The Government of Nepal declared a state of emergency in response to a rebellion by the Maoist party and granted powers to the Royal Nepal Army to arrest individuals on suspicion of involvement in terrorist activities through and to keep them in detention for up to 90 days without charge. The first author, Sarita Devi Sharma, is the sister of Himal Sharma, Secretary-General of a Maoist-affiliated political party in Nepal. Ms. Sharma and her friend B.M. were followed and asked about Ms. Sharma’s brother, then they were handcuffed, placed in a van and taken to Army barracks. She was detained and held from October 2003 through 30 June 2005. Once her husband, the second author, became aware of her disappearance, he submitted an application to the National Human Rights Commission denouncing her disappearance and submitted a writ petition to the Supreme Court of Nepal demanding an order of habeas corpus, which the court rejected, claiming lack of evidence proving her illegal detention. He also informed Amnesty International about her disappearance, but they never received a reply from the Government when they inquired about her. During the first four-five months, she was routinely interrogated, beaten, held underwater for long periods of time and threatened with rape. After that, she suffered ill health and was taken to a hospital. In the hospital, she sent a letter secretly to her husband who, after several months of not hearing any further information, shared it with members of All Nepal National Independent Student Union Revolutionary who included information about her condition in a press release. As a result, Ms. Sharma was interrogated harshly and beaten. Ms. Sharma was then moved to a small, dark room and kept in isolation. Her husband filed a new petition for habeas corpus with the Supreme Court, which ordered her release. The Committee determined that Nepal produced no evidence to show that, while Ms. Sharma was held in incommunicado detention, it met its obligations to protect her life, and that this failure resulted in a violation of article 6(1) of the Covenant. In addition, the Committee found that the enforced disappearance and incommunicado detention of Ms. Sharma, and the acts of torture and conditions to which she was exposed constituted violations of article 7 of the Covenant. Further, the Committee concluded that the enforced disappearance and arbitrary detention of Ms. Sharma amounted to a violation of article 9 (1-4) of the Covenant. The enforced disappearance deprived her of the protection of the law and her right to recognition as a person before the law in violation of article 16 of the Covenant. The anguish and distress suffered by Ms. Sharma’s husband and son, the third author, due to her enforced disappearance also were found to constitute a violation of article 7 of the Covenant. The Committee determined that neither Ms. Sharma did not receive an adequate remedy (246,000 Nepalese rupees), in violation of article 2 (3), in conjunction with articles 6, 7, 9 (1-4) and 16, and her husband and son received no interim relief, which constituted a violation of article 2 (3), read in conjunction with article 7 of the Covenant. Moreover, the Committee stated that Nepal was obligated to provide an effective remedy. This remedy should include: (1) conducting a thorough and effective investigation into the facts surrounding the detention and the treatment suffered in detention; (2) prosecuting those responsible for the violations committed and making the results public; (3) providing detailed information about the results of the investigation to Ms. Sharma and her family; (4) ensuring that any necessary and adequate psychological rehabilitation and medical treatment is provided; and (5) providing adequate compensation and appropriate measures of satisfaction for the violations suffered. Further, in order to prevent the occurrence of similar violations in the future, the Committee stated that Nepal should ensure that its legislation: (1) criminalizes torture and enforced disappearance and provides for appropriate sanctions and remedies; (2) guarantees that such cases give rise to a prompt, impartial and effective investigation; (3) allows for the criminal prosecution of those found responsible for such crimes; and (4) amends the 35-day statutory limit for claiming compensation for torture, in accordance with international standards.
Women and Justice: Keywords
Applicant is a Romanian citizen who alleged that her husband had been violent towards her and their children on numerous occasions. The assaults intensified when the applicant initiated divorce proceedings against her husband. The applicant’s husband assaulted and threatened her on multiple occasions, for which she required and obtained medical treatment. She then used her medical records as proof when she lodged formal complaints against her husband at the prosecutor’s office. She told prosecutors of the incidences of violence and the fact that her husband repeatedly locked her out of their shared residence. The police did not pursue criminal charges and only imposed an administrative fine, holding that the applicant had provoked the disputes. A similar pattern of abuse, medical attention, and contact with the authorities occurred over a period of months. The applicant brought the case to the European Court of Human Rights alleging that the State “had failed to protect her from domestic violence and to hold the perpetrator accountable.” The Court found that there were violations of Article 3 and Article 14 of the European Convention on Human Rights, which forbid torture and discrimination, respectively. The Court found that the authorities were aware of the violence against the applicant, and thus they had an obligation to act on the complaints. The applicant exhausted domestic avenues, but without success. The state’s responses did not comply with international standards about required state action to violence against women and domestic violence. (Available in English, Romanian, and Croatian. English version is official.)
