Women and Justice: Keywords

Legislation

Ley 1719 de junio 18, 2014 (2014)

Gender violence in conflict, Sexual violence and rape, Statutory rape or defilement

This law modified some articles of Law 599 from 2000 and 906 from 2004, and adopted measures that expanded access to justice for victims of sexual violence, especially for those who experienced it during the armed conflict. As such, it stated the conduct and behaviors that amount to sexual violence crimes and the way they must be judicialized. Furthermore, it established that victims of sexual violence have the right to receive comprehensive compensation and reparation upon their individualized the damages.

Esta ley modificó algunos artículos de la Ley 599 de 2000 y 906 de 2004, y adoptó medidas que ampliaron el acceso a la justicia de las víctimas de violencia sexual, especialmente de aquellas que la vivieron durante el conflicto armado. En tal sentido, señaló las conductas y comportamientos que constituyen delitos de violencia sexual y la forma en que deben ser judicializados. Asimismo, estableció que las víctimas de violencia sexual tienen derecho a recibir una indemnización y reparación integral sobre la base de los daños y perjuicios individualizados.

Decreto 1930 de septiembre 6, 2013 (2013)

Gender violence in conflict

This Decree adopted the National Public Policy of Gender Equity (‘Política Pública Nacional de Equidad de Género’). It aims for the development of specific plans and programs that guarantee the rights of forcibly displaced women, including their right to a violence-free life. The policy also acknowledged the importance of the differential approach from the gender perspective, taking into account the particularities arising out of urban and rural context, Afro-Colombian, indigenous, and peasant women. In turn, the Decree created a cross-sectional commission in charge of the coordinating the implementation and technical and operational follow-up of the National Public Policy on Gender Equality.

Este Decreto adoptó la Política Pública Nacional de Equidad de Género. Esta tiene como objetivo el desarrollo de planes y programas específicos que garanticen los derechos de las mujeres que han sido desplazadas forzosamente, incluyendo su derecho a una vida libre de violencia. La política también reconoció la importancia del enfoque diferencial desde la perspectiva de género, tomando en cuenta las particularidades que surgen del contexto urbano y rural, las mujeres afrocolombianas, indígenas y campesinas. A su vez, el Decreto creó una comisión transversal encargada de coordinar la implementación y el seguimiento técnico y operativo de la Política Pública Nacional de Igualdad de Género.

Strafgesetzbuch (StGB) Abtreibung § 321a: Verbrechen gegen die Menschlichkeit (Penal Code Article 321a: Crimes Against Humanity) (1974)

International law, Sexual violence and rape

Section 321a (1) and (3) provide that a person who holds a woman captive who has been impregnated through the use of coercion, with the intent to influence the ethnic composition of a population or to commit other serious violations of international law, is punishable by imprisonment for a term of 5-15 years, or, if such an act results in the death of a person, a term of 10-20 years or life imprisonment. The abovementioned applies where such acts are performed as part of an extended or systematic attack against a civilian population.

Gemäß § 321a (1), (3) ist eine Person mit 5 bis 15 Jahren Gefängnis zu bestrafen, wenn sie im Rahmen eines systematischen und ausgedehnten Angriffskrieges gegen die Zivilbevölkerung eine Frau gefangen hält, die unter Anwendung von Zwang geschwängert wurde und dies mit dem Ziel erfolgt, die ethnische Zusammensetzung der Bevölkerung zu beeinflussen oder andere schwere Verletzungen des Internationalen Rechts vorzunehmen. Wenn die Handlung den Tod der anderen Person herbeiführt, ist die Strafe zwischen 10 und 20 Jahren oder sogar lebenslänglicher Freiheitssrafe festzusetzen.

International Case Law

I.G. and Others v. Slovakia European Court of Human Rights (2013)

Abortion and reproductive health rights, Forced sterilization, International law

Three applicants, all Roma women, alleged that a public hospital sterilized them without their consent and that they were unable to obtain appropriate redress from the Slovakian authorities. Although the Court found that the third applicant’s children lacked standing to continue the proceedings in their mother’s stead, it ruled in favor of the first and second applicants. The first and second applicants argued that they had been denied their right to have a family because the hospital sterilized them without consent. The Court accepted that the first applicant felt debased and humiliated when she learned that she had been sterilized without her or her legal guardians’ prior informed consent. Considering the nature of the sterilization, its circumstances, the applicant’s age, and the fact that she was a member of a vulnerable population group, the Court concluded that the second applicant’s sterilization was also with a violation of the requirement of respect for her human freedom and dignity. The Court’s decision ultimately rested on Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which states, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

K.H. and Others v. Slovakia European Court of Human Rights (2011)

