The Council of the European Union maintains a backward position, characterised by a clear lack of commitment and political will to take this important initiative forward.
After almost two years since its presentation, the adoption of the first European directive to combat violence against women and domestic violence is now further than ever. The Council of the European Union maintains a backward position, characterised by a clear lack of commitment and political will to take this important initiative forward. And the clock runs against us because a political agreement is needed by the end of January.
It is surprising, because on 8 March 2022, when the European Commission presented the proposal for the first Directive on combating violence against women and domestic violence, there was a widespread consensus that, although too late, the European Union was fulfilling an unexplained outstanding debt: legislating in the fight against gender-based violence. We are talking about legislation that will change the lives of at least 250 million European women and girls, about half of the EU population, ensuring common standards of protection, prevention and criminalisation of different forms of gender-based violence. Today, the European Union does not have a common framework in this area, despite the fact that only in the Community area at least 50 women are killed every week, victims of criminal sexist violence.
With this proposal, Ursula Von der Leyen fulfilled her commitment made to the European Parliament during her presentation as President of the Commission. In her speech, von der Leyen promised to include gender-based violence as a eurocrime, within Article 83 of the Treaty on the Functioning of the European Union, along with terrorism, trafficking in human beings, corruption or trafficking in arms or drugs.
This change was one of the requirements to provide us with a solid legal basis when it comes to legislating and thus being able to criminalise different forms of gender-based violence at an European level. An essential initiative that has not been fulfilled,, as it requires unanimity in the Council for any amendment to the Treaties. Unfortunately, there is a resistance and a negative response from a very large number of Member States to initiate this procedure.
von der Leyen promised to include gender-based violence as a eurocrime, within Article 83 of the Treaty on the Functioning of the European Union, along with terrorism, trafficking in human beings, corruption or trafficking in arms or drugs.
However, the Commission understood that this Council’s refusal to include gender-based violence as a eurocrime should not prevent us from legislating at European level and that there was sufficient legal basis to criminalise in this directive at least some forms of gender-based violence, where there were clear gaps between countries, using a broad interpretation of the existing Eurocrimes in the current wording of Article 83.
The Commission’s proposal was based on the legal basis of the Eurocrimes of the sexual exploitation of women and girls and cybercrime, and thereby, took a qualitative leap in the creation of common minimum standards, proposing the criminalization of six offences: rape, female genital mutilation, non-consensual dissemination of intimate or manipulated material, cyber stalking, cyberbullying, and incitement to violence or hatred by cyber means. This directive may be the first legislation to address online forms of gender-based violence, as the Istanbul Convention does not address this increasingly common area of violence against women and girls.
The European Parliament welcomed the Commission’s proposal, supporting the criminalisation of these forms of violence against women, and adding, moreover, sexual assault, genital mutilation of intersex persons, forced sterilisation, forced marriage and crimes related to sexual harassment at work. In its position, it also improved some elements of the proposal on the prevention and protection of victims, proposing, among other measures, the establishment of courts and prosecutors specialised in gender-based violence, access to free legal assistance, the use of telematic control for removal measures, access to legal and safe abortion for victims of sexual violence, and support for women’s associations working with victims of gender-based violence.
The Council in its position watered down some of the provisions related to female genital mutilation, the six forms of gender cyberviolence presented by the Commission and refused to discuss in the first instance the crime of rape. They added that many of the protection and prevention provisions presented would have to be in line with their national laws, clearly limiting the added value of a standard at European level.
Once the positions of the European Parliament and the Council have been approved, we started trilogue negotiations between the European Parliament, the Council and the European Commission last July. We knew they wouldn‘t be easy, but what we didn’t imagine was that they would be so complicated.
From the outset, there was a lack of political will on the part of Member States to make progress in implementing key provisions to protect women and prevent gender-based violence, which would require changes in their national laws. The Council has been against encouraging the training of judges, free legal aid for victims of gender-based violence or the use of electronic monitoring, even though we know that they are good practices, as we have seen in Spain. Nor do they want to improve the article on data collection, when it has become clear that it is one of the main obstacles to having a real and overall view of gender-based violence at European Union level; nor put more focus on the need for sexual and affective education from an early age. In terms of assistance and protection, they do not want to guarantee without any conditionality that the children of women who have experienced gender-based violence are considered victims, and their lack of commitment to ensure the availability of shelters for women victims and their children and to improve the protection and legal security of orphans of gender-based violence is regrettable.
