Women and Justice: Keywords

International Case Law

S. V. P. v. Bulgaria CEDAW Committee (2012)

Sexual violence and rape, Statutory rape or defilement

S filed a complaint on behalf of her seven-year-old daughter, V, who was sexually assaulted by a neighbor. The perpetrator, B, was indicted for sexual molestation, at which time, was not a ‘serious crime’ under the State’s criminal code and thus permitted B to enter into a plea-bargain agreement under which he admitted guilt and received a three-year suspended sentence. S brought a civil tort claim on behalf of V as she was not permitted to bring a civil claim against B in connection with B’s prosecution and received a judgment of approximately EUR 15,000 for moral damages two years later. The law did not provide for a state actor to enforce the judgment, and S was only able to collect approximately EUR 500 from B. B continued to live in the vicinity of V’s home, and she repeatedly expressed fear of further harm from him. After the assault, V was diagnosed as a person with disability. S brought a communication before the CEDAW alleging violations by Bulgaria of Articles 1, 2(a), (b), (c), (e), (f) and (g), 3, 5, 12 and 15 of CEDAW by failing to effectively protect V against sexual violence and compensation, to ensure V’s rights to health, including reproductive health and education, to provide V with proper rehabilitative services, and to guarantee V’s right against re-victimization by B. The Committee upheld all of S’s claims, ordered the State to provide V with appropriate reparations and addressed the State to adopt specified changes to State laws, including amendments to provide effective protection from re-victimization and to provide appropriate support and financial compensation to victims, and enact new policies, including health care protocols and hospital procedures, to address sexual violence against women and girls.



Jallow v. Bulgaria CEDAW Committee (2012)

Domestic and intimate partner violence, Gender discrimination

J moved from the Gambia to Bulgaria after marrying A.P., a Bulgarian national. Once in Bulgaria, A.P. subjected J to physical and psychological violence, including sexual abuse, and attempted to force her to take part in pornographic films and photographs. He also abused their daughter, M.A.P. A.P. called the Child Protection Department to stop J from breastfeeding M.A.P, during which onsite visit the social workers learned of A.P’s abuse, called the police and advised J to seek refuge but provided no guidance about where or how to do so. J found refuge for several days in an NGO-run shelter, but A.P. later found her and forced her to return to the family home. Prosecutors refused to continue investigating the alleged domestic violence due to insufficient evidence. At no time did the authorities interview J. Later, A.P. filed an application with the Sofia Regional Court alleging him being a victim of domestic violence and requesting an emergency protection order. The Court granted the order, along with temporary custody of M.A.P, based solely on his statement and without consideration of the alleged domestic violence he committed against J. Authorities did not provide J with information about M.A.P’s whereabouts or her condition, despite repeated requests. The Court dismissed A.P.’s application for a permanent protection order but the emergency order remained effective. J later agreed to a divorce, including to numerous unfavorable conditions, to regain her custody of the daughter. J submitted a communication before the CmEDAW on behalf of M.A.P. and herself alleging violations by Bulgaria of Articles 1, 2, 3, 5 and 16 (1)(c), 16(1)(d), 16(1)(f) and 16(1)(g) of CEDAW by failing to provide effective protection against domestic violence and sanction A.P. for his behavior, to consider domestic violence as a real and serious threat, to adopt effective measures to address gender-based violence against women, gender discrimination and to provide illiterate migrant woman as herself to access justice. The Committee upheld all her claims, urged Bulgaria to compensate J and M.A.P, and recommended that the State Party adopt measures to ensure that women victims of domestic violence, including migrant women, have effective access to justice and other services. It also called on the State Party to provide regular training on CEDAW and the Optional Protocol and to adopt legislative and other measures to ensure that domestic violence is taken into account in determining custody and visitation rights of children.



