Women and Justice: Keywords

The Applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, in part because the Federal Asylum Agency failed to adequately investigate and assess the dangers to the Applicant in Afghanistan. The Asylum Court found that the Federal Asylum Agency erred in summarily denying asylum based on the Applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court concluded that the Applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the Applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Specifically, returning to Afghanistan would mean that the Applicant would be raised to be a homemaker despite any wishes to have a career outside the home, would be married to a man chosen by her father or grandfather, and her freedom of movement and educational opportunities would be severely restricted. In granting the Applicant’s asylum claim, Austria’s Asylum Court considered both gender-specific and child-specific factors that were not brought forth by the Applicant but rather gathered from credible investigative sources. 

The defendant was found guilty of acts of violence toward his sons, which included physical abuse and constituted a continued offense because the violence involved a number of uniform and continuous acts over a period of ten (10) years. Additionally, he was found guilty of threatening his wife with abuse and death. Prior to these offenses, the defendant had no criminal record. Initially, the High Court found the defendant guilty of acts of violence and abuse against his children and wife and sentenced to one year and three months of imprisonment. Subsequently, the Supreme Court reversed the High Court’s determinations that the defendant did not commit any abuse and the acts of violence did not constitute a continued offense as well as increased the length of the defendant’s imprisonment from ten (10) months to one year and three months.

Appellant was convicted of murdering his girlfriend and sentenced to 20 years imprisonment. Appellant appealed that the sentence was too harsh and severe and that it induced a sense of shock. Appellant presented mitigating factors that he was married with four minor children to support, the sole breadwinner, a first offender, and deserved to be given a second chance in life. The Supreme Court dismissed the appeal after considering the interest of society, the seriousness of the offense, the fact that the crime was premeditated, and the fact that the killing was gruesome and brutal. The Supreme Court further stated that sentence was fair “particularly in the upsurge in the killing of women as well as the need to impose deterrent sentences which would provide the safeguard against this onslaught.”

The acid violence case of Mst. Naila Farhat was brought in November 2008. In 2003, the perpetrator sprayed acid on the (then) 13 year old victim’s face in retaliation for her refusal of a marriage proposal. Ultimately, he was sentenced to 12 years imprisonment and ordered to pay 1.2 million rupees in damages. However on appeal to the High Court, the Judge stated that if he paid the fine he would not be imprisoned. In April 2009, the victim appealed to the Supreme Court and was the first case on an acid attack to reach the Supreme Court. The case was heard by the Chief Justice at his own initiative on the 20 November 2009, not only highlighting the concept of acid violence (and giving the perpetrator a higher sentence than the first lower court as well as imposing a fine), but there were also important recommendations given to the government for (a) providing free medical treatment and legal aid to acid/burn victims to facilitate their recovery; and (b) the development of relevant legislation to specifically deal with acid violence in Pakistan. The case lead to the creation of the Acid Control and Acid Crime Prevention Bill.

While taking a taxi to school, a 13-year-old girl was forcibly raped by the taxi driver, whom she had previously encountered. After learning about the incident, the girl’s mother reported the driver to the police and he was subsequently convicted at trial for rape and sentenced to 15 years imprisonment at hard labor. At trial, the driver’s defense was one of alibi—a denial of his involvement in the offence. When instructing the jury on the definition of rape, the trial judge omitted a discussion on the element of intent to rape, which would have required the jury to find that the defendant intended to have sexual intercourse with the girl without her consent. On appeal, the driver argued, inter alia, that this omission of an element of rape from the jury instructions rendered his conviction unsatisfactory. However, the Court rejected this argument because the driver’s defense did not challenge whether the girl had consented to the intercourse, instead he argued that he had no intercourse with the complainant. According to the Court, the question of intent to rape is only relevant in cases where there is an issue as to whether or not the complainant had consented, and thus because the driver’s defense was one of alibi, and not consent, the Court concluded that it was not necessary for the trial judge to provide an expanded definition of rape.