Rosendo Cantu was walking home when she was stopped and questioned by a group of soldiers. When she did not give the soldiers the answers they were looking for, two of the soldiers raped her while six others watched. Subsequent to the rape, the State failed to carry out an effective investigation into the allegations of sexual violence by members of the armed forces. The Inter-American Court held that Mexico had committed an act of turtler. It placed special importance on the vulnerable situation of Ms. Cantu given the fact that she was a minor and also a member of the indigenous community. It found Mexico in violation of the right to personal integrity, dignity, privacy, the rights of the child and due process rights. It also found that the State had failed to comply with its due diligence obligations to prevent, investigate and punish violence against women and the general obligation of non-discrimination in accessing justice. The Court ordered Mexico to pay monetary compensation for the harms suffered and to also ensure that Ms. Cantu's daughter received a scholarship to study.
Rosendo Cantu caminaba hacia su casa cuando fue detenida e interrogada por un grupo de soldados. Cuando no les dio a los soldados las respuestas que buscaban, dos de los soldados la violaron mientras que otros seis observaron. Luego de la violación, el Estado no realizó una investigación efectiva de las denuncias de violencia sexual cometida por miembros de las fuerzas armadas. La Corte Interamericana sostuvo que México había cometido un acto de turtler. La corte puso especial importancia en la situación de vulnerabilidad de la Sra. Cantu, dado que era menor de edad y también miembro de la comunidad indígena. Encontró a México en violación del derecho a la integridad personal, la dignidad, la privacidad, los derechos del niño y los derechos del debido proceso. También encontró que el Estado no había cumplido con sus obligaciones de diligencia debida para prevenir, investigar y sancionar la violencia contra las mujeres y la obligación general de no discriminación en el acceso a la justicia. El Tribunal ordenó a México que pagara una compensación monetaria por los daños sufridos y también para garantizar que la hija de la Sra. Cantu recibiera una beca para estudiar.
Sexual Violence and Rape, Torture, Indigenous Populations, Failure of State Responsibility. The Mexican military illegally detained, raped, and tortured the Tzeltal native sisters Ana, Beatriz, and Celia González Pérez. The Mexican State argued that the Inter-American Commission on Human Rights (IACHR) did not have competence to review the petition because the sisters did not exhaust their domestic remedies. According to the IACHR, the sisters effectively sought relief from the Office of the Federal Public Prosecutor, which refused competence to review the sisters’ case in favor of its military counterpart. The IACHR determined the case admissible in respect of the alleged violations of rights protected in the American Convention on Human Rights: Articles 5 (right to humane treatment); 7 (right to personal liberty); 8 (right to a fair trial); 11 (right to privacy); 19 (rights of the child); and 25 (right to judicial protection).
Violencia y violación sexual, tortura, poblaciones indígenas, falta de responsabilidad del Estado. El ejército mexicano detuvo ilegalmente, violó y torturó a las hermanas nativas de Tzeltal, Ana, Beatriz y Celia González Pérez. El Estado mexicano sostuvo que la Comisión Interamericana de Derechos Humanos (CIDH) no tenía el poder para revisar la petición porque las hermanas no agotaron sus recursos internos. Según la CIDH, las hermanas buscaron efectivamente un alivio en la Oficina del Fiscal Federal, que se negó a revisar el caso de las hermanas a favor de su homólogo militar. La CIDH determinó el caso admisible en relación con las presuntas violaciones de los derechos protegidos en la Convención Americana sobre Derechos Humanos: artículos 5 (derecho a un trato humano); 7 (derecho a la libertad personal); 8 (derecho a un juicio justo); 11 (derecho a la privacidad); 19 (derechos del niño); y 25 (derecho a la protección judicial).
