Women and Justice: Topics: Abortion and reproductive health rights, International law

Domestic Case Law

The Center for Health, Human Rights and Development (CEHURD) v. Mulago National Referral Hospital High Court of Uganda (2013)

Abortion and reproductive health rights, International law

Here, Justice Lydia Mugambe held that Mulago National Referral Hospital’s negligence and the resulting disappearance of the couple’s baby amounted to psychological torture for the parents and violated their rights to health and access to information. Specifically, Justice Mugambe held that a woman’s inability to access sufficient antenatal care demonstrates a failure on the part of the State to fulfill its obligations under the right to health. The decision outlines Uganda’s obligations under international law to devote special attention and resources to women whose circumstances make them vulnerable.



Sentencia nº 226 de Tribunal Supremo de Justicia (Número de Expediente: C07-0187) Tribunal Supremo de Justicia - Sala de Casación (Venezuela Supreme Court of Justice - Appeal Chamber) (2007)

International law, Sexual violence and rape

In 2001, the female victim was kidnapped, tortured, raped and kept in captivity for four months.  All complaints made by her sister to the competent authorities related to her sister’s disappearance were dismissed by the police.  In 2007, the competent criminal court issued a partial conviction to the offender.  He was convicted for the crimes of kidnapping and captivity.  However, the acts of physical, verbal, psychological and sexual violence were not considered by the court because, according to the court, there was not enough evidence to determine that sex and violence were committed without the plaintiff’s consent.  Between 2001 and 2007 the victim went through many judicial processes. Decision No. C07-0187 was the final decision issued by Venezuelan Supreme Court of Justice, as the court of last recourse in Venezuela.  After having exhausted all national procedures, the complainant referred her case to the international courts in order to sue the Venezuelan state for failing to safeguard and protect her human rights.  On March 6, 2018 the Inter-American Commission on Human Rights found the Venezuelan state responsible for the violation of the rights established in the Inter-American Convention to Prevent and Punish Torture.



Resolución Nº 01439 - 2014, Expediente: 11-000056-0532-PE Tribunal de Apelación de Sentencia Penal II Circuito Judicial de San José (2014)

Domestic and intimate partner violence, International law

The Court established that for a cause of action based on a threat against a woman to meet the justiciability criteria pursuant to article 27 of the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer), it is necessary that the conduct be executed in a context of a (1) marriage or of (2) factual union.

La Corte estableció que para que una causa de acción basada en una amenaza contra una mujer cumpla con los criterios de justiciabilidad, en conformidad con el artículo 27 de la Ley de Penalización de Violencia contra la Mujer, es necesario que la conducta se haya ejecutado en un contexto de (1) matrimonio o de (2) unión de hecho.



Resolución Nº 00355 - 2016, Expediente: 12-110068-0671-TP Tribunal de Apelación de Sentencia Penal: III Circuito Judicial de Alajuela en San Ramón (2016)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

The Court established a unified standard of the legal meaning of a “factual union” (unión de hecho). This term is used in the Law of Criminalization of Violence against Women (Ley de Penalización de Violencia contra la Mujer) and in the Family Code (Código de Familia). However, the definition is composed of different elements under each of these legislations. For example, in the Family Code’s definition, the requirement for the marital union to have lasted for a three-year term is considered unnecessary in order to protect the life, free will, physical integrity, and the woman’s dignity in a marriage or factual union. In the unified standard, the Court established that the necessary elements of a factual union are the following: (1) stability (which excludes periodic relationships); (2) publicity (which excludes furtive relationships); (3) cohabitation (which excludes superficial relationships); and (4) singularity (which excludes multiplicity). The Court recognized these elements and acknowledged that they were also recognized by the Convention of Belém do Pará, establishing that it is also considered domestic violence when the aggressor lives with the victim (cohabitation).

El Tribunal estableció una definición legal unificada del significado de una “unión de hecho.” Dicho término se utiliza en la Ley de Penalización de la Violencia contra la Mujer y en el Código de la Familia. Sin embargo, la definición se compone de diferentes elementos en cada una de estas legislaciones. Por ejemplo, en la definición del Código de la Familia, el requisito de que la unión matrimonial haya durado un período de tres años se considera innecesario para proteger la vida, el libre albedrío, la integridad física y la dignidad de la mujer en un matrimonio o en una unión de hecho. En la norma unificada, la Corte estableció que los elementos necesarios de una unión de hecho son los siguientes: (1) estabilidad (lo cual excluye las relaciones periódicas); (2) publicidad (lo cual excluye relaciones furtivas); (3) la cohabitación (lo cual excluye las relaciones superficiales); y (4) la singularidad (lo cual excluye la multiplicidad). La Corte reconoció estos elementos y reconoció que también fueron reconocidos por la Convención de Belém do Pará, estableciendo que también se considera violencia doméstica cuando el agresor vive con la víctima (convivencia).



Resolución Nº 00618 - 2018, Expediente: 12-021945-0042-PE Tribunal de Apelación de Sentencia Penal: II Circuito Judicial de San José (2018)

Domestic and intimate partner violence, International law

The court emphasized that in order to prove a domestic violence cause of action, the plaintiff must prove that she has been subject to a behavior pattern that fits within the domestic violence cycle. Such behavior pattern consists of three stages: (1) the growing tension stage; (2) the acute aggression stage; and (3) the kindness or affection stage. The third stage is followed by the aggressor’s regret and then by the reconciliation, which in turns leads to another assault and then to the repetition of the cycle. This third stage is crucial in order to recognize whether there is a systematic situation of violence and to prove the elements of this cause of action.

 

La Corte enfatizó que para presentar con éxito una causa de acción legal por violencia doméstica, la demandante debe probar que ha estado sujeta a un patrón de comportamiento que se ajusta al ciclo de violencia doméstica. Dicho patrón de comportamiento consta de tres etapas: (1) la etapa de tensión creciente; (2) la etapa de agresión aguda; y (3) la etapa de bondad o afecto. A la tercera etapa le sigue el arrepentimiento del agresor y luego la reconciliación, que a su vez conduce a otro asalto y luego a la repetición del ciclo. Esta tercera etapa es crucial para reconocer si existe una situación sistemática de violencia y para probar todos los elementos que constituyen esta causa de acción.



Bah v. Mukasey United States Court of Appeals for the Second Circuit (2008)

Female genital mutilation or female genital cutting, Gender-based violence in general, Harmful traditional practices, International law

Three plaintiffs from Guinea who underwent female genital mutilation (“FGM”) appealed decisions from the Board of Immigration Appeals (“BIA”), which had denied their claims for relief and withholding of removal under the Convention Against Torture based on FGM. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution, unless the government shows either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the presumption was automatically rebutted because the FGM had already occurred. On appeal, the Second Circuit held that the fact that an applicant had already undergone FGM cannot, in and of itself, rebut the presumption that her life or freedom will be threatened in the future. In doing so, the Second Circuit found that the BIA had committed two significant errors in its analysis. First, it assumed that FGM is a one-time act without placing the burden on the government to show that the individuals in this case are not at risk of further mutilation. Second, to rebut the presumption, the government must show that changed conditions in the country obviate the risk to life or freedom related to the original claim; it is not enough that the particular act of persecution suffered by the victim in the past might not reoccur. The Second Circuit accordingly vacated the BIA decisions and remanded the cases.