A 13 year old female complainant was raped in the home of the male defendant, where the complainant was a regular visitor. Despite rejecting the defendant’s monetary compensation to remain silent, the complainant did not disclose the incident until two weeks later when a third party noticed that she appeared to be depressed. At trial, the defendant was convicted by a jury for the offences of rape and indecent assault for which he was sentenced to 12 years and 2 years imprisonment, respectively, to be served concurrently. The jury had been instructed to base its decision on the credibility of the witnesses. On appeal, the defendant argued, inter alia, that there was a presumption of doubt on which the trial judge ought to have instructed the jury regarding the complainant’s credibility. According to the defendant, the complainant had several opportunities to promptly speak to a third party after the incident but did not do so, which should have called the truth of her testimony into question. The Court of Appeal dismissed the appeal because it was in the jury’s discretion whether to believe the complainant. Moreover, the Court, in dictum, noted that it is established that many victims of sexual crimes remain silent for a considerable length of time before making disclosures to third parties, and notwithstanding the lapse of time, the perpetrators of these crimes have nevertheless acknowledged the truth of the allegations made against them.

Three men were appointed to the boards of directors of Government corporations when neither board was comprised of any women members at the time of appointments. The court found each appointment unlawful under s. 18A of the Government Corporations Law (Amendment No. 6) (Appointments), which required ministers to appoint, “in so far as it is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.” As a result, the court set aside each of the three appointments without prejudice.

The petitioner, a female resident of Yerucham and an Orthodox Jew, was disqualified from the local religious council because of a stated tradition of not appointing women as members of religious councils. The court found, however, that although the religious council provided services that were religious in character, the qualifications of the council were solely dictated by the general legal system. Thus, the exclusion of the petitioner based upon her gender was discriminatory.

The aunt of three children applied to a Moslem Religious Court to be appointed as their guardian. The children’s mother argued that she was entitled to the guardianship under the Women’s Equal Rights Law. The mother, believing that the religious judge (the Kadi) would apply religious law and disregard the Women’s Equal Rights Law, applied for an order staying or setting aside the proceedings of the religious court. The court held that the issue was not ripe for review, as there was no indication that the Kadi would disregard civil law and rely only upon religious law. The order in which the Kadi decided to proceed was a matter of procedure with which the court would not interfere.

The Constitutional Court held that a provision in the Turkish Penal Code that increases the penalty by half for the crime of laceration if committed against family members is constitutional. Although such a penalty treats family members differently than non-family members, the Court found that such differential treatment did not violate the equality principle under the Turkish Constitution. Under the equality principle, criminals who have committed the same offence may not be subject to the same penalty if they have different legal statuses. Here, the Court found that the Turkish Legislature, through the Turkish Penal Code, expressed a preference for family members, giving family members a different legal status and thus the provision did not violate the equality principle. In reaching its decision, the Court also noted that Turkey has taken “extensive legal and administrative measures” to prevent and reduce domestic violence in Turkey. Because the state must protect family members from danger and family members have a different legal status, the Court found that the provision increasing the term of imprisonment and fine for laceration against a family member is constitutional.

The appellant wife sought a declaration that under the joint ownership rule, she owned half the rights in a residential apartment that was registered in her husband’s name only, and her interest in the apartment was protected against attachment by her husband’s creditors. The court held that date spouses satisfy conditions of the joint ownership rule (sound relationship, united efforts) is the relevant date for “purely family assets” like the residential apartment in question. But not until a “critical date” in the marriage, or when the marriage faces a real danger to its continuation because of a serious crisis between the spouses, does joint ownership of other rights and liabilities crystalize. Here, because the appellant’s marriage had not reached such a “critical date,” her interest in the apartment was protected against attachment.

The Criminal Court of Viña del Mar sentenced Rodrigo Gacitúa Escobar to life imprisonment for a series of robberies, rapes, and other crimes committed between 2010 and 2012. The prosecutor, Vivian Quiñones, expressed satisfaction at the result, and pointed out the impact of the testimony from the victims. The defense unsuccessfully attempted to discredit the victims’ testimony, including using postings on social media.

The accused R.M. was convicted for violence against his wife. In a second appeal submitted by the prosecutor, the Appeal Court held that the factual circumstances of the case were correctly retained by the inferior courts but the sentence did not take into account the aggravating circumstance that the victim was the wife of the accused person. The Romanian Criminal Code provides as an aggravating circumstance the fact that the criminal act has been done against a member of the family. The Appeal Court therefore decided to increase the sanction applied to R.M. based on the aggravating circumstance.

