Article 78 &#8211; Reservations

Article 78 – Reservations

No reservation may be made in respect of any provision of this Convention, with the exceptions provided for in paragraphs 2 and 3.
Any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to apply or to apply only in specific cases or conditions the provisions laid down in:
- Article 30, paragraph 2;
- Article 44, paragraphs 1.e, 3 and 4;
- Article 55, paragraph 1 in respect of Article 35 regarding minor offences;
- Article 58 in respect of Articles 37, 38 and 39;
- Article 59.
Any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right to provide for non-criminal sanctions, instead of criminal sanctions, for the behaviours referred to in Articles 33 and 34.
Any Party may wholly or partly withdraw a reservation by means of a declaration addressed to the Secretary General of the Council of Europe. This declaration shall become effective as from its date of receipt by the Secretary General.

Explanatory Section

Article 30, paragraph 2

Adequate State compensation shall be awarded to those who have sustained serious bodily injury or impairment of health, to the extent that the damage is not covered by other sources such as the perpetrator, insurance or State-funded health and social provisions. This does not preclude Parties from claiming regress for compensation awarded from the perpetrator, as long as due regard is paid to the victim’s safety.

Article 44, paragraphs 1.e, 3 and 4

Paragraph 1.e: by a person who has her or his habitual residence in their territory.

Paragraph 3: For the prosecution of the offences established in accordance with Articles 36, 37, 38 and 39 of this Convention, Parties shall take the necessary legislative or other measures to ensure that their jurisdiction is not subordinated to the condition that the acts are criminalised in the territory where they were committed.

Paragraph 4: For the prosecution of the offences established in accordance with Articles 36, 37, 38 and 39 of this Convention, Parties shall take the necessary legislative or other measures to ensure that their jurisdiction as regards points d and e of paragraph 1 is not subordinated to the condition that the prosecution can only be initiated following the reporting by the victim of the offence or the laying of information by the State of the place where the offence was committed.

Article 55, paragraph 1 in respect of Article 35 regarding minor offences

Parties shall ensure that investigations into or prosecution of offences established in accordance with Articles 35, 36, 37, 38 and 39 of this Convention shall not be wholly dependant upon a report or complaint filed by a victim if the offence was committed in whole or in part on its territory, and that the proceedings may continue even if the victim withdraws her or his statement or complaint.

Article 58 in respect of Articles 37, 38 and 39

Parties shall take the necessary legislative and other measures to ensure that the statute of limitation for initiating any legal proceedings with regard to the offences established in accordance with Articles 36, 37, 38 and 39 of this Convention, shall continue for a period of time that is sufficient and commensurate with the gravity of the offence in question, to allow for the efficient initiation of proceedings after the victim has reached the age of majority.

Article 59

Article 59 – Residence status

Parties shall take the necessary legislative or other measures to ensure that victims whose residence status depends on that of the spouse or partner as recognised by internal law, in the event of the dissolution of the marriage or the relationship, are granted in the event of particularly difficult circumstances, upon application, an autonomous residence permit irrespective of the duration of the marriage or the relationship. The conditions relating to the granting and duration of the autonomous residence permit are established by internal law.
Parties shall take the necessary legislative or other measures to ensure that victims may obtain the suspension of expulsion proceedings initiated in relation to a residence status dependent on that of the spouse or partner as recognised by internal law to enable them to apply for an autonomous residence permit.
Parties shall issue a renewable residence permit to victims in one of the two following situations, or in both:
1. where the competent authority considers that their stay is necessary owing to their personal situation;
2. where the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.
Parties shall take the necessary legislative or other measures to ensure that victims of forced marriage brought into another country for the purpose of the marriage and who, as a result, have lost their residence status in the country where they habitually reside, may regain this status.

Paragraph 3 – Articles 33 and 34

Any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right to provide for non-criminal sanctions, instead of criminal sanctions, for the behaviours referred to in Articles 33 and 34.

Specifically referring to the following:

Article 33 – Psychological violence

Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of seriously impairing a person’s psychological integrity through coercion or threats is criminalised.

Article 34 – Stalking

Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of repeatedly engaging in threatening conduct directed at another person, causing her or him to fear for her or his safety, is criminalised.

Articles 35, 36, 37, 38 and 39

Article 35 – Physical violence

Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of committing acts of physical violence against another person is criminalised.

Article 36 – Sexual violence, including rape

Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:
1. engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object;
2. engaging in other non-consensual acts of a sexual nature with a person;
3. causing another person to engage in non-consensual acts of a sexual nature with a third person.
Consent must be given voluntarily as the result of the person’s free will assessed in the context of the surrounding circumstances.
Parties shall take the necessary legislative or other measures to ensure that the provisions of paragraph 1 also apply to acts committed against former or current spouses or partners as recognised by internal law.

