국제인권규범을 중심으로 한 젠더 기반 폭력(Gender-Based Violence)에 관한 연구

Abstract

Gender-Based Violence against women is one of the most prevalent problems in most countries around the world. The issue of gender-based violence against women is related to the principle of constitutional equality, which guarantees equal rights for men and women, and the principle of non-discrimination, which prohibits discrimination on the basis of gender. In particular, violence against women can be considered gender-based violence because it is often caused by structural discrimination that goes beyond the usual criminal case. The case analyzed in this paper, P. and S. v. Poland, decided by the European Court of Human Rights in 2012, is significant because it is a relatively recent decision that addresses constitutional issues related to gender-based violence: the right to abortion, the prohibition of torture, the right to liberty, the right to respect for private and family life, the right to a fair-trial, the right to freedom of thought, conscience, and religion, and the principle of non-discrimination. The ECtHR found that the State's actions in relation to the applicant P. in this case fell short of the minimum measures required by Article 3 of the European Convention on Human Rights and that she had been subjected to inhuman and degrading treatment. It also found that the deprivation of liberty by separating her from her parents and placing her in an institution was incompatible with Article 5 § 1 of the ECHR. The ECtHR also found that information concerning the sensitive private life of P. and her mother S. had been disclosed and that this disclosure could not be legally justified, thus concluding that Poland had violated Article 8 of the ECHR, as alleged by the applicants. However, no finding was made as to whether P. and S.'s negative freedom of religion could have been substantially violated in this case. In conclusion, it can be seen that, despite various efforts, the obligations to protect women from violence in family and social life are not adequately fulfilled by law. This is not a problem unique to Poland. In many countries, there is still a gap between traditional values and laws. It is hoped that this ruling will bring about a shift in the perception of gender-based violence.