Women and Justice: Location

International Case Law

A.Sh., et al. v. Switzerland Committee Against Torture (2018)

Custodial violence, International law, Sexual violence and rape

A.Sh., his wife Z.H. and their children, ethnic Chechens of the Muslim faith with Russian citizenship were residing in Switzerland and awaiting deportation to the Russian Federation.  A.Sh.’s brother-in-law was a leader of a Chechen insurgent group who went into hiding.  A.Sh. helped his sister and was arrested and beaten for collaborating with insurgents.  He left the Russian Federation with his eldest son for Switzerland.  When the police searched for him, they interrogated Z.H. about his whereabouts and then closed his shop and would not allow her to re-open it, stating it was her husband’s.  The police came to her house, searched it, and took her passport, after which the commanding officer raped Z.H.  She and her traumatize younger son went to live with her parents, and then left the Russian Federation illegally by car for Switzerland, where the complainants’ request for asylum was denied.  The Committee considered complainants’ claim that, if they were returned to the Russian Federation, they would be exposed to torture, and Switzerland would be in violation of article 3 of the Convention.  The Swiss authorities questioned complainants’ credibility and argued that the possibility they could settle in another region of the Russian Federation, other than Chechnya, meant they were not likely to be exposed to serious risk of treatment contrary to the Convention in case of return.  The Committee addressed the claim that because Z.H.’s rape was not raised at the time of the first asylum procedure, the complainants lacked credibility, stating that Z.H. and her husband had been subjected to torture and suffered post-traumatic stress disorder according to the medical reports issued by Swiss psychiatrists and psychologists.  Accordingly, since complete accuracy is seldom to be expected from victims of torture, the delay in reporting the sexual abuse did not undermine Z.H.’s credibility.  In this connection, the Committee recalled prior its prior holdings that rape constitutes “infliction of severe pain and suffering perpetrated for a number of impermissible purposes, including interrogation, intimidation, punishment, retaliation, humiliation and discrimination based on gender”, and that in other cases it has found that “sexual abuse by the police … constitutes torture” even when it is perpetrated outside of formal detention facilities.”  The Committee also rejected the Swiss authorities’ reliance on “internal flight,” citing the Russian requirement that Russian nationals must register within 90 days of arriving in a new place of residence and that this information will be accessible to Chechen authorities.  By rejecting the asylum application based on the assumption of the availability of an internal flight alternative and without giving sufficient weight to whether they could be at risk of persecution, the Committee determined that Switzerland failed its obligations under article 3 of the Convention.  It concluded that Switzerland could not forcibly return complainants to the Russian Federation or any country where there was a risk they could be returned to the Russian Federation.  Switzerland was given 90 days to respond with the steps it planned to take.



Case of Burghartz v. Switzerland European Court of Human Rights (1994)

Gender discrimination

Gender-based law on marital names.  The Court found no legal justification for a law to require married women to take their husbands' surnames.



V.L. v. Switzerland CAT Committee (2006)

Sexual violence and rape

V.L. and her husband left Belarus for Switzerland after V.L.’s husband criticized the president of Belarus in a public newspaper. They first applied for asylum to the Swiss Federal Office for Refugees (BFF), which rejected the application and ordered V.L. and her husband to leave the country. Afterwards, V.L. revealed to her husband that she was the victim of several episodes of sexual abuse conducted by the Miliz, Belarus’ police force, who were seeking information about her husband’s whereabouts. Her husband reacted with violent insults and forbid V.L. from recounting the instances of sexual abuse to the Swiss authorities. When the Swiss Asylum Review Board (ARK) requested further information about V.L.’s reasons for seeking asylum, V.L. stated that she was raped once by three police officers, and again by these same officers after she had reported the incident to the head of the Miliz. When asked why she did not include the sexual abuse in her first application to the BFF, V.L. admitted that it was because of her husband’s psychological pressure not to report the rapes. The ARK considered V.L.’s rape claims implausible because she did not at least mention them in her first application for asylum, expressing suspicion about V.L.’s “sudden ability … to provide details about the alleged rape.” When V.L. submitted supporting medical reports to the ARK, the ARK replied that her case was closed and ordered her to return to Belarus. The Committee took note of several official documents illustrating the high incidence of violence against women in Belarus, including the Special Rapporteur on the situation of human rights in Belarus, the Special Rapporteur on Violence against Women, and the Ministry of Interior’s report of a 17% increase in reports of rape from the year prior to V.L.’s complaint. The Committee concluded that V.L.’s delay in reporting the sexual abuse was due to the reasonable fear of her husband’s shaming and rejection that can be common among female rape victims. In light of her past experiences with the Miliz and the Committee’s substantial doubt that the authorities in Belarus would take necessary measures to protect V.L. from further harm should be return, the Committee held that V.L.’s forced return to Belarus would violate Switzerland’s obligations under article 3 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 or inhuman treatment.



