions have an analogous effect[12]. Intensification of the tendency to use violence may also result from frustration caused by failures in the implementation of life aspirations, as well as from the strong influence of media coverage which contains various types of negative content[13]. Among them – apart from presenting violence – particular attention shall be paid to the sexualization of the image of women and the objective treatment thereof in the media, as the American Psychological Society has pointed out[14]. The phenomenon of violence is also connected with a low level of the education of perpetrators, unemployment, lack of social support, re-marriage of a man or marriages of under-age partners (e.g., in the case of Muslim countries), etc.[15]

On the basis of incorrect, ideologized premises, the Convention is unlikely to improve the situation of women who are the victims of violence. It shall be noted that the empirical research clearly indicates that the causes of domestic violence ought to be sought in the decomposition of family ties and traditional social values[16]. The research conducted by the US Department of Justice in 1993-2010 proves that women in unmarried relationships statistically more likely become the victims of violence on the part of the partners thereof. In 2010, partner-inflicted violence occurred four times more often in the US in the case of unmarried women than in the case of married women. In relation to households with children, this difference was even more evident – partner-inflicted violence was over 12 times more common for unmarried women[17].

 

From the Fourth National Inclusion Study of Child Abuse and Neglect – NIS 4, it may be concluded, in turn, that 26.2 per 1,000 children experiencing physical violence remain under the protection of a biological parent and the partner thereof, while only 2.5 per 1,000 children experiencing physical violence remain under the custody of parents who are spouses[18].

 

From the above, it may be concluded that strong family ties and strengthening the role of marriage in social life should lead to a reduction of violence against women. Among other causes of violence against women – as well as violence in any other dimension – addictions to alcohol, psychoactive substances, excessive sexualization and objectification of women, shall be mentioned[19]. However, these problems have been carefully omitted by the authors of the Convention, who decided to make it an ideological manifesto which, through legal sanction, will contribute to the decomposition of traditional social and family ties, depreciating the concept of human sexuality and imposing a vision that is completely detached from the scientific basis – biologically determined and empirically verifiable.

The most controversial issue is the ideological context in which individual provisions related to the care of the injured parties, as well as some other provisions, both general (program) and specific solutions that may have dangerous consequences for the Latvian legal order, have been placed in contradiction with the preamble and Art. 91, 99 and 110 of the Constitution.

 

3. The ideological axiomatics of the Convention and the system of values represented by the preamble of the Constitution

 

The ideological context in which the individual institutional arrangements defined by the Convention have been placed is mainly determined by the content of the preamble thereof and by numerous references to the sociological structure referred to as gender (Art. 3 [c], Art. 4 para. 3, Art. 6, Art. 18 para. 3, Art. 49 para. 2, Art. 60, Art. 66 para. 2 of the Convention)[20], disavowal of the traditional social roles assigned to a woman and man (Article 12 para. 1 of the Convention), or the obligation of states-parties to the Convention to promote non-stereotyped gender roles in school curricula (Art. 14 para. 1 of the Convention). The aspect of the impact on society (in particular children) through various types of campaigns and social campaigns is also strongly emphasized in the Convention (Articles 13, 14 para. 2, 17 of the Convention).

According to the preamble to the Convention, violence against women is gender-based violence which is structural and manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men and to the prevention of the full advancement of women. It denotes that, in the opinion of the authors of the Convention, all societies, in the process of the normal functioning thereof, are to spontaneously create socio-cultural structures that discriminate and oppress women. Therefore, it shall be assumed that the provisions of the Convention protecting victims of violence concern solely those who engage in behaviour, actions or using attributes that a given society considers appropriate for women. Undertaking these roles, behaviours or using attributes, or adopting the female gender, is the cause of experiencing violence. Differences between different genders (types), i.e. differences in the way masculinity and femininity are expressed in the socio-cultural dimension (differences in social roles, activities, attributes), are therefore to be in the light of conventional assumptions an expression of the existence of inequality which lead to discrimination and are the cause of violence in social life.

The statements contained in the preamble to the Convention clearly distinguish the influence of Marxist ideas[21]. Primarily and predominantly, characterizing violence against women as a structural phenomenon contributes to strengthening the Marxist perception of the family, according to which it is the place of the oppression of a woman by a man. According to the view expressed by K. Marx (quoted by F. Engels): „The modern family contains in germ not only slavery (servitus), but also serfdom, since from the beginning it is related to agricultural services. It contains in miniature all the contradictions which later extend throughout society and its state”[22]. In turn, F. Engels himself points to the fact that: “The modern individual family is founded on the open or concealed domestic slavery of the wife, and modern society is a mass composed of these individual families as its molecules”[23].

