Much discussion is currently devoted to Covid-19 and its relationship to international law. States around the globe have taken what they understand as being the most adequate measures to ‘flatten the curve’. However, such measures can also have adverse consequences. Reportedly, domestic violence has increased by 32% since France imposed its quarantine restrictions. However, this is not a recent issue. Prior to the outbreak, an estimated 122 femicides were recorded in France for the year 2019.

The ECHR and positive obligations of States

Under the European Convention on Human Rights (ECHR), States should not only respect, but equally protect and fulfil the rights enshrined in the Convention. The notion of ‘positive obligations’ was first given substance in the Belgian Linguistic Case. Over the years, the Court has continued to define the parameters of the positive obligations of States under the various rights in the Convention. In Osman v. UK, it concluded that the United Kingdom had breached Article 2 (Right to life) when ‘the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge’ (para. 116). Similarly, in E.S. v. Slovakia, the Court held Slovakia to be in breach of Article 3 (prohibition of inhuman and degrading treatment) by not removing an ill-treating and sexually abusing husband from the matrimonial home.

Prior to the pandemic, the authorities in France already refrained from doing all that could be reasonably expected of them. The Group of Experts on Action against Violence against Women and Domestic Violence observed that ‘women victims of violence may still be handled poorly in police stations and gendarmerie offices, and face a reluctance or even a refusal to take their complaint’ (para. 225). France could thus be found to be in breach of its obligations under the ECHR. The remaining question, beyond the scope of this article, is that of admissibility before the Court.

The impact of the Covid-19 pandemic and the need to enhance protection

The quarantine order enacted by the French government (now officially extended until at least 15 April of this year) was, arguably, one of the only decisions it could reasonably take at the time­ to slow down the spread of the pandemic. However, what the authorities failed to take into account when taking this decision was the pre-existing issues surrounding domestic violence and femicides in France. Since then, efforts have been made to find solutions such as renting hotel rooms to accommodate victims or a signal which they can use in a pharmacy, for example. However, much action has been prompted by civil society and diverse associations fighting for women’s rights. It remains questionable whether the measures taken by the French authorities are sufficient to address the problem. In any case, it is quite certain that they are too late.

When the ECtHR refers in its case law to ‘all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge’, two observations should be made with respect to the current situation. First, the positive obligations of States to protect and fulfil the rights enshrined in the ECHR should be read in light of the context. In other words, it is not because a State fulfils its obligations in ‘normal’ times that it does so in ‘extraordinary’ times. The quarantine order has negatively impacted the non-derogable rights enshrined in the ECHR by putting victims at greater risk of domestic violence and abuse. France should therefore adapt its measures in order to comply with its positive obligations. By doing so, it should respond to and mitigate the adverse effects of quarantine on core human rights. Secondly, it would be difficult to assert that France could not have had knowledge of this adverse consequence in light of the clear warnings which were given by women’s rights associations even prior to the outbreak.

Conclusion

The lack of action by the French authorities to prevent, investigate and remedy femicides and domestic violence is not a recent issue. However, the current pandemic and the measures to fight it – however welcome – are not without consequences, especially for women who face imminent risks by staying home. When taking such measures, States such as France should always be mindful of their positive obligations from which they cannot derogate. Therefore, any decision-making process should go beyond measuring the possible success with respect to the goal of the measure and include all foreseeable consequences. Once these are determined, further (counter)measures should be taken and form a comprehensive package to address the crisis in all its forms. In any case, if a State fails to make this evaluation beforehand, it should nevertheless do everything in its power to correct the situation.