The African Commission on Human and Peoples’ Rights found that three men convicted in the 2004 and 2005 bombings on Egyptian resort towns were tortured and denied a fair trial before being sentenced to death by Egypt’s Supreme Emergency State Security Courts, violating the African Charter on Human and Peoples’ Rights. The Commission ruled that Egypt should repeal the death sentences, immediately release the men, and provide them compensation. Additionally, the Commission found that Egypt’s state security courts were not independent and were unable to meet international fair trial standards. This ruling establishes a requirement for African states to prevent torture. It also makes clear that judicial proceedings must take place in a fair, independent court in order to uphold human rights, and that the African Commission on Human and Peoples’ right will actively enforce these standards.
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., 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.
Ms M.V. (the claimant) was sterilized while giving birth to her second child. She was informed that sterilization would be performed on her shortly before delivery by C-section, to which she did not give her written consent. The day after giving birth, while inquiring about her own health and that of her child, she was informed that sterilization was performed due to health reasons, as another pregnancy could be dangerous. She was given a form to sign for the “sake of her health,” which she did without reading or inquiring due to her concerns about the well-being of her newborn child. The claimant only later found out that sterilization was not a “life-saving” procedure after speaking with a representative from a non-governmental organization. Her claim was dismissed by the district and regional courts based on hospital records which contained her written consent and the testimonies of the doctors and other staff members. She filed a claim with the Constitutional Court which held that the decisions of the district and regional courts did not sufficiently address the claimants claims, in breach of the claimants' right to a fair trial. The Constitutional Court awarded the claimant EUR 1,500 damages and ordered the re-examination of the matter by the district court.
Mrs. I.G., Mrs. R.H. and Mrs. M.K. (the claimants of Roma ethnicity) were sterilized while giving birth to their children. The claimants initiated criminal proceedings on the grounds of unlawful sterilization, claiming that their consent (or informed consent in the case of R.H.) was not given. Criminal proceedings were stopped by the regional prosecutor with the conclusion that no unlawful act had been committed. The claimants filed a formal complaint against the decision, in part claiming that the investigation did not examine the substantive material issue, the lack of consent to sterilization. This formal complaint was dismissed by the regional prosecutor. The claimants petitioned the Constitutional Court to address the decision to discontinue criminal proceedings by the regional prosecutor; they claimed among other things the breach of their right to private and family life and of their right to privacy. The Constitutional Court held that sterilization was not a “life-saving” procedure, as claimed by the regional prosecutor and the hospital. Therefore, the explanation given by the regional prosecutor for the discontinuation of criminal proceedings on these grounds was unfounded. The Constitutional Court further held that the investigation did not exhaust all possible avenues, and completely ignored the issue of consent. This and the subsequent dismissal of the complaint amounted to inhumane or degrading treatment of the claimants affecting their private and family lives. The Constitutional Court awarded each claimant 50,000 SK (EUR 1,659.70) in damages and ordered the regional prosecutor to re-examine the issue.
Pauline Muzonzo Paku Kisoki was raped in her home in front of her children by security forces after refusing to allow the government party MPR to host a party rally at her restaurant in Kisanto. She was detained and taken to Makal prison in Kinshasa where the guards forced the women prisoners to dance before they beat and raped them. Kisoki stated that she was raped more than ten times while in prison. After she managed to escape when her sister bribed a prison supervisor, Kisoki fled to Sweden where she immediately requested asylum. The Swedish Board of Immigration denied her request, concluding that the political climate in Zaire (now the Democratic Republic of Congo) had improved, and Kisoki would not suffer persecution or harassment for her past activities. After the Alien Appeals Board confirmed the decision, Kisoki submitted a new request which referred to the report of the Special Rapporteur of the Commission on Human Rights on the situation of rights violations in Zaire. Her application was denied again on the ground that Kisoki could not introduce new evidence. Her complaint to the Committee accused Swedish authorities of basing their decision on a false image of Zaire. Kisoki cited the Commission on Human Rights report to demonstrate that female prisoners are often raped, and a background paper from the Office of the United Nations High Commissioner for Refugees the show that the Zairian Security Police expose return asylum seekers to long sessions of interrogation. The Committee held that Kisoki’s history of working with the opposition party and of detention and torture provide substantial grounds to believe she would face further persecution and torture if she returned to Zaire. Thus, expulsion or return would be violation of article 3 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.
