Women and Justice: Keywords

Domestic Case Law

Employment Termination (Jurisprudential Thesis Docket: 2a./J.66/2017 (10a.)) Supreme Court of Mexico (2017)

Employment discrimination, Gender discrimination, Sexual harassment

“EMPLOYMENT TERMINATION. WHEN EMPLOYMENT IS TERMINATED DURING AN EMPLOYEE’S PREGNANCY, THE EMPLOYER BEARS THE BURDEN OF PROOF TO DEMONSTRATE THAT SUCH TERMINATION WAS NOT DISCRIMINATORY.”

This jurisprudential thesis is a relevant example of case law, as the criteria issued by the Mexican Supreme Court is binding on all courts in the country. Mexico recognizes labor matters as independent from other matters of law, with a unique set of courts, legislation, and doctrine. This case law in particular comes from two different isolated theses, as settled by two different federal courts. The first case was settled by the Third Collegiate Tribunal in Labor Matters of the Third Circuit, and the second case was settled by the Third Collegiate Tribunal of Circuit in the Assistant Center of the Tenth Region. Both court resolutions contained contradictory substantive issues, which prompted the Supreme Court to settle these discrepancies. The Supreme Court acknowledged that all pregnant women should enjoy certain specific rights resulting from pregnancy. The Court also found that these rights should be extended to the postnatal period. The Supreme Court recognized that most pregnant women will likely face a lack of job security given the costs that maternity leave implies for most employers. The Supreme Court determined that pregnant women require certain social security benefits in order to eliminate the barriers and obstacles that they may face during the pre- and postnatal periods. When a pregnant employee is terminated and argues that the termination was discriminatory, the employer bears the burden of proving that such termination was not due to the woman’s pregnancy or any other discriminatory reason. In such scenarios, the courts must take a gender perspective approach in deciding such controversies in order to be able to effectively guarantee the rights of women recognized under the Mexican Constitution and international treaties to which Mexico is a signatory.

 

“TERMINACIÓN DEL EMPLEO. "CUANDO EL EMPLEO SE TERMINA DURANTE EL EMBARAZO DE UN EMPLEADO, EL EMPLEADOR ASUME LA CARGA DE PROBAR QUE DICHA TERMINACIÓN NO FUE DISCRIMINATORIA".

Esta tesis jurisprudencial es un ejemplo relevante de jurisprudencia, ya que los criterios emitidos por el Tribunal Supremo de México son de relevancia para todos los tribunales del país. México reconoce que los asuntos laborales son independientes de otros asuntos de la ley, con un conjunto único de tribunales, legislación y doctrina. Esta jurisprudencia en particular proviene de dos tesis diferentes, según lo resuelto por dos tribunales federales diferentes. El primer caso fue resuelto por el Tercer Tribunal Colegiado en Asuntos Laborales del Tercer Circuito, y el segundo caso fue resuelto por el Tercer Tribunal Colegiado de Circuito en el Centro Asistente de la Décima Región. Ambas resoluciones judiciales contenían cuestiones sustantivas contradictorias, lo que llevó a la Corte Suprema a resolver estas discrepancias. La Corte Suprema reconoció que todas las mujeres embarazadas deberían disfrutar de ciertos derechos específicos derivados del embarazo. El Tribunal también determinó que estos derechos deberían extenderse al período postnatal. La Corte Suprema reconoció que la mayoría de las mujeres embarazadas probablemente enfrentarán una falta de seguridad laboral, dado los costos que la licencia de maternidad implica para la mayoría de los empleadores. La Corte Suprema determinó que las mujeres embarazadas requieren ciertos beneficios de seguridad social para eliminar las barreras y obstáculos que pueden enfrentar durante los períodos pre y postnatal. Cuando una empleada embarazada es despedida y argumenta que la terminación fue discriminatoria, el empleador tiene la responsabilidad de probar que dicha terminación no se debió al embarazo de la mujer ni a ninguna otra razón discriminatoria. En tales escenarios, los tribunales deben adoptar un enfoque de perspectiva de género al decidir tales controversias para poder garantizar de manera efectiva los derechos de las mujeres reconocidos en la Constitución mexicana y los tratados internacionales de los que México es parte.



Hariharan v. Reserve Bank of India Supreme Court of India (1999)

Gender discrimination

Ms. Githa Hariharan was married to Dr. Mohan Ram and they had a son named Rishab. She applied to the Reserve Bank of India (RBI) for bonds to be held in the name of their minor son Rishab and had signed off as his guardian. The RBI sent back the application to her advising her to either produce the application signed by the father of Rishab or produce a certificate of guardianship from a competent authority in her favor. RBI was of the opinion that Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA). That provision stated that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father. Ms. Hariharan challenged the constitutional validity of this provision in the Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution. The Supreme Court, relying on gender equality principles enshrined in the Indian Constitution, CEDAW and UDHR, widely interpreted the word “after” in the provision and upheld the constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is legislative intent of HMGA, 1956. This case is important because it established for the first time that a natural guardian referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of and available for taking care of the child and is deeply interested in the welfare of the child, and that need not necessarily be the father.



Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) Court of Appeals Seventh District (2013)

Gender discrimination, Sexual violence and rape, Trafficking in persons

Cece, a young Albanian woman fled Albania to avoid trafficking and prostitution rings which target young women living alone. While living alone in Korce, Cece caught the attention of one of the leaders of a well-known prostitution ring. He followed, harassed, and threatened Cece. Her reports of the assault to the authorities were perfunctorily dismissed. Thereafter, Cece fled to the United States (“U.S.”) using a fraudulently procured Italian passport, whereupon she filed for asylum and withholding of removal within the one-year statutory period. Her claim was based on fear of returning to Albania as a young woman living alone. The immigration judge granted Cece’s asylum claim finding that her fear of returning to Albania was well founded because she belonged to a particular social group composed of “young Albanian women who are targeted for prostitution by traffickers” and that the government of Albania was unable or unwilling to protect such women. The Board of Immigration Appeals vacated the judge’s decision, holding that the judge erred in finding that Cece had established membership in a particular social group. On appeal, the Seventh Circuit Court of Appeals found that Cece was a member of particular social group cognizable under 8 U.S.C. § 1101(a)(42)(A) and therefore eligible for asylum. Specifically, the Court found that the particular social group identified by the immigration judge – young Albanian women living alone and thus vulnerable to being trafficked – met the immutability requirements of 8 U.S.C. § 1101(a)(42)(a) because it is based on common characteristics that members of the group either cannot change or should not be required to change.



