Women and Justice: Topics: Custodial violence, International law, Sexual violence and rape

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.



Abromchik v. Belarus Human Rights Committee (ICCPR) (2018)

Custodial violence, Gender discrimination, 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.



Korneykova and Korneykov v. Ukraine European Court of Human Rights (2016)

Abortion and reproductive health rights, Custodial violence

The first applicant, a woman in her fifth month of pregnancy, was taken into police custody on suspicion of robbery and subsequently detained pending trial.  The woman gave birth to her son, the second applicant, while in detention.  The woman claimed that she had been shackled to bed during her stay in the maternity hospital, placed in a metal cage during court hearings before and after giving birth, and that the physical conditions of her and her child’s detention and the medical care provided to the child in pre-trial detention had been inadequate.  The Court considered that shackling to a gynecological examination chair before and after birth giving on the basis that she could escape or behave violently was unjustified, inhuman and degrading given the woman’s condition, and that holding a person in a metal cage during a trial constituted an affront to human dignity. The Court also held that keeping the woman’s son in detention without any monitoring by a pediatrician for almost three months following his birth and without adequate healthcare constituted a violation of his rights.



Seferovic v. Italy European Court of Human Rights (2011)

Custodial violence

The detention pending deportation of a woman who had recently given birth found to be unlawful and violated Article 5 § 1 (f) and Article 5 § 5 (right to liberty and security) of the European Convention on Human Rights. In September 2000, the applicant, a woman from Bosnia and Herzegovina, applied to the Italian authorities for refugee status. The application was not forwarded to the competent commission because it contained formal defects. On September 26, 2003 the applicant gave birth to a child, who died a few days later at the hospital. Then, on November 11, 2003 the police served her with a deportation order and transferred her to a holding center pending such deportation that the applicant's placement and detention had been in breach of Italian immigration law no. 286 of 1998, which provided that her deportation should have been suspended until six months after she had given birth (March 26, 2004), regardless of the fact that the baby had died. In March 2006, the Rome Civil Court granted Ms Seferovic refugee status. In addition, by way of just satisfaction, the government was required to pay the applicant 7,500 euros (EUR) for non-pecuniary damage for her unlawful detention as there was no redress available under Italian law.



The Case of Yazgül Ylmaz v. Turkey European Court of Human Rights (2011)

Custodial violence

In this case the applicant complained that, at the age of 16, she was sexually harassed while in police detention. She was given a gynecological examination – unaccompanied and without her or her guardian’s consent – to verify whether her hymen had been broken. After being acquitted and released, she suffered from post-traumatic stress and depression. Her allegations of assault in custody were largely corroborated by subsequent medical examinations. No disciplinary proceedings were brought against the prison doctors concerned. The European Court of Human Rights noted that that the law at that time did not provide the necessary safeguards concerning examinations of female detainees and that additional guarantees were required for gynecological examinations, particularly for minors. The general practice of automatic gynecological examinations for female detainees – supposed to prevent false sexual assault accusations against police officers – was not in the interests of detained women and had no medical justification. The applicant had complained of sexual harassment, not rape, which could not be disproved by an examination of her hymen. The Court noted that the new Turkish Code of Criminal Procedure regulated gynecological examinations, but made no specific provision for minors. It held that there had been a violation of Article 3 of the European Convention on Human Rights (prohibition of inhuman treatment) concerning both the gynecological examinations of the applicant while in police custody and the inadequate investigation concerning those responsible.



Juhnke v. Turkey European Court of Human Rights (2008)

Custodial violence, Sexual harassment

The applicant was a German national arrested in Turkey on suspicion of belonging to a terrorist organization. She claimed that she was subjected to a gynecological exam during her detainment and that the local gendarmes stripped her naked and sexually harassed her. The court found that in these circumstances the gynecological exam was an interference with her right to physical integrity and her right to respect for her private life.



Case of Y.F. v. Turkey European Court of Human Rights (2003)

Custodial violence

The applicant alleged that the forced gynecological exam of his wife constituted a breach of Article 8 of the Convention. The Government argued that the exam was carried out with the consent of both the applicant and his wife. The Court found that the interference with the woman’s right to physical integrity was not “in accordance with law” because the Government failed to demonstrate a medical necessity or circumstanced defined by law for an exam, and there was the question of consent.



