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Forced Marriages in Council of Europe Member States CDEG (2005) 1 Forced marriages in Council of Europe member states A comparative study of legislation and political initiatives Prepared by Ms Edwige Rude-Antoine Doctor of Law, Research Officer CERSES/CNRS Directorate General of Human Rights Strasbourg, 2005 Equality Division Directorate General of Human Rights Council of Europe F-67075 Strasbourg Cedex © Council of Europe, 2005 Printed at the Council of Europe. The Council of Europe The Council of Europe is a political The Council of Europe has its perma- ters, composed of the Ministers of organisation which was founded on 5 nent headquarters in Strasbourg Foreign Affairs of the 46 member states, May 1949 by ten European countries in (France). By Statute, it has two constit- and the Parliamentary Assembly, com- order to promote greater unity between uent organs: the Committee of Minis- prising delegations from the 46 national its members. It now numbers 46 Euro- parliaments. The Congress of Local and pean states.1 The main aims of the Or- 1. Albania, Andorra, Armenia, Austria, Azerba- Regional Authorities of the Council of ganisation are to promote democracy, ijan, Belgium, Bosnia and Herzegovina, Bul- Europe represents the entities of local garia, Croatia, Cyprus, Czech Republic, human rights and the rule of law, and to and regional self-government within Denmark, Estonia, Finland, France, Georgia, develop common responses to political, Germany, Greece, Hungary, Iceland, Ireland, the member states. social, cultural and legal challenges in its Italy, Latvia, Liechtenstein, Lithuania, Lux- The European Court of Human Rights member states. Since 1989 it has inte- embourg, Malta, Moldova, Monaco, Nether- is the judicial body competent to adjudi- grated most of the countries of central lands, Norway, Poland, Portugal, Romania, cate complaints brought against a state Russian Federation, San Marino, Serbia and and eastern Europe and supported them by individuals, associations or other Montenegro, Slovakia, Slovenia, Spain, in their efforts to implement and con- Sweden, Switzerland, “The former Yugoslav contracting states on grounds of viola- solidate their political, legal and admin- Republic of Macedonia”, Turkey, Ukraine, tion of the European Convention on istrative reforms. United Kingdom. Human Rights. The Council of Europe and Equality between Women and Men The consideration of equality mittee (one from each member State) carries out analyses, studies and evalua- between women and men, seen as a fun- are entrusted with the task of stimu- tions, defines strategies and political damental human right, is the responsi- lating action at the national level, as measures, and, where necessary, frames bility of the Steering Committee for well as within the Council of Europe, to the appropriate legal instruments. Equality between Women and Men achieve effective equality between (CDEG). The experts who form the Com- women and men. To this end, the CDEG For information on the activities of the Council of Europe in the field of equality between women and men, please consult our website: http://www.coe.int/equality Equality Division Directorate General of Human Rights Council of Europe F-67075 Strasbourg Cedex Tel. +33 (0)388 41 20 00 — Fax +33 (0)3 88 41 27 05 — e-mail [email protected] Contents Summary. 7 Actual cases: how media Information, awareness raising, interest education and training . 58 Forced marriage: a problem of can generate awareness . 27 definition . 7 Legal reforms to prevent and combat forced marriages . 58 Quantitative data: estimates only . 7 Fatoumata Konta . 27 Policies and initiatives to help those Actual cases: how media interest can Luisa Toumi . 28 involved in forced-marriage generate awareness . 8 Aïssitou . 28 situations . 58 The many related factors behind Fadime Sahindral. 28 Resources for research into the reality forced marriage . 8 of forced marriages . 58 The collective and individual The many related factors consequences of forced marriage . 8 behind forced marriage . 30 Some references . 59 Partial responses in law, and the limits of the legal approach. 8 France. 59 The collective and individual Policies, programmes and initiatives consequences of forced Belgium . 60 to combat forced marriage . 10 marriage . 31 Croatia . 60 Proposed recommendations . 11 Psychological and emotional Morocco . 60 problems. 31 Italy . 61 Introduction. 13 Health damage . 31 Netherlands . 61 Financial and legal difficulties. 31 Portugal . 61 Forced marriage: a problem of Norway . 61 definition . 16 Partial responses in law, and Sweden . 61 Marriage as slavery: a multiplicity of the limits of the legal United Kingdom . 61 situations. 17 approach . 33 Arranged marriage, traditional Beyond international legal Appendix 1: marriage and marriage for reasons of instruments . 