Representatives of the neo-Marxist Frankfurt School maintained, however, that there is a connection between maintaining the traditional system of dependencies between parents and children, as well as the tendency to accept for authoritarian systems, including, primarily, fascism. According to the above, the traditional division of roles and duties in the family was subject to criticism: “Faithful execution of prescribed roles and the exchange of duties and obligations is, in the families of the prejudiced, often given preference over the exchange of free-flowing affection. We are led to assume that an authoritarian home régime, which induces a relative lack of mutuality in the area of emotion and shifts emphasis onto the exchange of «goods» and of material benefits without adequate development of underlying self-reliance, forms the basis for the opportunistic type of dependence of children on their parents, described in the present chapter”[24]. According to representatives of the Frankfurt School, people prejudiced against ethnic minorities originate from families dominated by fathers, characterized by a dichotomous division of roles between women and men: “In line with the fact that the families of the prejudiced, especially those of our male subjects, tend to be father-dominated, there is a tendency in such families toward a dichotomous conception of the sex roles and a relative separation of the sexes within the family”[25].

Aiming at the structural rebuilding of society – which is an obvious consequence of recognizing that the present structure thereof is a source of violence – is also evident in the ideology of the “New Left Wing” and the philosophy of H. Marcuse[26]. The convention in its present shape also reflects the assumptions of feminist ideology (the so-called second wave), according to which the system of relations between the biological sex and gender is considered the basic cause of the oppression of women[27]. Consistent acceptance of the axiomatic (ideological) assumptions of the Convention may, therefore, lead to an approval of the thesis that being pregnant, giving birth or being a wife (socio-cultural role/attribute of a woman) is an expression of inequality and a source of structural violence against a woman and thus this role ought to be available for every human being. Undoubtedly, the presented thesis is not one of the major effects of the ratification of the Convention, but rather represents one of the far-reaching consequences of social engineering, the implementation and continuation of which is required by the provisions of the Convention.

It shall be emphasized that the preamble to the Convention – like any preamble – is by no means without any normative significance. From Art. 31 para. 2 of the Vienna Convention on the Law of Treaties of 1969[28] (hereinafter referred to as the Vienna Convention), it may be concluded that an introduction to an international treaty (preamble) is an integral and equivalent part of the text of the treaty. The content of the preamble also determines the context in which the individual provisions of the Convention ought to be interpreted[29]. The ratification of the Convention will therefore contribute to the radical axiological incoherence of the Latvian legal order which is based on the civilizational foundation of Europe. It is not a coincidence that the preamble of the Latvian Constitution contains a reference to Christian values. Also family is considered the foundation of Latvian society.

The text of the preamble leaves no doubt that the axiology of the Latvian Constitution, and thus the axiology of the entire Latvian legal order, is based on Christian ethics and Christian values, according to which family is a natural community (primary towards the state) based primarily on the existing spiritual, intimate and economic bond between a man and a woman who marry and fulfil their natural functions, taking responsibility for the family they created[30]. Simultaneously, it is clear that the axiological system based on Christian ethics is associated with the rejection of the use of violence against the members of one’s own family, which results from the obligation of mutual respect, the essence of which is respect for the mutual dignity of spouses[31]. Therefore, it is not a coincidence that the Latvian Constitutional Court recognized the structure of traditional family ties as constituting a constitutionally significant value. Referring to the tasks of the state in financial support for families, which is derived from Art. 110, sentence one of the Constitution, the Constitutional Court stated: “Full takeover of financial care of the parents would derange the structure of traditional family relations, denying the possibility of the parents to take care for their children and feel satisfaction about it. However, the State shall be able to render a reasonable support to the family, especially in cases, when the parents cannot ensure all the necessary means for the child” [32]. This denotes that the structure of traditional ties between family members shall be protected from interference by public authorities, even if it may seemingly denote that they seek to support families, but in fact they take over their functions, thereby compromising the autonomy of families. This fully corresponds to the axiological assumptions of the Constitution which were emphasized in the preamble thereof, according to which the identity of Latvia in the European cultural space was shaped by Latvian traditions, folk wisdom, language, as well as universal and Christian values[33]. They should be protected under Latvian legislation[34].

