Women and Justice: Location

International Case Law

M.P. v. Denmark Human Rights Committee (ICCPR) (2017)

Domestic and intimate partner violence, 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 (ICCPR) (2017)

Domestic and intimate partner violence, 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.



Hashi v. Denmark Human Rights Committee (ICCPR) (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, Gender violence in conflict, International law

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.  The Committee required Denmark 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.



S.F.A. v. Denmark CEDAW Committee (2018)

Abortion and reproductive health rights, Female genital mutilation or female genital cutting, Forced and early marriage

S.F.A., a Somali national, applied for asylum in Denmark for herself and her son born in 2013.  She was subjected to female genital mutilation as a child and her father wanted to marry her forcibly to an older man.  She had a relationship against her family’s wishes with H., became pregnant and had an abortion.  Her father learned about the abortion and her brothers threatened to hand her over to Al-Shabaab.  She left Somalia and ended up in Italy.  H. traveled to Italy, they got married and she became pregnant and H. died.  S.F.A. and her baby traveled to Denmark without documents and she applied for asylum.  Denmark rejected her asylum application and dismissed her claim.  She filed a complaint with CEDAW claiming that, if she and her son were deported to Somalia she would be personally exposed to serious forms of gender-based violence, as defined under articles 2, 12, 15 and 16 of the Convention.  The Committee noted that the Danish authorities found that S.F.A.’s account lacked credibility due to factual inconsistencies and lack of substantiation and that they considered the general situation in Somalia.  The Committee rejected her claim that the fact she is a single woman constitutes a supplementary risk factor in Somalia, finding that she has several close relatives in Somalia.  Based on the record, the Commission deemed the communication inadmissible under article 4(2)(c) of the Optional Protocol, finding that it was not able to conclude that the Danish authorities failed to give sufficient consideration to the application or that consideration of her case suffered from any procedural defect.



A.S. v. Denmark CEDAW Committee (2018)

International law, LGBTIQ

A.S., a Uganda national, applied for asylum in Denmark.  She claimed she was wanted in Uganda and at risk of being killed there because she was a lesbian.  She was forced to marry a man and have three children, and when he died, she made a living working in a bar frequented by lesbians.  Three men made advances to her in the bar, she turned them down, and they became aggressive.  Her home was ransacked and burned, her belongings were stolen, and the police looked for her, including at her mother’s house.  She left Rwanda traveling with a visa obtained in Kampala.  Danish authorities rejected the asylum application, noting the visa contained the wrong name.  A.S. filed a complaint with CEDAW claiming that, deportation to Uganda would violate her rights under articles 1-3 of the Convention because her life would be in danger at the hands of the police and ordinary people due to her sexual orientation.  She claimed that her case was not properly investigated by the Refugee Appeals Board.  The Committee noted that the Danish authorities found A.S.’ account lacked credibility due to factual inconsistencies and lack of support related to her claim to be a lesbian and her account of the bar incident.  The Committee also noted that the authorities considered the situation of gay people in Uganda, and found that, notwithstanding the fact homosexuality is prohibited under the Penal Code, the ban has not been enforced and gay people are not targeted.  The Committee deemed the communication inadmissible under article 4 (2)(c) concluding that A.S. failed to support that the lack of reference to the Convention in the asylum decision or the refusal to call a witness stemmed from any gender-based discrimination.  It also did not find any procedural defect or arbitrariness in the decision-making process or any breach of the Convention as a result of the initial error related to A.S.’ name.



Domestic Case Law

Case No. 128/2011 Denmark Supreme Court (2012)

Domestic and intimate partner violence

The defendant was found guilty of acts of violence toward his sons, which included physical abuse and constituted a continued offense because the violence involved a number of uniform and continuous acts over a period of ten (10) years. Additionally, he was found guilty of threatening his wife with abuse and death. Prior to these offenses, the defendant had no criminal record. Initially, the High Court found the defendant guilty of acts of violence and abuse against his children and wife and sentenced to one year and three months of imprisonment. Subsequently, the Supreme Court reversed the High Court’s determinations that the defendant did not commit any abuse and the acts of violence did not constitute a continued offense as well as increased the length of the defendant’s imprisonment from ten (10) months to one year and three months.