Aydin v. Turkey European Court of Human Rights (1997)

Custodial violence

The applicant was allegedly tortured and raped while in the custody of the State security forces although according to the Government reports, she and the other members of her family were never detained. They filed a complaint to the Public Prosecutor who sent them to the State hospital for a medical examination, resulting in a perfunctory report not focusing on whether the applicant had in fact been raped. The Public Prosecutor thereupon reported to the Principal State Counsel that there was no evidence to support the applicant's complaints but the investigation was continuing. The Court found violations of Article 3 ad 16 of the ECHR. The court noted that the rape of a 17-year-old detainee who had also been subjected to other forms of physical and mental sufferings by an official of the State is an especially grave and abhorrent form of ill-treatment and amounted to torture. The failure of the authorities to conduct an effective investigation into the applicant’s alleged suffering while in detention resulted in her being denied access to a court to seek compensation. The Court dismissed the intimidation and harassment claim due to lack of sufficient evidence.



M. and Nalbandov v. Russia European Court of Human Rights (2008)

Custodial violence, International law, Sexual violence and rape

M., a 19-year-old witness in a murder case, was called for questioning to the police station. After M. denied any involvement in the murder, the officers threatened her, repeatedly beat her, and raped her. Eventually M. confessed. She was subsequently handed over to the prosecution authorities. M.’s requests to be released were denied. After the interrogation, the prosecution officials repeatedly raped her. The case was passed to the district court but was subsequently closed due to lack of proof of the guilt of the accused as “genetic expertise gives the probability of 99.999999 and not 100%”. It also turned out that two of the rapists had support from their parents, who were judges of the regional courts. Nine years after the crime, the case was brought to the ECtHR. The Court found a violation of Article 3 as Russia failed to punish torture, inhuman, and humiliating treatment, by failing to provide effective investigation of the complaint.



Salmanoglu and Polattas v. Turkey European Court of Human Rights (2009)

Custodial violence

The applicants, 16 and 19 years old at the time, were arrested in the context of a police operation against the PKK (the Workers' Party of Kurdistan). Both girls claimed that, during their police custody, they were blindfolded and beaten. N also alleged that she was sexually harassed and, forced to stand for a long time, was deprived of food, water and sleep. P further alleged that she was anal raped. The applicants were examined during their police custody by three doctors who all noted that there was no sign of physical violence to their bodies. Both applicants also had a "virginity test"; the examinations recorded that the girls were still virgins. A month later, P was given a rectal examination; the doctor noted no sign of intercourse. Following complaints made by the two applicants, an investigation was launched by the prosecution authorities, followed by criminal proceedings against the police officers who had questioned the applicants during their police custody. During the first hearing of the case, the girls further submitted that, when brought before the public prosecutor and judge with a view to their being remanded in custody, they had not made statements about their ill-treatment as they were scared. In particular, they both contended that, during certain medical examinations and when they had made statements to the prosecution, the presence of police officers had intimidated them. The accused police officers denied both ill treatment and presence during their medical examinations or the taking down of their statements. The applicants were subsequently both diagnosed with post-traumatic stress disorder. P was further declared as having a major depressive disorder. The applicants subsequently underwent psychotherapy. The domestic courts ultimately acquitted the police officers on the ground that there was insufficient evidence against them. Subsequently, that judgment was quashed; however, the criminal proceedings against the police officers were terminated as the prosecution had become time-barred. In the meantime, the applicants were convicted of membership of an illegal organization and of throwing alcohol. They were sentenced to terms of imprisonment amounting to more than 12 and 18 years, respectively. The ECtHR took consideration of the circumstances of the case as a whole, and in particular the virginity tests carried out without any medical or legal necessity as well as the post-traumatic stress and depressive disorders suffered, and was persuaded that the applicants had been subjected to severe ill-treatment during their detention in police custody, in violation of Article 3. The Court further concluded that the Turkish authorities had not effectively investigated the applicants' allegations of ill-treatment after seven years, in further violation of Article 3. The Court awarded the applicants non-pecuniary damages and costs and expenses.