Kone v. Holder United States Court of Appeals for the Second Circuit (2010)

Female genital mutilation or female genital cutting, Harmful traditional practices, International law

The plaintiff, who was from Côte d'Ivoire, appealed a Board of Immigration Appeals (“BIA”) decision affirming the denial of her asylum application, withholding of removal, and protection under the Convention Against Torture. Her asylum claim was based on female genital mutilation (“FGM”) and her fear that her daughters would be subjected to FGM if she was removed. An applicant who demonstrates past persecution benefits from the presumption that he or she faces future persecution unless the government rebuts that presumption by showing that there is either a change of circumstances such that the applicant’s life or freedom would not be threatened upon return to his or her native country, or a reasonable possibility of internal relocation within the country. Here, the BIA found that the plaintiff’s several voluntary return trips to her native country prior to her application for asylum rebutted that presumption and undermined her credibility. The Second Circuit disagreed, finding that a safe return on one occasion does not preclude potential future harm and that the regulation does not require an applicant to show that she would immediately be persecuted upon return. Similarly, the Second Circuit also found that an applicant’s return trips are not sufficient to undermine an applicant’s credibility. The Second Circuit accordingly vacated the BIA decision and remanded the case, noting that the agency may wish to consider the application for “humanitarian asylum.”



Rreshpja v. Gonzalez United States Court of Appeals for the Sixth Circuit (2005)

International law, Sexual violence and rape, Trafficking in persons

The plaintiff-appellant, a citizen of Albania, arrived in the United States with a fraudulently obtained non-immigrant visa after a man attempted to abduct her in her home country. The Immigration and Nationalization Service initiated removal proceedings against her. During those proceedings the plaintiff requested either a grant of asylum or the withholding of removal and protection under the Convention Against Torture, arguing that she is at risk of being forced to work as a prostitute if she were to return to her home country. The immigration judge denied her application, as did the Board of Immigration Appeals. The Sixth Circuit affirmed the denial because the plaintiff was unable to show that she was a member of a particular social group that faced persecution in her home country.



R.M., L.R. v. C.A., A.D. (Denuncia por violencia familiar) Camara Civil (Civil Court) (2014)

Domestic and intimate partner violence, International law

Child protective services appealed a decision of the court of first instance denying its request to extend to Ms. R.M.’s children an order of protection against her partner on the basis that (1) Ms. R.M. did not request that protection and (2) weaknesses were found in the determination by the Office of Domestic Violence regarding the degree of risk faced by the children.  In overturning the trial court’s ruling, the appellate court (1) found that applicable rules permit a judge to take measures that put an end to the crisis in order to enable the victim of domestic violence to return to a daily routine free from the influence of violence and (2) noted that the Office of Domestic Violence reported that the situation presented a high degree of risk, including in relation to the children.  In addition, the appellate court noted that in the cases brought before the judiciary, judges must ensure that the principals and rights set forth in the Treaty on the Rights of Children are observed.

 

Los servicios de protección infantil apelan una decisión del tribunal de primera instancia que denegó su solicitud de extender a los niños de la Sra. R.M. una orden de protección contra su pareja sobre la base de que (1) la Sra. R.M. no solicitó que se encontraran protección y (2) debilidades en la determinación de la Oficina de Violencia Doméstica con respecto al grado de riesgo que enfrentan los niños. Al anular el fallo del tribunal de primera instancia, el tribunal de apelación (1) encontró que las reglas aplicables permiten que un juez tome medidas para poner fin a la crisis a fin de permitir que la víctima de violencia doméstica regrese a una rutina diaria libre de la influencia de violencia y (2) notó que la Oficina de Violencia Doméstica informó que la situación presentaba un alto grado de riesgo, incluso en relación con los niños. Además, la corte de apelaciones señaló que en los casos presentados ante el poder judicial, los jueces deben garantizar que se respeten los principios y derechos establecidos en el Tratado sobre los Derechos del Niño.



A.F. re: Self-Satisfying Measure Corte Suprema de Justicia de la Nación (Supreme Court of Argentina) (2011)

Abortion and reproductive health rights, International law, Sexual violence and rape, Statutory rape or defilement

A.F. sought an abortion for her 15-year-old daughter, A.G., whose stepfather raped and impregnated her.  The courts of first and second instance rejected A.F.’s petition because Argentina’s criminal code permits abortion in cases of sexual assault of a mentally impaired woman and A.G. is not mentally impaired.  The appellate court, however, authorized the abortion, holding that the relevant statute should be read broadly to encompass all pregnancies resulting from sexual assault.  Following the abortion, the local guardian ad-litem and family representative (“Tutor Ad-litem y Asesor de Familia e Incapaces”) challenged the appellate court’s decision on the basis that the appellate court’s broader interpretation of the statute violated constitutional protections for the fetus as well as protections found in treaties to which Argentina is a signatory.  Despite the abortion having already been performed, the Supreme Court agreed to adjudicate the matter given its importance and affirmed the appellate court’s ruling, noting that (1) certain of the referenced treaties had been expressly amended to permit abortions resulting from sexual assault and (2) any distinction between victims of sexual assault who are mentally impaired in relation to those who are not is irrational and therefore unconstitutional.  



González de Delgado and Others v. Universidad Nacional de Córdoba Corte Suprema de Justicia de la Nación (Supreme Court of Argentina) (2000)

Gender discrimination, International law

Parents of students enrolled at Colegio Nacional de Monserrat, a private all-male high school, filed suit to prevent the implementation of an order of the High Council of the National University of Córdoba (Consejo Superior de la Universidad Nacional de Córdoba) mandating that the high school admit female applicants. They argued that parents have the right to choose the type of education their children receive. The court of first instance found partially in favor of the parents, which was overturned by the appellate court.  Among other reasons, the Supreme Court upheld the appellate court ruling on the basis that (1) the High Council of the National University of Córdoba acted within its statutory authority, (2) the Argentine constitution does not guarantee the right to enroll children in schools limited to a specific gender, (3) mixed gender schools do not infringe on the rights of parents to elect the type of education their children receive, and (4) establishing a mixed gender school is the only alternative compatible with the constitutional principles of equality and the Convention on the Elimination of All Forms of Discrimination Against Women to which Argentina is a signatory.



De Sousa v. Administración de Parques Nacionales Camara Federal de San Martin (Federal Court of San Martin) (2018)

Employment discrimination, Gender discrimination, International law

On July 6, 2016, the plaintiff notified the defendant-employer of her pregnancy and intention to take maternity leave.  As of the date of notification, the plaintiff held a temporary executive position.  On July 11, 2016, the defendant notified the plaintiff that her temporary designation as an executive was of no effect.  The defendant subsequently provided a maternity compensation package beginning on the date her temporary designation was revoked, but it did not reflect her higher earnings as a temporary executive.  The court of first instance granted the plaintiff maternity leave at a salary corresponding (1) to her executive status as from the date she provided notice until 30 days before the probable date of birth and (2) to her non-executive status during the 100 days following the birth of the plaintiff’s child.  On appeal, the plaintiff challenged the trial court’s ruling denying her executive pay for the 100-day period following the birth of her child, while the defendant challenged the trial court’s ruling granting the plaintiff executive pay from the date of notice of her pregnancy because of the subsequent cancellation of the plaintiff’s executive status on July 11, 2016.  The appellate court found in favor of the plaintiff, noting that (1) the Argentine Constitution provides for the full protection of women during pregnancy and breastfeeding, (2) the International Treaty for the Elimination of all forms of Discrimination against Women (to which Argentina is a signatory) requires the adoption of laws that prevent discrimination based on marriage or pregnancy, and (3) the failure to award the plaintiff maternity compensation corresponding to her executive status would result in a failure to ensure employment stability.  The appellate court ruled against the plaintiff’s request to return to her executive position following maternity leave on the basis that the designation was temporary in nature and that laws protecting women during maternity leave cannot alter the fundamental nature of the relationship prior to maternity.



