Women and Justice: Keywords

International Case Law

P. and S. v. Poland European Court of Human Rights (2012)

Sexual violence and rape

The applicants, P. and S., were daughter and mother. P., a fourteen-year-old girl, was raped and impregnated by a classmate. Abortion in Poland is available in the case of rape so in May 2008 P. received a certificate from the public prosecutor to allow her to get a legal abortion in Poland. She went to three hospitals who refused to perform the operation: one brought her to a Catholic priest—who urged her not to get an abortion—without her permission. Hospital officials issued a press release after which anti-abortion campaigners harassed P. A criminal proceeding against P. on suspicion of sexual intercourse with a minor was initiated in July 2008 but later terminated, the court finding that P. could only be considered a victim, not a perpetrator. The police then alleged that S. was trying to coerce P. into having an abortion, leading to the authorities removing P. from her mother’s custody and placing her in a juvenile shelter. The Minister of Health intervened and P. got an abortion without being an officially registered patient or receiving any post-abortion care. The European Court of Human Rights held that there was a violation of Article 8: right to respect for private and family life. The Court found that the state should ensure people’s legal rights are facilitated by procedures to fulfill those rights. The Court also found that the hospital press release of information led to interference with the applicants’ lives. The Court held that there was a violation of Article 5(1) because the separation of P. from her parents was taken to prevent abortion rather than within in the purpose of the Article, which is for educational supervision. Finally, there was a violation of Article 3: the difficulties P. met in seeking abortion and subsequent trial for intercourse with a minor constituted ill treatment.



S.A.S. v. France European Court of Human Rights (2014)

Gender discrimination

S.A.S, a 23 year old French citizen, filed an application against France to challenge the ban on the full face veil. She argued that as a woman wearing a face veil, the ban constituted a violation of her right to private life, freedom of religion, freedom of expression and her right not to be discriminated against. The French Government recognised that the ban may represent a limitation on Article 9 of the Convention i.e. the freedom to manifest one’s religion, but argued, however, that the limitation pursued legitimate aims and was necessary in a democratic society for the fulfillment of those aims. The Government argued that the ban sought to protect equality between men and women, as to consider that women must conceal their faces in public places amounted to denying them the right to exist as individuals. The Government also argued that this forced them to express their individuality only in the private family space or in an exclusively female space. The Government indicated that the practice of wearing the veil was incompatible in French society with the fundamental rules of social communication, tolerance and the requirements of “living together”. The court held that the ban imposed by the Law of 11 October 2010 was to be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others” and thus no violation of Articles 8 or 9 of the Convention was found.



Domestic Case Law

KKO 2010:74 Supreme Court of Finland (2010)

Gender discrimination

The issue here was whether the crime of discrimination, as set forth in Section 9 (currently Section 11) of Chapter 11 of the Finnish Criminal Code (39/1889, as amended) (the “Criminal Code”), could be committed in connection with the practice of religion by way of a refusal to participate in public worship with a female priest. In the case, A, a male priest and a member of a traditionalist evangelist association that was against women serving as pastors, was invited by B, the chairman of the local chapter of this association, to preach at a parish church. C, a female priest, had been scheduled to participate in the worship by assisting in the communion. Prior to the commencement of the worship, A and B had announced to C that, because of their conviction, C could not join A in the worship, after which C had left the church. In its ruling, the Supreme Court noted that Section 11 of the Finnish Constitution (731/1999, as amended) sets forth that everyone has the right to freedom of religion and conscience. The Court, however, clarified that this right is not absolute and that one cannot plead this right to justify actions that violate human dignity or other basic human rights or that are against the principles of the Finnish legal system. The Court further noted that, under the Finnish fundamental rights system, the prevention of discrimination can justify limiting the rights of the autonomous authority of religious organizations and their right to determine the methods of practicing religion. The same reason, prevention of discrimination, is also a justifiable reason to limit the rights of an individual in connection with the practice of religion. On this basis, the Court held that the elements of the crime of discrimination are generally applicable and do not exclude discrimination based on gender or discrimination that takes place within a parish in connection with the practice of religion. The Court also found that the elements of the crime, including a person having, without a justified reason, in the arrangement of a public function placed someone in a clearly unequal or otherwise essentially inferior position owing to his or her gender, were present in the case. Therefore, A was sentenced to pay 20 days-fine. While it found B also guilty, due to B’s level of guilt being determined to be lower than that of A as well as because of certain mitigating circumstances, the Court decided to waive the punishment of B.



BVerwG 6 C 25.12 Federal Administrative Court (Bundesverwaltungsgericht) (2013)

Harmful traditional practices

The Court rejected the appeal and upheld the decision of the lower court that a female Muslim high school student was not exempt from compulsory swimming lessons on the grounds of her religion. In the circumstances, there was not sufficient reason to undermine compulsory school attendance of children. The parents of the girl had applied to the school for an exemption from swimming lessons on the grounds that Islamic dress custom did not allow their daughter to participate in co-educational swimming lessons. The school had rejected the application but permitted the girl to wear swimwear which would be in accordance with Islamic custom (a burkini). The decision was generally welcomed as protecting the right of Muslim girls to education.



SZAIX v. Minister for Immigration & Multicultural & Indigenous Affairs and Refugee Review Tribunal Federal Court of Australia (2006)

Sexual harassment, Sexual violence and rape

A citizen of Indonesia sought protection on the basis that she feared persecution on the grounds of race, religion and membership of a particular social group, alleged to be either Indonesian women or Chinese Christian women in Indonesia. The appellant was raped in Indonesia. The Refugee Review Tribunal concluded that perpetrators of sexual assault in Indonesia do not engage in rape as a means of persecuting ethnic Chinese women (or women) as a particular social group. The court found that the Tribunal did not fully consider the applicant’s arguments that she feared persecution from local authorities for reporting the rape and the applicant was granted leave to amend her application to raise that ground and any other new grounds.



Shakdiel v. Minister of Religious Affairs Supreme Court of Israel (1988)

Gender discrimination

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



Case Number E.1999/27, K.1999/42 Constitutional Court of Turkey (1999)

Divorce and dissolution of marriage

Article 237.4 of the Turkish Criminal Code provides for a penalty of two to six month imprisonment if a man or woman holds a religious wedding ceremony before a civil ceremony. Under Turkey’s principle of equality, different individuals with different legal statuses may be treated differently. The Constitutional Court found that the statute does not violate the principle of equality because unmarried individuals have a different legal status than those who have conducted a religious wedding ceremony. In reaching its decision, the Court also noted that legislature has discretionary power to make laws, the Constitution provides for the protection of family life, and the statute does not prohibit religious ceremonies entirely.



Reports

CEDAW and Muslim Family Laws (2010)

Gender discrimination

Report published by MUSAWAH for Equality in the Family on States' parties justifications for their failure to implement CEDAW with regard to family law and practices that discriminate against Muslim women.