Menesheva v. Russia European Court of Human Rights (2000)

Custodial violence, International law, Sexual violence and rape

The applicant was arrested and bundled into an unmarked car after refusing them entry into her flat. Without being given any reason for her arrest she was taken to the District Police Station where she was allegedly beaten, insulted, threatened with rape and violence against her family. Her requests for medical assistance and access to a lawyer were also refused. Later in the day she was taken home but then re-arrested and suffered more ill-treatment. No record of her detention was kept. She was then brought before a judge of the District Court who, without introducing himself or explaining his ruling, sentenced her to five days detention for resisting arrest (an administrative offence). In the meantime her keys were taken from her and her flat was searched. After her release she was examined by a medical expert who established that she had multiple bruises. The applicant brought proceedings against her ill-treatment by the police and her unlawful detention and lodged a claim for damages. Her claim and appeal all failed. She subsequently attempted to challenge her five days' detention before the Regional Court. In reply she was informed that no appeal against a decision on administrative detention was provided for by law. Her subsequent appeals were all rejected on the ground that the courts lacked jurisdiction over the subject matter. Later the decision was quashed on the grounds that the judge who had convicted the applicant had not examined the circumstances of the case and had not established whether she was guilty of any administrative offence. It was also held that the police had acted in violation of the procedural law. The Office of the Prosecutor General ordered the District Prosecutor's Office to complete a criminal investigation of the alleged ill-treatment and unlawful arrest and detention under the supervision of the Prosecutor General within 30 days. The parties have not provided any update concerning the criminal investigation since 2004. The ECtHR held that the ill-treatment at issue amounted to torture within the meaning of Article 3 and found that there had been a violation in this regard. On account of the lack of an effective investigation into the applicant's allegations of ill-treatment, the Court also found a violation of Article 3. There had been a violation of Article 13 as the applicant had been denied an effective domestic remedy in respect of the ill-treatment by the police. The Court concluded that the period of the applicant's detention until her appearance before a judge did not comply with the guarantees of Article 5 § 1 and that there had therefore been a violation of that provision. The ensuing detention order was inconsistent with the general protection from arbitrariness guaranteed by Article 5 thus there had been a violation. The applicant's allegations that there had been no adversarial proceedings as such, and that even the appearances of a trial had been neglected to the extent that she did not even have a chance to find out the purpose of her brief appearance before the judge, were corroborated in the court ruling quashing that judgment. It followed that there had been a violation of Article 6 § 1. The Court therefore ordered the applicant pecuniary damages, non-pecuniary damages and costs and expenses.



INTERIGHTS and EIPR (on behalf of Sabbah and Others) v. Egypt African Commission on Human and Peoples' Rights (2012)

Custodial violence

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.



Interights (on behalf of Husaini and Others) v. Nigeria African Commission on Human and Peoples' Rights (2005)

Custodial violence, Gender discrimination, Gender-based violence in general, Harmful traditional practices

Interights, an international human rights organization, filed a complaint before the Commission on behalf of Ms. Safiya Hussaini and others, arguing that Nigeria's Islamic Sharia courts had violated their rights to a fair trial and due process. Safiya Hussaini, a nursing mother, was sentenced to death by stoning for adultery. Ms. Hussaini was tried under Sharia law, according to which adultery is punishable by death. The petitioners also included Amina Lawal, a woman sentenced to similar punishment for adultery, and Bariya Magazu, an unmarried woman who received 100 lashes as punishment for zina (voluntary premarital sexual intercourse). In response to the complaint, the Chairman of the African Commission sent an urgent appeal to Nigerian President Olusegun Obasanjo, urging him to suspend further implementation of the Sharia penal statutes and convictions under those laws pending the outcome of the complaints before the Commission. In response to the Chairman's urgent appeal, the Secretary General of the African Union formally brought the matter to President Obasanjo. The President's Chief of Staff wrote to the Chairman of the African Commission that while the federal government could not suspend the operation of Sharia law, the administration would ensure that the "right to life and human dignity" of Ms. Hussaini and the others would be adequately protected. Before the court ruled on admissibility of the complaint, the complainant moved for withdrawal of the complaint, and it was withdrawn from the Commission.