However, the Convention, represents a completely different axiology which – as already mentioned – is evidenced on the basis of the preamble. Whereas, in the light of the Constitution, Latvian tradition, including the traditional structure of family ties, is legally significant, the Convention points out that “violence against women is a manifestation of unequal power relations between women and men over the centuries” and imposes on states-parties the obligation to eradicate customs and traditions based on historically grounded (according to the authors of the Convention – stereotypical) division of social roles between men and women (Art. 12 para. 1 of the Convention).

It shall also be remembered that, pursuant to Art. 27, sentence one of the Vienna Convention, a state which agreed to be bound by the treaty and in relation to which the Treaty entered into force (party to the treaty) may not invoke the provision of internal law as justification for its failure to perform a treaty. This calls into question the effectiveness of declarations made by the Latvian authorities on the implementation of the Convention in a manner consistent with the Constitution. Meanwhile, both documents are axiologically inconsistent, emphasizing mutually contradictory values. In a simplified way, it may be concluded that the Constitution – in the preamble itself – orders to protect and support the Latvian tradition, marriage as a relationship between a man and a woman, as well as Christian values, and further, the Convention treats them as at least a potential threat.

 

4. Assessment of compliance of the provisions of the Convention with Art. 110 of the Constitution

 

According to Art. 110 of the Constitution “The State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence”. This provision leads to a positive state obligation to provide support to families and marriages[35]. The provisions of the Convention contradict the quoted provision on several levels.

 

4.1. Grounding the legal order of Latvia on natural (biological) sex

 

Through a normative confirmation that solely and exclusively the marriage of a man and a woman may constitute a marriage, the Latvian constitution has granted the highest protection to the natural cell of society which is a family founded on marriage, and at the same time stressed that it is natural to distinguish binary distinctions between a male and a female. In other words, a human being is either a woman or a man. In the context of Art. 110 of the Constitution, it must be assumed that the protection and support of marriage, family, as well as the rights of parents and a child is holistic, comprehensive and integral, and thus includes the protection of social roles played by men and women (especially the role of mother) as a natural consequence of the existence of two human sexes. This interpretation is fully confirmed in the content of the preamble of the Constitution which emphasizes both the role of family, as well as Latvian traditions, Christian values and human values. Constitutionally, it is unacceptable to introduce into the legal order of Latvia the notion of gender, a counter-factual ideological construct that is to replace the natural sex (biological – sex) as a legally significant fact. Meanwhile, in the provisions of the Convention, this concept not only appears repeatedly, but also constitutes a kind of “general clause” that should be taken into account when implementing all provisions of the Convention (Art. 6 of the Convention).

According to Art. 3 letter c, the term gender should be understood as the socially constructed roles, behaviours, activities and attributes that designated society appropriate for women and men. This denotes that social roles related to human gender, e.g., being a mother, a wife, a father or a husband, are only conventional in nature. Therefore, the gender may reject or accept them at will. The definition adopted in Art. 3 (c) completely omits the biological aspect of human sexuality. This corresponds to the content of Art. 4 para. 3 of the Convention stating that the Convention is to be applied in a non-discriminatory manner due to, inter alia, sex. This provision is the only regulation of the Convention referring to the biological dimension of human sexuality – indicating that this cannot be an element differentiating the way the Convention is applied. In other words, the significance of the biological dimension of human sexuality is very limited on the basis of the Convention. Meanwhile, as the Constitutional Court of Bulgaria has recently correctly pointed out to, assessing the Convention: “Traditional human society is based on sexual binary, i.e. on the existence of two sexes, each of which has its own biological and social functions and responsibilities. The biological sex is determined at birth and forms the basis for establishing the civil sex. The importance of civil sex in the regulation of social relations (intercourse, parenthood) requires clarity, incontestability, stability and safety”[36].

The analysis of the provisions of the Convention leads to the conclusion that the concepts of sex and gender are not overlapping (see Art. 4 para. 3 of the Convention). It is permissible for a specific individual to have a biological sex different from a gender, which results in terminological confusion and may lead to various, difficult to predict consequences[37]. The obligation to take into account the gender perspective in the implementation of the Convention (Art. 6 of the Convention), as well as the requirement to take measures which are contingent in accordance with the provisions of the Convention (in practice, the elimination of all legal provisions that protect the resulting from sex different social roles – such tendency may be justified even under Art. 12 of the Convention), may lead, for instance, to the necessity of the recognition of Latvian civil law for marriages of persons who have the same sex but they will assign themselves to different genders, whereas this probably is not the most far-reaching consequence.