Kell v. Canada CEDAW Committee (2012)

Gender discrimination, Property and inheritance rights

K, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada, bought a house from the N.W.T. Housing Corporation, with S her common law partner, as co-owners of the property. S subjected K to domestic violence, including economic abuse, over the subsequent three-year period. Following a request from S, a then board member of the Housing Authority, and without K’s knowledge, the N.W.T. Housing Corporation on instruction from the Rae-Edzo Housing Authority removed K’s name from the Assignment of Lease, making S the sole owner of the property. S then evicted her from the property while she sought protection in a shelter. K filed proceedings against S in the N.W.T. Supreme Court seeking compensation for domestic violence and loss of use of her home, fraudulently obtained by S, aided and abetted by the N.W.T. Government. S subsequently died, following which K’s lawyer initiated proceedings against his estate and the N.W.T. Housing Corporation. They offered K a monetary settlement but K refused as her key concern was regaining the property. The Supreme Court dismissed both proceedings for “want of prosecution.” Costs were imposed against K and subsequent appeals were unsuccessful. K filed a third action related to her interest in and right to the leasehold title and possession of the property. The property had then been sold and the Court dismissed the matter. K brought a communication to the CmEDAW alleging violations by Canada of Articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of CEDAW by allowing its agents – the N.W.T. Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and failing to ensure that its agents afford women and men equal rights in respect of ownership and enjoyment of property. The Committee found that Canada was responsible for K losing ownership of the property, in violation of Articles 2(d), 2(e), and 16(1)(h) of CEDAW, read with Article 1. However, it found that Canada had not violated Articles 14(2)(h) or 15(4), as there was no evidence K had been discriminated against as a rural woman or prevented from residing in another property in the community. The Committee recommended that Canada compensate K and provide her with appropriate housing. It also recommended recruiting and training more Aboriginal women to provide legal aid and reviewing the legal aid system to ensure Aboriginal women who are victims of domestic violence have effective access to justice.



L.C. v. Peru CEDAW Committee (2011)

Sexual violence and rape, Statutory rape or defilement

An 11-year-old girl was repeatedly raped by a 34-year-old man. As a result, she became pregnant and consequently attempted to commit suicide by jumping from a building. She survived the suicide attempt but sustained serious injuries which required emergency surgery. The hospital declined to perform the surgery based on the risk posed to the pregnancy, and refused to perform an abortion despite that therapeutic abortion is legal in Peru and that the pregnancy posed a danger to her physical and mental health. As a consequence, she was completely paralyzed from the neck down. The Center for Reproductive Rights and the Center for the Promotion and Defense of Sexual and Reproductive Rights filed a human rights petition on behalf of her against Peru before CEDAW alleging violations of Articles 1, 2 (c) and (f), 3, 5, 12 and 16 (e) of CEDAW by failing to implement measures that guarantee a woman’s ability to obtain essential reproductive health services in a timely manner. The Committee upheld the claim and asked Peru to provide L.C. reparation, including physical and mental rehabilitation, and issue necessary measures so that no other woman is denied her right to comprehensive healthcare and therapeutic abortion. This decision demonstrate a willingness on the part of the CEDAW to view the denial of reproductive rights as a discrimination issue and is flagged as an innovative juridical resource for reforming abortion laws.



R.K.B. v. Turkey CEDAW Committee (2012)

Employment discrimination, Gender discrimination

R.K.B.’s employer dismissed her but not the male colleague whom she was accused of having an affair with, and threatened to “spread rumours about her relationships with other men” to pressure her to sign a document, attesting that she had been paid all her benefits upon termination. R.K.B. filed a claim to the Kocaeli 3rd Labour Court against her employer alleging unfair termination based on gender stereotypes. The Court decided that the termination of her contract was not justified but not dismissing the male colleague was not discriminatory. R.K.B. appealed to the Court of Cassation, which dismissed the appeal without reference to gender discrimination. The CEDAW held that the Turkish court violated Articles 5(a), 11(1a) and 11(1d) of CEDAW by basing their decisions on gender stereotypes, tolerating allegations of extramarital relationships by male employees but not by female employees. It recommended adequate compensation to be paid to R.K.B, issued the State to take measures to implement laws on gender equality in the work environment; and to provide training to judges, lawyers and law enforcement personnel on women’s rights and gender-based stereotypes. The decision is of particular importance in a country where almost 80% of women are unemployed (Richinick) and where women’s participation in the labor force has been declining. It also stresses that mere adoption of laws is not enough to protect rights – implementation is the key. The decision also emphasizes the role of the courts (and not the executive branch) as ultimately responsible for rights’ violation.