Lori Berenson-Mejía v. Peru Inter-American Court of Human Rights (2004)

Custodial violence, Gender-based violence in general

The IACHR submitted an application to the Court to determine whether Peru violated Articles 1(1), 5, 8 and 9 of the American Convention on Human Rights to the detriment of Berenson-Mejia in relation to proceedings that took place against her before both military and civil courts, as well as to the inhumane conditions of detention to which she was subjected. The Court held that Peru violated Berenson-Mejia's right to humane treatment (Articles 5(1), 5(2) and 5(6) of the American Convention on Human Rights) due to the conditions she faced while incarcerated, violated Articles 1(1), 2, 8(1), 8(2), 8(2)(b)-(d), (f), and (h), 8(5) in relation to her military trial, but not to her civil trial. The Court ordered Peru to provide Berenson-Mejia with adequate medical care, to discharge the reparation established against her in favor of the State in her civil trial, to improve the conditions at the prison in which she was detained to meet international standards, and to pay costs and expenses.



María Elena Loayza-Tamayo v. Peru Inter-American Court of Human Rights (1997)

Custodial violence, Sexual violence and rape

Loayza-Tamayo was detained by the National Counter-Terrorism Bureau ("DINCOTE"). While detained, she was threatened with torture and was repeatedly raped in an effort to force her to confess to belonging to the Peruvian Communist Party ("Shining Path").  She was charged and found guilty of treason and was held in solitary confinement. She filed a complaint with the Inter-American Commission of Human Rights, alleging numerous human rights violations and requesting her release. The Commission, unable to reach a decision, submitted the case to the Inter-American Court. The Court held that Peru violated Articles 5, 7, 8(1), 8(2) and 8(4) of the American Convention on Human Rights, in relation to Articles 25 and 1(1) thereof. The Court ordered that Loayza-Tamayo be released, and that she and her next of kin be compensated for any relevant expenses.



Miguel Castro-Castro Prison v. Peru Inter-American Court of Human Rights (2006)

Custodial violence, Sexual violence and rape

Approximately 135 female prison inmates (along with about 450 male inmates) were subjected to violent attacks by guards and other state agents over the course of three days at the Castro-Castro maximum security prison. Some female inmates were humiliated, stripped-down and subjected to further physical and psychological abuse. Many inmates were held in solitary confinement, were denied medical care, and were kept from communicating with their families or their attorneys. The Court found Peru to have violated Articles 4, 5(1), 5(2), 8(1) and 25 of the American Convention on Human Rights, Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, and Article 7(b) of the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women.  The Court ordered Peru to investigate and punish those responsible for these violations, to return the bodies of any inmates killed to their next of kin, to publicly acknowledge and apologize for these violations, to provide at no cost medical and psychological treatment to the victimized inmates and next of kin, and to pay reparations to the victims or their next of kin.



Doebbler v. Sudan African Commission on Human and Peoples' Rights (2003)

Custodial violence, Gender discrimination, Gender-based violence in general

Eight female students of the Nubia Association of Ahilia University were arrested for engaging in immoral activities that violated the public order, in contravention of Sudan's Criminal Code, which incorporates Islamic Sharia law. The immoral activities the women committed consisted of "girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys, and sitting and talking with boys." The women were punished with fines and between 25 and 40 lashes. The lashing took place in public by use of a wire and plastic whip. The wire and plastic whip were unclean, the lashing was not under the supervision of a doctor, and the women were bareback in public while they were lashed. The complaint asserted that the punishment violated Article 5 of the African Charter on Human and Peoples' Rights, which guarantees the right of individuals to human dignity and prohibits cruel, inhuman or degrading punishment and treatment. The Commission found that the lashing violated article 5 of the African Charter. It requested that Sudan abolish the punishment of lashing and compensate the women for their injuries.



Perozo et al. v. Venezuela Inter-American Court of Human Rights (2009)

Custodial violence, International law, Sexual harassment

This case was brought against Venezuela under allegations of harassment and physical and verbal assault toward journalists, including some female journalists, by state actors over a period of four years. While the Court found Venezuela to be in violation of the right to speak freely, to receive and impart information, and to humane treatment (violations of Articles 1(1), 5(1) and 13(1) of the American Convention on Human Rights), the Court also found there was insufficient evidence to establish violations of Articles 13(3), 21 and 24 of the American Convention on Human Rights.  The Court further noted that it would not analyze the alleged actions under Articles 1, 2 and 7(b) of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.



