- Abromchik v. Belarus, Human Rights Committee, 2018. Custodial violence, international law. Abromchik attended a peaceful assembly on 19 December 2010 with friends in Minsk following the announcement of presidential election results. After the event, when she and her friends were stopped by a special unit of riot police and tried to escape, they were blocked and beaten. An officer punched her on the leg with a rubber truncheon several times. She realized she had a broken leg and told the police officer. She was not taken to the hospital for several hours. She made a complaint to the prosecutor of Minsk about the unlawful actions of the police. She provided details about the incident and witnesses were questioned, but no other actions were taken to investigate the incident or to identify the police officer who had beaten her. The prosecutor’s office suspended the investigation, stating that it was impossible to find those responsible. The office resumed the investigation and then suspended it again on the same grounds. In her appeal to the Committee, Abromchik claimed that she was physically assaulted and affected mentally in violation of article 7 of the Covenant because authorities wanted her to feel helpless and to victimize her and that her age and gender should be taken into account when assessing the gravity of the ill treatment. She also noted that her complaint of ill-treatment was not investigated promptly and impartially by the authorities, contrary to article 7. The Committee found that, in the absence of any information from Belarus that it undertook to address the allegations made, due weight must be given to the allegations. On this basis, the Committee concluded that Belarus failed in its duty to adequately investigate the allegations made in violation of article 7, read in conjunction with article 2(3) of the covenant. The Committee determined that Belarus was required to provide an effective remedy, including conducting a full investigation of the ill treatment in order to prosecute the perpetrators and to punish them with appropriate sanctions, providing adequate compensation, including reimbursement of legal and medical expenses and non-pecuniary losses, and issuing a formal apology to Abromchik. Further, the Committee stated that Belarus was under an obligation to take necessary steps to prevent similar violations from occurring in the future.
- C. v. Australia, Human Rights Committee, 2018. Divorce and dissolution of marriage, LGBTIQ, international law. C. was a citizen of Australia and the United Kingdom who lived with A. as a couple in the State of Victoria and then Queensland. They agreed to have a baby and that C. would be the birth mother. They traveled to Canada and got married and then separated shortly after the marriage. C. is the sole caregiver of the baby and no longer knows of the whereabouts of A. C. wanted to formally dissolve her Canadian legal marriage so that she could remarry or enter a civil partnership in the future. She also wanted to ensure she was not held responsible for A.’s debts. Finally, when traveling abroad, she did not want A. to be deemed her legal spouse in certain countries where the marriage might be recognized and A deemed next of kin. In Queensland, in order to obtain a file a divorce application to dissolve a marriage, a marital relationship must be legally recognized as a marriage. Section 5(1) of the Marriage Act of 1961, which provided the relevant definition of marriage, define this term to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” Further, Section 88EA of the Act provided that, “a union solemnized in a foreign country between: (a) a man and another man, or 9b) a woman and another woman, must not be recognized as a marriage in Australia.” C. did not file for divorce in Australia because of the laws, nor did she apply in Canada or the United Kingdom because both had residency requirements for divorce. C. filed her claim with the Committee claiming that the denial under Australian law of access to divorce proceedings for same-sex couples who have validly married abroad and the consequential denial of court-based relief in the form of a court order amounts to discrimination on the basis of sexual orientation, contrary to article 1491), ready together with article 291) (equal access to courts and tribunals), and article 26 (equality before the law) of the Covenant. The Committee determined that C. was precluded from accessing divorce proceedings in Australia because her same-sex marriage was not recognized under sections 5(1) and 88EA of the Marriage Act of Australia, whereas couples in specific opposite-sex marriages not recognized in Australia, such as polygamous couples, do have access to divorce. This was found to constitute differential treatment. Australia stated they made a reasonable exception for polygamous marriages to enable parties to such marriages access to the assistance, relief and help provided by the family law courts in relation to (but not limited to) children’s matters, property matters, maintenance matters or divorce. The Committee determined that Australia did not explain why this stated reason does not apply equally to unrecognized foreign same-sex marriages. In the absence of more convincing explanations from Australia, the Committee found that the differentiation of treatment based on sexual orientation to which C. was subjected regarding access to divorce proceedings was not based on reasonable and objective criteria and therefore constitutes discrimination under article 26 of the Covenant. Under article 2(3) of the Covenant, the Committee stated that Australia was under an obligation to provide C. with an effective remedy by providing full reparation for the discrimination suffered through lack of access to divorce proceedings. Australia also was obligated to take steps to prevent similar violations in the future and to review its laws in accordance with the Committee’s views, and to provide the Committee information about the measures taken to give effect to the Committee’s views within 180 days.