Sentenza N. 10959/2016 Corte de Cassazione: Sezioni Unite (Supreme Court: Joint Sections)

Domestic and intimate partner violence, Femicide, Gender-based violence in general, International law, Sexual harassment, Sexual violence and rape, Stalking, Statutory rape or defilement

The Supreme Court, in deciding upon the applicability of certain procedural rules, confirmed the main international definitions of violence within gender relationships. Particularly, the local court dismissed the case against a man charged with the crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, without giving any notice thereof to the person injured by the crime in accordance with Article 408 of the Italian Code of Criminal Procedure. In deciding the case, the injured person appealed the decision of the local court and requested the Italian Supreme Court to declare the dismissal of the case null and void. In deciding the procedural issue at hand, the Italian Supreme Court pointed out that the Italian criminal law has drawn the definitions of gender violence and violence against women mainly from international law provisions, which are directly enforced in the system pursuant to Article 117 of the Constitution. In this decision the Italian Supreme Court gave all the definitions of violence within gender relationships in consideration of international conventions and specifically European law, and concluded that such definitions, even if not directly included in domestic regulations, “are fully part of our national system through international law and are therefore enforceable.” According to this interpretation, the definitions of gender violence given by the Istanbul Convention on preventing and combating violence against women and domestic violence are directly applicable in the Italian legal framework. On this basis, the Court ruled that notice of dismissal of the case must always be served on the person injured by crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, as those provisions relate to the gender violence notion set forth under the international and EU provisions applicable in the Italian legal framework.



Roches v. Belize Agricultural Health Authority and Attorney General of Belize Supreme Court of Belize (2017)

Employment discrimination, International law, Sexual harassment

The claimant brought a claim of damages for unlawful termination of employment because she alleged she was terminated before her two-year contract had run despite a positive one-year evaluation.  She claimed her contract was not renewed because she made reports of sexual harassment by her supervisor to the police.  However, that report was made four months after the claimant was informed of the decision not to renew her contract.  The court also determined that her contract was a one-year contract.  As a result, her claim was dismissed.  However, the court “condemn[ed] in the strongest possible terms the exploitation and degradation of women by predatory male behavior in the workplace” and found that the respondent “has an obligation to not sweep these grave allegations under the rug.”  The court urged an investigation into the alleged conduct by claimant’s supervisor and for the respondent to “duly penalize such behavior if substantiated, in keeping with Belize’s national and international obligations to protect the rights of women and children from sexual exploitation under treaties such as the Convention on the Elimination of All Forms of Violence and Discrimination Against Women.”



Gandhi v. Perak, et al. Federal Court of Malaysia (2018)

Divorce and dissolution of marriage, Gender discrimination, International law

The appellant, Pathmanathan (husband), and the respondent, Indira Gandhi (wife), were married and had three children. In March 2009, the husband converted to Islam. In April 2009, the husband obtained certificates of conversion to Islam issued by the Pengarah Jabatan Agama Islam Perak over all three children as well as an ex-parte interim custody order over the children. In September 2009, he obtained a permanent custody order from the Syariah Court. In 2013 and 2014, the mother obtained orders from the High Court annulling the unilateral conversions and the Syariah Court’s custody order, inter alia, on the grounds that vesting equal rights to both parents to decide on a minor child’s religious upbringing and religion would be in accordance with international human rights principles, specifically the convention on the Rights of the Child (CRC) and CEDAW.  The first appeal in this case concerned the validity of the conversion of the children to Islam. The majority in the Court of Appeal allowed the husband’s appeal and held that the Syariah Court had exclusive jurisdiction to determine the validity of the children’s conversion to Islam. Dealing with the issue of whether the conversions violate international norms, the Court noted that international treaties do not form part of domestic law unless those provisions have been incorporated into domestic law and that the High Court’s approach of following very closely the standard of international norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation. Accordingly, the Court of Appeal did not declare that the conversions of the children were invalid. The Federal Court overturned the lower courts’ decisions on appeal, reasoning that the children had not met the statutory requirements of conversion. Specifically, the Court found that the children did not state the two clauses of the Affirmation of Faith in Arabic as the Perak Enactment requires for a valid conversion to Islam.  In addition, the Federal Court held that mothers have parental rights equal to fathers, so the permission of both parents is required for a child’s religious conversion.



Sentencia nº 1325 de Tribunal Supremo de Justicia (Número de Expediente: 11-0645) Tribunal Supremo de Justicia (2011)

Domestic and intimate partner violence, Gender-based violence in general, Harmful traditional practices, International law

An indigenous man was charged with physical violence and threats against his ex-partner (a non-indigenous woman), a violation of the Organic Law on the Right of Women to a Life Free of Violence (the “statute”), which created special courts with exclusive jurisdiction to hear cases under the statute.  The special court issued a restraining order in lieu of detention pending trial.  Prosecutors appealed.  While the appeal was pending, the man violated the restraining order.  The court of appeals vacated the restraining order and ordered detention.  On a constitutional appeal to the Supreme Court, the defendant argued that, because of his identity as an indigenous person, his community’s authorities had exclusive jurisdiction to hear the case.  The Supreme Court acknowledged that (1) the Organic Law on Indigenous Peoples and Communities creates special jurisdiction authorizing indigenous communities to resolve controversies arising among their members within their lands, (2) this special jurisdiction allows the communities to apply their own laws, and (3) the national courts must recognize the decisions of the communities.  But the Court also stressed that international conventions, the national constitution, and special laws (such as the statute) placed limitations on that jurisdiction.  The Court cited, for example, Article 9 of the ILO Convention on Indigenous and Tribal Peoples, which provides that “the methods customarily practiced by the peoples concerned for dealing with offenses committed by their members shall be respected,” but only “[t]o the extent compatible with the national legal system and internationally recognized human rights.”  More precisely, the Court noted that the statute itself established that indigenous authorities could serve as agents for receiving complaints of violence against women, but only without prejudice to the victim’s right to seek remedy in the special courts.  Based on that analysis, the Court held that the special courts have exclusive jurisdiction to hear cases under the statute, regardless of the defendant’s ethnic identify.  Notably, the Court ordered that its holding be published as binding precedent.   



Application by Gülsim Genç Constitutional Court (2013)

Gender discrimination, International law

Gülsim Genç petitioned the court of first instance to allow her to use her maiden name only, which the Turkish Civil Code prohibits. The court had previously filed an unsuccessful application to the Constitutional Court to annul this provision and, therefore, dismissed Genç’s petition accordingly. Genç appealed to the court of appeals, which affirmed the court of first instance’s dismissal. Genç then filed an application to the Court. The Court referred to Article 17 of Turkish Constitution, which reads as follows: “every person has the right to preserve and improve one’s existence, both materially and spiritually.” Genç asserted that her surname formed part of this spiritual existence. The Court acknowledged that rights and freedoms may be limited under certain conditions, and when a limitation is placed on those rights, the Court should assess whether such limitation is permitted by law. Under Turkish law, if a contradiction exists between Turkish codes and international agreements on fundamental rights and freedoms, such international agreement shall prevail and apply to the case at hand. The European Court of Human Rights’ rulings indicate that forbidding women to use their maiden name violates the European Convention of Human Rights’ non-discrimination article. The Court remanded the case to the court of first instance for proceedings consistent with the Convention to the extent that the Turkish code violates the Convention. The Court repeatedly referenced the application by Sevim Akat Eşki, which is an indication that similar future rulings may result.