X and Y v. Argentina Inter-American Commission on Human Rights (1996)

Custodial violence, Gender-based violence in general, Sexual harassment

Vaginal inspections for visits to family inmates.  A complaint was brought against Argentina by a woman and her 13-year old daughter who were routinely subjected to vaginal inspections when they would visit the woman's husband (and girl's father) at a prison. The complaint alleged that such inspections violated the "American Convention as it offends the dignity of the persons subjected to such a procedure (Article 11), and is a degrading penal measure which extends beyond the person condemned or on trial (Article 5.3) and, furthermore, discriminates against women (Article 24), in relation to Article 1.1."  Argentina argued that such inspections were reasonably necessary and conducted with as little intrusion as possible by female guards. The Commission opined that such an inspection should not occur unless absolutely necessary. In this case, the Court found that the procedure was not absolutely necessary as there were alternatives that could achieve the same objective. The Commission also held that in cases where such an inspection was absolutely necessary, they should only be carried out by pursuant to a judicial order, and by qualified medical personnel. The Commission found the inspections in this case to violate Articles 5, 11, 17, 19 of the American Convention on Human Rights.

Inspecciones vaginales para visitas a familiares de internos. Una mujer y su hija de 13 años de edad fueron sometidas de forma rutinaria a una inspección vaginal cuando visitaban al marido de la mujer (y al padre de la niña) en una prisión, por lo cual demandan a Argentina. La queja alegó que tales inspecciones violaron la "Convención Americana, ya que ofende la dignidad de las personas sometidas a tal procedimiento (Artículo 11), y es una medida penal degradante que se extiende más allá de la persona condenada o enjuiciada (Artículo 5.3) y además, discrimina a las mujeres (artículo 24), en relación con el artículo 1.1 ". Argentina argumentó que tales inspecciones eran necesarias y que se llevaron a cabo con la menor intrusión posible de las guardias. La Comisión opinó que tal inspección no debería ocurrir a menos que sea absolutamente necesario. En este caso, el Tribunal consideró que el procedimiento no era absolutamente necesario ya que había alternativas que podrían lograr el mismo objetivo. La Comisión también sostuvo que en los casos en que dicha inspección fuera absolutamente necesaria, solo deberían llevarse a cabo de conformidad con una orden judicial y por personal médico calificado. La Comisión consideró que las inspecciones en este caso violan los artículos 5, 11, 17 y 19 de la Convención Americana sobre Derechos Humanos.



African Institute for Human Rights and Development (on behalf of Sierra Leonean Refugees in Guinea) v. Republic of Guinea African Commission on Human and Peoples' Rights (2004)

Custodial violence, Gender violence in conflict, International law, Sexual violence and rape

In a radio speech, President Lasana Conté of Guinea called on the citizens and armed forces of Guinea to engage in mass discrimination against Sierra Leonean refugees in Guinea. This allegedly resulted in numerous human rights violations against the refugees, including the widespread rape of Sierra Leonean women in Guinea. According to the complaint, Sierra Leonean women were raped as a way to "punish them for being so-called rebels." The soldiers and civilians used weapons to intimidate and threaten the women. The women were of various ages and were raped in such places such as homes, prisons, and refugee camps. The Commission expressed understanding for countries such as Guinea that take on refugees from war-torn nations, and noted that such countries may be justified in taking some measures to ensure the security of their citizens. However, based on eyewitness testimony and other evidence, the Commission determined that the situation in Guinea at the time of President Lasana Conté's speech led to violations of the refugees' human rights under the African Charter. It requested that a Joint Commission of the Sierra Leonean and Guinean governments be formed to determine the extent of the losses and how to compensate the victims.



J. v. Peru, Report No. 76/11, Case 11,769A Inter-American Commission on Human Rights (2011)

Custodial violence

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).