United States v. Chang Da Liu, 538 F. 3d 1078 (9th Cir. 2008) Court of Appeals Ninth District (2008)

Sexual violence and rape, Trafficking in persons

Ming Yan Zheng and her husband Chang Da Liu opened a brothel in Saipan, the capital of the Commonwealth of the Northern Mariana Islands (“CMNI”). They recruited employees in China by advertising for positions as waitresses, nightclub performers and service workers. The materials promised wages of between $3,000 and $4,000 and required applicants to pay a $6,000 processing fee. Upon their arrival to CMNI, the employees were forced into prostitution. Six of the victims reported the situation to the FBI which resulted in Zheng and Liu’s convictions for conspiracy, sex trafficking, foreign transportation for prostitution and transportation of persons in execution of fraud. On appeal, Zheng challenged her conviction on several grounds, inter alia, that the court lacked jurisdiction to prosecute her. Zheng argued that the Federal Government lacked authority to prosecute her because Section 501 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (“the Covenant”) limited the application of the criminal statutes under which she was convicted in the CMNI. According to Zheng, Section 501provides an exhaustive list of the provisions of the U.S. Constitution which apply to the CMNI. As such, she could not be prosecuted under the criminal statutes used to prosecute her because they were enacted under the commerce clause and that territorial clause, which provisions are not listed in Section 501 of the Covenant. The Court found Zheng’s argument to be lacking because Section 501 sets forth the Constitutional provisions which apply in the CNMI as if it were a state. By contrast, the commerce clause and the territorial clause apply to Congress and regulate its ability to enact legislation applicable to the CMNI. As such, the Court held that Congress had authority to legislate over the CMNI, and that the court had jurisdiction over Zheng. The Court pointed out that although Congress has authority to legislate over the CMNI, the Covenant does limit Congress’s powers with respect to legislation enacted after the Covenant’s effective date. For such legislation, the Court must balance the federal interest served by the legislation against the degree of intrusion into the CMNI’s local affairs. However, the Court found that the federal interest in combating international sex trafficking through the U.S. territories outweighs the intrusion into the CMNI’s local affairs.



HKSAR v. KKK High Court of the Hong Kong Special Administrative Region Court of First Instance (2011)

Sexual violence and rape

Defendant, a male, was charged with six counts of rape and one count of indecent conduct towards a child under the age of 16. All the crimes were committed against Defendant’s three daughters. Defendant pled guilty to all charges. The victim of four charges of rape was his eldest daughter, whose rapes occurred over a three year period, when she was between 12 and 14. The other two rape charges occurred against a younger daughter, who is a twin, when she was 10 and 11. The other twin girl was the victim of the indecent conduct charge. One rape of the eldest daughter took place in the presence of her mother, who was also naked, adding to the humiliation and dominance that Defendant was attempting to exude. The eldest daughter even became pregnant as a result of one of the rapes and was forced to have an abortion, while only being 14 years old. The Court sentenced Defendant to 23 years and seven months’ imprisonment. It analyzed the cold and callousness with which Defendant committed his crimes and the seriousness of the crimes. The Court described Defendant’s crimes as “horrific,” noting that Defendant “treat[ed] his children as though they were less than human, as just sexual objects who existed solely to satisfy his lust . . . .” The Court further stated that “language seems quite a poor medium for conveying the depth of feeling that these crimes generate. Words such as ‘revulsion’ and ‘despicable’ seem quite inadequate in expressing the court’s and society’s denunciation of his conduct. . . . [W]hat this defendant did is wholly contrary to the values by which Hong Kong people live and the courts will reflect and affirm that fact by not just making statements condemning that conduct but by imposing sentences sufficiently severe and substantial to protect and preserve those values.”



Constitutionality of Lei Maria da Penha (Federal Domestic Violence Law ) (ADC 19 and ADI 4424) (in Portuguese) Brazilian Federal Supreme Court (2012)

Domestic and intimate partner violence, Gender discrimination, Gender-based violence in general

Following a request to Brazil’s Federal Supreme Court (Supremo Tribunal Federal or “STF”) by then-President Luiz Inácio Lula da Silva, the STF reviewed and upheld the constitutionality of the Lei Maria da Penha (“LMP”). The LMP is Brazil’s first law to address the problem of domestic violence against women on a national scale. The law’s provision for the creation of special courts, as well as the law’s differentiated protection of women, had come under scrutiny in many of Brazil’s lower courts as unconstitutional. The STF, however, has previously held that those articles were constitutional. President Silva argued that the LMP was constitutional due to Article 226, § 8 of the Federal Constitution, and Brazil’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. The Justices agreed that the LMP does not create a law of unequal treatment as between men and women, but addresses the reality of longstanding discrimination and aggression directed at women, and offers substantive mechanisms to promote equality without impinging on the rights of males. The Court also found that the provision of specialized courts is constitutional and not in conflict with state control of the local courts. Finally, with a majority vote of 10-1, the Justices held that the office of the public prosecutor can prosecute domestic violence cases even when the victim fails to appear or file a complaint against her aggressor. The majority reasoned that state intervention is necessary to guarantee the victim’s protection from the risk of ongoing violence, which may be aggravated by the victim appearing in the action against her aggressor.



Achiula v. Republic Court of Appeal of Tanzania (2012)

Sexual violence and rape, Statutory rape or defilement

The appellant’s conviction of rape and subsequent sentence of thirty years imprisonment was upheld by the High Court. He had allegedly raped an underage girl on several occasions, manipulating her with monetary bribes and threats. The appellant appealed this decision, claiming that the voire dire examination of the underage victim had been insufficient to ensure that she understood the meaning and duty to tell the truth, and that her evidence was thus not credible. He also argued that because there was no proof to corroborate the age of the victim, the charge of rape was not established. The Court dismissed the appeal, finding that the victim had demonstrated sufficient intelligence and understanding to justify the reception of her evidence. The Court also dismissed the appellant’s citation of the lack of proof of the victim’s age, pointing out that the victim’s age had been accepted as a matter of course during the trial. Finally, the Court decided that there was sufficient evidence of penetration, pointing out that “True evidence of rape has to come from the victim, if an adult, that there was no penetration and no consent, and in case of any other woman where consent is irrelevant that there was penetration."



Mtefu v. Mtefu High Court of Tanzania (1995)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the order of a lower court that he pay maintenance Tshs. 10 000 per month to his former wife. He based his appeal on the claims that his adultery was unfairly held responsible for the dissolution of the marriage and that his income could not sustain the maintenance payments dictated by the lower court. He also argued that his former wife had earned no income during the course of the marriage and thus should not be entitled to a share of the matrimonial assets. The Court dismissed the appeal. It pointed out that his wife had demonstrably objected to his adultery with her niece, noting that this was “sufficient cruelty to break the marriage”. It also noted that theirs had been a Christian marriage, which emphasized fidelity. In addition, the Court also cited the case of Bi Hawa Mohamed, which recognized “housekeeping as services requiring compensation” and the Constitution of the United Republic of Tanzania 1977, which barred discrimination, to justify the division of matrimonial assets.



Mtawa v. Risasi High Court of Tanzania (2001)

Property and inheritance rights

The appellant had lived with the deceased as husband and wife for nine years and given birth to two of his children. At his death, she asked that the estate not be distributed in accordance with Islamic law, which would have prevented her from receiving a share of the estate. The brother of the deceased challenged this, contending that she was a concubine who had no right to a share of the estate she had contributed nothing to amassing. The trial court registered a decision in favor of the appellant. It found that her relationship was the deceased fell under the presumption of marriage, and accordingly awarded her the house until either her death or marriage to another man. The brother appealed this decision and the District Court reversed the ruling of the trial court. The High Court found that the appellant and the deceased had achieved the status of a customary marriage. It also ruled that the deceased’s actions showed that he did not profess the Islamic faith and that Islamic law should thus not apply. It registered a decision that the appellant, through her contribution to the welfare of the household and family, was entitled to a share of the estate. The appellant received a half share of the house, while the other half was awarded to her children.