Legislation

Swiss Civil Code (2013)

Divorce and dissolution of marriage

Art. 96: A person cannot remarry until the person proves that his or her previous marriage has been annulled or dissolved.

Art. 105: A person can annul a marriage if a spouse was already married when they wed.



Swiss Penal Code (2014)

Female genital mutilation or female genital cutting, Forced and early marriage, Harmful traditional practices, Sexual harassment, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Art. 124: A person who seriously injures a female’s genitals can be sentenced to up to 10 years in prison or fined.  A person may be punished for causing such injuries abroad if the person is not extradited.

Art. 181a: The statute provides that anyone who coerces someone to marry or register a same-sex partnership by the use of force or threats can be punished by sentence of custody of up to five years.  The statute applies even if the marriage occurred outside Switzerland if the person has not been extradited. 

Art. 187: A person can be punished by up to five years in custody or a fine for (1) committing a sexual act with a person under 16 years old, (2) inciting a child under 16 to commit a sexual act, or (3) involving a child under 16 in a sexual act.

Art. 190: A person can be sentenced to between 1 and 10 years in custody or a fine for using violence, threats, or psychological pressure to force a female to engage in a sexual act, or for making her incapable of resisting. 

Art. 195: A person can be sentenced to 10 years in custody or fined for (1) inducing or encouraging a minor to engage in prostitution for financial gain, (2) inducing a person into prostitution by taking advantage of their dependency, (3) restricting a prostitute’s freedom to act by controlling his or her work as a prostitute, or (4) making a person continue as a prostitute against his or her will.

Art. 198: A person may be fined for offending someone by performing a sexual act in the presence of another who is not expecting it or sexually harassing someone through physical acts or indecent language. 



Federal Act on Gender Equality (1996)

Employment discrimination, Gender discrimination, Sexual harassment

Article 1 of this act states that it is intended to promote equality between men and women.  Article 3 prohibits discrimination against employees based on sex.  Article 4 prohibits sexual harassment in the workplace.  Article 5 provides for relief, including injunctive relief and lost salary.  Article 10 protects against retaliation against complainants. 



Federal Constitution of the Swiss Confederation (1999)

Employment discrimination, Gender discrimination

Art. 8 of the Constitution provides that all people are equal and no person may be discriminated against because of gender.  The Constitution also states that men and women have equal rights and the law shall ensure their equality.  Art. 35 provides for protection of fundamental rights even in private relationships.



Domestic Case Law

B. v. A., BGE 126 IV 124 Supreme Federal Court (2000)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A. met B. in St. Gallen in 1993. A. had to leave Switzerland at the end of 1995. They married in April 1996 in Ghana. In August 1996, A. was able to return to Switzerland. After his return, the relationship gradually became more oppressive and menacing toward B., for example, by pressuring B. for sexual intercourse.  B. gave in to his demands when she could no longer stand the intimidation. B. separated from A. on March, 28, 1998, and on July 20, 1998, A. was prosecuted for threatening, assaulting, and coercing B. The district and appellate courts in the Canton of St. Gallen sentenced A. to prison and condemned him to heavy penalties, including both imprisonment and damages. A. appealed to the Federal Supreme Court, under the claim that he was the husband of B. and not a rapist who lacked entitlement to approach B. The Supreme Federal Court rejected A.’s appeal.



Public Prosecutor of Zurich Canton v. X., BGE 129 IV 81 Supreme Federal Court (2002)

Sexual violence and rape, Trafficking in persons

The defendant, X., procured women for the purpose of prostitution from a recruiter operating in Thailand.  She deliberately chose women from poor and disadvantaged backgrounds because of their greater vulnerability and their perceived inability to resist demands made by X. On February 14, 2000, the Zurich District Court convicted X on charges relating to the promotion of prostitution of others under Article 195(3) of the Penal Code (Switzerland), but found the defendant not guilty in relation to trafficking in persons, assault, and other prostitution related offenses.  Her conviction resulted in a sentence of two-and-a-half years of imprisonment and a fine of CHF 10,000. On January 24, 2001, the Zurich Court of Appeal, found X. guilty of multiple counts of trafficking in human beings (under Article 196 of the Criminal Code), promotion of prostitution (under Article 195(3) and (4) of the Criminal Code), and for offenses relating to bribery (Articles 288a and 305). X.’s prison sentence was increased to four and a half (4.5) years and the fine of CHF 10,000 was affirmed. X. appealed to the Supreme Federal Court for the annulment of the decision made by the Zurich Court of Appeal. The Supreme Federal Court confirmed the decision of the Zurich Court of Appeal, adding that any consent that may have been given by any of the trafficked women after they had been trafficked and were present in Switzerland would have been irrelevant.



