By Muhammad Siddique Ali Pirzada
Introduction
Across Europe, femicide committed by intimate partners or family members has shown a stubborn persistence. Since 2010, progress has been slow at best, and in certain regions, like Eastern Europe, the statistics remain static. In 2023, above 50% of all murdered women were killed by someone within their domestic circle. These figures are not anomalies, they reflect enduring structural and societal failures that normalize and perpetuate gender-based violence. Domestic violence is a gendered phenomenon, both in its execution and with the institutional inertia that often meets it.
Still, the European Court of Human Rights (ECtHR), tasked with upholding the fundamental guarantees enshrined in the European Convention on Human Rights (ECHR), remains reticent to acknowledge the systemic nature of gender-based violence in its adjudication of discrimination claims. This piece contends that the Court’s evidentiary doctrine, particularly in cases invoking Article 14 (prohibition of discrimination) and Article 2 (right to life), demands recalibration. The Court should embrace the principled use of judicial notice to account for the well-established gendered dimension of domestic violence, thereby shifting the evidentiary burden to the state when a credible allegation of discrimination exists.
I. The ECtHR’s Evidentiary Blind Spot
While the ECtHR has affirmed that States bear positive obligations under Article 2 to protect individuals from domestic violence, it simultaneously maintains an evidentiary framework under Article 14 that renders discrimination findings exceptionally difficult. In Landi v Italy, the Court acknowledged that the State failed to prevent domestic abuse, constituting a violation of Article 2, yet declined to find a breach of Article 14, reasoning that such a breach requires “general shortcomings deriving from a clear and systemic failure.” In practice, this standard detaches Article 14 from the structural reality of gendered harm.
Similar reasoning prevailed in A v Croatia, where the applicant’s complaint was dismissed for insufficient data. Although Y v Bulgaria recognised that statistical evidence could shift the burden of proof onto the State, this approach entrenches a paradox: the absence of data forecloses the very presumption meant to alleviate evidentiary burdens.
II. The Doctrinal Dissonance of Proof and Protection
This evidentiary construct is incoherent. In Nachova v Bulgaria, discrimination had to be proven “beyond reasonable doubt.” Yet, in Volodina v Russia, it rightly affirmed that discriminatory intent is not a prerequisite; rather, a policy or practice may be discriminatory based on its effect, even if neutrally framed. The implication is clear: formal neutrality cannot shield structural harm.
Despite this jurisprudential evolution, the Court continues to adhere to a rigid application of the principle affirmanti incumbit probatio. The burden remains on the victims to demonstrate systemic neglect. This departs from established European jurisprudence, where Courts have recognised that in cases alleging structural or systemic violations, such as discriminatory policing or deprivation of liberty, the evidentiary burden may justifiably shift to the State. By insisting that victims produce statistical proof of systemic failures, the Court privileges procedural formalism over substantive protection. It thus squarely fails to hold States accountable for structural gendered violence.
III. Judicial Notice as Corrective Technique
To realign its jurisprudence with the realities it seeks to adjudicate, the ECtHR should adopt a structured application of judicial notice. This approach would enable the Court to recognise the gendered nature of domestic violence, without subjecting individual applicants to disproportionate evidentiary burdens. Judicial notice would operate as a rebuttable presumption, shifting the inquiry toward whether States can demonstrate systemic adequacy rather than forcing victims to prove systemic failure. The Court has done so before—take Klass v Germany, for instance—and there is no principled reason why this mechanism cannot be invoked in the domestic violence context. The disproportionate impact of domestic violence on women is not contested
Skeptics may argue that judicial notice risks flattening nuance or imposing uniform assumptions across diverse legal systems. This concern is not without merit, yet it misunderstands the nature of the proposal. Judicial notice would operate as a rebuttable presumption, not a jurisprudential shortcut. It would not displace case-by-case analysis. Instead, it offers to reposition the evidentiary default in recognition of well-documented structural realities.
Conclusion:
The ECtHR’s current evidentiary paradigm, rooted in formal rigidity and an almost mechanistic reliance on statistical proof, risks hollowing the right to non-discrimination into a procedural formality. By conditioning Article 14 protection on the applicant’s ability to marshal system-wide data, the Court constructs a jurisprudential labyrinth only the institutionally empowered can navigate. Survivors of domestic violence, often isolated, marginalized, and already failed by state protection systems, are burdened with proving not only their personal trauma but the structural indifference that enabled it.
I propose a principled path forward. The calibrated use of judicial notice would not abandon legal rigor; it would refine it. It would acknowledge that certain sociological truths, like the gendered nature of domestic violence, need not be re-litigated in every case to justify a shift in evidentiary burden. Such a move would reinforce the Court’s legitimacy, align its jurisprudence with the lived realities of those most in need of protection, and reaffirm that the ECHR is a living instrument—capable of evolving to meet the demands of human dignity, substantive equality, and gender justice in the 21st century.