Kalulu v. Mahirima High Court of Tanzania (2011)

Gender discrimination, Property and inheritance rights

The father of the deceased objected to the appointment of his son’s wife as an administratrix of the will. He claimed that there was no evidence that a customary marriage had taken place between his son and the respondent or that the couple had not been divorced in the interim. He also contended that Chagga customary law on succession and inheritance barred women from administering wills. The Court dismissed his appeal. It noted even if there had not been a customary marriage between the deceased and the respondent, the duration and nature of their relationship satisfied the requirements for a presumed marriage. Furthermore, the Court cited Article 12 and 13 of the Constitution and Article 1 of CEDAW to emphasize its commitment to ending gender-based discrimination. It decided that following Chagga customary law would be discriminatory and that the deceased wife would remain as an administratrix of the will.



Mohamed v. Seifu Court of Appeal of Tanzania (1983)

Divorce and dissolution of marriage, Property and inheritance rights

The appellant appealed the ruling by the Primary and High Courts that she was not entitled to any share of the matrimonial assets amassed by her former husband during their marriage. She contended that her domestic services counted as a contribution to the acquisition of matrimonial assets. The Court noted the two schools of thought over whether household work could count as part of the joint effort in the acquisition of funds. It acknowledged the difficulties facing divorced women, but also emphasized that the role of the Court was not to forward public interests but to expound on law without judgment. The Court decided that under the Mischief Rule, the Law of Marriage Act, 1971 was intended to stop “the exploitation and oppression of married women by their husbands”. Thus, it ruled that domestic work could count as contributions to the acquisition of matrimonial assets. However, the Court noted that the appellant had squandered the money given to her by her husband to set up a family business. The Court registered a decision that this sum of money had been significant enough to constitute her share of the matrimonial assets. Because she had squandered that sum of money, she was no longer entitled to any share in the remaining matrimonial assets. The appeal was dismissed.



Marwa v. Republic Court of Appeal of Tanzania (2008)

Sexual violence and rape, Statutory rape or defilement

A secondary school teacher, convicted of raping a student and sentenced to thirty years imprisonment, appealed for the second time on the grounds that he had been framed. The Court found no justification for doubting the evidence of the witness, especially as the results from the medical examination corroborated her testimony. The Court also noted that his claim of being framed was insupportable, as there was no justification for the other witnesses to lie against him. Finally, the Court pointed out that the lack of an order for compensation offended the mandatory provisions of Section 13(1) of the Penal Code. The appeal was dismissed and the teacher ordered to pay shs. 500 000 in compensation to the student.



B., M.P. v. G., R.A. Lomas de Zamora Family Court #3 (2006)

Domestic and intimate partner violence

M.P.B. suffered repeated domestic violence and abuse at the hands of her husband R.A.G. In civil suit, M.P.B. was granted exclusive control of the spousal home and custody of her children. The court imposed a restraining order on R.A.G.; he was unable to go within 300 meters of the family home, his wife’s work, or the 9 and 12 year-old children’s school. This case is fairly punitive toward the father by Argentinean standards. The judge cited both Argentinean statutes and international human rights law in arriving at her decision.

 

M.P.B. sufrió repetida violencia doméstica y abuso a manos de su esposo R.A.G. En una demanda civil, a M.P.B. se le otorgó el control exclusivo de la casa del cónyuge y la custodia de sus hijos. El tribunal impuso una orden de restricción a R.A.G: no podía ir a menos de 300 metros del hogar familiar, del trabajo de su esposa o de la escuela de niños de 9 y 12 años. Este caso es bastante punitivo hacia el padre para los estándares argentinos. El juez citó tanto los estatutos argentinos como el derecho internacional de los derechos humanos al llegar a su decisión.



Fallo c85566 Supreme Court of Buenos Aires (2002)

Female infanticide and feticide

A married woman with three children was allowed to undergo a therapeutic abortion for an anencephalic fetus for health reasons. To do so, she had to file a request with the hospital and the court, which had a formal hearing to determine that the rights of the fetus were being respected and that the procedure was strictly for health reasons. The decision was appealed to a higher court, which affirmed the family court’s decision. They cited international law to support the decision, citing both the mother’s rights to raise a family as she saw fit and the rights of the anencephalic fetus. Along with Argentinean Supreme Court, the most cited laws were the Convención de los Derechos del Niño and the Convención Americana sobre los Derechos Humanos. While this ruling may not seem progressive by American standards, abortion is still essentially outlawed in Argentina.

 

A una mujer casada con tres hijos se le permitió someterse a un aborto terapéutico para un feto anencefálico por razones de salud. Para hacerlo, tuvo que presentar una solicitud ante el hospital y el tribunal, que tuvo una audiencia formal para determinar que se respetaban los derechos del feto y que el procedimiento era estrictamente por razones de salud. La decisión fue apelada ante un tribunal superior, que confirmó la decisión del tribunal de familia. Citaron el derecho internacional para respaldar la decisión, citando tanto los derechos de la madre de criar a una familia como consideraba oportuno como los derechos del feto anencefal. Junto con la Corte Suprema argentina, las leyes más citadas fueron la Convención de los Derechos del Niño y la Convención Americana sobre los Derechos Humanos. Si bien esta decisión puede no parecer progresista para los estándares estadounidenses, el aborto aún está esencialmente prohibido en Argentina.



OTS v. No Defendant Mendoza Supreme Court (2006)

Gender-based violence in general, Sexual violence and rape

A mentally handicapped young woman was allowed to have an abortion per article 86 of the Argentinean Penal Code. The woman was impregnated through rape. Because of the woman’s mental disorders and medication issues, it was impossible to ensure a viable child and a healthy mother. This decision also declared that article 86, which allows for abortion in the case of non-viability, can be employed at a doctor’s discretion without formal court proceedings.

A una joven con discapacidad mental se le permitió abortar su embarazo, conforme con el artículo 86 del Código Penal Argentino. La mujer fue impregnada por violación. Debido a los trastornos mentales y los problemas de medicación de la mujer, era imposible garantizar un hijo viable y una madre sana. Esta decisión también declaró que el artículo 86, que permite el aborto en caso de no viabilidad, puede emplearse a discreción de un médico sin procedimientos judiciales formales.



Matter of N., R. F. Sexual Abuse San Carlos de Bariloche Supreme Court (2010)

Gender-based violence in general, Sexual violence and rape

A seventeen-year old girl won her court petition for an abortion despite the fact that there was no issue of fetus viability. The minor had suffered repeated sexual abuse at the hands of her father and uncle for the past six years. The court reaffirmed constitutional and human rights protections for fetuses against abortions, but explained that the right to life is not protected from conception to death with the same intensity. In this case, the fact that the pregnant minor had suffered repeated sexual abuse, had passed a psychological evaluation, and was only 11 weeks pregnant were sufficient reasons to override the presumption of protection for the fetus.