- Sharma, et al. v. Nepal, Human Rights Committee, 2018. Sexual violence and rape, international law. M.P. originally was from Sri Lanka, and of Tamil ethnicity and the Hindu faith. She claimed her family had strong ties with the Liberation Tigers of Tamil Eelam (“LTTE”). Her father was killed and several of her brothers were subjected to violence due to the connection. To gain protection, M.P. illegally entered Switzerland where she met her former husband and father of her two children. Her husband was very violent and abusive and was convicted of domestic violence towards her and sentenced to three years imprisonment. He was to be expelled to Sri Lanka upon his release, but forced M.P. and the children to accompany him to Denmark and make false statements to seek asylum. M.P. was very afraid of her husband who physically assaulted her and the children and threatened to kill her and take their children away if she did no support his false version of reasons for seeking asylum. He claimed he had been detained by the military and that M.P. had been sexually abused by the Sri Lankan army. Danish authorities denied the family’s asylum request finding that M.P.’s husband had limited associations with LTTE. He was returned to Sri Lanka after he assaulted another person in Denmark. Once he was gone, M.P. felt she could safely present the true grounds for seeking asylum in Denmark. Denmark. However, her application was rejected. The Committee considered M.P.’s claim that forcibly removing her and her children would violate Denmark’s obligations under article 7 of the Covenant because she would be detained by authorities and beaten, raped and tortured due to her family’s alleged affiliation with LTTE. The Committee noted its jurisprudence that the State’s role is to review and evaluate facts and evidence in order to determine whether a risk exists, unless the evaluation was clearly arbitrary or amounted to a denial of justice. It then noted the findings of the Danish authorities that M.P. had not raised her family’s affiliation with LTTE before the Swiss authorities when seeking residence. Further, it noted the finding that current background material on Sri Lanka provided no specific basis for assuming that Tamils such as M.P. with no affiliation with LTTE whose family members had not been high-profile members of LTTE would risk persecution or abuse justifying asylum merely based on ethnicity. Regarding claims by M.P. of alleged risk of harm by her former husband in Sri Lanka, the Committee noted that M.P. merely took issue with Denmark’s conclusions that she could seek protection if needed from her husband from Sri Lankan authorities. The Committee concluded that the information provided did not demonstrate that M.P. would face a real and personal risk of treatment contrary to article 7 if she were deported to Sri Lanka.
- Hashi v. Denmark, Human Rights Committee, 2017. Gender discrimination, harmful traditional practices, adultery asylum. Hibaq Said Hashi left Somalia for fear of persecution by Al-Shabaab. She was divorced from one man and married to a second man, but her former husband claimed they were not divorced and she was having sexual relations with another man, which caused Al-Shabaab to call for her to be stoned. Her father helped her leave Somalia and then he was killed, and her current husband was sentenced to death. She traveled to Italy by boat, was registered and determined she was pregnant, but she faced poor conditions in Italy so she left for Sweden to have her baby. When she learned Swedish authorities planned to send her back to Italy, she and her son moved to Denmark where she applied for asylum. She claimed that if she returned to Somalia she would be persecuted and if she returned to Italy she would face harsh living conditions and would not be able to provide for her son’s basic needs. She was ordered to leave Denmark to return to Italy, which Denmark considered her first country of asylum. Upon appeal, the Committee, acting under article 5(4) of the Optional Protocol, decided that the removal of Hibaq Said Hashi and her son to Italy without any assurances from Italy that it would receive her and her son in conditions suitable for her child’s age and family’s vulnerable status would violate their rights under article 7 of the Covenant. Denmark was required to review her claim in consideration of its obligations under the Covenant and the need to obtain effective assurances from Italy. While considering her request for asylum, the Committee requested that Denmark not deport her and her son.
