Protecting Human Rights Through EU Criminal Law: Analyzing Directive 2024/1385 on Combatting Violence Against Women and Domestic Violence through a Combined Human Rights and EU Criminal Law Lense

Abstract

This presentation on the possibility of protecting human rigths through the use of EU criminal law instruments was presented at the ELSA Summer Law School at Aarhus University on July 31, 2024. It explores the intricate balance between the positive aim of the EU of protecting human rights and the constitutional limits to EU criminal law competence set out by the treaties. The focal point of this lecture is the newly adopted directive on combatting violence against women and domestic violence (Directive 2024/1385).

The presentation outlines the framework of positive obligations under human rights law. Key human rights instruments, such as the European Convention on Human Rights (ECHR), The EU Charter of Fundamental Rights and the Istanbul Convention, are examined for their roles in establishing and interpreting these obligations.

A significant portion of the lecture is dedicated to understanding how the EU legal order integrates these obligations within its constitutional constraints, highlighting the limitations imposed by the principles of conferral, subsidiarity, and proportionality. 

The substantial criminal law articles of  the new Directive 2024/1385 are dissected to illustrate how the EU adresses the subject of gender-based violence as a specific human rights violation. This is mainly done through an in-depth analysis of the draft history of the directive, where the Commission’s proposal for a content-centered provision on rape (article 5 of the directive proposal) was left out of the final directive due to Member State push back. 

This analysis helps to underline how EU constitutional law and Member State reluctancy to accept EU criminal law competence functions as  significant obstacles to fullfilling the EU positive obligation under human rights law and the Istanbul Convention to adequately protect women against gender-based violence.  

Keywords: ECHR, Consent-based, EU Charter of Fundamental Rights, Gender-specific violence, Violence against women, directive 2024/1385, EU Criminal Law, Competence, TFEU article 83(1), Istanbul Convention, Transposing the Istanbul Convention, Positive obligation, Sexual Violence