It shall be mentioned that the consistent introduction of the gender as a “socio-cultural” structure must affect the effectiveness of achieving the goals set out in Art. 1 of the Convention, since, in fact, it is not known whether it is aimed at counteracting violence against women, i.e. female persons or towards people who identify with the female gender, and which do not necessarily have to be women.

 

4.2. Family as an axiologically preferred environment for human development

 

Indicating that the state has a duty to protect and support the family, the Latvian constitutional legislator considered it to be the axiologically and normatively preferred environment for human development, since it is not a source of violence, and more so “structural violence” – as ideologically assumed the Convention – but on the contrary. It shall be emphasized that the Constitutional Court of the Republic of Latvia recognized the structure of traditional family ties as a legally significant value worth to be protected under the Latvian Basic Law[38]. The aspiration to redefine the social roles assigned to a woman and a man as co-creating a family, undermines the natural (traditional) family ties and contributes to the decomposition of the natural social order that is under the protection of the Constitution. It shall be noted that this has nothing to do with promoting equality between women and men which in the Latvian constitutional order is not in any way threatened, and is even protected under Art. 91 of the Constitution. The role of equality is also emphasized in the preamble of the Constitution, where it is mentioned in conjunction with Latvian traditions and Christian values, as well as the family itself, as the foundations of a cohesive society and essential components shaping Latvian identity. Therefore, it must be assumed that those who commit violence against their relatives, at the same time, are assassinating a legal good, namely the traditional social ties, because it is the obligation of mutual care and the respect of family members that results therefrom.

 

4.3. Constitutional protection of the rights of parents

 

Pointing out to the fact that the state has the duty to protect and support the rights of parents, the Latvian constitutional legislator has given appropriate and high-ranking rights to parents. Therefore, there shall be no doubt that the basic right of a parent is the right to raise a child in accordance with his or her own convictions, which was also noticed in the case law of the Constitutional Court[39]. In the judgment of 13 May 2005, the Constitutional Court stressed the natural character and therefore primary nature of the right of parents to bring up children in accordance with their own religious and philosophical convictions: “Article 110 of the Satversme by establishing that the state shall protect the rights of parents and rights of the child, also inter alia determines both – the natural right of the parents to take care about their children and bring them up in conformity with their religious and philosophical convictions and the duties, which are connected with care and upbringing of children. As concerns issues on the education of the child, the right of the parents to care for the children, among other things also when participating in taking the decisions, connected with their education, in many cases compete with the right of the person to education, which – this way or the other – is connected with the State determined or supervised educational system”[40]. The thesis concerning the natural character of the right of parents to bring up children in accordance with their own religious and philosophical convictions was repeated in the judgment of 2 November 2006.[41]

In the case of ratification by Latvia of the Convention, this right will be jeopardized in relation to the obligations on a state-party of the Convention to promote changes in social and cultural patterns concerning the behaviour of women and men, in order to eradicate customs, traditions and other practices based on the so-called “stereotyped roles for women and men” (Art. 12 para. 1 of the Convention), as well as the introduction to official curricula at all levels of the education of training materials, adapted to the changing abilities of learners, regarding non-stereotyped gender roles (Art. 14 para. 1 of the Convention). As aptly pointed out in the literature on the subject concerning the threats posed by the ideologization of the provisions of the Convention: “Given the deeply ideological nature of the Convention, it is legitimate to raise doubts as to whether the ratification of the Convention will denote the acceptance of the ideologization of the school curriculum. This is particularly important in the context of the important role that the GREVIO committee will play in interpreting the provisions of the Convention. Teaching mutual respect of men and women is not itself the subject of the least controversy, as long as it does not mean questioning or relativizing natural predispositions, inclinations and identity of women and men. Therefore, as long as these tendencies are not uncommon, they give expression to the natural properties of a human being as a gender and all specific situations cannot be taken as proof of the non-existence of natural inclinations related to human sexuality (also in its biological dimension). It seems that the preservation of respect for women (and thus the prevention of violence thereagainst) shall be served by the affirmation of women realizing themselves in typical female roles (defined on the basis of a conventional stigmatization as a «stereotype»), rather than epitomizing children and the youth with «non-stereotypical» roles.”[42].