The IACHR submitted this case to the Court to determine whether Guatemala had violated the American Convention on Human Rights by "acts of abduction, arbitrary detention, inhuman treatment, torture and murder committed by agents of the State, of Guatemala against eleven victims," some of them women. The Court held that Guatemala violated Articles 1(1), 4(1), 5(1), 5(2), 8(1) and 25 of the American Convention on Human Rights, as well as Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture. The Court ordered Guatemala to investigate and punish those responsible for the violations, and to pay reparations to the victims and their next of kin.
La Comisión Internacional de Derechos Humanos presentó este caso a la Corte para determinar si Guatemala había violado la Convención Americana sobre Derechos Humanos por "actos de secuestro, detención arbitraria, trato inhumano, tortura y asesinato cometidos por agentes del Estado de Guatemala contra once víctimas", algunos de ellas mujeres. La Corte sostuvo que Guatemala en efecto violó los artículos 1 (1), 4 (1), 5 (1), 5 (2), 8 (1) y 25 de la Convención Americana sobre Derechos Humanos, así como los artículos 1, 6 y 8. de la Convención Interamericana para Prevenir y Sancionar la Tortura. La Corte le ordenó a Guatemala investigar y sancionar a los responsables de las violaciones, y pagar compensación a las víctimas y sus familiares.
In April 1992, the Petitioner, Mónica Feria Tinta, was arrested during a raid by DINCOTE, the counter-terrorism branch of the Peruvian police. The police believed that Ms. Tinta was a member of the Sendero Luminoso, a communist militant group in Peru. During the raid, Ms. Tinta was blindfolded, beaten and raped by some of the police officers. When Ms. Tinta protested the sexual violence, the officers beat and kicked her. After the raid, the officers took Ms. Tinta to a DINCOTE facility, where she was detained for more than a year in cells infested with roaches and rats. While detained, DINCOTE officers deprived Ms. Tinta of access to her attorney, forced her to urinate in a can in the presence of two male officers, and doused her with cold water if she resisted their orders. The Inter-American Commission on Human Rights (the “IACHR”) found that the Peru violated Ms. Tinta’s rights by failing to conduct a serious investigation of her claims, even though her claims “fit a pattern known to have existed at that time” and involved violence (¶ 207). According to the IACHR, Peru had a duty to investigate Ms. Tinta’s claims of rape, including ordering medical tests and examinations, to either corroborate or disprove Ms. Tinta’s claims. The IACHR concluded that Peru, inter alia, violated the rights recognized in articles 5(1), 5(2) and 11 of the American Convention on Human Rights (the “American Convention”), as well as Article 1 and 6 of the Inter-American Convention to Prevent and Punish Torture. Noting its well-established precedent that “rape committed by members of the security forces of a state against the civilian population constitutes, in any situation, a serious violation of the human rights protected by Articles 5 and 11 of the American Convention,” the IACHR established that rape is particularly reprehensible when it perpetrated by a state agent against a detainee, because of the victim’s vulnerability and the agent’s abuse of power (¶ 188). In addition, noting that various reports had shown a pattern of rape and sexual abuse against women by members of Peru’s security forces, the IACHR found that such sexual violence was part of a “broader context of discrimination against women” (¶ 65).
In the summer of 1992, during an assault on the non-Serb civilian population of Foča in the early months of the Bosnian War, Radovan Stanković, a member of the Republika Srpska Army, established a small detention center for women at an apartment known as “The Brothel.” He and others brought at least nine non-Serb females, most of whom were minors, to the apartment and detained them there. Between August and November 1992, Stanković repeatedly raped one woman and her underage sister and incited other soldiers who visited the apartment to rape the detainees. In addition, Stanković forced the victims to perform physical labor, including cooking for the soldiers, washing the soldiers’ uniforms, and bathing the soldiers. In 2002, Stanković was arrested by the NATO peacekeeping force, KFOR, and transferred to the ICTY. The ICTY referred Stanković’s case to the Court of BiH in 2005. One year later, the Court of BiH convicted Stanković of Crimes against Humanity (enslavement, imprisonment, torture, and rape) under Article 172(1) of the Criminal Code of BiH and sentenced him to sixteen years imprisonment. In 2007, a panel of the Appeals Division increased the prison term to twenty years. Stanković appealed his sentence, which the ICTY and The Hague Court of Appeal upheld. This case is notable because it was the first time the ICTY referred a case to a court of national jurisdiction.