33 custom, expediency or perceived List of countries studied and respectability: the gap between Forced marriage and international correspondents . 62 interior and declared intent . 17 private law . 35 Child marriage and early marriage: Forced marriage and civil law . 38 Appendix 2: where lack of maturity makes Forced marriage and criminal law.42 Working documents. 64 consent impossible. 18 Austria . 64 Bogus marriage, sham marriage, Policies, programmes and Belgium . 66 marriage of convenience, putative initiatives Bosnia and Herzegovina. 73 marriage, marriage to acquire to combat forced marriage .47 nationality and undesirable Croatia . 74 Forced marriage and personal marriage: Cyprus . 76 an absence of marital intent . 19 protection policies. 47 Czech Republic . 76 Marriage under constraint: Forced marriage and migration Denmark . 78 violation of the will and restriction of policies . 49 freedom . 20 Approaches to combating forced Estonia . 79 marriage . 52 Finland . 80 Quantitative data: estimates France. 82 only. 22 Proposed recommendations 58 Germany . 89 5 Hungary . 92 Netherlands . 103 Spain. 117 Ireland . 94 Norway . 106 Sweden . 119 Italy . 95 Poland . 108 Switzerland . 123 Latvia. 99 Portugal . 109 Luxembourg . 100 Romania . 113 Turkey . 124 Malta . 102 Slovakia. 115 United Kingdom . 127 6 Forced marriages in Council of Europe member states: a comparative study of legislation and political initiatives Summary This study sets out to examine the decision whether or not to initiatives to prevent forced mar- forced marriages in 28 member states commit oneself, and from external- riages. of the Council of Europe, and more ised or declared agreement expressed specifically to consider the legislation in a form required by the law and in Under Recommendation potentially applicable to such unions, such a manner that the other party Rec (2002) 5 of the Council of Europe as well as exploring policy initiatives can take cognisance of it. Committee of Ministers to member to combat the phenomenon. It states on the protection of women attempts to uncover the dynamics of The general hypothesis is that sys- against violence, forced marriage forced marriages and the issues tems of civil and criminal law and the should be regarded as an act of vio- involved, with particular attention to rules of private international law are lence and should cease to be prac- the concepts of exchange of consent in need of reform in the light of inter- tised in Europe. In the words of the and the meeting of minds. Consent nationally recognised human rights recommendation: “Member states by the partners in a marriage is standards. The study has produced a should prohibit forced marriages con- apparent both from the psychological body of information to support the cluded without the consent of the or internal inclination that informs case for new policies, schemes and persons concerned.” Forced marriage: a problem of definition “Forced marriage” is an umbrella overlap – hence the difficulty of simply the terms used to express it: it term covering marriage as slavery, defining precisely what is meant by depends on all the circumstances in arranged marriage, traditional mar- “forced marriage”. which it is expressed. Anxiety and riage, marriage for reasons of custom, It is not a term that has explicit fear can rule out all thought of resist- expediency or perceived respectabil- legal content and it is defined differ- ance, without there being any genu- ity, child marriage, early marriage, ently in different countries. This is ine consent. Similarly it is not always fictitious, bogus or sham marriage, probably because, in cases other than possible to supply proof of the type of marriage of convenience, unconsum- those where there is actual physical emotional threats that can render mated marriage, putative marriage, proof that a person’s freedom of con- individuals vulnerable and prevent marriage to acquire nationality and sent has been denied by physical them from resisting a marriage. Study undesirable marriage – in all of which force or violence – eliminating any of actual cases reveals a too system- the concept of consent to marriage is doubt that the marriage was forced – atic tendency on the part of courts to at issue. Among the types of marriage it is not always easy to ascertain the overlook the possibility that mar- listed, which can assume their partic- state of mind behind the explicit con- riages contracted in order to circum- ular characteristics in the period tent of the marriage contract. The vent immigration rules, ie without between marriage promise and wed- fact is that the intent expressed when any genuine marital intent, may also ding, there is considerable scope for a marriage is concluded is more than be forced
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