Ratification of the Convention by Latvia signifies, therefore, a serious threat to the right of parents to raise children – in particular in the field of passing on their beliefs and moral, religious and philosophical values – the high rank of which, resulting from the provisions of the Constitution, was confirmed in the jurisprudence of the Constitutional Court. It shall also be noted that, since this right is natural, no public authorities are competent to question thereof. On the contrary, it should be respected and affirmed, both on the basis of legislation and the practice of applying the law.

 

5. Assessment of compliance of the provisions of the Convention with Art. 99 of the Constitution

 

According to Art. 99 of the Constitution: “Everyone has the right to freedom of thought, conscience and religion. The church shall be separate from the State”. The principle of the non-interference of the state into the sphere of religious and philosophical beliefs of the individual may be derived from this provision. As the Constitutional Court pointed out: “In the light of the particular article of the Satversme, religious beliefs can be interpreted in a broad manner. Moreover, not only presence of religious beliefs but also expression of religious beliefs is protected”[43].

The constitutional legislator has broadly outlined by the group of subjects who are entitled to freedom of thought, conscience and religion. There is not the slightest doubt that it belongs to both parents and children, which is also confirmed the content of Art. 14 para. 1 of Convention on the Rights of the Child of 1989[44]. As already pointed out in this Advice, the natural character of the right of parents to bring up children in accordance with their religious and philosophical beliefs has been confirmed in the jurisprudence of the Latvian Constitutional Court (see para. 4.3 hereinabove). It shall be noted, however, that the possibility of violating the right of parents to raise children does not exhaust the possible problems resulting from the ratification of the Convention. It shall reconcile the freedom of thought and confession of children who are particularly vulnerable to manipulation. This is mainly due to the obligation of the state-party formulated in Art. 14 para. 1 Convention to ideologize official curricula at all levels of education by introducing training materials regarding non-stereotypical gender roles.

Such materials may lead to the discouragement of a child to his/her own sex, undermine the authority of parents in the eyes of the child and reconcile the Latvian culture and national traditions as a source of oppression[45]. It is also worth noting that these materials raise legitimate doubts not only from the point of view of freedom of thought, conscience and religion, guaranteed to children on the basis of Art. 99 of the Constitution, but also from the perspective of Art. 29 para. 1 (c) of the Convention on the Rights of the Child which stipulates that the education of a child should be focused on the development of respect for the child’s parents, his or her own cultural identity, language and values for the country from which he or she may originate, and for civilizations different from his or her own.

 

6. Assessment of compliance of the provisions of the Convention with Art. 91 of the Constitution

 

The provisions of the Convention also raise reasonable doubts as to the compliance thereof with Art. 91 of the Constitution which states as follows: “All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind”. The principle of equality in relation to the law and the prohibition of discrimination constitute one of the foundations of a democratic state of law, in which criteria such as race, nationality or gender cannot form the basis for limiting basic individual rights[46]. This also applies to the prohibition of creating a state of special privilege for entities due to the above-mentioned exemplary criteria[47]. The Constitutional Court indicated that the principle of equality shall be derived from the obligation to differentiate the situation of entities that are in a different situation[48].

The main beneficiaries of the Convention, according to the intention of the creators thereof, which they expressed, inter alia, in Art. 2 para. 2 of the Convention, are women (including girls under the age of 18 – Art. 3 (f) of the Convention). Meanwhile, the phenomenon of domestic violence is not limited exclusively to women, as it affects to a large extent also the elderly and children (including the male sex)[49]. These persons are in comparable circumstances, so the differentiation of the legal situation thereof is unjustified. It would be completely incomprehensible to differentiate the situation of a sibling, equally affected by violence, solely and exclusively due to the fact that one of the children is a boy and the other is a girl (and therefore a woman within the meaning of Art. 3 [f] of the Convention). It is a glaring example of discrimination which is in no way alleviated by the definition of sacrifice contained in Art. 3 (e) of the Convention, according to which is any natural person concerned by the behaviour defined as “violence against women” or “domestic violence”, or a general and non-binding incentive to apply the provisions of the Convention to “all victims of violence”. It may also lead to the discriminatory nature of anti-violence activities in nurseries, kindergartens and schools that will not include boys who are the victims of violence, unless they determine that they are women or adopt their “socio-cultural roles”[50].