Domestic Case Law

Individual Application of Şükran İrge Constitutional Court (2016)

Custodial violence, Gender discrimination

Şükran İrge directly applied to the Constitution Court claiming that she and her two infants (one four months old and the other two years old) were illegal detained in a penal institution in unhealthy conditions in violation of the constitutional “prohibition of torture and mal-treatment.” The applicant requested the deferral of the execution of her punishment. The Constitutional Court decided that the institution she was held in, Diyarbakir, was not suitable for children or the applicant based on the incidents that Ms. İrge described and the fact that Diyarbakir, as the only penal institution for women in the region, was severely overcrowded. Accordingly, the Constitutional Court ordered the public authorities to take measures to protect the rights and interests of the applicant and her children and left the nature of those measures (i.e. improving the conditions of the penal institution, deferral of the execution of the punishment, or alternative measures) to the discretion of the public authorities. 



Individual Application of Albina Kiyamova Constitutional Court (2016)

Custodial violence, Gender discrimination, Gender-based violence in general

The applicant, Albina Kiyamova, was arrested at Atatürk Airport in Istanbul for infringing an order that prohibited her entry into Turkey. She submitted a complaint to the Chief Public Prosecutor's Office (the “CPPO”), asserting that the police subjected her to treatment incompatible with human dignity while she was in custody. Specifically, the applicant said that the police subjected her to a naked body search and other inhuman and degrading treatment charged by race and gender discrimination. The CPPO requested permission from the relevant authority to investigate the officers of the applicant’s treatment. However, the relevant authority denied the CPPO’s request. The applicant appealed the authority’s decision, but her appeal was rejected. She then appealed to the Constitutional Court, claiming that her constitutional right to protection from treatment incompatible with human dignity was infringed. The Constitutional Court partially rejected some of the applicant’s claims due to lack of evidence but accepted her claim that it was unjust for the relevant authority to reject her claims without conducting an investigation.



Individual Application of Gülşah Öztürk, et al. Constitutional Court (2016)

Custodial violence, Gender discrimination, Sexual harassment

In response to statements by the Turkish Prime Minister regarding abortion, the applicants demonstrated outside of the Ministry of Family & Social Policies of Turkey. The applicants asked for the Prime Minister and the Minister of Family & Social Policies to apologize for the statements. When police officers told the applicants that the Minister was not present in the Ministry building, the applicants tried, unsuccessfully, to enter the building using force. Following their failed attempt to enter the building, the Applicants headed to the Grand National Assembly of Turkey and blocked the road in front of it.  At this point, the applicants were arrested by police. The applicants allege that during the arrests they were injured and sexually harassed. They were held in custody for seven hours. Medical reports indicate that when they were released, each of the activists had several bruises on their bodies. The Office of Public Prosecutor (the “OPP”) failed to investigate the activist’s allegations of abuse, did not take the testimony of the police officers regarding this incident, and decided to not prosecute this case. The applicants appealed the OPP’s decision claiming gender discrimination, but their appeal was dismissed by the lower court. The Constitutional Court ruled that the force exerted by the police officers while they arresting the applicants was proportionate because the applicants had used force against the police officers. Furthermore, the Constitutional Court concluded that the bruises mentioned in the medical report indicate that police officers only used force to capture the applicants. Because of this, the Constitutional Court found that bruises were not evidence of sexual harassment. This case is important because it demonstrates that the Constitutional Court relies on the medical reports to judge allegations of sexual harassment.



Individual Application of Ferida Kaya Constitutional Court (2016)

Custodial violence, Gender-based violence in general

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.



Raposholi v. Commissioner of Police High Court of Lesotho (2007)

Custodial violence, Sexual violence and rape

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.  



Deepa a/p Subramaniam (Appellant; Husband) v. Viran a/l Nagapan (Respondent; Wife) Dalam Perkara Mahkamah Tinggi Malaya Di Seremban (2014)