Application by Sevim Akat Eşki Constitutional Court (2013)

Gender discrimination, International law

The applicant petitioned the court of first instance to allow her to use her maiden name only, which the Turkish Civil Code prohibits. The court had previously filed an unsuccessful application to the Constitutional Court to annul this provision and, therefore, dismissed Eşki’s petition accordingly. Eşki then filed an individual application to the Court asserting discrimination and other violations. The Court referred to Article 17 of Turkish Constitution, which reads as follows: “every person has the right to preserve and improve one’s existence, both materially and spiritually.” Eşki asserted that her surname formed part of this spiritual existence. The Court acknowledged that rights and freedoms may be limited under certain conditions, and when a limitation is placed on those rights, the Court should assess whether such limitation is permitted by law. Under Turkish law, if a contradiction exists between Turkish codes and international agreements on fundamental rights and freedoms, such international agreement shall prevail and apply to the case at hand. The European Court of Human Rights’ rulings indicate that forbidding women to use their maiden name violates the European Convention of Human Rights’ non-discrimination article. The Court remanded the case to the court of first instance for proceedings consistent with the Convention to the extent that the Turkish code violates the Convention.



Muhammad Juzaili Bin Mohd Khamis, et al. v. State Government of Negeri Sembilan, et al. Court of Appeal Putrajaya (2015)

International law, LGBTIQ

The respondents in this case, three Muslim men with Gender Identity Disorder, filed a judicial review application at the Seremban High Court seeking a declaration that section 66 of the Syariah Criminal (Negeri Sembilan) Enactment of 1992 was unconstitutional. Section 66 “makes it an offense for any Muslim male person to do any of the following in a public place: to wear a woman’s attire, or to pose as a woman.” The High Court dismissed the application. However, the Court of Appeal overturned the High Court’s decision and declared that section 66 was unconstitutional on the grounds that it interfered with the respondents’ right to live with dignity and right to life, that it discriminated based on gender, and that it violated the respondents’ freedom of movement and freedom of expression. The State Government of Negeri Sembilan appealed the Court of Appeal’s decision to the Federal Court. The Federal Court overturned the Court of Appeal decision on the basis that the respondents should have challenged section 66 under Article 4 of the Federal Constitution, which requires leave from the Federal Court and Federal Government being entitled to join as a party, instead of by way of judicial review. Accordingly, until such proceedings are filed and the Federal Court makes a declaration on the issue, section 66 of the Syariah Criminal (Negeri Sembilan) Enactment of 1992 remains valid.



AP 2900/90 Tereza Usar Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2012)

International law, Property and inheritance rights

In 2007, Tereza Usar petitioned the Municipal Court in Mostar to recognize a common law marriage so that she could exercise her right to a family pension.  Usar had lived in a common-law marriage with Ivan Usar from July 1992 until September 1993 when he, a member of the Croatian Defence Council, was killed during the Bosnian War.  In the suit, Usar named as defendants the minor child she had with Ivan Usar and his legal heirs, his children from a previous marriage.  The Municipal Court dismissed Usar’s claim, finding her petition constituted a request to establish facts and not to enforce a right or legal relation because common-law marriage is not regulated by law, but is a factual situation of a union of a man and a woman.  The Cantonal Court in Mostar and the Supreme Court of the Federation of Bosnia and Herzegovina (“FBiH”) upheld the lower court’s dismissal.  In 2012, the Constitutional Court of BiH quashed the judgment of the Cantonal Court in Mostar, finding the Cantonal Court violated Usar’s right to a fair trial under Article II(3)(e) of the Constitution of BiH and Article 6(1) of the European Convention on Human Rights.  The appellate court found the lower court had arbitrarily applied the law in determining that common-law marriage is a factual and not a legal relation.  The Cantonal Court’s decision directly conflicted with Articles 213, 230-234, 263, and 380 of the Family Law of the FBiH, which prescribe the manner for the maintenance of common-law partners and children from common-law marriages, their property relations, and the procedure for obtaining protection against domestic violence.  That is, according to the Constitutional Court of BiH, the legislature of the FBiH did not make any distinction between marriage and common-law marriage with respect to legal relations.  Thus, “a life in common-law marriage implies certain rights and obligations, and hence, the existence of a legal relation between the persons who live or who had lived in a common-law marriage.”

Decision available in English here.



Prosecutor's Office v. A.P. Ustavni Sud Bosne i Hercegovine (Constitutional Court of Bosnia and Herzegovina) (2004)

International law, Sexual violence and rape, Trafficking in persons

In 2002, the Basic Court in Doboj convicted A.P. of Trafficking of Minors for the Purpose of Prostitution under Article 188 of the Criminal Code of the Republika Srpska.  The Court sentenced A.P. to two years’ imprisonment and prohibited him from operating a catering business for five years.  A.P. appealed his conviction to the Supreme Court of the Republika Srpska and then to the Constitutional Court of BiH.  He argued his right to a fair trial under the Constitution of BiH and the European Convention on Human Rights had been violated because he did not have an opportunity to cross-examine the victims at his trial.  Instead, the statements of the victims were read aloud in court.  The Constitutional Court of BiH found that, despite A.P. not having an opportunity to cross-examine the victims, his right to a fair trial had not been violated.  First, the victims were not present at A.P’s trial because they are foreign nationals who no longer resided in the Republika Srpska.  Second, the victims gave their testimony in person during preliminary criminal proceedings, and A.P. was allowed to refute the statements at his trial.  Third, the judgment of the Basic Court was not based solely on the victims’ statements, but also on the testimony of a third witness – who had paid to have sex with one of the victims at A.P.’s establishment – and material evidence.  

Decision available in English here.



Prosecutor's Office v. Radovan Stanković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2007)

Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

In the summer of 1992, during an assault on the non-Serb civilian population of Foča in the early months of the Bosnian War, Radovan Stanković, a member of the Republika Srpska Army, established a small detention center for women at an apartment known as “The Brothel.”  He and others brought at least nine non-Serb females, most of whom were minors, to the apartment and detained them there.  Between August and November 1992, Stanković repeatedly raped one woman and her underage sister and incited other soldiers who visited the apartment to rape the detainees.  In addition, Stanković forced the victims to perform physical labor, including cooking for the soldiers, washing the soldiers’ uniforms, and bathing the soldiers.  In 2002, Stanković was arrested by the NATO peacekeeping force, KFOR, and transferred to the ICTY.  The ICTY referred Stanković’s case to the Court of BiH in 2005.  One year later, the Court of BiH convicted Stanković of Crimes against Humanity (enslavement, imprisonment, torture, and rape) under Article 172(1) of the Criminal Code of BiH and sentenced him to sixteen years imprisonment.  In 2007, a panel of the Appeals Division increased the prison term to twenty years.  Stanković appealed his sentence, which the ICTY and The Hague Court of Appeal upheld.  This case is notable because it was the first time the ICTY referred a case to a court of national jurisdiction.

Second instance verdict available in English here.