 

Una niña de diecisiete años ganó su petición en la corte para un aborto a pesar del hecho de que no había ningún problema de viabilidad del feto. La menor había sufrido repetidos abusos sexuales a manos de su padre y su tío durante los últimos seis años. El tribunal reafirmó las protecciones constitucionales y de derechos humanos para los fetos contra los abortos, pero explicó que el derecho a la vida no está protegido desde la concepción hasta la muerte con la misma intensidad. En este caso, el hecho de que la menor embarazada había sufrido abuso sexual repetido, había pasado una evaluación psicológica y tenía solo 11 semanas de embarazo era razón suficiente para anular la presunción de protección para el feto.



Streanga v. Canada Federal Court of Canada (2007)

Trafficking in persons

Ms. Streanga is a citizen of Romania who was smuggled to Canada by a sex trafficking ring. After escaping from her traffickers, Ms. Streanga submitted an application for protection. Her application was denied, the deciding officer concluding that since the Romanian government had “taken serious measures” to punish those responsible for trafficking, state protection would be available to Ms. Streanga upon her return. Ms. Streanga made a motion for an order staying her removal until such time as her Application for Leave and for Judicial Review of her application could be decided. On hearing the motion, the judge found that the public pronouncements and public awareness cited by the officer, as well as services for women who have already been victimized, did not amount to state protection. The judge also found that Ms. Streanga would likely suffer irreparable harm if deported to Romania. Further, the judge found reviewable error in that the officer had applied the wrong legal test to determine state protection, and that in light of the evidence of the serious inadequacies of the Romanian police in combating and preventing human trafficking, the officer’s standard of review was flawed. The court granted the stay of removal until the deposition of the leave application, and provided that if leave was granted, the stay would remain until such time as the application for judicial review could be disposed of by the Court.



KHO 2005:87 Supreme Administrative Court (2005)

Forced and early marriage, Harmful traditional practices

The issue here was whether A should get a residence permit to Finland because of family ties. He had entered into marriage with his cousin B in Syria in 2004 who was 15 years old at the time and had lived in Finland since 1996. The Directorate of Immigration (now Finnish Immigration Service) denied A's application for residence permit. According to Section 114(1) of the Finnish Aliens Act (301/2004, as amended) (the "Aliens Act"), a residence permit is issued on the basis of family ties to a family member of a refugee or an alien who has been issued with a residence permit on the basis of the need for subsidiary protection or humanitarian protection, or who has enjoyed temporary protection if: (i) the sponsor lives in Finland or has been issued with a residence permit for the purpose of moving to Finland; and (ii) the applicant is not considered a danger to public order, security or health. According to Section 4 of the Finnish Marriage Act (234/1929, as amended) (the "Marriage Act"), (i) a person under 18 years of age shall not marry, (ii) The Ministry of Justice may, however, for special reasons grant a person under 18 years of age a dispensation to marry. Before the matter is decided, the custodian of the applicant shall be reserved an opportunity to be heard if his or her whereabouts can be determined with reasonable measures. The Directorate of Immigration considered that the marriage was against Finnish law and not valid. Hence A could not be considered a family member in accordance with the Aliens Act.  The Administrative Court reversed the Directorate of Immigration's decision.  It held that the marriage was made under Syrian law and the fact that B was under age according to the Finnish law did not matter in this case. Also taking into account the religion, culture and traditions of B and her family, the Court found that issuing permit of residence would not be against the interest of the child. On appeal from the decision of the Administrative Court, the Supreme Administrative Court concluded that the fact that some countries allow underage marriages does not mean that such marriages can be the basis for a residence permit in the same way as are marriages between consenting adults. Although Section 115(1) of the Marriage Act generally recognizes the validity of marriages concluded in other countries, the law contains an exception where the application of a foreign provision would have an outcome contrary to Finnish public policy (ordre public (Section 139 (2) of the Marriage Act). Taking into account Article 1(1) of the Convention on Consent to Marriage, Minimum Age For Marriage, and Registration of Marriages; Article 23(3) of the International Covenant on Civil and Political Rights (ICCPR); and Article 16(1)(6) and (2) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Court held that it was not possible to use culture to justify marrying B to a person whom she is claimed to have met when she was a small child and taking her into a country where she does not have any family ties. Marrying a child and applying for permit of residence on the basis of this marriage can be seen as intention to evade the provision on entry into or residence in the country (Section 36(2) of the Aliens Act). On these grounds, the Supreme Administrative Court held that the decision of the Administrative Court would be revised and the decision of the Directorate of Immigration would be enforced.



Mario Ramón González Cáceres, Raúl Antonio Maidana Duarte y Carolina Maidina Duarte sobre trata de personas en Independencia, Paraguay Court of Appeal of Paraguay (2005)

Trafficking in persons

Defendants were convicted in a Paraguayan trial court for mistreatment of persons, in violation of Article 129 of the Penal Code, for deceiving several women into thinking that the defendants had found them jobs as grocery store cashiers in Spain, and then trying to force the women to work at a brothel upon arrival in Spain. The Appellate Court reversed the conviction, saying the trial court lacked jurisdiction because in a case where a crime begins in one jurisdiction and is completed in another, the latter jurisdiction, in this case Spain, should hear the case. The Supreme Court, Penal division, disagreed with the appellate court, holding that the trial court did have jurisdiction, and further held that the conviction was consistent with Article 6 of the American Convention on Human Rights (“Pact of San Jose”), Article 8 of the International Pact of Civil and Political Rights, Articles 2 and 3 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, and Articles 3 and 5 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children.



Carmichele v. Minister of Safety and Security Constitutional Court of South Africa (2001)

International law, Sexual violence and rape

The applicant was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman. Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had recommended that the man be released pending trial. The applicant sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal duty they owed to her to take steps to prevent the man from causing her harm. The High Court dismissed the applicant's claim and the Supreme Court of Appeal affirmed, holding that the police and prosecution did not owe her a duty of protection. On appeal, the Constitutional Court set aside the orders of the lower courts and remanded the case to the High Court for trial. It held that the State is obligated by the Constitution and international law to protect the dignity and security of women and in the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability. The Court also held that prosecutors, who are under a duty to place before the court any information relevant to the refusal or grant of bail, may be held liable for negligently failing to fulfill that duty.



Sentencia C-322/06 Constitutional Court of Colombia (2006)

Gender-based violence in general

The Court was asked to reexamine the domestic implications of Colombia's adoption of the CEDAW. Those opposing the CEDAW argued that its adoption would have grave consequences and be inconsistent with the Colombian Constitution. The Court affirmed the constitutionality of Colombia's participation in the CEDAW.



International Case Law

The Prosecutor v. Jean-Pierre Bemba Gombo International Criminal Court (2016)

Sexual violence and rape

Mr. Bemba was president of the “Movement for the Liberation of the Congo” (“MLC”) and Commander-in-Chief of its military unit, the Armée de Libération du Congo (“ALC”), in the Democratic Republic of Congo (“DRC”).  In these roles, Mr. Bemba had effective authority and control over the MLC, as well as the ALC troops.  The ICC found Mr. Bemba criminally responsible for rape, both as a war crime and a crime against humanity, committed by his armed forces during the course of the 2002-2003 U.N. peacekeeping mission in the Central African Republic (“CAR”).  The ICC held that Mr. Bemba failed to take all necessary and reasonable measures to prevent or repress the commission of such crimes by his armed forces.  This decision is important because it represents the ICC’s first verdict to hold that leaders are accountable for the crimes perpetrated by their subordinates.  By employing the doctrine of command responsibility, the ICC’s goal is to prevent leaders from avoiding repercussions for crimes (including sexual crimes) that are committed by the troops under their control.