Custodial violence

The Appellant and the Respondent were married in 2003 under the Law Reform (Marriage and Divorce) Act 1976, and they have two children. In 2012, the Appellant converted to Islam, as well as his children. Pursuant to his conversion, the Appellant applied for the dissolution of the marriage of the Serembian Syariah High Court (the Syariah Court), which is the Islamic Religious Court. In September 2013, the Syariah Court granted custody order to the Appellant with visitation rights and access to the Respondent. In December 2013, the Respondent filed a petition for divorce and sought the custody of the children at the Serembian High Court, which were both granted to the Respondent, upon which both children were surrendered to the Respondent at the court premises. Two days later, the Appellant took away the youngest child from the Respondent. Consequently, the Respondent filed an application in the High Court for a recovery order for the recovery of the child, which was granted. The Appellant filed two separate appeals, one of the custody order and the other of the recovery order, in the Court of Appeal and argued that the Syariah Court, as opposed to the High Court, had jurisdiction to grant the custody order as well as the recovery order. The Court of Appeal dismissed the appeal regarding the custody order because by contracting the civil marriage, the husband and wife were bound by the Law Reform Act in respect to divorce and custody of the children, and thus, the civil court continued to have jurisdiction over the husband, notwithstanding his conversion to Islam. As provided in the Federal Constitution, the Syariah Court and the Civil High Court are courts of “coordinate” jurisdiction, and one court is in no position to overrule or set aside the decision of another court. However, the Court held that, the issue was not whether or not the High Court could disregard or set aside the Syariah Court order, but rather which court has jurisdiction over parties who had contracted civil marriage and had children out of a civil marriage. The Court held that only civil courts, including the High Court, had jurisdiction over such civil marriage, and children resulting from a civil marriage. Therefore, as per the High Court’s decision, only the Respondent has lawful custody of the child, and that the recovery order of the High Court is not flawed.



Balan Subramaniam A/L Ponnudurai (Appellant) v. Public Prosecutor (Respondent) Court of Appeal of Malaysia (2012)

Custodial violence

Appellant burned down his house, along with his wife Angeladevi, and his daughters Malini and Anuradha. Angeladevi and Anuradha died as a result, and Malini survived. Angeladevi gave an oral dying declaration and Anuradha gave a written dying declaration to the effect that the Appellant (Angeladevi’s husband and Anuradha’s father) was the person who set them on fire. Angeladevi’s declaration was given to the medical personnel who attended to the woman at the hospital, and Anuradha’s declaration was given to the police. The Appellant appealed, among other things, the admissibility of the dying declaration of Anuradha. The Court of Appeal dismissed the appeal for the following reasons, among others: (1) the threshold for admissibility of a statement in the nature of a dying declaration under section 32(1)(a) of Evidence Act of 1950 is very low in contrast to a dying declaration at common law, (2) the supporting witness statements of neighbors give greater probative force to the statements, and (3) even the recovery of a dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of the homicidal death of the victim, and even when the body is not recovered, pure circumstantial evidence itself is sufficient to sustain a charge of murder. Therefore, the court found that the appellate intervention is not warranted, and that the appeal has no merit.



2009 (JinNa) No. 9 Supreme Court of Japan (2010)

Custodial violence

The plaintiff father was granted sole custody of his child in divorce proceedings in Wisconsin, USA. The defendant mother took the child to Japan. The plaintiff father sued for custody at the Osaka High Court. The court found in favor of the defendant mother because the father had a history of violence, the child lives a stable life and had many friends in Japan, and the child desired to live with the defendant mother.



People of the Philippines v. Anacito Dimanawa Supreme Court of Philippines (2010)

Custodial violence, Sexual violence and rape, Statutory rape or defilement

The appellant was convicted of statutory rape of his daughter. The appellant claimed the rape had not happened because the daughter was not home, and that she was not a credible witness. The Supreme Court agreed with the findings and conclusion of the trial and appeals courts that rape was committed by the appellant. The Supreme Court noted that the testimony of a child-victim is to be given full weight and credence. The Supreme Court noted that respect for elders is deeply rooted in Filipino children and recognized by law such that there is a presumption that the child testified truthfully. Moreover, the concurrence of the age of the victim and her relationship to the offender warranted upgrades to the sentencing penalty.