Prosecutor's Office v. Gojko Janković Sudom Bosne i Hercegovine (Court of Bosnia and Herzegovina) (2007)

Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Between April 1992 and November 1993, during the Bosnian War, Gojko Janković, a paramilitary leader within the Srpska Republika Army, participated in a widespread and systematic attack on the non-Serb civilian population of Foča.  Janković’s unit methodically captured civilians, detained them separately according to gender, and killed dozens of men.  During this time, Janković raped at least five girls and women; the soldiers under his command raped scores more.  In addition, Janković and a co-perpetrator kept two teenage girls in sexual slavery at a nearby house for over one year.  In 2005, Janković voluntarily surrendered and was transferred to the International Criminal Tribunal for the Former Yugoslavia (“ICTY”).  Shortly thereafter, the Referral Branch of the ICTY referred Janković’s case to the Court of BiH.  In 2007, the Court of BiH found Janković guilty of Crimes against Humanity under Article 172(1) of the Criminal Code of BiH and sentenced him to 34 years imprisonment.  In 2010, Janković appealed his conviction to the ICTY, arguing the Court of BiH convicted him under a law, the Criminal Code of BiH, which did not exist at the time his crimes were committed.  The ICTY denied his appeal.

Second instance verdict available in English here.



P.O. v. Board of Trustees, A.F., et al. Industrial Court at Nairobi (2014)

Employment discrimination, Gender discrimination, Gender-based violence in general, International law, Sexual harassment

The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip.  Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her.  He booked a single hotel room, while the claimant believed she would have her own room.  As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference.  Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference.  Her salary for May was unpaid.  Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her.  The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.”  The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000.  This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law.  In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace.  The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.



2006 (Kyo) No. 47 Supreme Court of Japan (2007)

Abortion and reproductive health rights, International law

A Japanese married couple petitioned for a court order that a Japanese local government accept birth registers for twins born from a surrogate mother in Nevada with the ovum and sperm of the Japanese couple.  The state of Nevada, pursuant to its state court, had issued birth certificates for the twins, which showed the Japanese couple as their parents.  The Supreme Court reversed the High Court’s ruling that the birth registers need to be accepted.  It stated that Article 118 of the Japanese Civil Proceedings Act prescribes that a final judgment made by a foreign court takes effect in Japan only if it satisfies all enumerated conditions, which include that “the foreign court’s ruling and its proceedings are not contrary to public policy in Japan.”  The Supreme Court recalled that the Japanese Civil Code stands on the premise that a mother of a child is a woman who conceived and delivered the child and that a mother-child relationship is established through objective factors such as gestation and delivery.  According to the Supreme Court, when a parent-child relationship can be legally established is a matter that forms the basis of the country’s legal order, and factors for finding such a relationship must be unequivocal.  Thus, the Court found that a mother-child relationship between the twins and the Japanese wife could not be established, given that the Nevada court’s ruling, which recognized a parent-child relationship contrary to Japanese laws, ran against the public policy in Japan.  In its statement, the Supreme Court urged the Japanese legislature to address the issues of parent-child relationships and assisted reproductive technology through legislation.



2017 (Ju) No. 2015 Supreme Court of Japan (2018)

Divorce and dissolution of marriage, International law

This case concerns the custody of a Japanese couple’s son who was born and raised in the United States until the mother, without the father’s consent, took him to Japan when he was 11 years old.  Pursuant to the Japanese implementation of The Hague Convention on the Civil Aspects of International Child Abduction, the father, whose life was still based in the U.S., petitioned for the return of the son to the U.S.  A family court in Tokyo granted the petition.  However, the attempt to enforce the order of the court failed as the mother strongly resisted when a court execution officer approached her––the son also voiced his desire to stay in Japan at the time.  Subsequently, the father requested habeas corpus relief seeking release of the child.  The High Court dismissed the request.  In this appeal, the Supreme Court of Japan reversed the High Court’s ruling and remanded the case.  In its reasoning, the Supreme Court first recalled its old ruling that care for a child is tantamount to “restraint” within the meaning of the Habeas Corpus Act and the Habeas Corpus Rules in special circumstances where it cannot be deemed that the child is staying with the care provider based on the child’s free will, even if the child is capable of making her/his own decisions.  The Supreme Court found such a special circumstance––undue emotional influence from his mother––existed with respect to the son in light of the fact that he was not capable of making decisions regarding his life when he was taken to Japan, he appeared to have had less than sufficient opportunities to communicate with his father, and he had been largely dependent on his mother.  Furthermore, the Supreme Court found that the restraint at issue was unequivocally unlawful, taking into account that the mother had refused to follow the family court’s order to return the child to the United States, and that there was no special circumstance in which removing the child would be significantly unjust.  This Supreme Court’s unanimous decision may be an indication that the Court will put significant weight on compliance with The Hague Convention on the Civil Aspects of International Child Abduction.



Resolution U.No. 137/2013 Constitutional Court (2014)

Abortion and reproductive health rights, Gender discrimination, International law

A legal scholar and four non-governmental organizations filed an initiative with the Constitutional Court of Macedonia for the commencement of a procedure to review the constitutionality of the Law on Termination of Pregnancy ((“Official Gazette of the Republic of Macedonia”, nos.87/2013, 164/2013 and 144/2014”) (the “LTP”) and its compatibility with international law, on the basis that the LTP created “a possibility of state interference into the right of choice and free decision-making of the women (which was contrary to Article 41 paragraph 1 and Article 118 of the Constitution of the Republic of Macedonia)”. Further, the applicants stated that the LTP contravenes Articles 11 paragraph 1, Article 39 paragraph 2 and Article 41 paragraph 1 of the Constitution, which provides that female citizens had sovereignty over themselves, their life, physical integrity and health. The applicants pointed out, inter alia, that the requirement to submit a written request, mandatory counselling, and waiting period were incompatible with the constitutionally guaranteed freedom of choice regarding childbirth. In addition, given that those provisions in the LTP did not exist for any other medical intervention, they represented a discrimination against women. All but one of the judges stated that they do not consider the LTP to be problematic and fully rejected the initiative. 



Institutional Violence Against Women (Docket XXVII.1o.3 C (10a.)) Mexico Supreme Court (2016)

Gender discrimination, Gender-based violence in general, International law

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria issued may be persuasive in similar cases arising in other federal courts. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women “Convention of Belém do Pará,” states that violence against women is an offense against human dignity, which constitutes a violation of fundamental rights. In addition, Article 18 of the General Law for Women’s Access to a Life Free of Violence establishes that any public servant’s conduct, whether by act or omission, which is discriminatory or which impairs the woman’s human rights is considered institutional violence. Therefore, if a governmental authority deprives a woman of any right in the context of family law, the court shall acknowledge the authority’s intention to discriminate or impair the plaintiff’s human rights in its ruling. Further, any court ruling seeking to restore the woman’s rights shall identify the authority responsible for the violation. (Amparo Directo: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=462/04620000174646210006004.d...)

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son vinculantes para todos los casos resueltos por dicho tribunal. Además, los criterios emitidos pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará", afirma que violencia contra la mujer es un delito contra la dignidad humana y constituye una violación de los derechos fundamentales. Además, el artículo 18 de la Ley General para el Acceso de las Mujeres a una Vida Libre de Violencia establece que la conducta de cualquier servidor público, ya sea por acto u omisión, que sea discriminatoria o que perjudique los derechos humanos de la mujer se considera violencia institucional. Por lo tanto, si una autoridad gubernamental priva a una mujer de cualquier derecho en el contexto del derecho de familia, el tribunal reconocerá la intención de la autoridad de discriminar o menoscabar los derechos humanos del demandante en su decisión. Además, cualquier fallo judicial que busque restaurar los derechos de la mujer deberá identificar a la autoridad responsable de la violación.