Alyne da Silva v. Brazil CEDAW Committee (2011)

Gender discrimination

A, a 28-year-old Afro-Brazilian woman, died of complications resulting from pregnancy after her local health center misdiagnosed her symptoms and delayed providing her with emergency care. A’s death is not an isolated case. Brazil's maternal mortality rates are disproportionately high for a country of its economic status and the chances of dying in pregnancy and childbirth are greatest among indigenous, low-income, and Afro-descendant women. The Center for Reproductive Rights and Brazilian partner Advocaci filed a communication before the CmEDAW alleging violations Articles 2 and 12 of CEDAW. The Committee affirmed the violations despite Brazil’s claims that it had made "qualified obstetric care" a priority in its National Plan for Women's Policies. It also highlighted that "the State is directly responsible for the action of private institutions when it outsources its medical services, and that furthermore, the State always maintains the duty to regulate and monitor private health-care institutions". The Committee recommended Brazil ensure affordable access for all women to adequate emergency obstetric care and to effective judicial remedies, provide adequate professional training for health workers, ensure compliance by private facilities with national and international standards in reproductive healthcare, and reduce preventable maternal deaths. The case was important as it was the first case on maternal mortality to be brought before CEDAW. The Committee took a leap forward in increasing coherence in international human rights law on women's economic, social and cultural rights. Further, the Committee's inclusion of factors affecting A's access to health services, such as poverty and race were a milestone in the development of an intersectional understanding of women's ESCR.



V.K. v. Bulgaria CEDAW Committee (2011)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination

Ms. V.K., a Bulgarian citizen residing in Poland, sought to obtain a divorce from her husband after years of physical, emotional and economic abuse. Following a series of incidents in which her husband physically abused and intimidated both mother and children, Ms. V.K. took her children and left Poland for Bulgaria in order to hide from her husband and to seek protection and support from her family and the State. Once in Bulgaria, Ms. V.K. filed an application pursuant to the State’s Law on Protection against Domestic Violence, asking for an immediate protection order against her husband, invoking the Convention (CEDAW) and other human rights treaties. The District Court issued the order for immediate protection, but rejected Ms. V.K.’s application for a permanent protection order. On appeal, the Regional Court upheld the decision of the District Court. After exhausting all available domestic remedies, Ms. V.K. lodged a complaint with the CEDAW Committee alleging that the State had failed to provide her with effective protection against domestic violence, in violation of the Convention. She further claimed that the absence of a special law regarding the equality of women and men in the State, and the lack of recognition of violence against women as a form of discrimination, interfered with her human rights. Upon consideration, the Committee found that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband, along with the unavailability of shelters for battered women, violated the State’s obligation to effectively protect her against domestic violence. The Committee further concluded that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband was based on discriminatory notions of what constitutes domestic violence.



Abramova v. Belarus CEDAW Committee (2011)

Gender discrimination, Sexual harassment

Ms. Abramova, a citizen of Belarus, is a journalist who was arrested for her activism on behalf of the “For Freedom” movement and convicted of “minor hooliganism.” She was held in a temporary detention facility for five days, where she shared a small, unheated cell with an unenclosed toilet area that lay in open view of the all-male staff. During her detention, the male prison staff directed numerous humiliating comments at Ms. Abramova, treatment that the male detainees at the facility did not receive. Upon her release, Ms. Abramova submitted a complaint of violation of her rights in detention to authorities at the Interior Department, who informed her that her allegations had not been verified. Ms. Abramova then filed a complaint with the Prosecutor’s Office, again with a response that her claims had not been confirmed. Next, Ms. Abramova filed an application to the District Court under civil procedure, but the court claimed that it lacked jurisdiction and rejected her application. She appealed, and the Judicial Board rejected her appeal. Ms. Abramova proceeded to file a complaint to the District Court under administrative procedure, which again refused to initial civil proceedings. On appeal, the Judicial Board reversed the decision of the District Court and remanded the case for new consideration; on remand, the District Court dismissed Ms. Abramova’s complaint on procedural grounds. She submitted a complaint to the CEDAW Committee alleging that the conditions under which the State detained her constituted inhuman and degrading treatment, and that such treatment amounted to discrimination against her on the basis of gender. The Committee found that Ms. Abramova’s temporary detention in poor, unhygienic conditions, in a facility staffed exclusively by men, amounted to inhuman and degrading treatment and discrimination on the basis of her gender. Further, the Committee found that the State was in violation of its obligations under the Convention (CEDAW).