Abortion and reproductive health rights, Forced sterilization, International law

The eight applicants in this case were all women of Roma ethnicity. They each suspected they had been sterilized during caesarian section deliveries at two different hospitals. Both hospitals denied the applicants’ requests to obtain copies of their medical records, and the applicants brought actions in different District Courts. The courts ordered the hospitals to allow access to the records and handwritten notes to be taken, but dismissed the request to make photocopies of the records. The Regional Courts both upheld the decision on appeal. The Constitutional Court also upheld the decision of the lower court. Subsequently, the applicants’ legal representatives were permitted to make copies of the applicants’ records due to the passage of the Health Care Act of 2004. Only one applicant did not receive her records and was informed they were lost, but she received a summary of her surgical procedure confirming she had been sterilized. The applicants argued that the hospital’s refusal to allow copies of their medical records violated their Article 8 right to respect for their private and family life. The applicants argued that the State’s prohibition on photocopying medical records prevented them from gathering evidence required for future litigation in violation of their Article 6 right to access a court. The State argued that the Health Care Act of 1994 did not allow legal representatives of applicants to photocopy records, and this prevented potential abuse of records. The European Court of Human Rights found that access to health and reproductive status information was relevant to private and family life under Article 8, and that the burden lay with the refusing party to give compelling reasons for refusal. The Court found the State’s argument was not sufficiently compelling, and that the State had violated the applicants’ rights under Article 8. The Court also found a violation Article 6’s provision of a right to access a court, and awarded the applicants damages.

N.B. v. Slovakia European Court of Human Rights (2012)

Abortion and reproductive health rights, Forced sterilization, International law

The applicant was sterilized at age 17 during the birth of her second child. She claimed that she was coerced into signing the authorizations for the sterilization, segregated in the hospital based on her Roma ethnicity, and that the decision to sterilize her was discriminatory. The District Court dismissed the applicant’s civil action against the hospital on the basis that the sterilization was required to save her life and, therefore, did not need consent. On appeal, the Regional Court, found that the sterilization was not required to save her life and valid consent had not been provided as she was a minor and parental consent was required. The Court ordered EUR 1,593 in damages for the applicant. A criminal action and complaint at the Constitutional Court were both dismissed. The applicant argued she had been subjected to inhumane and degrading treatment, her private and family life had been negatively impacted, and that she had been discriminated against on the basis of sex and ethnic origin as there were no anti-discrimination laws effective in Slovakia at the time of her sterilization. The State argued the compensation already awarded was appropriate, as she was 10 days away from the age of majority when she signed the consent documents, the medical staff had acted in good faith, and that she was not permanently infertile as she could pursue in-vitro fertilization or reverse the sterilization through surgery. The European Court of Human Rights held that there was a violation of the applicant’s rights under Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and that the State’s failure to provide sufficient legal protections of the reproductive health of Roma women violated Article 8. The Court awarded the applicant damages.

V. C. v. Slovakia European Court of Human Rights (2011)

Abortion and reproductive health rights, Forced sterilization, International law

VC, a Roma woman, was forcibly sterilized in a state hospital in Eastern Slovakia during a cesarean section. While she was in the height of labor, hospital staff insisted that she sign a consent form for sterilization, without informing her about what the procedure entailed. She was only told that a future pregnancy could kill her and was pressured to immediately undergo the procedure. VC did not understand what she was agreeing to but fearing for her life, she signed the form. After learning that the sterilization was not medically necessary, VC filed a civil lawsuit in Slovakia. All her petitions were rejected, and she filed a complaint against Slovakia at the ECtHR The Court found a violation of Articles 3 and 8 of the ECHR, i.e. the right to freedom from inhuman and degrading treatment and the right to private and family life respectively. The court noted that sterilization is never a lifesaving procedure and cannot be performed without the full and informed consent of the patient even if doctors believe that future pregnancy may pose a risk to the woman. However, it did not address whether such conduct was a violation of the right to non-discrimination (Article 14), thus falling short of addressing the crux of the problem: racial stereotypes. The ruling is the first of its kind issued by the ECHR, and will have the major effect of bringing justice to the potentially thousands of Roma women who were sterilized without their consent in Central and Eastern Europe.

Domestic Case Law

Decision No. 194/06-46 Constitutional Court of the Slovak Republic (2006)

Abortion and reproductive health rights, Forced sterilization

Mrs. I.G., Mrs. R.H., and Mrs. M.K. (the claimants of Roma ethnicity) were sterilized while giving birth to their children. The claimants initiated criminal proceedings on the grounds of unlawful sterilization, claiming that their consent (or informed consent in the case of R.H.) was not given. Criminal proceedings were stopped by the regional prosecutor with the conclusion that no unlawful act had been committed. The claimants filed a formal complaint against the decision, in part claiming that the investigation did not examine the substantive material issue, the lack of consent to sterilization. This formal complaint was dismissed by the regional prosecutor. The claimants petitioned the Constitutional Court to address the decision to discontinue criminal proceedings by the regional prosecutor; they claimed among other things the breach of their right to private and family life and of their right to privacy. The Constitutional Court held that sterilization was not a “life-saving” procedure, as claimed by the regional prosecutor and the hospital. Therefore, the explanation given by the regional prosecutor for the discontinuation of criminal proceedings on these grounds was unfounded. The Constitutional Court further held that the investigation did not exhaust all possible avenues, and completely ignored the issue of consent. This and the subsequent dismissal of the complaint amounted to inhumane or degrading treatment of the claimants affecting their private and family lives. The Constitutional Court awarded each claimant 50,000 SK (EUR 1,659.70) in damages and ordered the regional prosecutor to re-examine the issue.