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Réf. DC 162(2019)

Venice Commission: no provisions of the Istanbul Convention can be considered contradictory to the Constitution of Armenia

Venice, 11.10.2019 – While the ratification of any treaty is a sovereign act of the state, and it belongs to the Constitutional Court of Armenia to rule on the compatibility of the Council of Europe’s Istanbul Convention with the country’s Constitution, there are no provisions in the Istanbul Convention that could be said to “contradict” the Constitution of Armenia. On the contrary, the main obligation of the Convention, to prevent and combat any form of violence against women and domestic violence, already follows from the Constitution and many other human rights treaties to which Armenia is a party.

This is the main conclusion of the opinion adopted today by the Council of Europe’s constitutional law body, the Venice Commission. It analyses constitutional implications of the ratification of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention) by Armenia and dispels many misconceptions about the Convention in general.

With respect to the allegation that the Istanbul Convention is not needed, the Venice Commission underlined that as domestic violence is widespread in all European countries, including Armenia, ratifying the Convention would greatly benefit victims. The Convention focuses specifically on the issue of violence against women and provides a special monitoring mechanism – something that already existing instruments do not have. Finally, even if there is a satisfactory national framework in place, subsidiary external oversight provides important added value: by ratifying an international instrument, authorities send a strong signal that they are serious about addressing the problem. Besides, the international instrument provides additional safeguards in comparison to the national framework, in particular the monitoring mechanism.

As for the alleged “clash” of certain concepts of the Istanbul Convention with those enshrined in the Constitution of Armenia, the Venice Commission specifically looks at the terms of “gender”, “gender identity”, “sexual orientation”, as well as “family” and “marriage”.

Responding to the allegations that the Istanbul Convention is the Trojan horse of the so-called gender ideology that seeks to completely change the culture of national states and force them to deny biological differences between men and women, the Venice Commission underlines that the Convention clearly makes a difference between “sex” as a biological reality and “gender” as social expectations linked to this reality, and the ‘social’ definition is by no means intended to replace the biological one. The Constitution of Armenia does not refer to gender, but guarantees the equality of men and women and provides for its promotion. The elimination of gender-based violence against women and measures aimed at achieving this, including those seeking to change harmful gender stereotypes, is fully in line with this constitutional regulation.

The Istanbul Convention does not require States parties to take any measures to recognise various categories of persons or to grant them any special status on the basis of their gender identity. It simply confirms that gender identity ranks among the prohibited grounds of discrimination. This means that an individual may not be denied protection against violence or the status of victim because of his or her gender identity. This approach seems to be fully compatible with the Constitution of Armenia’s provisions on general equality before the law and the prohibition of discrimination. The same holds true for sexual orientation: the Istanbul Convention only refers to it in its non-discrimination clause. It does not impose a positive obligation on States which do not acknowledge the existence of a legal entitlement for persons belonging to a sexual minority, to actively introduce such a notion in their own domestic legal order.

The Istanbul Convention does not contain any definition of the family, nor of partner or same-sex relationships, nor does it promote any particular form of such relationships. Thus, there is no collision with national constitutions’ definition of the family – and this holds true not only for Armenia, but also for other European countries. Marriage is only mentioned in the Convention in the context of forced marriage. Therefore the Convention does not contradict national constitutions defining marriage as a union between a woman and a man, as in Armenia. In the same vein, the Istanbul Convention does not oblige States Parties to legalise same-sex marriage.

With respect to allegations that the Istanbul Convention introduces new commitments in the field of asylum law, the Venice Commission explains that the ratification of the Istanbul Convention does not mean that all women will automatically be entitled to refugee status. The Convention merely acknowledges that women may face certain types of persecution that specifically affect them.

Besides, the Istanbul Convention does not interfere with the right of parents to educate their children, but merely encourages States to include teaching materials on combating domestic violence in school curricula, while giving them a large discretion in deciding how to do it.

As for the allegations that reporting by professionals would result in a breach of confidentiality, the Istanbul Convention does not do away with professional confidentiality. It urges  the States Parties to ensure that professionals, primarily in the health sector, can report suspected serious cases of violence against women, without running the risk of being sanctioned for breaching confidentiality. The Convention does not foresee mandatory reporting.

The Venice Commission hopes that this external legal analysis may help the Constitutional Court of Armenia in its task to assess the compatibility of the Istanbul Convention with the Constitution, and contribute to the public debate on the ratification of the Convention.

The opinion was prepared under the Quick Response Mechanism in the framework of the joint programme of the Council of Europe and the EU “Partnership for Good Governance II”.

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