Women and Justice: Keywords

International Case Law

Comunidad Indígena Xákmok Kásek v. Paraguay Inter-American Court of Human Rights (2010)

Property and inheritance rights

The Indigenous Community Xákmok Kásek and its members sued Paraguay because of its inability to recover certain ancestral property. The Community claimed that this lack of access to property and possession of its territory, in addition to threatening the survival of the Community, resulted in nutritional, medical and health vulnerability to its members, causing, among other things, the death of pregnant women, children, and the elderly. The court found Paraguay in violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (personal integrity), 8.1 (Trial), 19 (Rights of the Child), 21 (Right to Property) and 25 (Judicial Protection) of the Convention, in relation to the obligations established in Articles 1.1 (Obligation to Respect Rights) and 2 (duty to adopt domestic law). The court ordered Paraguay to engage in a series of reparation measures, including returning land to the Community, damages and undertakings not to repeat such conduct and to assist the Community with rehabilitation. Among other measures ordered by the court, Paraguay must provide immediate “special care to women who are pregnant, both before birth and during the first months thereafter, and the newborn.”

Case of the Yakye Axa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2005)

Property and inheritance rights

The Inter-American Commission on Human Rights alleged that, by not respecting ancestral property rights, the Government of Paraguay threatened the Yakye Axa Indigenous Community’s access to food, water and health care, and survival in violation of Articles 4 (right to life), 8 (right to fair trial), 21 (right to property) and 25 (judicial protection) of the American Convention on Human Rights. The court noted several specific examples of dangers faced by the women of the Community, including instances in which a woman was threatened by a man wielding a shotgun and another in which a woman was sexually exploited by State workers. The court noted that Paraguay was obligated to take into account the economic and social characteristics, special vulnerability, and customary laws, values and customs of indigenous peoples in order to effectively protect them, and found that Paraguay’s delay in recognizing the Community’s leadership, legal status and claims to land violated the Community’s rights to judicial protection, a fair trial, property, and ultimately a decent life. The court also found that the Community had a right to be granted legal status in order to take advantage of its members’ full rights as a people, and that Paraguay’s ongoing refusal to recognize that status was a violation of this right. As such, the court ordered that Paraguay provide the Community – “especially children, the elderly and pregnant women” -- with reparations, including compensation, food and water, sanitation, access to health care, and rightful title to their traditional territory.

Domestic Case Law

Case of Lucia Sandoval Prosecution Appeal Court (Fiscalía apelará del tribunal) (2014)

Domestic and intimate partner violence, Gender discrimination

On August 27, 2014 Lucia Sandoval was acquitted after the court found insufficient evidence of her involvement in her husband’s death. In 2011, Sandoval was charged for the intended homicide of her husband. She subsequently spent over three years in prison awaiting trial. The incident that formed the basis for the charges took place on February 11, 2011, when Lucia Sandoval informed her husband that she had filed a complaint of domestic violence and had obtained a restraining order against him, which required him to leave their home. Sandoval’s husband responded violently and threatened her with a gun. When Sandoval tried to escape, a physical fight ensued and the gun was fired, resulting in her husband’s death. Amnesty International Paraguay, the Committee of Latin America and the Caribbean for the Defense of Women’s Rights (CLADEM) and Catholics for the Right to Decide (CDD Paraguay) helped advocate as to Sandoval’s innocence. These organizations claimed that “the first failure of the judicial system was that protection measures [for] . . . Sandoval were not applied. The court gave the [restraining] order to Sandoval, instead of sending the notice to the Police for it to be given to [her] husband.” The organizations noted that Paraguay had passed a law against domestic violence in 2000 but contended that the law “does not comprehensively address the problem, no[r] does it allow for a coordinated and coherent system in the country to collect data about gendered violence.” It should be noted that in 2013, the Human Rights Commission at the United Nations recommended that Paraguay implement a law to “prevent, punish, and eradicate gender violence, as well as assure that complain[t]s of domestic violence are effectively investigated, with perpetrators being punished appropriately and the survivors receiving attention and compensation.” Background information available at http://blog.amnestyusa.org/americas/victory-in-paraguay-is-a-big-step-fo... http://www.cladem.org/paraguay/Lucia-Sandoval-absuelta.pdf http://www.justice.gov/eoir/vll/country/amnesty_international/2014/Peru.pdf https://www.youtube.com/watch?v=Hk6bjsNKmrM

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.

Oscar Eugenio Paniagua Batochi s/ Coacción Sexual en San Juan Neponuceno Sala de Acuerdos los Señores Ministros de la Excelentísima Corte Suprema de Justicia Sala Penal (2005)

Sexual violence and rape

The Supreme Court, Penal division, upheld the conviction of a defendant who raped his stepdaughter under threat of death or grievous injury. The Court held that the conviction was consistent with Article 54 of the National Constitution, Article 19 of the American Convention on Human Rights ("Pact of San Jose"), Article 24 of the International Pact of Civil and Political Rights, Article 19 of the Convention on the Rights of the Child, Article 3 of the Code of Children and Adolescents, and Article 1 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.