Can President Macron and Chancellor Scholz hide in legal arguments and align themselves with governments as reactionary against women’s rights as Orbán and countries that have not ratified the Istanbul Convention, such as Slovakia or the Czech Republic?
After months of negotiations, the positions of the European Parliament and Council remain very far away on these points, but undoubtedly the point of major disagreement and which the European Parliament considers a red line is the refusal of some Member States to include in this directive the crime of rape based on lack of consent. The deficiency of the legal basis is the argument in which a group of 9 countries –Bulgaria, Czech Republic, Estonia, Germany, France, Hungary, Malta, the Netherlands, and Slovakia– are shielding themselves to justify not supporting its inclusion. There are also five undecided countries: Ireland, Latvia, Poland (although the country’s first Minister of Equality thanks to Donald Tusk’s government has already said they will support its inclusion), Portugal and Romania. And finally, one that is not part of the directive, Denmark. However, on the other hand, twelve Member States – Austria, Belgium, Greece, Spain, Croatia, Cyprus, Italy, Lithuania, Luxembourg, Sweden, Slovenia, and Finland – have already publicly supported the incorporation of the violation into the directive.
This shows that we are facing a political decision when interpreting the legal basis. In addition, the same legal basis of this directive was used to criminalise non-consensual sexual activities with children, and in that negotiation there was no opposition. Can President Macron and Chancellor Scholz hide in legal arguments and align themselves with governments as reactionary against women’s rights as Orbán and countries that have not ratified the Istanbul Convention, such as Slovakia or the Czech Republic? The reality is that not changing their position would show their complete disconnection from reality, when in the European Union one in twenty women is a victim of rape. It is also incomprehensible that they refuse to accept the crime of rape with the same definition as the Istanbul Convention, as has been offered during the negotiations. It would be understandable for countries that have not ratified this international legal instrument but unexplained by countries that have done so and have a commitment to combat gender-based violence.
Posición de los Estados miembros sobre la inclusión del delito de violación en la Directiva relativa a la lucha contra la violencia contra las mujeres y la violencia doméstica
| Member State | Position |
|---|---|
| Austria | In favour |
| Belgium | In favour |
| Cyprus | In favour |
| Croatia | In favour |
| Slovenia | In favour |
| Spain | In favour |
| Finland | In favour |
| Greece | In favour |
| Italy | In favour |
| Lithuania | In favour |
| Luxemburg | In favour |
| Sweden | In favour |
| Germany | Against |
| Bulgaria | Against |
| Slovakia | Against |
| Estonia | Against |
| France | Against |
| Netherland | Against |
| Hungary | Against |
| Malta | Against |
| Czech Republic | Against |
| Ireland | Undecided |
| Latvia | Undecided |
| Poland | Undecided |
| Denmark | It is not part |
The frustration of all the female negotiators in the European Parliament is total. And I say female negotiators because the rapporteurs for this dossier in all political groups are women. Women who have shown great cohesion, which became evident once again during the last plenary session of December, when we gave a press conference showing the union of the entire parliamentary arc, from the European People’s Party to the group of the Left (only the extreme right out of this unity) and expressing our disappointment with the progress of the negotiations. We were forceful and hard at the position of France and Germany, aligned in their position on sexual assaults with countries that have not ratified the Istanbul Convention, and we also show our disappointment with the political leadership of the Spanish Presidency in these months.
Member States should be aware that a directive without violation, without substantial changes in national legislation, is unacceptable.
We all expected more from the Spanish Presidency of the Council of the European Union and its negotiating capacity in an area where Spain is a reference at European level. The Ministries of Justice and Equality have been intermittently represented at the lowest level in political negotiations, giving the feeling of a lack of prioritisation of this file. Not reaching an agreement during the presidency is a clear political defeat. The chances of reaching an agreement under the next Belgian presidency are very slim.
From the European Parliament, we will continue to refuse to tolerate any violation of women’s autonomy and dignity. Our position is clear: Member States should be aware that a directive without violation, without substantial changes in national legislation, is unacceptable. After demanding for so many years a European standard on gender-based violence, we are not prepared to accept an empty directive. It would be a betrayal of women and, above all, victims. And we’re not going to participate in it.
To see the analysis of the legal basis for the inclusion of the violation of the team of the co-rapporteurs of the European Parliament, MEPs Frances Fitzgerald and Evin Incir, click here.
Original article: The first European directive against gender-based violence, farther away today than ever before in The Democrat (28/12/2023).