- M.P. v. Denmark, Human Rights Committee, 2017. Domestic violence, asylum, international law. M.P. originally was from Sri Lanka, and of Tamil ethnicity and the Hindu faith. She claimed her family had strong ties with the Liberation Tigers of Tamil Eelam (“LTTE”). Her father was killed and several of her brothers were subjected to violence due to the connection. To gain protection, M.P. illegally entered Switzerland where she met her former husband and father of her two children. Her husband was violent and abusive, and was convicted of domestic violence against her for which he was sentenced to three years imprisonment. He was to be expelled to Sri Lanka upon his release, but forced M.P. and the children to accompany him to Denmark and make false statements to seek asylum. M.P. was afraid of her husband, who physically assaulted her and the children and threatened to kill her and take their children away if she did no support his false version of reasons for seeking asylum. He claimed he had been detained by the military and that M.P. had been sexually abused by the Sri Lankan army. Danish authorities denied the family’s asylum request finding that M.P.’s husband had limited associations with LTTE. He was returned to Sri Lanka after he assaulted another person in Denmark. After he left, M.P. felt she could safely present the true grounds for seeking asylum in Denmark. However, her application was rejected. The Committee considered M.P.’s claim that forcibly removing her and her children would violate Denmark’s obligations under article 7 of the Covenant because she would be detained by authorities and beaten, raped and tortured due to her family’s alleged affiliation with LTTE. The Committee noted its jurisprudence that the State’s role is to review and evaluate facts and evidence to determine whether a risk exists, unless the evaluation was clearly arbitrary or amounted to a denial of justice. It then noted the findings of the Danish authorities that M.P. had not raised her family’s affiliation with LTTE before the Swiss authorities when seeking residence. Further, it noted the finding that current background material on Sri Lanka provided no basis for believing that Tamils such as M.P. with no affiliation with LTTE whose family members had not been high-profile members of LTTE would risk persecution or abuse justifying asylum merely based on ethnicity. Regarding claims by M.P. of alleged risk of harm by her former husband in Sri Lanka, the Committee noted that M.P. merely took issue with Denmark’s conclusions that she could seek protection if needed from her husband from Sri Lankan authorities. The Committee concluded that the information provided did not demonstrate that M.P. would face a real and personal risk of treatment contrary to article 7 if she were deported to Sri Lanka.
- R.R. v. Denmark, Human Rights Committee, 2017. Domestic and intimate partner violence, forced prostitution, asylum, international law. R.R., an Iranian national, had left Iran for Italy with her husband and children due to her husband’s activities for the Kurdish Komeleh party. While in Italy, they lived in an asylum center and then were provided with a dwelling. They had difficulty paying rent as they could not find steady employment and her husband became addicted to narcotics. Her husband subjected her and the children to domestic violence and she was forced into prostitution by her husband. She left her husband and took her children. She was diagnosed with bipolar disorder, depression, and cervical cancer, and received help from friends to pay for surgery. Her youngest son suffered from heart disease. She and her children left Italy and sought asylum in Denmark. Danish authorities rejected her asylum application, finding that Italy should serve as her first country of asylum. R.R. claimed that by forcibly returning her and her two children to Italy, Denmark would violate its rights under article 7 of the Covenant. She stated that her family unit were particularly vulnerable as she was a single mother, she and her son required medical attention, and they risked facing inhuman and degrading treatment upon return to Italy, including a risk of homelessness and destitution, with limited access to the necessary medical care. The Committee, acting under article 5(4) of the Optional Protocol, decided that the deportation of R.R. and her two children to Italy without proper assurances from Italy that it would renew her residence permit and issue permits for her children and that it would receive her family in conditions appropriate for her children’s age and the family’s vulnerable status to enable them to remain in Italy, would violate their rights under article 7 of the Covenant. The Committee required Denmark to review her claim in consideration of its obligations under the Covenant and the need to obtain proper assurances from Italy. While considering her request for asylum, the Committee requested that Denmark not deport her and her children.
- D.T. v. Canada, Human Rights Committee, 2016. Gender discrimination, harmful traditional practices, honor crimes, asylum, international law. D.T., a Christian born in Nigeria, married a Muslim. Her parents were against the marriage, and when she was pregnant, they threatened to kill the baby. After her husband died, she was forced to drink the water used to bathe his corpse and to sleep in the room with the corpse for three days. With help, she escaped and traveled to Canada where she gave birth to her son. Her son suffers from conditions, including a heart murmur, malformation of his meniscus and attention deficit hyperactivity disorder (ADHD). D.T. applied for asylum, but Canada denied her application because it found that she failed to provide materials or documentation establishing her identity and her claims. Canada dismissed her application for judicial review and ordered her to leave Canada with her seven-year-old son. To the Committee, D.T. argued that Canada’s decision violated articles 17 and 23(1) of the Covenant, that her son is also the victim of a violation of article 24(1), and that they face a risk of irreparable harm if deported to Nigeria, which has education and health care facilities inadequate to meet her son’s needs. Further, if her son remained in Canada as a citizen, it would result in family separation from his sole caregiver. The Committee concluded that given that there was no evidence that that the child had any alternative adult support network in Canada, it was foreseeable that D.T. would take her son to Nigeria. Therefore, Canada did not adequately explain why its legitimate objective in upholding its immigration policy should have outweighed the best interests of the D.T.’s child nor how that objective could justify the degree of hardship that confronted the family because of the decision to deport the mother. Acting under article 5(4) of the Optional Protocol, the Committee found the removal resulted in arbitrary interference with the right to family life in breach of article 17(1) and article 23(1) of the covenant with respect to D.T. and her son, and that it violated article 24 due to a failure to provide her son with the necessary measures of protection owed to him by Canada. Canada was ordered to provide D.T. with an effective re-evaluation of her claims, based on an assessment of the best interests of the child, including his health and educational needs, and to provide her with adequate compensation. The Committee stated that Canada also is under an obligation to avoid similar violations in the future and to publish the Views and have them widely disseminated in Canada in French and English.