Only women are beneficiaries of an array of provisions of the Convention. Often it does not raise any doubts, as in the case of forced crime of abortion and sterilization (Art. 39 of the Convention). In other cases, however, there is a question about the legitimacy of limiting the circle of beneficiaries to females. By way of example, Art. 5 para. 1, Art. 7 para. 1, Art. 9, Art. 12 para. 6, Art. 17 para. 1 and Art. 60 of the Convention may be pointed out to. An additional problem that may arise when interpreting these provisions is the lack of a clear distinction between sex and dominant in the Convention the artificial construction of a separate gender (see point 4.1 hereinabove).

 

7. Summary

 

The analysis of the provisions of the Convention, especially the ideological assumptions thereof, leads to the conclusion of conflict the conflict thereof with the Preamble, Art. 91, 99 and 110 of the Constitution. Possible ratification of the Convention may lead to undermining the identity of the constitutionally protected natural, traditional structure of family ties, will contribute to limiting the right of parents to bring up children in accordance with their own religious and philosophical convictions, as well as will limit the freedom of thought, conscience and religion of students. In the event of the ratification of the Convention, Latvia will assume an international commitment to far-reaching legislative changes which to a large extent are contrary to the Basic Law, undermining the axiological foundations thereof. This is particularly due to the obligation to take account of the ideological construct of gender underlined in numerous provisions of the Convention. These changes will be monitored by an expert committee (GREVIO). The current practice of the committees of this kind testifies to their ideological commitment, which in this case – taking into account the doctrinal foundation underlying the Convention – may be particularly strong.

Taking into account the above-mentioned arguments, it shall be clearly stated that the Istanbul Convention is incompatible with the Constitution of Latvia of 1922 and should not be ratified.

 

Author: Bartosz Zalewski


[1] Council of Europe, Treaty Series – No. 210 (2011).

[2] Reservation contained in a Declaration from the Prime Minister of Latvia, dated 17 May 2016, handed over to the Deputy Secretary General at the time of signature of the instrument on 18 May 2016, available at: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/declarations?p_auth=iUSq1rXG&_coeconventions_WAR_coeconventionsportlet_enVigueur=false&_coeconventions_WAR_coeconventionsportlet_searchBy=state&_coeconventions_WAR_coeconventionsportlet_codePays=LAT&_coeconventions_WAR_coeconventionsportlet_codeNature=2 (access: 23 August 2018).

[3] Declaration contained in a Declaration from the Prime Minister of Latvia, dated 17 May 2016, handed over to the Deputy Secretary General at the time of signature of the instrument on 18 May 2016, available at:

[4] A detailed description of works on the Convention is included in the following: Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence, Council of Europe, Treaty Series - No. 210 (2011), § 9-21; J. Banasiuk [ed.] et al., Czy Polska powinna ratyfikować Konwencję Rady Europy o zapobieganiu i przeciwdziałaniu przemocy wobec kobiet i przemocy domowej? [Should Poland ratify the Convention of the Council of Europe on preventing and combating violence against women and domestic violence?], Warsaw 2014, pp. 12-13.

[5] See A. Chértien, Principes de droit international public, Paris 1893, p. 72; M. N. Shaw, International Law, Cambridge 2008, p. 197; R. Bierzanek, J. Symonides, Prawo międzynarodowe publiczne [International Public Law], Warsaw 2005, p. 117. See also: A. Klafkowski, Prawo międzynarodowe publiczne [International Public Law], Warsaw 1979, p. 134.

[6] Explanatory Report…, § 47; J. Banasiuk [ed.] et al., Should Poland…, p. 23.

[7] Judgment of the ECHR of 4 December 2003, in the case of M.C. v. Bulgaria, Complaint No. 39272/98, § 181.

[8] Judgment of the ECHR of 9 June 2009, in the case of Opus v. Bulgaria, Complaint No. 33401/02, § 198. The Authors of Explanatory Report... also refer to this judgment: § 49, 58 and 163.

[9] J. Banasiuk [ed.] et al., Should Poland…, p. 23.

[10] Ibidem, pp. 29-32.

[11] A.M. Laslett et al., The hidden harm: Alcohol’s impact on children and families, Canberra 2015, p. 99.

[12] J. Banasiuk [ed.] et al., Should Poland…, p. 30.