R.P.B. v. The Philippines CEDAW Committee (2014)

Gender discrimination, Sexual violence and rape

R.P.B., a Filipina national born in 1989 who is both deaf and mute, was raped by her 19-year-old neighbor in 2006. The case remained at the trial court level for five years before the Regional Trial Court of Pasig City acquitted the defendant in 2011. Similar to a previous case from the Philippines heard by the CEDAW Committee in 2008, Karen Tayag Vetrido v. The Philippines, the Court again declined to apply Filipino Supreme Court precedent. Instead, the Court relied on gender-based myths and stereotypes about rape and rape victims, finding that the victim should have used every opportunity to escape or resist her attacker. In addition, State authorities did not provide any interpretation for R.P.B. In her complaint to the Committee on the Elimination of Discrimination Against Women, R.P.B. argued that the Court’s actions violated article 1, and article 2(c), (d), and (f) of the Convention on the Elimination of All Forms of Discrimination against Women. In addition to relying on gender based myths and stereotypes, R.P.B. also argued that the Court failed to provided her with accessibility, on an equal basis with other victims, to the court, as a woman who is also deaf and mute. The Committee held that the provision of sign language interpretation was essential to ensure R.P.B’s full and equal participation in the proceedings, in compliance with article 2(c) and 2(d) of the Convention. Further, the Committee held that the State party erred in relying on gender-based stereotyping, which resulted in sex and gender-based discrimination and disregard for the individual circumstances of the case, such as R.P.B’s disability and age. The Committee recommended that the State provide R.P.B. with the appropriate compensation and free-of-charge counseling, review the existing law and remove any requirement that sexual assault be committed by force or violence, guarantee the free and adequate assistance of interpreters, ensure that all criminal proceedings involving rape and other sexual offences are conducted in an impartial and fair manner, free from prejudices or stereotypical notions regarding the victim’s gender, age and disability, and provide adequate and regular training on the Convention, the Optional Protocol and the Committee’s general recommendations.



Elisabeth de Blok et al. v. The Netherlands CEDAW Committee (2014)

Employment discrimination, Gender discrimination

Elisabeth de Blok and five other nationals of the Netherlands are self-employed women who gave birth between 2005 and 2006. Until 31 July 2004, self-employed persons were compulsorily insured against the risk of loss of income as a result of incapacity for work under the Incapacity Insurance Act. Under the Work and Care Act, self-employed women were also entitled to a State maternity benefits. On August 1, 2004, the Discontinuation of Access to Incapacity Insurance Act entered into force, ending the entitlement of self-employed women to maternity benefits. The six self-employed women complained to the District Court of The Hague, claiming that the State should have ensured an adequate maternity benefit scheme in keeping with article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination against Women. The District Court declared the claim unfounded. The Court of Appeal of The Hague upheld the judgment. The Supreme Court dismissed the appeal, ruling that the provisions of article 11(2)(b) of the Convention were insufficiently precise, thus making them unsuitable for direct application by national courts. In their complaint to the Committee on the Elimination of Discrimination Against Women, the six women argued that the State party violated their rights under article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination Against Women by removing the existing maternity leave scheme applicable to self-employed women up to 2004. The Committee held that article 11(2)(b) is applicable also to self-employed women and not to female employees exclusively. Further, the Committee held that, contrary to the State party’s view, the provision was directly applicable. The Committee concluded that the State party’s failure to provide maternity benefits affected pregnant women adversely and therefore constituted direct sex and gender-based discrimination against women. The Committee recommended that the State party provide reparation, including monetary compensation, for the loss of maternity benefits to the six women. The Committee noted that the Sate party amended its legislation in June 2008 to ensure that a maternity leave scheme is available also to self-employed women. However, the Committee invited the State party to address and redress the situation of women similarly situated to the authors, who are self-employed and gave birth between 1 August 2004 and 4 June 2008, when no compensation scheme for self-employed women was in place.



L.N.P. v. Argentina Human Rights Committee (2007)

Gender discrimination, Statutory rape or defilement

A 15-year-old girl, P, was allegedly sexually assaulted by three men. She immediately reported the attack to the police, but was kept waiting for hours at the police station and a medical center before being performed anal and vaginal palpations which caused her intense pain and despite complaining the sole anal nature of the attack. A social worker was sent to interview P's neighbors and relatives about her sexual history and morals during the investigation, leasing aside the three accused. The three accused were acquitted following a trial solely in Spanish despite the first language of P and several of the witnesses was Qom, and in which great reliance was placed on P's sexual history by the prosecution and the judge. P was not notified of her rights to participate in the trial nor of the outcome of the trial and she only became aware of the acquittal after two years and was unable to appeal. The Human Rights Committee found violations of Articles 2(3), 3, 7, 14(1), 17, 24, 26 of the Convention. The Committee found that the police, medical examiner and the court did not provide appropriate protections to P's age, discriminated against her in the emphasis that was placed on her sexual history, and denied her right of access to the courts when she was not informed of her legal rights. It also found that the events at the police station and the medical examination constituted inhumane or degrading treatment, and that the investigation had arbitrarily interfered with P's private life. The Committee called on the State to guarantee access for victims, including victims of sexual assault, to the courts in conditions of equality in the future. However the operative gender stereotypes, including that as a young women from a marginalized ethnic minority group, she was sexually promiscuous, which contributed towards the acquittal of the accused of the rape were unnamed, leaving the role of the stereotypes in discriminating against similar victims and their rights unaddressed.

 

Una niña de 15 años, P, presuntamente fue agredida sexualmente por tres hombres. Ella informó de inmediato del ataque a la policía, pero se mantuvo esperando durante horas en la estación de policía y en un centro médico antes de que se realizaran las palpaciones anales y vaginales, lo que le causó un dolor intenso, además ella especificó la naturaleza anal única del ataque. Se envió a una trabajadora social para entrevistar a los vecinos y familiares de P sobre su historial sexual y su moral durante la investigación, dejando a un lado a los tres acusados. Los tres acusados fueron absueltos después de un juicio únicamente en español a pesar del primer idioma de P y varios de los testigos era Qom, y en los que la fiscalía y el juez depositaron una gran confianza en la historia sexual de P. P no fue notificada de sus derechos a participar en el juicio ni del resultado del juicio y solo se enteró de la absolución después de dos años, cuando ya era muy tarde para apelar. El Comité de Derechos Humanos encontró violaciones de los artículos 2 (3), 3, 7, 14 (1), 17, 24, 26 de la Convención. El Comité determinó que la policía, el médico forense, y el tribunal no proporcionaron las protecciones adecuadas a la edad de P, la discriminaron por el énfasis que le pusieron en su historial sexual y negaron su derecho de acceso a los tribunales cuando no se le informó de sus derechos legales. También encontró que los eventos en la estación de policía y el examen médico constituían un trato inhumano y degradante, y que la investigación había interferido arbitrariamente en la vida privada de P. El Comité pidió al Estado que garantice el acceso de las víctimas, incluidas las víctimas de agresión sexual, a los tribunales en condiciones de igualdad en el futuro. Sin embargo, los estereotipos operativos de género, incluyendo que como mujeres jóvenes de un grupo minoritario étnico marginado, la tacharon como sexualmente promiscua, lo que contribuyó a la absolución de las acusadas de la violación no fue identificado, dejando el papel de los estereotipos en la discriminación contra víctimas similares y sus derechos no defendidos. 