- A.J.M. v. Ireland, Human Rights Committee, 2013. Abortion and reproductive health rights, international law. M. is an Irish citizen who lives in Dublin. She became pregnant and was told at a public Irish hospital in the 21st week of her pregnancy that her fetus had congenital heart defects and would very likely die in utero or shortly after birth. The midwife advised her to contact a private family planning organization for information on terminating her pregnancy overseas because abortions in Ireland were not allowed. After she made the decision to terminate the pregnancy due to the fatal fetal impairment, Irish public health-care personnel refused to provide further health care and support. M. flew to Liverpool to abort and returned to Ireland 12 hours after the abortion due to cost constraints. After the abortion, M. did not receive any counseling or aftercare at the public hospital, which only offered care to couples who suffered spontaneous stillbirth but not to those who choose to abort due to fatal fetal impairments. As a result, M. endured severe emotional distress and pain. M. petitioned the Human Rights Committee arguing that Ireland violated several ICCPR articles, including: her right to freedom from cruel, inhuman, and degrading treatment (Article 7) due to the denial of necessary post-abortion health care and counseling, and the stigma of an overseas abortion, her right to privacy (Article 17) due to the intrusion of the state in a deeply intimate reproductive decision for a non-viable pregnancy, her right to access to pregnancy termination information (Article 19) which was refused and restricted by the public health-care personnel, and her rights to an effective legal remedy (Article 2, paragraph 1), equal treatment (Article 3), and freedom from discrimination (Article 26) because the criminalization of abortion disproportionately puts at risk the physical and psychological integrity of women. The Committee ruled in favor of M.’s claims with regards to Articles 7, 17, and 26, but decided not to examine the violations of Articles 2(1), 3 and, 19.
- M.I. v. Sweden, Human Rights Committee, 2012. LGBTIQ, international law, sexual violence and rape. The author is a Bangladeshi lesbian whose parents arranged for and forced her to marry a Bengali man living in Sweden shortly after learning of her sexual orientation. After moving to Sweden with a residence permit, her husband sent her back to Bangladesh after he learned she was a lesbian. Because of her sexual orientation, which is forbidden under Bangladeshi law, she was arrested by the Bangladeshi police, raped, and beaten during detainment. After her release, she continued to receive threats from the police and an extremist Islamic organization because of her sexual orientation, and she believes her partner was kidnapped by this same Islamic organization. She returned to Sweden using her residence permit and applied for asylum. The Swedish Migration Board rejected her application for asylum stating that her statements were vague and unsubstantiated, that the threats against her were criminal acts by individuals, that her sexual assault during police detainment was an act of misconduct that were not reported to the authorities, and that there was not an immediate, urgent need for protection. She appealed the decision twice, but the Swedish Migration Board rejected her appeal both times. The author petitioned the Human Rights Committee arguing that she has exhausted all available domestic remedies and that if she is deported, there would be a violation of her freedom from torture, including degrading treatment (Article 7). The Human Rights Committee in this case decided that Sweden must grant her a full reconsideration of her claim and refrain from deporting her in the interim. The Committee held that existing law forbidding homosexual acts stigmatizes homosexuals and sanctions acts of persecution against such persons. The Committee further held that deporting the author without a full reconsideration of her case would be a violation of Article 7.