Teixeira v. Brazil CEDAW Committee (2011)

Gender discrimination

Alyne da Silva Pimentel Teixeira, a Brazilian national of African origin, suffered a high-risk pregnancy and was repeatedly denied timely care at public health facility, before dying of a digestive hemorrhage following delivery of her stillborn fetus. The husband of the deceased then filed a civil claim for material and moral damages, and twice requested the judicial mechanism of tutela antecipada, which requests the judge to anticipate the protective effects of a decision. The first request was ignored and the second denied. The mother of the deceased then submitted a complaint to CEDAW Committee, alleging that the State violated her daughter’s right to life and health under the Convention (CEDAW). The State contended that the evidence offered no link between the deceased’s gender and the possible errors committed, and that such errors therefore did not fall within the definition of discrimination set out in the Convention. Upon consideration, the Committee found that the death of the deceased must be regarded as maternal, that the deceased was denied appropriate services in connection with her pregnancy, that the State failed to fulfill its obligations under the Convention pursuant to the right to health, and that the State’s lack of appropriate maternal health services has a differential impact on the right to life of women. The Committee directed the State to take the following steps: compensate the deceased’s family, ensure women’s right to safe motherhood and affordable access to adequate emergency obstetric care, provide adequate professional training for health workers, ensure that private health care facilities comply with national and international standards on reproductive health care, and ensure that sanctions are imposed on health professionals who violate women’s reproductive health rights.



Salgado v. United Kingdom CEDAW Committee (2007)

Gender discrimination

Constance Ragan Salgado, a British citizen, moved to Colombia with her husband, a Colombian, and gave birth to a son. Salgado attempted to obtain British nationality for her son, but the British Consul in Bogotá stated that British nationality passed only though the paternal line. Although the British Nationality Act of 1981 amended British law to confer equal rights to men and women, Salgado’s son did not qualify because he was over 18. The Legislation again changed in 2002 with the passage of the Nationality, Immigration and Asylum Act which allowed children born to British mothers between 1961 and 1983 to register as British nationals if they satisfied certain other conditions. Salgado’s complaint alleged sex-based discrimination under the British Nationality Act of 1948 which restricted nationality descent to British fathers. Salgado raised issues under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, which calls for the elimination of all discriminatory laws, regulations and customs that discriminate against women, and article 9 paragraph 2 under which State parties must grant women equal rights with men with respect to the nationality of their children. She claimed that the discrimination was ongoing because her son failed to qualify for citizenship under the various amendments to the Act. Although the Committee held that the complaint was inadmissible ratione temporis because the events occurred before the Covention’s entry into force in the United Kingdom, it based its decision on the fact that Salgado’s son had reached the age of majority, at which time he could have applied for British nationality on his own. The Committee noted that the United Kingdom had enacted the challenged legislation prior to the Optional Protocol’s entry into force. The Committee also recommended that Salgado challenge the legislation by way of judicial review in the British High Court before turning to the Committee for further redress.



Yildirim v. Austria CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Fatma Yildirim sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to Yildirim’s numerous reports of assault and dangerous criminal threats, the Austrian police issued an expulsion and prohibition-to-return order against her husband. The police also recommended that her husband be detained, but the Vienna Public Prosecutor twice denied the request. Yildirim appealed to the Vienna Intervention Center after her husband repeatedly came to her workplace to harass and threaten her; the Center asked the police to pay more attention to Yildirim’s case. When Yildirim finally filed a petition for divorce at the Vienna District Court of Hernals, her husband followed her home from work and fatally stabbed her. The complaint stated that the State’s action violated article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) because the Austrian criminal justice system negatively impacts women through the public prosecutors’ failure to treat cases of domestic violence seriously. The complaint also cited the failure of judicial officials and law enforcement to collect data and maintain statistics on domestic violence instances denied Yildirim the enjoyment of her human rights in violation of article 2 and 3 of CEDAW on eliminating laws, regulations, and customs that adversely effect women . Finally, the complaint stated a violation of article 5 of the Convention on eliminating social and cultural attitudes towards women in the State’s continual treatment of domestic violence as a social or domestic problem rather than a serious crime. The Committee held that the Austrian police force’s failure to detain Yildirim’s husband was in breach of the State’s due diligence obligation to protect Yildirim, noting that a perpetrator’s rights cannot superseded women’s human rights to life and to physical and mental integrity. The Committee also took note of the correlation between lenient attitudes towards women’s cultural subordination and domestic violence. Although Austria prosecuted Yildirim’s husband to the fullest extent for her death, the Committee found violations of articles 2, 3, and 5 and recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Prevention against Violence within the Family, and ensure enhanced coordination between police and judicial officers to protect women victims of gender-based violence.