Public Safety (Isolated Thesis Docket XVI.1o.A.115 A (10a.)) First Collegiate Tribunal in Administrative Matters of the Sixteeth Circuit (2016)

Employment discrimination, Gender discrimination, International law

This isolated thesis is a relevant example of gender perspective case law, as the criteria issued by the collegiate tribunal is binding on all cases resolved by such tribunal. In addition, such criteria may be persuasive in similar cases arising in other federal courts. The Mexican Supreme Court has previously determined the social benefits to which a former public safety employee is entitled at the time of her termination. The social benefits and salary must be paid upon termination and must account for both the period before and after an unjustified termination for pregnancy. The Mexican Constitution (Article 123, section B, item XI, subparagraphs (a) & (c)) recognizes the rights of pregnant women. These include social benefits during pregnancy. Consequently, the impairment that results from the termination must be paid and includes: (a) medical bills and payments made to private medical institutions due to the lack of social security benefits and (b) the payment of the full salary from the last month before birth as well as the two months after it, unless there is a court ruling in relation to unpaid wages. This provision of the Mexican Constitution, as well as other provisions of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment And Eradication Of Violence Against Women “Convention of Belém do Pará” compels the courts to rule with a gender perspective in order to ensure justice for this historically vulnerable social group. (Amparo Directo Administrativo 121/2016: http://sise.cjf.gob.mx/SVP/word1.aspx?arch=1320/13200000186095880003003....)

 

Esta tesis aislada es un ejemplo relevante de la jurisprudencia de la perspectiva de género, ya que los criterios emitidos por el tribunal colegiado son relevantes a todos los casos resueltos por dicho tribunal. Además, dichos criterios pueden ser persuasivos en casos similares que surjan en otros tribunales federales. La Corte Suprema de México ha determinado previamente los beneficios sociales a los que tiene derecho un ex-empleado de seguridad pública en el momento de su despido. Los beneficios sociales y el salario deben pagarse a la terminación y deben tener en cuenta tanto el período antes como el de después de una terminación injustificada por embarazo. La Constitución mexicana (Artículo 123, sección B, artículo XI, subpárrafos (a) y (c)) reconoce los derechos de las mujeres embarazadas. Estos incluyen beneficios sociales durante el embarazo. En consecuencia, el deterioro que resulta de la terminación debe pagarse e incluye: (a) facturas médicas y pagos realizados a instituciones médicas privadas debido a la falta de beneficios de seguridad social y (b) el pago del salario completo del último mes anterior al nacimiento, así como los dos meses posteriores al mismo, a menos que exista un fallo judicial en relación con los salarios impagos. Esta disposición de la Constitución mexicana, así como otras disposiciones de la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW) y la Convención Interamericana para Prevenir, Sancionar y Erradicar la Violencia contra la Mujer "Convención de Belém do Pará" obliga a los tribunales a gobernar con una perspectiva de género para garantizar la justicia para este grupo social históricamente vulnerable.



M.M. v. Minister of Home Affairs & 2 Others Supreme Court of Zimbabwe (2014)

Abortion and reproductive health rights, International law, Sexual violence and rape

This case was brought by the complainant, who was attacked and raped by robbers at her home.  She immediately reported the matter to police and requested a medical practitioner to prescribe emergency contraception.  The medical practitioner said he required the presence of a police officer to do so.  Because she was advised at the police station that the officer who had dealt with her case was not available, the victim returned to the hospital, where she was refused treatment without a police report.  The next day she went to the hospital with another police officer and was informed that the prescribed 72 hours had already elapsed.  When the complainant was confirmed pregnant, she indicated to the prosecutor that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed.  She finally obtained the necessary magisterial certificate, but when she sought the termination, the hospital matron felt that it was no longer safe to carry out the procedure.  After the full term of her pregnancy, the complainant brought an action against the Ministers of Health, Justice and Home Affairs for pain and suffering endured as well as maintenance of the child.  The High Court dismissed her claim that the employees of the respondents had been negligent in their failure to prevent the pregnancy, and subsequently to facilitate its termination.  She appealed the decision to the Supreme Court, which determined the claim by applying the test for negligence, finding the doctor negligent for having failed to take reasonable steps to prevent the pregnancy and the police negligent for failing to timely take the victim to the doctor for her pregnancy to be prevented.  The Supreme Court recognized the relevance of regional and international human rights norms and standards, making reference to various provisions relating to the reproductive rights of women in CEDAW and the Maputo Protocol, but held that, pursuant to Constitutional terms, these cannot operate to override or modify domestic laws until they are internalized and transformed into rules of domestic law.  Furthermore, the Supreme Court determined that it was the responsibility of the victim of the alleged rape to institute proceedings for the issuance of a magisterial certificate allowing the termination of her pregnancy.  Ultimately, the Supreme Court partially allowed the appeal and granted the complainant general damages for pain and suffering arising from failure to prevent her pregnancy.  Although conceding that Zimbabwe’s Termination of Pregnancy Act is “ineptly framed and lacks sufficient clarity as to what exactly a victim of rape is required to do when confronted with an unwanted pregnancy,” the Supreme Court dismissed the complainant's claim for damages for pain and suffering beyond the time her pregnancy was confirmed and for the maintenance of her minor child, as the authorities could not be liable for not assisting her to terminate the pregnancy because they do not have any legal duty to initiate and institute court proceedings on her behalf. 



Gumede v. President of the Republic of South Africa & Others Constitutional Court of South Africa (2008)

Divorce and dissolution of marriage, Gender discrimination, International law, Property and inheritance rights

Mrs. and Mr. Gumede, both domiciled in KwaZulu-Natal, entered into a monogamous customary marriage in 1968 and four children were born during their marriage.  Because she was forbidden by her husband to take up employment, Mrs. Gumede never worked and could not contribute to the accumulation of the family’s estate, which included two family homes.  She was always the primary caregiver of the children.  After forty years, the marriage broke down irretrievably.  Mrs. Gumede had no family and was dependent for financial support upon her children and her old-age pension.  In 2003, Mr. Gumede instituted divorce proceedings before the Divorce Court.  Mrs. Gumede also approached the High Court and obtained an order invalidating the discriminatory legislative provisions on which the Divorce Court could rely.  The Constitutional Court subsequently was approached by the Minister of Home Affairs and the KwaZulu-Natal Member of the Executive Council for Traditional Leaders and Local Government Affairs who resisted the order, for the reevaluation of the order of the High Court declaring constitutionally invalid certain sections of the Recognition of Customary Marriages Act, of the KwaZulu Act on the Code of Zulu Law 16 of 1985 and certain sections of the Natal Code of Zulu Law (Proc R155 of 1987), which regulate the proprietary consequences of customary marriages.  In a lengthy judgment, the Constitutional Court took great pains to explain that any distinction between the consequences of customary marriages entered into before and after the Recognition of Customary Marriages Act came into operation is discriminatory, inconsistent with the Constitution, and invalid.  The Constitutional Court noted the international instruments that South Africa has ratified that prohibit forms of discrimination against women, including CEDAW.  It held that the two provisions are patently discriminatory, unfair, and not justifiable.  In terms of the judgment, all monogamous customary marriages entered into before the Recognition of Customary Marriages Act came into operation are now ipso facto in community of property, excluding customary marriages which had been terminated by death or by divorce before the date of the judgment.  The Constitutional Court further held that the constitutional invalidity of Section 7(1) was limited to monogamous marriages and should not concern polygynous relationships or their proprietary consequences, determining that polygynous marriages should continue to be “regulated by customary law until parliament intervenes.”