Ex parte Alabama Department of Youth Services Supreme Court of Alabama (2003)

Custodial violence, Sexual harassment, Sexual violence and rape

Jane Doe 1 and Jane Doe 2, female minor children in the custody of Alabama’s Department of Youth Service (“DYS”), brought an action against DYS and its executive director, alleging federal claims of sexual harassment and abuse under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. (“Title IX”) and 42 U.S.C. § 1983, and state claims of intentional infliction of emotional distress, negligent hiring and supervision of DYS employees, and intentional misrepresentation. Defendants’ filed a motion to dismiss the claims based on various arguments for immunity, which the trial court denied. Defendants filed a petition for writ of mandamus directing the Circuit Court to dismiss the complaint. In ruling on Defendants’ petition, the Supreme Court considered each claim for immunity. First, DYS claimed it was immune from liability under the Eleventh Amendment. The Court, however, held that, because Congress enacted Title IX not only pursuant to its Article I powers, but also pursuant to its Fourteenth Amendment, § 5, power, Congress successfully abrogated the Eleventh Amendment immunity of the states from suits in federal and state courts for violations of Title IX. Second, the executive director argued he was entitled to federal qualified immunity from the § 1983 claim, since he was a government official. The Court disagreed, citing law holding that there is no state interest in protecting government officials accused of sexually molesting a child. Because the plaintiffs alleged that the executive director failed to protect them from harm even after he received notice of the sexual harassment and abuse, he did not have a clear legal right to dismissal of plaintiffs’ § 1983 claim on the ground of federal qualified immunity. Third, the Court found that, based on the sovereign immunity provision of the Alabama constitution, dismissal of plaintiffs’ state-law claims against the executive director in his official capacity was proper. However, the Court found that the doctrine of state-agent immunity did not warrant dismissal of plaintiffs’ state law claims against the executive director in his individual capacity.



Burton v. State Florida 1st District Court of Appeal (2010)

Custodial violence, Gender discrimination

Dubreuil proceedings (state legal proceedings used to compel a pregnant woman to undergo medical confinement, treatment, and procedures against her wishes for the benefit of the unborn fetus) were initiated against Burton on a finding that she had ignored her physician’s recommendations, creating a high-risk pregnancy that may result in the death of her baby. A Florida circuit court ordered Burton to forced medial treatment and confinement in a hospital until delivery. Holding that such a determination was inappropriate, the Court reasoned that all individuals have a fundamental right to privacy. The Court explained that Dubreuil proceedings were insufficient to compel a pregnant woman to forcibly undergo medical detention and treatment for the benefit of her unborn child. To overcome Burton’s right to refuse medical intervention in her pregnancy, the State must show a compelling interest and a method for pursuing that interest that is narrowly tailored. The State had failed to do so.



Sentencia T-622/05 Constitutional Court of Colombia (2005)

Custodial violence, Gender-based violence in general, Sexual harassment

The Court held that prison procedural rules that required vaginal inspections of female visitors, and that did not allow female visitors to enter the prison while menstruating, violated female visitors' right to dignity, personal liberty and health. The Court ordered the National Institute of Prisons and Jails (Instituto Nacional Penitenciario y Carcelario) to stop such intrusive inspections and install at the prison in question, the Cárcel Distrital Villahermosa de Cali, equipment necessary to accomplish the safety objectives of a vaginal inspection without needing to conduct such an inspection.



Articles

Violence Against Women as a Cause and Consequence of Custody (2014)

Custodial violence

This paper explores some of the ways in which violence against women relates to the imprisonment of women. It focuses on the role of gender-based violence as a pathway to and consequence of women’s incarceration, as these connections have generally received less attention than violence against women as a prison condition. The paper also considers how these pathways and consequences implicate states’ international law responsibility to eliminate violence against women and offer suggestions for how states might more effectively realize that obligation.



Reports

Meeting Minutes: Expert Group Meeting on the Causes, Consequences and Conditions of Women's Imprisonment (2013)

Custodial violence, Sexual harassment, Sexual violence and rape

On May 14th, The Avon Global Center and the University of Chicago Law School co-hosted a meeting of experts on the causes, conditions and consequences of women’s imprisonment globally. About 35 experts from the U.S., U.K., Russia, and Argentina participated in the meeting, including policy advocates, impact litigators, scholars, service providers, and senior department of corrections officials.

El 14 de mayo, el Avon Global Center y la Facultad de Derecho de la Universidad de Chicago organizaron conjuntamente una reunión de expertos sobre las causas, las condiciones y las consecuencias del encarcelamiento de mujeres en todo el mundo. Alrededor de 35 expertos de los EE. UU., EE. UU., Rusia y Argentina participaron en la reunión, incluidos defensores de políticas, litigantes de impacto, académicos, proveedores de servicios y funcionarios superiores del departamento de correcciones.