Zoilamérica Narváez Murillo v. Nicaragua Inter-American Commission on Human Rights (2009)

Sexual harassment, Sexual violence and rape

Ms. Zoilamérica Narváez Murillo suffered physical (sexual abuse, rape, and sexual harassment) and psychological violence by her adoptive father, Mr. Daniel Ortega Saavedra. Mr. Ortega was a deputy in Nicaragua’s National Assembly and protected by congressional immunity from charges against him. The Inter-American Commission on Human Rights (IACHR) held in 2001 that it had competence to review Ms. Murillo’s petition. The IACHR withheld on deciding the case on the merits in hopes that the parties would amicably come to a settlement. On June 9, 2009, Ms. Murillo sent a communication to the IACHR, which expressed her willingness to withdraw the lawsuit against the state of Nicaragua. Ms. Murillo requested that the IACHR keep the reasons of her amicable withdraw confidential.

La Sra. Zoilamérica Narváez Murillo sufrió violencia física (abuso sexual, violación y acoso sexual) y violencia psicológica por parte de su padre adoptivo, el Sr. Daniel Ortega Saavedra. El Sr. Ortega era diputado en la Asamblea Nacional de Nicaragua y estaba protegido por la inmunidad del Congreso de los cargos en su contra. La Comisión Interamericana de Derechos Humanos (CIDH) sostuvo en 2001 que tenía competencia para revisar la petición de la Sra. Murillo. La CIDH se negó a decidir el caso en cuanto al fondo con la esperanza de que las partes llegaran a un acuerdo amistoso. En efecto, el 9 de junio de 2009, la Sra. Murillo envió una comunicación a la CIDH, que expresaba su disposición a retirar la demanda contra el estado de Nicaragua. La Sra. Murillo solicitó a la CIDH que mantuviera la confidencialidad de los motivos de su retiro amistoso.



Hadijatou Mani Koraou v. Republic of Niger ECOWAS Community Court of Justice (2008)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Trafficking in persons

Hadijatou Mani, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her master under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, Hadijatou brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that Hadijatou had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict Hadijatou’s former master, Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.



Zoilamérica Narváez Murillo v. Nicaragua Inter-American Commission on Human Rights (2001)

Sexual harassment, Sexual violence and rape

Ms. Zoilamérica Narváez Murillo suffered physical (sexual abuse, rape, and sexual harassment) and psychological violence by her adoptive father, Mr. Daniel Ortega Saavedra. Mr. Ortega was a deputy in Nicaragua’s National Assembly and protected by congressional immunity from charges against him. Ms. Murillo argued to the Inter-American Commission on Human Rights (IACHR) that the Nicaraguan state denied her from enjoying access to justice for the restitution of her violated rights. The IACHR decided on whether Ms. Murillo adequately exhausted domestic remedies, which would then allow the IACHR to competently review her petition. Ms. Murillo claimed to have exhausted domestic remedies by filing suit against Mr. Daniel Ortega with the First District Criminal Court in Managua while at the same time requesting the National Assembly to suspend Mr. Ortega’s congressional immunity. The Nicaraguan State argued that Ms. Murillo did not fully exhaust domestic remedies because the National Assembly created a Special Commission to determine Mr. Ortega’s immunity and because Ms. Murillo did not file for amparo relief against the National Assembly Steering Committee’s resolutions. The IACHR held that waiting over three years for the National Assembly to reply to Ms. Murillo’s request for suspension of Mr. Ortega’s immunity was not an appropriate judicial remedy. Although all domestic remedies were not exhausted, Ms. Murillo did adequately seek available domestic judicial redress; therefore, full exhaustion of domestic remedies was not needed to determine the competency of the IACHR. Further, the IACHR held that Ms. Murillo’s petition met the admissibility requirements and that the IACHR was competent to review this case.

 

La Sra. Zoilamérica Narváez Murillo sufrió violencia física (abuso sexual, violación y acoso sexual) y violencia psicológica por parte de su padre adoptivo, el Sr. Daniel Ortega Saavedra. El Sr. Ortega era diputado en la Asamblea Nacional de Nicaragua y estaba protegido por la inmunidad del Congreso de los cargos en su contra. La Sra. Murillo argumentó ante la Comisión Interamericana de Derechos Humanos (CIDH) que el estado nicaragüense le negó el acceso a la justicia para la restitución de sus derechos violados. La CIDH analizó si la Sra. Murillo habia agotado adecuadamente los recursos internos, lo que permitiría a la CIDH revisar de manera competente su petición. La Sra. Murillo afirmó haber agotado los recursos internos al presentar una demanda contra el Sr. Daniel Ortega ante el Tribunal Penal del Primer Distrito en Managua, mientras que al mismo tiempo le pedía a la Asamblea Nacional que suspendiera la inmunidad de él. El Estado nicaragüense argumentó que la Sra. Murillo no agotó completamente los recursos internos porque la Asamblea Nacional creó una Comisión Especial para determinar la inmunidad del Sr. Ortega y porque la Sra. Murillo no presentó una demanda de amparo contra las resoluciones del Comité Directivo de la Asamblea Nacional. La CIDH sostuvo que esperar tres años antes de que la Asamblea Nacional respondiera a la solicitud de suspensión de la inmunidad de Ortega por parte de la Sra. Murillo no era un recurso judicial apropiado. Aunque no se agotaron todos los recursos internos, la Sra. Murillo buscó adecuadamente la reparación judicial interna disponible; por lo tanto, el agotamiento total de los recursos internos no fue necesario para evaluar la competencia de la CIDH. Además, la CIDH sostuvo que la petición de la Sra. Murillo cumplía con los requisitos de admisibilidad y que la CIDH era competente para revisar este caso.



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.



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.



Diene Kaba v. Canada Human Rights Committee (2008)

Domestic and intimate partner violence, Female infanticide and feticide, Forced and early marriage, Harmful traditional practices

Diene Kaba was severely beaten by her husband when she intervened to prevent the clitoral excision of her six-year-old daughter. Both mother and daughter fled Guinea and arrived in Canada where Kaba claimed refugee status for herself and her daughter on the grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of her daughter’s excision. The Immigration and Refugee Board (IRB) refused to grant refugee status for lack of credibility. Kaba then applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations, as well as a pre-removal risk assessment. The IRB rejected both applications and ordered her removal from Canada. Kaba included supporting documents in each application, including reports confirming the risk of excision in Guinea and a letter from her uncle in Guinea that attested to her husband’s threats to harm Kaba if he ever saw her again, or kill her if she did not return his daughter to him. Kaba’s husband had subsequently obtained a court order forcing Kaba’s brother and mother to do everything possible on pain of severe penalties to return his daughter to him in Guinea. The affidavits for the order show that Kaba’s daughter faced certain excision and forced marriage upon her return to Guinea. In her complaint to the Committee, Kaba cited violations of several articles of the International Covenant on Civil and Political Rights, including article 7 prohibiting torture and cruel, inhuman, and degrading treatment or punishment. The Committee held that there was no question that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant, and although Kaba’s daughter was fifteen at the time the Committee addressed the communication, the context and particular circumstances of her case demonstrated a real risk of genital mutilation upon her forced return to Guinea.