Public Prosecutor of Canton Ticino v. A.A., 6S. 292/2004 Supreme Federal Court (2004)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

A.A. and B.A., while estranged spouses but not having applied for legal separation, were living in the same house in two separate apartments, with A.A. paying for the rental of both units. The decision to live in the same house was accepted by B.A., as it allowed them to continue helping each other with everyday tasks and to oversee the children’s education together. On June 7, 2003, B.A. alleged that the two engaged in intercourse without B.A.’s consent. On May 24, 2004, the Canton Ticino Public Prosecutor indicted A.A. before the Court of Riviera for alleged sexual violence against his wife, B.A. On July 2, 2004, the Canton Ticino Court of Appeal dismissed the indictment of the Public Prosecutor, as B.A. had withdrawn the allegation of sexual violence committed against her by her husband. The Public Prosecutor appealed the decision before the Supreme Federal Court. Under Swiss law, sexual violence against a spouse can only be prosecuted where the victim has made allegations. The Supreme Federal Court, on the basis of the evidence collected in the course of the proceeding, and as argued by the Public Prosecutor, stated that the fact that the spouses were living in two separate apartments was not material, as they were nevertheless maintaining a “communion of life” status, which could be inferred from their mutual assistance, meals together, continued feelings of affection, and occasional sexual intercourses. Therefore, on the basis of such evidence, the Supreme Federal Court stated that the decision of the Court of Appeal to dismiss the indictment of A.A. was legitimate and rejected the Public Prosecutor’s appeal.



X. v. Y., BGE 131 IV 167 Supreme Federal Court (2005)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Sexual violence and rape

Y. was married to X. until 1993. After the divorce, he continued to live with his former wife until March 2001, when he moved into his own flat. The former spouses continued their sexual relationship until September 2, 2001, after which they finally separated. From September 21 to October 12, 2001, Y. sent X. a large number of messages demanding that she perform certain sexual acts and threatening her. X. finally consented to the sexual acts demanded - including sexual intercourse and filming a sex tape. X. was forced to film pornography and suffered sexual abuse for about two months. Initially, the Winterthur Court condemned Y. to sixteen (16) months in prison for sexual coercion and rape. On appeal, the prison sentence was reduced to four (4) months, but Y.’s culpability was firmly reiterated. Y. appealed to the Supreme Federal Court, claiming that the threats to X. were not as severe as the prosecution had claimed. This appeal was rejected by the Supreme Federal Court, and the sentence of four (4) months remained in place.



Public Prosecutor of Fribourg Canton v. B., BGE 132 IV 120 Supreme Federal Court (2006)

Domestic and intimate partner violence, Sexual violence and rape

A. (born in 1970) and B. (born in 1969) became engaged in 1996, and, two years after the engagement, they began to have regular sexual relations. On September 3, 2002, whilst under the influence of alcohol, the two engaged in intercourse in A’s house without her consent, with B. filming the act. These sexual encounters continued until 2004, when the Fribourg Cantonal Police seized the tapes recorded. The Canton of Fribourg Supreme Court convicted B. of first and second degree sexual coercion and rape and sentenced him to imprisonment. In 2004, and, on appeal, in 2006, A. was sentenced with a fine for having produced and manufactured, as the protagonist, violent pornography (paragraphs 3 and 3a Art. 197 Criminal Code). The couple appealed to the Supreme Federal Court, invoking mitigating circumstances covered by article 63 Criminal Code, citing the fact that both individuals were drunk when recording the first two tapes. The Supreme Federal Court noted that A. was not a minor under the age of 16; however, she had been subjected to acts of violence that were unacceptable. B. forced her to undergo disproportionate torture and degrading and inhuman acts that contravened her human rights. Thus, B.’s heavy prison sentence was confirmed by the Supreme Federal Court. Additionally, the Supreme Federal Court judged that sexual coercion (Art. 189 Criminal Code) and rape (Art. 190 Criminal Code) may occur even if the sexual act was atypical and did not consist of the penis penetrating a woman’s genitalia.



X. v. A., 6B_962/2010 Federal Court (2011)

Gender-based violence in general, Sexual violence and rape

A. was a drug-addicted prostitute working in the Sihlquai area in Zurich who agreed to perform certain sexual acts with client X. for a remuneration of Fr. 50. X. took A. to a rented room outside of the city of Zurich where X. beat A. with a whip and forced her to perform violent and humiliating sexual acts. A. claimed not to have agreed to perform these acts with X., while X. countered that they were part of the agreed transaction. X. was sentenced by the Baden District Court to imprisonment for sexually abusing A. X. appealed the verdict and the Canton Aargau Supreme Federal Court dismissed the appeal, finding the preconditions of sexual assault fulfilled. The Supreme Federal Court determined that, even if A. voluntarily agreed to perform certain sexual acts with X., she did not consent to the violent acts and she could not express her refusal in any other manner than verbally and through limited physical resistance. The Supreme Federal Court also found that the client X. could not expect the victim A. to agree to such violent sexual practices, even for remuneration.