Second instance verdict available in English here.
Between April 1992 and November 1993, during the Bosnian War, Gojko Janković, a paramilitary leader within the Srpska Republika Army, participated in a widespread and systematic attack on the non-Serb civilian population of Foča. Janković’s unit methodically captured civilians, detained them separately according to gender, and killed dozens of men. During this time, Janković raped at least five girls and women; the soldiers under his command raped scores more. In addition, Janković and a co-perpetrator kept two teenage girls in sexual slavery at a nearby house for over one year. In 2005, Janković voluntarily surrendered and was transferred to the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). Shortly thereafter, the Referral Branch of the ICTY referred Janković’s case to the Court of BiH. In 2007, the Court of BiH found Janković guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH and sentenced him to 34 years imprisonment. In 2010, Janković appealed his conviction to the ICTY, arguing the Court of BiH convicted him under a law, the Criminal Code of BiH, which did not exist at the time his crimes were committed. The ICTY denied his appeal.
Second instance verdict available in English here.
An 18-year old woman died from injuries sustained during acts of exorcism (involving use of boiling water, acid, and beating) carried out at the request of her parents by a healer, a few months after she told her mother that she had homosexual feelings. At first instance, the acts were qualified as torture, and the fact that the victim was in a particularly vulnerable situation (mentally and physically) was considered an aggravating factor. Both the healer and the parents were sentenced by the lower court to prison terms (based on Article 417bis and 417ter of the Penal Code (torture)), but the court held that any possible discriminatory motive based on sexual orientation (which it considered unproven anyway) could not affect the criminal qualification, because the Penal Code does not provide for discrimination as an aggravating factor for torture. Contrary to the lower court, which qualified the acts as torture, the Court of Appeal did not qualify the acts as torture (as the intention of the defendants was not to punish the victim), but as blows and injuries intentionally inflicted without the purpose of manslaughter but leading to death under Article 401 of the Penal Code. In addition, the Court found that the aggravating factors included the failure to protect a vulnerable person (Article 405bis) and the fact that acts were committed by the parents of the victim had been the motive for the exorcism. The healer and both parents were sentenced to jail.
The applicant, Ms. Kaya, was arrested for alleged political offences. After she was released, she submitted a petition to the Office of Prosecutor General, asserting that she had been subjected to inhuman and degrading treatment while she was in custody. She also claimed that physicians at the state hospital ignored her complaints related to torture and inhuman treatment. After the incident, Ms. Kaya received asylum from Austria in 2002. Concurrently, the Office of Prosecutor General brought an action against the gendarmerie personnel and the physicians who ignored Ms. Kaya’s complaints to address her complaint regarding inhuman and degrading treatment. The trial at the Court of First Instance took about nine years. During that period, the claim against physician was dropped due to the lapse of time. Ms. Kaya was outside of Turkey during the trial. However, she remotely applied to several hospitals in Turkey to get consultations regarding the medical reports that were prepared while she was in custody. All of Ms. Kaya’s medical reports indicated that she showed signs of torture and inhuman treatment. She submitted those reports to the Court of First Instance. In 2011, the Court of First Instance dropped the case as a result of lapse of time. However, the Constitutional Court set aside the Court of First Instance’s decision and ruled that the prolonged trial violated Ms. Kaya’s right to access justice. The Constitutional Court held that Turkey must hold a speedy trial to abide by its constitutional obligation to effectively investigate claims related to torture and inhuman and degrading treatment. This case is important, because it concluded that an insufficient investigation may itself be inhuman treatment. This case should constitute a precedent for the future cases where women are harmed as a result of insufficient and ineffective investigation.
The plaintiff sued the government for false arrest and assault. The plaintiff, who worked for the government as an accounts clerk, claimed she was robbed by two armed men while she was transporting government funds. The next day, the police arrested her. The plaintiff alleged that she was taken to a police post, stripped down to her underwear, placed on her back, beaten, and interrogated, while the officers beat her and poured water over her head. The High Court determined that the plaintiff’s arrest was lawful but the torture was not. A medical certificate entered into evidence showed that plaintiff had injuries when she was released from police custody. Because there was no proof that she had those injuries before she was detained, the Court found that the plaintiff was entitled to relief.
The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.