Case No. 48/2010 Denmark Supreme Court (2012)

Employment discrimination

The plaintiff was employed as a social and health care assistant, but was dismissed from her job after approximately one month due to excessive sickness absence. At the time she was dismissed, the employee was pregnant and submitted a claim to her former employee requesting compensation corresponding to six months’ pay because her dismissal violated the Danish Act on Equal Treatment of Men and Women. The Supreme Court agreed and held that the former employee should be awarded her six months’ pay and further found that the right not to be dismissed due to pregnancy-related absence covers situations where an employer was neither aware nor should have been aware of the pregnancy at the time of the dismissal.



U1993.941/2V Western High Court (1993)

Sexual violence and rape

The defendant was found guilty of rape and sentenced to four months imprisonment. The defendant had intercourse with a physically and mentally disabled woman who was the sister of the woman with whom he cohabited. The victim had limited power in her arms and legs and difficulties moving and walking. She was also mentally handicapped. At trial, the woman testified that she tried to push the defendant away from her although she did not scream. The Court upheld the lower court’s acquittal of the defendant of aggravated rape because the intercourse did not occur under threat of violence. However, the Court found the defendant guilty of having forced intercourse with a disabled woman (Penal Code § 218) because her condition rendered her unable to resist the defendant and the defendant was aware of this because of his prior acquaintance with her. The Court awarded the woman 15,000 DKK as compensation.



U1987.960V Western High Court (1987)

Domestic and intimate partner violence

The defendant was found not guilty of brutal violence by the Municipal Court, but was sentenced to sixty days of conditional imprisonment. The defendant was accused of abuse when he knocked his wife over, tore at her clothes, hit her, pulled her hair, bit her, and tried to take photographs of her naked. The Municipal Court awarded her compensation of 4,000 DKK. Subsequently, the defendant appealed to the Western High Court for reduced liability for compensation. A majority of the court found that the wife was not entitled to compensation for two reasons: 1) the defendant was only sentenced to conditional imprisonment; 2) the defendant was found not guilty of brutal violence by the Municipal Court. A dissenting judge advocated awarding compensation because of the circumstances of the abuse and also because the defendant was found guilty of committing ordinary violence. Ultimately, the High Court denied compensation to the wife.



U1988.79V Western High Court (1988)

Statutory rape or defilement

The defendant was acquitted of having sexual intercourse with a woman placed in his care, contrary to Penal Code § 219 which provides that any person who is employed in or in charge of any children’s or young person’s home or institution for the mentally deficient, among others, and who has sexual intercourse with any person who is an inmate of the same institution, shall be liable to imprisonment for any term not exceeding four years. The defendant, a thirty-year old man, was approved by the municipality to have children and adolescents in his care at his home. The victim was a twenty-four year old woman who was placed in his care for her drug abuse. The Municipal Court and the High Court found that Penal Code § 219 was intended to protect individuals under state care from disregard of special duties or abuses of power by employees and superintendents of the mentioned institutions. According to the travaux preparatories, Penal Code § 219 applies to both public and private foster homes as well as institutions and therefore, would apply in this case. However, the court found that the protection from sexual relations in relation to arrangements for private care is provided for by different provisions of the Penal Code, not the travaux preparatories of § 219. Consistent with this finding, the High Court found the defendant not guilty because the provision in § 219 only applies with certainty to those under institutional care, not private care.



U1960.1075V Western High Court (1960)

Domestic and intimate partner violence, Sexual violence and rape

While in the process of obtaining a legal separation from his wife, the defendant broke into her bedroom and put her in a stranglehold until she surrendered to intercourse.   He was convicted of rape, thus recognizing marital rape within the definition of rape in the Penal Code.



U1984.253V Western High Court (1983)

Domestic and intimate partner violence, Sexual violence and rape

Over a period of fifteen months, the defendant kicked and beat his wife, forcibly sodomized her and introduced foreign objects into her rectum, which eventually contributed to her death.   Rejecting defendant's statement that his wife had consented to being beaten during intercourse, the Municipal Court found him guilty of assault and maltreatment and sentenced him to six years imprisonment.  The prosecution sought to increase the defendant's sentence.   The Court increased the defendant's sentence because of the aggravating circumstance of the long duration of grossly degrading sexual assault suffered by the victim. 



U1991.534H Supreme Court of Denmark (1991)

Sexual violence and rape

The defendant was found guilty of multiple rapes and sentenced to five and a half years of imprisonment.  He was found guilty of threatening his victims with a knife, hitting them, holding them in a stranglehold and threatening them with death.  Four of his victims were prostitutes.   The Supreme Court awarded compensation to two rape victims who had been denied such compensation by the High Court because they were prostitutes.