[13] J. Sztumski, Społeczne uwarunkowania przemocy [Social determinants of violence], [in:] Przemoc dzieci i młodzieży [Violence of children and the youth], [ed.] J. Papież, A. Płukis, Toruń 2001, p. 34.

[14] American Psychological Association, Report of the APA Task Force on the Sexualization of Girls, WashingtonDC 2007, p. 33.

[15] S. Sen, N. Bolsoy, Violence against women: Prevalence and risk factors in Turkish sample, “BMC Women’s Health” 2017, p. 17/100, p. 8.

[16] In this regard, primarily see: R. Kielmans-Ratyńska, K. Walinowicz, T. Zych [eds.], Dlaczego potrzebujemy konwencji o prawach rodziny? [Why do we need a convention on family rights?], Warsaw 2018, p. 1 and – a study available at: https://ordoiuris.pl/pliki/dokumenty/broszura_PL.pdf (access: 28 December 2018).

[17] U.S. Department of Justice: S. Catalano, Intimate Partner Violence, 1993–2010, U.S. Department of Justice, 2012 (revised 2015), p. 2 – the study is available in full at: http://www.bjs.gov/content/pub/pdf/ipv9310.pdf (access: 28 December 2018).

[18] Data quoted in: R. Kielmans-Ratyńska, K. Walinowicz, T. Zych [eds.], op. cit., p. 4. Website containing results from the NIS 4 study: https://www.nis4.org/index.htm (access: 28 December 2018).

[19] R. Kielmans-Ratyńska, K. Walinowicz, T. Zych [eds.], op. cit., p. 5; J. Banasiuk [ed.] et al., Should Poland…, p. 29.

[20] As indicated in Explanatory Report to the Council of Europe Convention on preventing and combating violence against women and domestic violence, it shall result in changing the mentality of societies: “The obligations contained in paragraph 1 are based on the conviction of the drafters that existing patterns of behaviour of women and men are often influenced by prejudices, gender stereotypes and gender-biased customs or traditions. Parties to the Convention are therefore required to take measures that are necessary to promote changes in mentality and attitudes. The purpose of this provision is to reach the hearts and minds of individuals who, through their behaviour, contribute to perpetuate the forms of violence covered by the scope of this Convention. As a general obligation, this paragraph does not go into detail as to propose specific measures to take, leaving it within the discretion of the Party” – Explanatory Report…, § 85.

[21] J. Banasiuk [ed.] et al., Should Poland…, p. 25.

[22] F. Engels, The Origin of the Family, Private Property and the State, translation E. Untermann, Chicago 1909, p. 71.

[23] Ibidem, p. 89.

[24] E. Frenkel-Brunswik, [in:] The Authoritarian Personality, Studies in Prejudice Series, vol. 1, (sine loco) 1950, p. 386.

[25] Ibidem, p. 387.

[26] See L. Kołakowski, Główne nurty marksizmu [Main tendencies of Marxism]. Powstanie – rozwój – rozkład [Creation - development - decay],London 1988, pp. 1115-1116.

[27] K. Dobrowolska, Prawa reprodukcyjne i seksualne w ONZ oraz ich doktrynalne uwarunkowania [Reproductive and Sexual Rights at the United Nations and their doctrinal conditions], “Zeszyty Prawnicze” 16.2 (2016), p. 165.

[28] United Nations, Treaty Series – No. 1155. This convention has been binding Latvia since 1993.

[29] R. Bierzanek, J. Symonides, op. cit., p. 106. See also M.M. Shaw, op. cit., p. 933.

[30] More on this subject is included in: C. Strzeszewski, Katolicka nauka społeczna [Catholic social science], Warsaw, 1985, pp. 400-413.

[31] C. Strzeszewski, op. cit., p. 411; N. Lovše, Roles of Husbands and Wives in the Christian Marriage Relationship (Ephesians 5), “Evangelical Journal of Theology” 3/2 (2009), p. 118

[32] Judgment of the Constitutional Court of the Republic of Latvia, of 11 December 2006, Case No. 2006-10-03, § 13.4.

[33] See K. Jarinovska, The Preamble of the Satversme: the New Approach to Constitutional Self-Restraint, “Studia Iuridica Hungarica” 55/4 (2014), pp. 353-354.

[34] D. Rezevska, Ideology, Values, Legal Norms and Constitutional Court, [in:] Collection of Research Papers in Conjunction with the 6th International Scientific Conference of the Faculty of Law of the University of Latvia. ‘Constitutional Values in Contemporary Legal Space II’. 16–17 November, 2016, Riga 2017, p. 74-77.