Karen Noelia Llantov Huaman v. Peru Human Rights Committee (2005)

Gender discrimination

Karen Noelia Llantoy Huamán, a 17-year-old Peruvian, decided to terminate her pregnancy when she discovered that carrying her anencephalic fetus to term would pose serious risks to her health. When she arrived at Archbishop Loayza National Hospital in Lima to obtain the abortion procedure, the hospital director refused to allow the procedure because article 119 of the Criminal Code permitted therapeutic abortions solely when termination was the only way of saving the mother’s life or avoiding serious and permanent damage to her health. Huamán gave birth to an anencephalic daughter who died four days later, causing Huamán to fall into a deep depression. In her complaint to the Committee, Huamán asserted that by forcing her to continue her pregnancy, the hospital caused her not only physical pain but mental suffering in violation of article 7 of the Covenant on Civil and Political Rights prohibiting cruel and inhuman treatment. Huamán also cited a violation of article 17, which protects women from interference in decisions that affect their bodies, lives, and opportunity to exercise their reproductive rights. Finally, she claimed that Peru’s failure to adopt economic, social, and cultural measures to safeguard her rights under article 17 was tantamount to a violation of article 24 of the Covenant. The Committee concluded that the State’s refusal to allow Huamán to obtain a therapeutic abortion was the direct cause of the suffering she experienced, and that the protection from physical pain and mental suffering under article 7 is particularly important in the case of minors. The Committee noted that Huamán’s case presented the conditions for a lawful abortion, and the refusal to act in accordance with her wishes to terminate the pregnancy equated to a violation of article 17. Finally, in the absence of any information from Peru on Huamán’s claim that she did not receive the medical and psychological support necessary during her pregnancy, the Committee found that the facts presented reveal a violation of article 24 which guarantees State protection to minors.



Saadia Ali v. Tunisia CAT Committee (2008)

Gender-based violence in general

Saadia Ali, a dual French/Tunisian citizen, was attempting to obtain an official document from the court of first instance in Tunis when she was taken into custody, stripped of her clothing, and beaten by a prison guard in front of fifty male prisoners for verbally criticizing a Tunisian public official. Upon regaining consciousness, Ali was given a summary trial without due process and a suspended sentence of three months imprisonment for attacking a public official. Ali’s lawyer initiated a complaint with the office of the State prosecutor, which rejected the complaint without further explanation. In her complaint to the Committee Against Torture, Ali alleged violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT), and cited violations of internationally recognized standards on the administration of justice and articles 25 and 26 of Tunisia’s Code of Criminal Procedure. The Committee held that Tunisia’s actions towards Ali were tantamount to torture and violated articles 1, 12, 13, 14, and 16 of the Convention. The deliberate infliction of severe pain and suffering upon Ali by Tunisian public officials constituted torture under article 1 and cruel, unusual, or degrading treatment within the meaning of article 16. The Committee also held that the State’s dismissal of the complaint and delay in investigating Ali’s case established a violation of articles 12 and 13, under which a State has the obligation to promptly investigate allegations of torture. The State’s failure to act on the complaint and immediately launch an investigation equated to a breach of the State’s obligations under article 14 to provide redress to victims of torture in the form of restitution, compensation, and rehabilitation.



C.T. v. Sweden CAT Committee (2006)

Sexual violence and rape

C. T., a Hutu citizen of Rwanda and a member of the PDR-Ubuyanja party, was arrested for her political affiliations and incarcerated in a Kigali prison. While incarcerated, she was repeatedly raped, under the threat of execution if she did not comply, and become pregnant. C. T. escaped to Sweden and requested asylum for herself and her son; her request was denied by the Migration Board for lack of credibility. She filed a complaint with the Committee Against Torture, arguing that her forced return to Rwanda would subject her to further human rights violations and possibly result in her death. The Committee Against Torture held that C. T.’s removal to Rwanda would constitute a violation of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which obligates state parties not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Addressing the issue of C. T.’s credibility, the Committee invoked its prior holding that victims of torture cannot be held to a standard of complete accuracy when recalling the facts of their experience, and held that domestic authorities erred in ignoring medical reports appended to the complaint which substantiated C. T.’s claims of rape and torture. The Committee concluded that given the continued state of ethnic tension in Rwanda and C. T.’s past victimization, return to Rwanda presented a foreseeable, real, and personal risk of danger for C. T. and her son.



A.S. v. Hungary CEDAW Committee (2006)

Forced sterilization

Andrea Szijjarto was sterilized without her informed consent by a Hungarian hospital during an emergency cesarean section procedure. While in a state of shock due to blood loss, Szijjarto was asked to provide her written consent to tubal ligation by signing an illegible hand-written note describing the procedure in terms she did not understand. Szijjarto charged the hospital with negligence in failing to obtain her full and informed consent to the coerced sterilization. Both the town and county courts held that the hospital was at least partially negligent in its legal duties to Szijjarto, but rejected her claim and appeal for failure to prove a lasting handicap and causal relationship between permanent loss of reproductive capacity and the conduct of the hospital’s doctors. The Committee on the Elimination of Discrimination Against Women held that Hungary violated Szijjarto’s rights under article 10(h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on access to information on family planning, article 12 guaranteeing women appropriate medical services in connection with pregnancy, and paragraph 1(e) of article 16 on a woman’s right to freely choose the number and spacing of her children. The Committee recognized the serious consequences of coercive practices including forced sterilization under its General Recommendation No. 21, and held that the Hungary had violated Szijjarto’s right to information on family planning and the sterilization procedure. The Committee also held that lack of informed consent constituted a breach of the obligation under article 12 and General Recommendation No. 24 to ensure the delivery of acceptable medical services in a manner that respects a woman’s dignity. Accordingly, the Committee recommended the State provide compensation to Szijjarto and amend its Public Health Act allowing doctors’ discretion to administer sterilization procedures when “appropriate in given circumstances.”