Regina v. Gua High Court of Solomon Islands (2012)

Domestic and intimate partner violence, Gender discrimination, International law, Sexual violence and rape

Macberth Gua was charged with the rape of his estranged wife of ten years.  The victim had not filed any divorce proceedings and there was no formal separation.  The defendant dragged the victim into his vehicle under the threat of violence and drove her to a remote location where he forced himself on her.  The defendant’s defense relied upon the antiquated common law maxim that a husband could not be liable for involuntary sexual intercourse with his wife (the “marital rape exception”), as her agreement to wed constituted an irrevocable consent to marital relations.  Moreover, Section 136 of the Penal Code of the Solomon Islands provides an excessively narrow definition of rape: “Any person who has unlawful sexual intercourse with a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by impersonating her husband, is guilty of the felony termed rape.”  The question before the High Court was whether a husband could be held criminally liable for raping his wife.  The answer provided by the High Court was in the affirmative, which ruled that marriage is now regarded as a partnership of equals, and that this principle of equality has been reflected not only in international conventions to which the Solomon Islands is a party, but is also entrenched in the provisions of the Constitution.  In its rationale, the High Court noted that one of the international conventions to which the Solomon Islands is a party is CEDAW, which, in Article 15, calls on all State parties to accord women equality with men before the law and, in Article 16, calls for the same personal rights between husband and wife.  As for the Constitution, Sections 3 and 15 of the Constitution guarantee women equal rights and freedoms as men and afford them protection against all forms of discrimination, including discrimination on the ground of sex.  The High Court thus held that the rule exempting husbands from liability for rape on their wives is no longer applicable, that it is no longer supported by common law, and that it is offensive to modern standards and principles of equality found in international conventions and the Constitution.  Notwithstanding the foregoing, unfortunately in the sentencing decision following Regina v. Gua, the sentencing judge stated that “this is a case which has occurred as a result of domestic problems between a husband and his wife.  It is not an offence that has been committed to gratify one’s own sexual desires.  There is an underlying cause for the commission of the offence – the termination by the victim of her marriage to the accused.  Hence, the accused is not solely to be blamed for this incident.  The complainant must also share the blame.” 



Police v. Apelu Supreme Court of Samoa (2010)

Abortion and reproductive health rights, International law

A women inmate at Tafaigata Prison who was two months pregnant asked the defendant to abort the fetus using a duck speculum and uterine sound instrument while she was on weekend parole.  Upon returning to the prison and complaining of severe pain, the woman was rushed to the hospital, where she delivered a live, premature female infant.  The baby died of respiratory failure as a result of extreme prematurity and neonatal sepsis; the medical report stated that the instruments used by the defendant had infected the victim’s uterus and induced labor.  In 2004, she had been sentenced to two and one-half years for the same offense.  Although the charges were not prosecuted at the time, they were revisited in 2005 and a year was added to the defendant’s sentence.  The sentencing judge in the case considered the defendant’s record of recent convictions as aggravating factors.  While the maximum sentence for this offence is seven years, the court considered that it warranted a starting point of six and a half years.  The only mitigating factor in the defendant’s favor was her guilty plea, which avoided the necessity of a full trial, for which twelve months were deducted from her sentence.  The question before the Supreme Court was whether the Convention on the Rights of the Child and CEDAW ought to be considered in sentencing.  In the course of answering such question in the negative, the judge was clear in relying solely upon national legislation: “This country through its elected representatives namely Parliament has chosen to take a pro-life stand and have legislated against abortion except when it is necessary to preserve the life of the mother.  Parliament having enacted that law, the courts duty is beyond question, it is required to enforce the laws of the land.  The rightness, wrongness or morality of such a law is debated in the building next door, not in this one.”  The fact that Samoa continues to criminalize abortion after ratifying international conventions evinces clear legislative intent against domesticating CEDAW through specific legislation.



Minister for Immigration and Citizenship v. SZMDS High Court of Australia (2010)

Gender-based violence in general, International law, LGBTIQ

The respondent, an allegedly homosexual citizen of Pakistan, arrived in Australia on a visitor visa in 2007 and applied for a protection visa. To be recognized as a refugee, the respondent had to show that he had a well-founded fear of being persecuted due to his race, religion, nationality, membership of a particular social group, or political opinion. The respondent argued that, as a homosexual man, he belonged to a particular social group that was persecuted and subject to harm in Pakistan. The respondent’s protection visa application was initially denied, and the Refugee Review Tribunal (Tribunal) affirmed this decision. The Tribunal found that while homosexuals in Pakistan constitute a protected group, the respondent was not actually a homosexual because he safely make a three-week visit to Pakistan before traveling to Australia and failed to seek asylum on a recent visit to the UK.  On appeal, the Federal Court found that the Tribunal’s decision was based on illogical reasoning. The Minister for Immigration and Citizenship appealed the Federal Court’s decision to the High Court. In a majority decision, the High Court overturned the Federal Court’s decision, finding that the Tribunal’s reasons for not believing the respondent was actually a homosexual were sound.



Appellant S395/2002 v. Minister of Immigration and Citizenship High Court of Australia (2003)

Gender-based violence in general, International law, LGBTIQ

The appellants, both homosexual male citizens of Bangladesh, arrived in Australia and applied for protection visas. To be recognized as refugees, the appellants had to show that they had a well-founded fear of being persecuted due to their race, religion, nationality, membership in a particular social group, or political opinion. The appellants argued that they belonged to a “particular social group” that was subject to discrimination and harm in Bangladesh by virtue of their homosexuality. A delegate of the Minister for Immigration and Citizenship initially determined that because the appellants had conducted their relationship in a discreet manner in Bangladesh, they would suffer no serious harm if they returned to Bangladesh and continued to keep their relationship secret. For this reason, appellants were initially denied protection visas, and the Refugee Review Tribunal affirmed this decision. The appellant’s appealed to the Federal Court for judicial review and the primary judge dismissed the application, agreeing with the delegate’s reasoning about the discreetness of the appellants’ relationship. Appellants appealed to the Full Federal Court, which also dismissed their appeal. Appellants then appealed to the High Court, which granted them special leave to appeal. The High Court considered whether the Tribunal had erred in requiring or expecting the appellants to behave discreetly in order to avoid persecution. In a four-to-three decision, the High Court found that the Tribunal had erred because it improperly split the social group of homosexual men into two groups, discreet and non-discreet. The High Court held that the expectation that a person take reasonable steps to avoid persecutory harm, does not include the need to be discreet about sexuality, especially given that the appellants may have only been acting discreetly due to the persecution of openly homosexual men in Bangladesh. The case was referred back to the Tribunal for redetermination.



TC/0003/17 Constitutional Court (2017)

Femicide, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

Due to the increase of femicide crimes in the Dominican society, the Constitutional Court proclaimed the termination of violence against women in all its forms as it is a violation of the Constitution. The proclamation was made in commemoration of the murder of Mirabal, Minerva, Patria and María Teresa, political opponents of the regime of Rafael Trujillo, and in accordance with the international agreements executed in defense of women's rights, as well as the laws issued against gender violence, sexual violence and femicide. 