M.T. v. Uzbekistan, Human Rights Committee, 2012. Forced sterilization, gender discrimination, international law, sexual violence and rape. M.T. is an Uzbek journalist and founder of a human rights organization. In 2002, she was arrested without reason by police officers, threatened with rape, beaten, and interrogated regarding her human rights activities. In the following years, she was arrested and detained multiple times, with and without charge and without proper legal procedures being followed. In the spring of 2005, she was once more arrested and accused of spreading anti-government propaganda. While detained, she was brought by a police officer to a room in a government office where she was beaten and raped until she lost consciousness. In the fall of 2005, her house and offices were raided in her absence by over 30 armed officers. Subsequently, she was arrested with charges, put through a trial where proper legal procedures were not followed, and sentenced to imprisonment. During her imprisonment, she was put in the psychiatric unit where staff tried to give her injections of unknown medication without her consent. She was also tortured, threatened, beaten, and forced to perform hard labor. In 2008, while she was still imprisoned, doctors forcibly operated on her and removed her uterus against her will. M.T. petitioned the Human Rights Committee arguing that Uzbekistan violated several ICCPR articles, including: her right to an effective legal remedy (Article 2, paragraph 3) because the state failed to investigate her allegations, her right to freedom from torture (Article 7) due to the abuses she suffered in prison and her forced sterilization, her right to liberty and security (Article 9) because of her repeated arrests, her right to humanity and dignity in detention (Article 10) because of her treatment in detention, her right to a fair trial (Article 14 (1)), her right to privacy (Article 17) due to the raid on her house and offices in her absence, and her rights to freedom of expression (Article 19), freedom of association (Article 22), and freedom from discrimination on political or other opinion (Article 26), all due to her arrests related to her human rights protests. The Human Rights Committee found in favor of all of M.T.’s claims except that it decided not to examine the violations of Articles 10 and 17. The Committee gave particular consideration to the allegations of sexual abuse as a form of extreme gender-based violence, and it noted that the alleged gang rape and forced sterilization amounted to sex-based discrimination. A partially dissenting opinion argued that while M.T. was subjected to heinous sexual violence, there was little justification that this was based on sex discrimination. The opinion also stated that the forced sterilization of Ms. M.T. does not necessarily reflect sex discrimination because it is unknown whether men could also have been victims of sexual violence under the same circumstance, and additionally, there is no evidence that all women in similar situations are systematically subjected to such treatment.
F.M. v. Algeria, Human Rights Committee, 2009. Gender-based violence in general, international law, sexual violence and rape. F.M. is an Algerian woman victim of police and military violence along with her father, siblings, and other members of her family. Her uncle worked as a registrar at the city tribunal, and members of an Islamic group and the police threatened him with death if he did not quit his job. When he did not, they constantly harassed him and his family. On multiple occasions, uniformed police officers raided the family home and arrested family members. During detainment, they were beaten and tortured. One of The petitioner’s older brothers was arrested and tortured for days. Her younger brother was killed by a police officer who threatened to prevent them from taking any legal action. Her father was arrested after being accused of belonging to a terrorist group and kept in detention for 14 months. A week after his release, the petitioner’s father was arrested again and beaten by the same police officer who killed her brother. This pattern of arrests and beatings was repeated for several months. In the summer of 1998, her father was arrested by military security officers while soldiers and police officers wearing civilian clothes raided the family home. The day after her father’s arrest, the petitioner was arrested along with her mother and sister by military security officers and they were sent to a military barrack infamous for torture. The women were detained in separate cells for eight days during which time the petitioner was beaten and her sister raped. The petitioner could hear her father being tortured. She has not seen her father since that day. Subsequently, her other older brother was arrested, detained, and tortured, including sexually abused. The petitioner argues that all effective and available remedies have been exhausted because her family received death and torture threats or was tortured for filing complaints about the death of her younger brother as well as the arrests and torture she and her family members suffered. Regarding the disappearance of her father, the petitioner and her mother filed many appeals, but two investigating judges declared there was no ground for prosecution. Finally, in 2004, the Tribunal recognized her father’s disappearance though a certificate attesting to the disappearance was only issued in 2006. She then petitioned the Human Rights Committee contending that the state of Algeria violated the following articles with regard to her family: (i) her father’s right to freedom from torture (Article 7), right to liberty and security (Article 9), and right to be recognized as a person before the law (Article 16); (ii) her younger brother’s right to life (Article 6) and right to an effective legal remedy (Article 2, paragraph 3); (iii) her mother, her sister, and her right to freedom from torture (Article 7) and right to an effective legal remedy (Article 2, paragraph 3), and (iv) her older brothers’ right to freedom from torture (Article 7), right to liberty and security (Article 9), and right to humanity and dignity in detention (Article 10). The Committee ruled in favor of all claims except that it decided not to examine Article 10 violation. The Committee noted that the sexual abuse her sister suffered was a form of extreme gender-based violence (paragraph 7.10 of the Communication). Two concurring opinions noted for the first time in history that the rape of a woman constitutes a form of extreme-gender based violence (paragraph 6 of the Joint Opinion), and that such gender-based analysis should have led to redress in the form of education and training in gender issues and women’s rights (paragraph 7 of the Joint Opinion).