A.S. v. Sweden CAT Committee (2000)

Domestic and intimate partner violence, Gender discrimination

A.S.’s husband was mysteriously killed during training with the Iranian Air Force, and the Iranian government subsequently declared him to be a martyr. As the widow of a martyr, A.S. was required to submit to the rigid rules of the Bonyad-e Shahid Islamic society, a foundation which supported and supervised the families of martyrs. In accordance with the aims of Bonyad-e Shahid, a high-ranking leader forced A.S. to be his wife in a sigheh marriage, a temporary marital arrangement that requires no registration or witnesses and is used as a measure to prevent women from being sexually active outside of marriage. A.S. was forced to live with her sigheh husband and perform sexual services for him at his command. A.S. later fell in love with a Christian man, and when the two were discovered together by the Iranian Revolutionary Guards, A.S. was taken into custody at the Ozghol police station in Tehran. A.S. was severely beaten by her sigheh husband for five to six hours. A.S. managed to obtain a visa to visit her sister in Sweden, and upon her arrival she applied for asylum; her application was rejected by both the Swedish Immigration Board and the Aliens Appeal Board. Since her departure from Iran, A.S. had been sentenced to death by stoning for adultery. In her complaint to the Committee, A.S. alleged that her forced return to Iran would constitute a violation of Sweden’s article 3 obligation not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The Committee referred to the report of the Special Representative of the Commission on Human Rights on the situation of human rights in Iran which confirmed that Iran had recently sentenced several married women to death by stoning for adultery. Considering that A.S.’s account of events was consistent with the Committee’s knowledge about present human rights violations in Iran, the Committee held that in accordance with article 3 of the Convention, Sweden should refrain from forcing A.S. to return to Iran.



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.



Goekce v. Austria CEDAW Committee (2007)

Domestic and intimate partner violence

Sahide Goekce’s husband shot and killed her in front of their two daughters in 2002. Before her death, Ms. Goekce had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The Vienna Public Prosecutor denied police requests to detain Mr. Goekce, and stopped the prosecution against him on the basis of insufficient grounds of prosecution two days before Ms. Goekce’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in Ms. Goekce’s death. The complaint to the Committee on behalf of the decedent stated that Austria’s Federal Act for the Protection against Violence within the Family provides ineffective protection for victims of repeated, severe spousal abuse and that women are disproportionately affected by the State’s failure to prosecute and take seriously reports of domestic violence. The Committee found that although Austria has established a comprehensive model to address domestic violence, it is necessary for State actors to investigate reports of this crime with due diligence to effectively provide redress and protection. The Committee concluded that the police knew or should have know that Ms. Goekce was in serious danger, and were therefore accountable for failing to exercise due diligence in protecting her. By allowing the perpetrator’s rights to supersede Ms. Goekce’s human rights to life and to physical and mental integrity, Austrian law enforcement violated it obligations under article 2 to end gender discrimination through the modification or enactment of appropriate legislation, and its article 3 obligation to guarantee women’s exercise and enjoyment of human rights and fundamental freedom on a basis of equality with men. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for failure to do so.



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.



Democratic Republic of Congo v. Republics of Burundi, Rwanda, and Uganda African Commission on Human and Peoples' Rights (2003)

Sexual violence and rape, Gender violence in conflict

The armed forces of Burundi, Rwanda, and Uganda engaged in systematic violence against the people of the Democratic Republic of Congo (the DRC). As part of that violence, approximately 2,000 HIV-positive Rwandan and Ugandan soldiers raped Congolese women and young girls in order to spread AIDS to the Congolese population. The DRC brought the complaint asserting, among other things, that the mass rape and deliberate infection of women and girls with HIV constituted a violation of human rights under the African Charter. The respondents did not deny the occurrence of mass rape and infection, but responded that "there is never group responsibility for violations" like rape. The Commission noted that the mass rape of women and girls as a tool of systematic violence violated article 76 of the first Protocol Additional to the Geneva Conventions of 1949, which provides that "[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other forms of indecent assault" and also "offend[ed] the African Charter and the Convention on the Elimination of All Forms of Discrimination Against Women." It therefore held that this offense violated articles 60 and 61 of the African Charter, which enable the African Commission to draw inspiration from international law on human and peoples' rights and take into consideration general principles of law, such as the humanitarian law principles contained in the Geneva Conventions. The Commission urged the respondent states to abide by their obligations under the African Charter and other applicable international and regional law and immediately withdraw their armed forces from the DRC. The Commission also requested that adequate reparations be paid to the DRC for and on behalf of the victims of the human rights violations.


Legislation

Rome Statute of the International Criminal Court International Criminal Court (1998)

Femicide, Forced and early marriage, Forced sterilization, Gender discrimination, Gender violence in conflict, Sexual violence and rape, Trafficking in persons

The intention behind the Rome Statute of 2002 (“Rome Statute” or “Statute”) in establishing the International Criminal Court (“ICC”) is to prosecute the most serious crimes of international concern and to end impunity.  The Rome Statute is significant in being the first international criminal law instrument that recognises forms of sexual violence, such as rape, sexual slavery, enforced prostitution, and enforced sterilization, as distinct war crimes.  This legal instrument is also novel in prescribing gender-based crimes as the basis of war crimes or crimes against humanity committed during armed conflicts.  In particular, the Statute gives the ICC jurisdiction over gender-based crimes if they constitute acts of genocide.  In this case the crimes, such as rape, can be an integral part of the destruction inflicted upon the targeted groups and may be charged as genocide.  The Prosecutor must further apply and interpret the Statute in line with internationally recognised human rights, including women’s human rights and gender equality.  The States Parties should also consider the need to appoint judges with legal expertise on violence against women or children.



Reports

UNIFEM: Progress of the World's Women (2009)

Gender-based violence in general

This UNIFEM Report focuses on the urgent need to strengthen accountability to women.


Costing and Financing 1325 (2010)

Gender-based violence in general

Global Network of Women Peacebuilders report on the Resources Needed to Implement UN Security Council Resolution 1325 at the National Level as well as the Gains, Gaps and Glitches on Financing the Women, Peace and Security Agenda.


GENDER 2010 Report Card on the International Criminal Court (2011)

Gender discrimination, Sexual violence and rape, Harmful traditional practices

Report by The Women's Initiatives for Gender Justice assessing the implementation by the ICC of the Rome Statute, Rules of Procedure, Evidence and Elements of Crimes, and in the gender mandates they embody.


Global Financial and Economic Crisis and its Impact on Women: a Human Rights Perspective (2008)

Gender discrimination

Report by Programme on Women's Economic, Social and Cultural Rights (PWESCR)on a South Asian Regional workshop hosted by PWESCR, UNWomen and Heinrich Boll Foundation, presenting a gendered view of human rights in South Asia (2010).


Handbook for Legislation on Violence Against Women (2010)

Gender discrimination

Department of Economic and Social Affairs, Division for the Advancement of Women



Rape and sexual violence: Human rights law and standards in the International Criminal Court (2011)

Sexual violence and rape

Report by Amnesty International on identifying how the crimes of rape and sexual violence must, as a requirement of its own statute and a matter of international human rights law, be interpreted and applied with equality between men and women by the International Criminal Court (March, 2011).


In Pursuit of Peace (2010)

Gender discrimination

Launched in tandem with the June 2010 Review Conference of the Rome Statute of the International Criminal Court; includes recommendations for improving gender sensitivity at the ICC, and particular statements by activists from DR Congo, Central African Republic and Uganda.


Reference Guides

Checklist for Domestic Application of International Law (2010)

Gender-based violence in general

This reference guide aims to assist judges and other legal professionals in applying international law in domestic courts.


Articles

The Gender Jurisprudence of the Special Court for Sierra Leone: Progress in the Revolutionary United Front Judgments (2011)

Gender-based violence in general

By Valerie Oosterveld. 44 CORNELL INT'L L.J. 1 (2011). Copyright 2011 by the Cornell International Law Journal.