[35] Judgment of the Constitutional Court of the Republic of Latvia, of 23 November 2015, Case No. 01/10/2015, § 13. Although the regulation does not specify what the state aid for the family and marriage is about, it is assumed in the jurisprudence of the Constitutional Court that it shall be effective and respond to the needs of addressees, as best as possible – the judgment of the Constitutional Court of Latvia, of 12 February 2008, Case No. 2007 -15-1, § 5.

[36] “Традиционно човешкото общество се изгражда върху половата бинарност, т.е. съществуването на два противоположни пола, всеки от които е натоварен със специфични биологични и социални функции и отговорности. Биологичният пол е детерминиран по рождение и е в основата на гражданския пол. Значението на гражданския пол при правното регулиране на социалните отношения (съпружество, родителство) изисква осигуряване на яснота, безспорност, стабилност и сигурност” – judgment No. 13 of the Bulgarian Constitutional Court of 27 July 27, ДВ, бр. 65 от 07.08.2018 г., also available at: http://www.constcourt.bg/bg/Acts/GetHtmlContent/f278a156-9d25-412d-a064-6ffd6f997310 (access: 29 August 2018).

[37] The terminological confusion is all the greater because Art. 4 para. 3 of the Convention also uses, without a separate legal definition, the term “gender identity” which in the light of the preparatory work on the Convention refers to people who do not identify with their own biological sex or do not identify with the male and female sex: “Certain groups of individuals may also experience discrimination on the basis of their gender identity, which in simple terms means that the gender they identify with is not in conformity with the sex assigned to them at birth. This includes categories of individuals such as trans-gender or transsexual persons, cross-dressers, transvestites and other groups of persons that do not correspond to what society has established as belonging to «male» or «female» categories” – Explanatory Report…, § 53. Nevertheless, it is not necessarily about people who have undergone an operational change in phenotypic characteristics, and therefore the relationship between “gender identity” and “socio-cultural gender” is not clear.

[38] Judgment of the Constitutional Court of the Republic of Latvia, of 11 December 2006, Case No. 03/10/2006, § 13.4.

[39] Ibidem, § 13.2. This right was articulated directly in Art. 36 § 3 of the constitutional law “Rights and obligations of human being and citizen” from 1991. Although this law has lost the force thereof, it can be deduced from the Constitutional Court’s argument that it is still respected as part of the constitutional order of Latvia. The Constitutional Court also emphasizes the reduction of state duties in the field of raising children.

[40] Judgment of the Constitutional Court of the Republic of Latvia, of 13 May 2004, Case No. 2004-18-0106, § 10.

[41] Judgment of the Constitutional Court of the Republic of Latvia, of 02 November 2006, Case No. 01/07/2006, § 13.5.

[42] J. Banasiuk [ed.] et al., Should Poland…, p. 42.

[43] Judgment of the Constitutional Court of the Republic of Latvia, of 18 March 2011, Case No. 2010-50-03, § 7.1.

[44] United Nations, Treaty Series – No. 1577. This convention has been binding Latvia since 1992.

[45] See also the remarks contained in the Ordo Iuris Report: J. Banasiuk [ed.] et al., Should Poland…, pp. 41-42.

[46] See, for instance, judgments of the Constitutional Court of the Republic of Latvia of 29 December 2008, Case No. 2008-37-03, § 6 and 2 February 2010, Case No. 2009-46-01, § 6.

[47] Judgment of the Constitutional Court of the Republic of Latvia, of 1 October 2010, Case No. 01/10/2015, § 17.

[48] Ibidem.

[49] J. Banasiuk [ed.] et al., Should Poland…, p. 43. The authors of the Convention are aware that the victims of domestic violence are not only women, which they expressed in the preamble (where it is stressed that children are also victims of domestic violence, although it also indicates that it may affect men, as well) and in Art. 2 para. 2, sentence one of the Convention.

[50] M. Wojewódka, Konwencja Rady Europy o zapobieganiu i zwalczaniu przemocy wobec kobiet i przemocy domowej, a Traktat o Unii Europejskiej i Konwencja o Prawach Dziecka [Convention of the Council of Europe on preventing and combating violence against women and domestic violence in the light of the Treaty on European Union and the Convention on the Rights of the Child], “Jurysta” 10 (2017), p. 33.

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