Diene Kaba v. Canada, Human Rights Committee, 2008. International law, harmful traditional practices, domestic and intimate partner violence, child or early marriage, forced marriage, female genital mutilation or female genital cutting, asylum. 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.
- L.M.R. v. Argentina, Human Rights Committee, 2007. International law, abortion, Article 7. VDA, on behalf of her daughter LMR, filed a petition alleging violations of LMR's rights under the International Covenant on Civil and Political Rights (ICCPR). The petition alleged violations of LMR's right under article 2 (right to protection from state against violations of the rights within the ICCPR), article 3 (right to be free from discrimination), article 7 (to freedom from torture or other cruel, inhuman or degrading treatment), article 17 (freedom from arbitrary interference with privacy, family, home or correspondence, or unlawful attacks on honor or reputation), and article 18 (right to freedom of thought, conscience and religion). At the time of the incident, LMR was 20 years old but had permanent mental disability with a mental age between 8 and 10 years old. When LMR's mother brought her to hospital after LMR complained of pains, she discovered that LMR was raped by her uncle and was 14.5 weeks pregnant. Under section 82.6 of the Argentinean Criminal Code, abortion is legal if the pregnancy is the result of the rape of a mentally impaired woman. LMR filed a police complaint and scheduled an abortion, but the abortion was prevented by an injunction against the hospital. LMR appealed unsuccessfully to the Civil Court. The Supreme Court of Buenos Aires ruled the abortion could take place. However, under pressure from anti-abortion groups, the hospital refused to perform the abortion because her pregnancy was too far advanced. LMR eventually obtained an illegal abortion. Article 2 of the Optional Protocol to the ICCPR creates an obligation for state parties to protect individuals' rights under the Covenant. The United Nations Human Rights Committee found that court hearings caused LMR's abortion to be delayed to the point that she required an illegal abortion. The Committee found that although forcing LRM to endure a pregnancy that resulted from rape did not constitute torture under Article 7, it did cause physical and emotional suffering and therefore still constituted a violation of LRM's rights under Article 7. Article 7 protects individuals from mental as well as physical suffering, and the Committee saw the violation as particularly serious given LRM's status as a person with a disability. Further, the Committee found that because the decision of whether to proceed with an abortion should only have been made between the patient and her physician, LRM's right to privacy under Article 17 was violated. Even though the Supreme Court ruled in favor of LRM's abortion, this litigation process was so prolonged that LRM's pregnancy had advanced to the stage that her physician would no longer perform the abortion. This fact, the Committee reasoned, amounted to a violation of Article 2, because LRM did not, in fact, have access to an effective remedy (the abortion) and was forced to obtain one illegally. This case contributed to a growing consensus in international law that restricting women's access to an abortion may be considered torture or cruel, inhuman or degrading treatment under Article 7 of the ICCPR. It also demonstrated that obstructing access to legal, elective medical procedures may violate the Covenant. Additionally, it indicated that the Court will analyze the right of a person with a disability under Article 7 in a way which heightens the recognized impact of the violation.
- L.N.P. v. Argentina, Human Rights Committee, 2007. Defilement and statutory rape, gender discrimination, international law. 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.
- Amirov v. Russian Federation, Human Rights Committee, 2006. Gender-based violence in general, gender-based violence in conflict, international law. Ms. Amirov, a heavily pregnant Russian national of Chechen origin, disappeared at a bus stop in the Chechen Republic during a period of Russian military occupation. It was believed that she was last seen being taken by Russian military officers. Her body was found at a warehouse months later with gunshot wounds, signs of severe physical violence, including deep cuts to her abdomen, and no underwear. Despite her husband’s request, no autopsy was conducted on Ms. Amirov’s body, nor were any photographs or further investigation conducted into the circumstances. Though the state investigator originally opened a formal criminal investigation, it was closed a month later with very limited investigation. Mr. Amirov unsuccessfully made repeated requests to re-open the investigation with military and non-military prosecutors. He was subsequently beaten up by individuals wearing military uniform in what he believes was an attempt to silence him. Mr. Amirov petitioned the Human Rights Committee claiming the Russian State denied his wife her right to life, right to security, and right to freedom from torture (the deep cuts to the abdomen of a heavily pregnant woman suggesting both intentional physical and psychological torture), and he claimed the Russian Federation perpetuated a denial of justice and a denial of effective remedy to Chechens for allegations of violent crimes committed in the Chechen Republic. With regard to Ms. Amirov’s case, the Human Rights Committee found the Russian Federation had violated her right to life (Article 6) and right to freedom from torture (Article 7) because they denied her justice by providing her an ineffective legal remedy (Article 2, paragraph 3) due to the inadequate criminal investigations.