Article 37 – Forced marriage

Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of forcing an adult or a child to enter into a marriage is criminalised.
Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of luring an adult or a child to the territory of a Party or State other than the one she or he resides in with the purpose of forcing this adult or child to enter into a marriage is criminalised.

Article 38 – Female genital mutilation

Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:

excising, infibulating or performing any other mutilation to the whole or any part of a woman’s labia majora, labia minora or clitoris;
coercing or procuring a woman to undergo any of the acts listed in point a;
inciting, coercing or procuring a girl to undergo any of the acts listed in point a.

Article 39 – Forced abortion and forced sterilisation

Parties shall take the necessary legislative or other measures to ensure that the following intentional conducts are criminalised:

performing an abortion on a woman without her prior and informed consent;
performing surgery which has the purpose or effect of terminating a woman’s capacity to naturally reproduce without her prior and informed consent or understanding of the procedure.

Weaknesses Assessed 2025 11m 12d

Summary: What Reservations Are Permitted vs Prohibited

Reservations that look to be ALLOWED (Initial list):

State compensation obligations (Article 30, para 2)
Extraterritorial jurisdiction provisions (Article 44, paras 1.e, 3, 4)
Ex officio prosecution for minor physical violence offences only (Article 55, para 1)
Statute of limitations for forced marriage, FGM (Female Genital Mutilation), forced abortion/sterilization (Article 58)
Residence status provisions for migrant victims (Article 59)
Non-criminal sanctions for psychological violence and stalking (Articles 33 and 34)

Reservations PROHIBITED (Everything Else):

Core criminal definitions: rape/sexual violence, forced marriage, FGM (Female Genital Mutilation), forced abortion/sterilization, physical violence
Consent-based definition of rape (Article 36) – fundamentally changes legal systems from force-based to consent-based standards
Mandatory ex officio prosecution for serious domestic violence – proceedings must continue even if victim withdraws complaint
International monitoring mechanism (GREVIO) – no opt-out from country visits or reporting requirements
Custody and visitation provisions (Article 31) – international treaty dictating domestic family law
Education, awareness, and training mandates
Data collection and research requirements
All prevention and protection measures

Critical Analysis: Sovereignty Concerns

1. No Reservation on Consent-Based Rape Definition

Article 36’s prohibition on reservations forces signatory states to adopt a consent-based definition of rape, where absence of affirmative consent constitutes the crime, rather than traditional force or coercion-based definitions. This represents a fundamental restructuring of criminal law that many legal systems may find incompatible with their evidentiary standards, burden of proof traditions, and cultural approaches to sexual autonomy. The inability to reserve on this provision means states must choose between wholesale adoption of this framework or non-participation in the Convention.

Recent studies that include MTP (Made-To-Penetrate) in the definition of rape have shown a surprising frequency of female perpetration.

2. Mandatory International Monitoring Without Opt-Out

The GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence) monitoring mechanism (Chapter IX) includes country visits, questionnaires, and public reporting – with no ability to reserve. This transfers significant sovereignty over domestic policy evaluation to an international body. States cannot limit the scope of monitoring, refuse visits, or maintain confidentiality of internal assessments. For countries with strong traditions of national sovereignty or concerns about external interference in domestic affairs, this represents an unprecedented surrender of autonomy.

3. Compulsory Prosecution Overriding Victim Autonomy

Article 55’s mandate that incidents assessed as serious domestic violence be prosecuted ex officio – regardless of victim wishes – cannot be reserved against. While the stated purpose is victim protection, this removes prosecutorial discretion and victim agency in cases where victims may have legitimate reasons for not wanting state intervention. The exception only applies to “minor offences,” leaving incidents assessed as serious domestic violence subject to mandatory prosecution.

4. International Treaty Governing Domestic Family Law

Article 31’s provisions on custody and visitation rights dictate how domestic courts must weigh violence in family law proceedings. No reservations are permitted on this intrusion into family law – traditionally the most sovereign and culturally-specific area of domestic legal systems. Countries cannot maintain their own approaches to balancing parental rights, child welfare, and violence considerations.

5. The “Sign Everything or Nothing” Structure

By prohibiting reservations on the vast majority of provisions, the Convention adopts an all-or-nothing approach rather than allowing states to progressively adopt standards compatible with their legal systems. This may result in fewer ratifications or more countries entering reservations that push the boundaries of what’s technically permitted. The rigid structure potentially undermines the Convention’s own goals by preventing broader adoption with gradual implementation.

Questions for Further Analysis

Why are reservations permitted on financial obligations (state compensation) but not on fundamental changes to criminal law definitions?
What recourse do states have if GREVIO monitoring findings are disputed or based on contested interpretations?
How does mandatory prosecution interact with victim safety in cases where prosecution may escalate violence?
Could the restrictive reservation regime be challenged as contrary to general principles of treaty law?
What happens when Convention obligations conflict with constitutional protections in signatory states?