The Plaintiff sued a local prosecutor's office, alleging he was illegally detained and held, arbitrarily violating his constitutional right to personal liberty. Plaintiff's wife had filed a complaint against him with at the prosecutor's office, alleging spousal abuse, although she did not ask that he be detained. Plaintiff was asked to report to the prosecutor's office, at which time he was detained without being given reason for his detention. The prosecutors' office argued that the plaintiff was only held for eight hours, well within the 24 hours a prosecutor is allowed to hold someone without bringing charges. The Court rejected Plaintiff's allegations, finding that the plaintiff's rights had not been violated because his arrest was based on a suspected violation of Article 22 of the Criminal Law against Violence toward Women. The Court emphasized that spousal abuse was a matter not only of individual concern, but of societal concern. 

El demandante demandó a la oficina del fiscal local, alegando que fue detenido y retenido ilegalmente, lo cual violaba de forma arbitraria su derecho constitucional a la libertad personal. Anteriormente, la esposa del demandante había presentado una denuncia contra él en la oficina del fiscal, alegando abuso conyugal, aunque ella no habia pedido que lo detuvieran. Se le citó al demandante en la oficina del fiscal, momento en el cual lo detuvieron sin que se le diera una razón para la detención. La oficina de los fiscales justificó que el demandante solo estuvo detenido durante ocho horas, dentro de las 24 horas en total en que se le permite a un fiscal detener a alguien sin presentar cargos. El Tribunal rechazó las alegaciones del demandante y determinó que no se habían violado sus derechos porque su arresto se basó en una presunta violación del artículo 22 de la Ley Penal contra la Violencia hacia las Mujeres. La Corte enfatizó que el abuso conyugal era un asunto no solo de preocupación individual, sino también de preocupación de la sociedad.

Appellant was convicted of aggravated assault against his wife under Section 222-13 of the Penal Code, which provides that violence against a spouse is an aggravating circumstance that adds to the gravity of the original offense. Appellant appealed his conviction on the grounds that at the time of the violence the two spouses lived separately according to the orders of their on-going divorce proceedings. The Court rejected the appeal, finding that application of Section 222-13 of the Penal Code, aggravation of assault if committed against a spouse, does not require co-habitation of the spouses.

L'appelant a été condamné d’aggression sexuelle grave contre sa femme en vertu de l’article 222-13 de la code pénale, qui prévoit que la violence contre un époux ou épouse est un circonstance aggravante qui ajoute à la gravité de l’infraction original. L’appellant a fait appel pour la raison qu’au moment de l’acte de violence, l’époux et son épouse vivaient séparement suivant la procedure de leur divorce qui était en cours. La cour a rejetté l’appel, trouvant que l’article 222-13 de la code pénale ne nécessite pas la cohabitation d’un époux et d’une épouse.

Guatemala Human Rights Commission releases report one year after Guatemalan Law Against 8 passed.

La Comisión de Derechos Humanos de Guatemala publicó un reporte un año después de que la Ley 8 pasara. 

Ms. Brachner brought an action against the Pensionsversicherungsanstalt arguing that the implementation of an adjustment factor for pensions, established in 2008, resulted in indirect discrimination against women who were disproportionately less likely to qualify for an exceptional pension increase. Upon referral from the Austrian Supreme Court, the European Court of Justice held that (1) an annual pension adjustment scheme comes within the scope of the EU Directive guaranteeing equal treatment of men and women in matters of social security, (2) a national arrangement that excludes from an exceptional pension increase a significantly higher percentage of female pensioners would violate the Directive, and (3) the disadvantage cannot be justified by the fact that women receive their pension at an earlier age or that they receive their pension over a longer period.

Ms V.Š. (the claimant) was sexually assaulted by her colleague, Mr. S.B. (the defendant) at work.  The criminal court found the defendant guilty of sexual violence by means of an agreement on crime and punishment.  The claimant sued the defendant for damages sustained as a result of the defendant’s actions.  The claimant supported her claims with the opinion of a psychological expert, who stated that the claimant had suffered damage to her dignity, honor and personal and intimate life, as well as material costs.  The amount of non-pecuniary damage awards is determined with regard to the facts of each case individually and the opinion of the court.  As a result of the sexual assault, the claimant was traumatized, depressed and afraid to go to work because of the obvious threat posed by the defendant. The district court held that the protection of privacy and other aspects of the personal life of each individual is paramount.  Every individual has the right to make decisions about his/her intimate and sexual life and in this case, such right was grossly violated.  Furthermore, under Section 11 of the Civil Code, the claimant has the right to protect her life, health, honor, dignity, privacy, name and expressions of personal value.  The district court held that the defendant was obliged to pay to the claimant non-pecuniary damages in the amount of EUR 3,319.