- Karen Noelia Llantov Huaman v. Peru, Human Rights Committee, 2005. International law, forced pregnancy. 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.
- Olga Dranichnikov v. Australia, Human Rights Committee, 2004. Gender discrimination, domestic remedies, exhaustion of remedies. HRC held sex discrimination claim inadmissible for non-exhaustion of domestic remedies because of High Court judgment in petitioner's favor.
- K.L. v. Peru, Human Rights Committee, 2003. Reproductive rights, cruel and unusual punishment. HRC held that Peruvian government violated Article 7 (the right to be free from cruel, inhumane and degrading treatment), Article 17 (the right to privacy) and Article 24 (special protection of the rights of a minor) when it denied 17 year-old the right to a legal therapeutic abortion.
- Ato del Avellanal v. Peru, Human Rights Committee, 1988. Matrimonial property, discrimination. In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue. Avellanal appealed to the Peruvian Supreme Court, arguing that the Peruvian Magna Carta and the Peruvian Constitution guarantee equal rights to both men and women. After the Supreme Court upheld the lower court's decision, Avellanal interposed the recourse of amparo (an order to guarantee protection of the complainant's constitutional rights), claiming a violation of article 2(2) of Peru's Constitution, which the Supreme Court rejected. In her complaint to the Committee, Avellanal cited violations on the ground that Peru discriminated against her because she was a woman. With respect to the requirements set forth in article 14 of the Covenant on Civil and Political Rights that all persons shall be equal before the courts and tribunals, the Committee noted that the Superior Court reversed the lower court's decision on the sole ground that Avellanal was a woman and did not have standing as such under Peruvian Civil Code article 168. The Committee also concluded that the facts before it disclosed a violation of article 3 of the Covenant which requires the State party to undertake "to ensure the equal right of men and women to the enjoyment of all civil and political rights," and article 26 which provides that all persons are equal before the law and are entitled to its protection.
- S.W.M. Broeks v. The Netherlands, Human Rights Committee, 1987. International law, gender discrimination, employment discrimination. S.W.M. Broeks, a married Netherlands national, worked as a nurse for several years before her employer dismissed her for reasons of disability. Broeks received benefits under the Netherlands social security system for five years before her unemployment payments were terminated under Netherlands law. Broeks contested the termination in domestic courts, but the Central Board of Appeal confirmed the decision of a lower municipal court not to continue unemployment payments to Broeks. In her complaint to the Committee, Broeks claimed that the Netherland's Unemployment Benefits Act (WWV) made an unacceptable distinction on the grounds of sex and status, and discriminated against her as a woman in violation of article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to its protections. Broeks argued that because she was a married woman at the time of the dispute, the law excluded her from continued unemployment benefits. Under section 13 subsection 1 of the Unemployment Benefits Act (WWV), a married women, in order to receive WWV benefits, had to prove that she was a "breadwinner" - a condition that did not apply to married men. The Committee concluded that the differentiation that appears to be one of status is actually one of sex, placing married women at a disadvantage compared with married men, amounting to a violation of article 26 of the Covenant.
- Zwaan-de Vries v. The Netherlands, Human Rights Committee, 1987. International law, gender discrimination, employment discrimination. F.H. Zwaan-de Vries is a Netherlands national who worked for several years before becoming unemployed. Zwaan-de Vries qualified for unemployment benefits under the Unemployment Act until 1979, at which time she applied for continued support through the Unemployment Benefits Act (WWV). The Municipality of Amsterdam rejected her application in accordance with section 13 subsection 1 of WWV (the "breadwinner" clause) because she was a married woman. The WWV provision that required applicants to prove that they are the family's "breadwinner" in order to qualify for benefits did not apply to married men. On appeal, the Municipality of Amsterdam affirmed the rejection, after which the author appealed to the Board of Appeal in Amsterdam. The Board of Appeals held that Zwaan-de Vries' complaint was invalid, and the Central Board of Appeal affirmed this holding. In her complaint to the Committee, Zwaan-de Vries argued that the Netherlands violated article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In interpreting the scope of article 26, the Committee took into account the "ordinary meaning" of each element of the article in its context and in light of its object and purpose, noting that article 26 derives from the principle of equal protection of the law without discrimination as contained in article 7 of the Universal Declaration of Human Rights. Thus, article 26 is concerned with the obligations imposed on States in regard to their legislation and its application. The Committee cited Hendrika Vos v. The Netherlands for the principle that differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. However, since the WWV required only women to prove their status as "breadwinner", the differentiation was not reasonable. Therefore, the Netherlands violated article 26 of the Convention when it denied Zwaan de Vries a social security benefit on an equal footing with men.
