Book Title: Domestic Abuse and the European Court of Human Rights
Author: Ronagh J.A. McQuigg
Publisher: Routledge
Publication Year: 2024
This book provides a critical analysis of the jurisprudence of the European Court of Human Rights (ECtHR) on the issue of domestic abuse. Domestic abuse, a phenomenon affecting millions of people worldwide, was not substantively examined by the Court until 2007. Since then, however, it has become increasingly recognized as a human rights violation, encompassing the right to life under Article 2 of the European Convention on Human Rights (ECHR), the prohibition of torture and inhuman or degrading treatment under Article 3, the right to respect for private and family life under Article 8, and the prohibition of discrimination under Article 14. The book explores the evolution of the Court’s conceptualization of domestic abuse, including the growing application of Article 3 to such cases, the recognition of coercive control, and the framing of domestic abuse as gender-based discrimination. It further examines the Court’s treatment of emerging issues such as cyber abuse and child contact in the context of domestic abuse.
Structure and Chapters Content
- Chapter 1: Introduction
The introductory chapter explains how the concept of “positive obligations” has reshaped the understanding of domestic abuse as a human rights violation. McQuigg highlights the role of the Istanbul Convention and UN instruments in advancing this perspective, situating the ECtHR as the most developed regional human rights mechanism with a unique role in strengthening civil and political rights in Europe. Domestic abuse is defined from the standpoint of the Istanbul Convention, encompassing physical, sexual, psychological, and economic violence. The chapter traces the development of legal recognition for coercive control, particularly in the legislative changes introduced in England, Scotland, and Northern Ireland, and considers how domestic and international approaches to criminalizing controlling behavior have evolved.
- Chapter 2: Conceptualising Domestic Abuse
This chapter critically examines the ECtHR’s evolving interpretation of domestic abuse, paralleling developments in UK domestic law. The Court’s jurisprudence initially framed domestic abuse largely through Article 8 (the right to respect for private and family life). More recently, however, the Court has applied Article 3 (prohibition of torture and inhuman or degrading treatment) to such cases, reflecting a heightened recognition of the gravity of domestic abuse. The growing recognition of coercive control illustrates the shift toward a more nuanced understanding of abuse as a systemic violation of human dignity and security.
- Chapter 3: Domestic Abuse as Gender-Based Discrimination
This chapter addresses the gendered dimensions of domestic abuse. While acknowledging that both men and women may be victims or perpetrators, the author underscores the gendered nature of most domestic abuse, noting the greater prevalence and severity of male violence against women. Drawing on Burton’s and Dubash’s perspectives, McQuigg highlights debates on women’s use of violence—often in self-defense—versus the structural and persistent nature of male-perpetrated abuse. Christine Chinkin and others emphasize that sexual violence and abuse by former partners reflect persistent gender inequality. The chapter also shows how international bodies such as the Committee on the Elimination of Discrimination against Women (CEDAW) consistently frame domestic abuse as a form of gender-based discrimination. The ECtHR itself has increasingly aligned with this approach, recognizing domestic abuse not only as a human rights issue but also as discrimination against women.
The discussion further situates domestic abuse within broader human rights theory. Traditional liberal approaches to international law emphasized “negative rights,” limiting state responsibility to non-interference. However, the evolution of human rights law has expanded states’ obligations into the private sphere, requiring them to ensure protection even in interpersonal relationships. The chapter critiques the public/private divide, which historically shielded intimate relationships from legal scrutiny, and demonstrates how international human rights law has progressively dismantled this barrier, establishing states’ duties to prevent and respond to domestic abuse.
- Chapter 4: Domestic Abuse and the Osman Test
This chapter applies the Osman test, originating from Osman v. UK (1998), to cases of domestic abuse. The Osman test requires states to take reasonable measures to prevent harm where authorities “knew or ought to have known” of a real and immediate risk. McQuigg shows how the ECtHR has adapted this standard to the cyclical and escalating nature of domestic abuse. The landmark case of Kurt v. Austria (2021) emphasized proactive, comprehensive, and independent risk assessments, including attention to repeated threats and access to weapons. Although Austria was not held liable, the Court established important procedural standards. Subsequent cases such as Tkhelidze v. Georgia (2021), Gaidukevich v. Georgia (2023), and several Bulgarian cases (Bevacqua 2008; Y and Others 2022; A.E. 2023) reinforced the duty of states to act promptly, free from gender bias, and to recognize patterns of escalating violence. The ECtHR has thus clarified that “immediacy” does not require an instantaneous threat; rather, evidence of cumulative danger may trigger state obligations.
- Chapter 5: Recent Issues in ECtHR Jurisprudence on Domestic Abuse
The final substantive chapter analyzes emerging issues in the Court’s jurisprudence. A key development is the recognition of psychological abuse and coercive control as violations of Article 3, even in the absence of physical injury, where the resulting fear and distress amount to inhuman or degrading treatment. In cases such as Volodina v. Russia, the Court noted that certain forms of abuse may approach the severity of torture. The chapter also examines cyber abuse—including online threats, dissemination of intimate images, and digital surveillance—as a new form of domestic abuse not yet fully addressed by domestic legal systems.
A further concern is child contact with abusive parents. The Court has emphasized that decisions regarding visitation must prioritize child safety over parental rights, establishing that the best interests of the child prevail where risks of abuse are present. Expanding the scope of positive obligations, the ECtHR has rejected the idea that privacy shields abusive conduct within the family, making clear that states must intervene to protect victims, including children. Moreover, the Court consistently recognizes the gendered nature of domestic abuse, identifying many such cases as discriminatory under Article 14.
Conclusion
Domestic Abuse and the European Court of Human Rights provides a comprehensive account of the ECtHR’s evolving approach to domestic abuse, from its initial framing under Article 8 to its current recognition as a violation of Articles 2, 3, and 14. The book underscores the Court’s pivotal role in shaping international and domestic responses to domestic abuse, including coercive control, gender-based discrimination, cyber violence, and child protection.
By offering a detailed analysis of case law and theoretical underpinnings, McQuigg demonstrates the strategic importance of the ECtHR as a regional human rights mechanism in addressing one of the most pervasive forms of violence in society. This volume is an essential resource for students, researchers, legal practitioners, and policymakers in the fields of law, social policy, gender studies, and human rights, as well as for activists and professionals working to combat domestic abuse.