N.S.F. v. United Kingdom CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.



A.T. v. Hungary CEDAW Committee (2005)

Domestic and intimate partner violence

A.T. is a Hungarian woman whose husband subjected her to continued domestic violence resulting in her hospitalization and ten medical certificates documenting separate incidents of abuse. Hungarian law did not provide a mechanism for A.T. to obtain a protection order against her husband, and accordingly, A.T. submitted a motion for injunctive relief for her exclusive right to the family apartment. The Budapest Regional Court denied the motion and held that A.T.’s husband had a right to return and use the apartment, stating that A.T.’s battery claims against him lacked substantiation and that the court could not infringe on her husband’s right to property. Her complaint to the Committee called for the introduction of effective and immediate protection for victims of domestic violence in Hungary, as well as effective interim measures to prevent irreparable damage to A.T.’s person in accordance with article 5, paragraph 1 of CEDAW’s Optional Protocol. The Committee held that Hungary’s domestic violence jurisprudence was deeply entrenched in gender stereotypes which constituted a violation of Hungary’s obligation under article 2 of CEDAW to promote gender equality through appropriate legislation. Hungary’s lack of specific legislation to combat domestic and sexual violence led the Committee to conclude that the State had violated its article 5 obligation to eliminate prejudices and customs grounded in female inferiority, and article 16 obligation to end discrimination against women in matters relating to marriage and the family. The Committee recommended that Hungary enact domestic and sexual violence legislation and allow victims to apply for protection and exclusion orders which forbid the abuser from entering or occupying the family home.



Dung Thi Thuy Nguyen v. The Netherlands CEDAW Committee (2006)

Gender discrimination

Dung Thi Thuy Nguyen worked part-time as a salaried employment agency worker as well as together with her husband as a co-working spouse in his enterprise. For her salaried employment, Nguyen was insured under the Sickness Benefits Act (ZW), and for work at her husband’s enterprise she was insured under the Invalidity Insurance (Self-Employed Person) Act (WAZ). When Nguyen applied for maternity leave in 1999, she received benefits from her ZW insurance, but her WAZ insurance denied her coverage because of an “anti-accumulation clause” which allowed payment of benefits only insofar as they exceed benefits payable under the ZW policy. Nguyen objected to the withholding of her benefits and applied for review with the Breda District Court, who dismissed the complaint. The Central Appeals Tribunal upheld the lower judgment on appeal, stating that the WAZ insurance policy did not result in unfavorable treatment of women as compared to men. Nguyen’s complaint to the Committee cited a violation of article 11, paragraph 2 (b) of the Convention on the Elimination of All Forms of Discrimination against Women under which the State party is obligated to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority, or social allowance. The Committee held that it is state’s discretion to determine the appropriate maternity benefits within the meaning of article 11 for employed women, and separate rules for self-employed women accounting for fluctuated income and related contributions did not amount to a violation. The dissent, however, argued that the law of the Netherlands which provides for a financially compensated maternity leave for women who are both salaried and self-employed does not take into account the situation of these women who work more hours per week than a full-time salaried employee entitled to full maternity benefits. The anti-accumulation clause, therefore, constitutes indirect sex-discrimination because the policy assumes that mainly women work as part-time salaried employees in addition to working as family helpers in their husband’s enterprises.



Zhen Zhen Zheng v. The Netherlands CEDAW Committee (2007)

Trafficking in persons

Petitioner was trafficked into the Netherlands and request for asylum was denied because she could not give details about her trip from China and did not have identity documents.  Although the Committee held complaint to be inadmissible for non-exhaustion of domestic remedies, the dissent found that due to vulnerable situation of victims of trafficking, the complaint should be admissible and that the State did not act with due diligence in failing to recognize that Ms. Zheng may have been victim of trafficking.