- Vos v. The Netherlands, Human Rights Committee, 1986. Gender discrimination. The Committee held that differences of treatment based on reasonable and objective criteria do not amount to prohibited discrimination.
- Lovelace v. Canada, Human Rights Committee, 1981. International law, gender discrimination. Sandra Lovelace was born and registered as a Maliseet Indian but lost her rights and status as such in accordance with section 12(1)(b) of Canada's Indian Act after she married a non-Indian in 1970. Lovelace noted that the law did not equally adversely impact Canadian Indian men who marry non-Indian women, and therefore alleged that the law is gender discriminatory in violation of articles 2, 3, 23, 26, and 27 of the Covenant on Civil and Political Rights. Supreme Court of Canada rulings in The Attorney-General of Canada v. Jeanette Lavell and Richard Isaac v. Yvonne Bédard held that section 12(1)(b) of the Indian Act is fully operative irrespective of any inconsistency with the Canadian Bill of Rights on account of sex discrimination. Although the Committee noted that the relevant provision of the Indian Act does not legally restrict the right to marry as guaranteed in article 23 of the Covenant, the Act does seriously disadvantage Canadian Indian women who want to marry a non-Indian man by limiting their family options to a domestic partnership. Lovelace raised specific issues in her complaint pertaining to her inability to continue living on the Tobique Reserve as a result of her marriage, which, according to the Committee, suggests a violation of article 27 of the Covenant which guarantees that ethnic, religious, of linguistic minorities shall not be denied the right to enjoy their own culture, to profess or practice their own religion, or to use their own language. The Committee considered the merits of the Indian Act in preserving the identity of the Maliseet tribe, but ultimately concluded that in light of the dissolution of Lovelace's marriage to a non-Indian, there was no reasonable or necessary justification to deny Lovelace the right to return to the Tobique Reserve where she was born and raised. Canada's refusal to allow Lovelace to do so was tantamount to a violation of her rights under article 27 of the Covenant.
- Shirin Aumeeruddy-Cziffra and 19 other Mauritian Women v. Mauritius, Human Rights Committee, 1981. International law, gender discrimination. Twenty Mauritian women submitted a communication to the Committee stating that the Immigration (Amendment) Act of 1977 and the Deportation (Amendment Act) of 1977 constitute discrimination based on sex against Mauritian women, violation of the right to found a family and a home, and removal of the protection of the courts of law. Prior to the enactment of these laws, alien men and women married to Mauritian nationals could equally enjoy residence status by virtue of their marriage. Under the new laws, however, alien husbands of Mauritian women must apply for a "resident permit" subject to rejection by the Minister of the Interior at any time. The new laws do not similarly affect alien wives of Mauritian men. The complaint specifically alleged several violations of the Covenant on Civil and Political Rights including: article 2 obligations to recognize rights under the Covenant without distinction based on sex; article 3 obligations to ensure the equal enjoyment of civil and political rights regardless of sex; article 26's guarantee that all persons are equal before the law and are entitled without discrimination to equal protection of the law; article 17's protection against arbitrary or unlawful interference with privacy, family, and the home; and article 23's obligations to protect an individual's right to marry. Although the Committee found that seventeen of the complainants were unmarried and therefore unaffected by the legislation in question, the Committee concluded that the future possibility of deportation and the existing precarious resident situation of foreign husbands in Mauritius represented an interference by the State with the family life of the remaining victims. The Committee held that any discrimination on the ground of sex within Mauritian legislation without sufficient justification was tantamount to a violation of articles 2 and 3 in conjunction with article 17, as well as direct violations of article 26 and 23. The Committee recommended that Mauritius adjust the provisions of the Immigration (Amendment) Act and the Deportation (Amendment) Act in order to implement the State's obligations under the Covenant to prevent sex discrimination in its laws and regulations.