 

Debido al aumento de los delitos de femicidio en la sociedad dominicana, el Tribunal Constitucional proclamó el cese de la violencia contra la mujer en todas sus formas, incluyéndolo como una forma de violación de la Constitución. Dicha proclamación se realizó en conmemoración del asesinato de Mirabal, Minerva, Patria, y María Teresa, quienes fueron opositores políticos del régimen de Rafael Trujillo. La proclamación está en conformidad con los acuerdos internacionales celebrados en defensa de los derechos de las mujeres y con las leyes emitidas contra la violencia basada en género sexual, violencia sexual en sí, y femicidio.



Test-Achats Constitutional Court (2011)

Gender discrimination, International law

Following a proceeding brought by a Belgian consumer organization to seek the annulment of a law amending the Gender Law of 2007 in so far as it allowed certain differences in insurance premiums to be paid by men and women, the Constitutional Court (drawing on a judgment of the European Court of Justice as this concerned a question of the interpretation of a provision in a European Directive) ruled that such different treatment was permitted only for policies concluded before 21 December 2012.



Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea High Court of Lesotho (Constitutional Division) (2013)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The petitioner, Senate Masupha, is the firstborn, female child of a late principal Chief.  Because there were no firstborn males in his immediate family, upon his death, the late Chief’s wife and the petitioner’s mother was appointed as a caretaker Chief in accordance with the Chieftainship Act.  Following the death of the late Chief’s wife in 2008, the late Chief’s younger brother instituted a claim for inheritance of the chieftainship before a magistrate’s court, which was challenged by the late Chief’s son from a second wife, as well as that son’s mother.  The petitioner, who had not been included in the proceedings before the lower court, subsequently intervened to request a change of venue to the Constitutional Court, so that she could challenge the constitutionality of the provision in the Chieftainship Act under which she was precluded from seeking to succeed to the chieftainship, as she was the first-born child.  Masupha argued that the Chieftainship Act does not necessarily preclude her from inheriting the chieftainship and that, even if the Chieftainship Act in fact precludes her from doing so, it should be struck down, because it violates multiple provisions of the Constitution.  The High Court highlighted the fact that, in acceding to CEDAW, Lesotho specifically excluded itself from the provisions of that Convention in so far as it concerns the customary practices relating to succession to the throne and to chieftainship.  It therefore dismissed Masupha’s petition seeking to declare the Chieftainship Act provision preventing female offspring from inhering chieftainships discriminatory and therefore unconstitutional, finding that the Chieftainship Act was not discriminatory, because it allows the senior wife to inherit the title as a caretaker, if there are no living first-born males from any of the deceased’s marriages.  The High Court concluded that, when a wife succeeds her husband as a caretaker, the right to inherit reverts back to the male line of the family upon the death of the female chief.  The judgment was appealed to the highest court in the country, the Court of Appeal, which affirmed the High Court’s decision and upheld the customary law effectively denying women the ability to succeed to chieftainship.



Estate of Lerionka Ole Ntutu High Court of Kenya at Nairobi (Family Division) (2008)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Lerionka Ole Ntutu was survived by multiple wives, sons, and daughters.  After his sons filed an application asking the High Court to issue to them the letters of administration to administer their father’s estate, their sisters and stepsisters filed an objection and claimed their inheritance.  The sons contested the objection, arguing that the distribution of their father’s estate was governed by Masai customary law, which did not recognize the right of daughters to claim an inheritance from their father’s estate.  The judge in the first instance found that, because Ntutu was Masai and lived in an area excluded from the Succession Act, his estate should be divided accorded to Masai custom.  The judge thus held that none of the daughters could inherit from their father’s estate.  In ruling on the daughters’ appeal, the Court of Appeal invoked international treaties and covenants, including CEDAW, in finding that the daughters of the deceased person in that case were entitled to a share of his estate.  On appeal before the High Court, the definitive question before Lady Justice K. Rawal was whether the Court should apply the Law of Succession Act or the customary law of the Masai community.  The High Court was satisfied that, even if the Law of Succession Act allowed Ole Ntutu’s community to apply customary law in the distribution of his estate, any tenet of such customary law that would abrogate the right of daughters to inherit the estate of a father would be repugnant to justice and morality and could not be applied.  The High Court thus ruled that Ole Ntutu’s daughters were entitled to inherit their father’s land.



The Queen v. Vernon Anthony Paddy The Eastern Caribbean Supreme Court in the High Court of Justice (Criminal Division) (2011)

Domestic and intimate partner violence, International law

Mrs. Paddy was a victim of ongoing domestic abuse by her husband of nine years; she hoped to move on and began communicating with other men, giving one of them her phone number.  Upon discovering that Mrs. Paddy wanted to get out of their marriage, Mr. Paddy attacked his wife, repeatedly beating her with a hammer.  Mr. Paddy was charged and convicted for causing grievous bodily harm with intent.  Mr. Paddy claimed to have been provoked by the conduct of the victim, but the Supreme Court found that the facts did not suggest such provocation, especially because the husband was aware that his wife suffered from multiple sclerosis and diabetes, and ruled it a premeditated attack.  In sentencing Mr. Paddy to eight years of imprisonment and financial responsibility for his wife’s medical expenses, the Supreme Court recognized that, under CEDAW, States are required to eliminate the many different forms of gender-based discrimination women confront by ensuring that all necessary arrangements are put in place that will allow women to actually experience equality in their lives.  The Supreme Court further observed that “it is now the duty of the courts to send out a strong message that domestic violence in any form will not be tolerated and that men do not have an unfettered license to batter women,” and that “[t]he only way the courts can effectively show this is by the sentences that are passed which are aimed at ensuring that the wrongdoer does not repeat the offence and that potential offenders get the message that society will not condone such behavior.”



Mmusi v. Ramantele High Court of Botswana at Gaborone (2012)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

Edith Mmusi and her sisters, all over 65 years of age, brought a case against their nephew, Molefi Ramantele, who claimed to have rightfully inherited the home that was occupied by Mmusi and her sisters and tried to evict them.  The sisters contested the eviction, arguing that they had paid for the home’s upkeep and expansion costs.  The applicable customary law, that of the Ngwaketse tribe, dictated that the family home of a deceased individual was to be reserved to the last born male child.  The rest of the property was to be divided among the children, regardless of gender.  The Lower Customary Court found in favor of the nephew; the Higher Customary Court held in 2008 that the home belonged to all of the children; and the Customary Court of Appeal, to which both parties appealed, held that the home should be inherited by the nephew.  The High Court noted that the issue of law being considered was whether the Ngwaketse customary law, to the extent that it denied the applicants the right to inherit the family residence intestate, "solely on the basis of their sex, violate[d] their constitutional right to equality under s 3(a) of the Constitution of Botswana.  On 12 October 2012, the High Court subsequently awarded the home to the sisters, ruling that the local customary laws prioritizing male inheritance were not in keeping with the promise of gender equality enshrined in the Constitution of Botswana and in international conventions such as CEDAW, thereby recognizing for the first time the right of women in Botswana to inherit property.  On 3 September 2013, the Court of Appeal upheld the decision of the High Court, observing that “Constitutional values of equality before the law, and the increased leveling of the power structures with more and more women heading households and participating with men as equals in the public sphere and increasingly in the private sphere, demonstrate that there is no rational and justifiable basis for sticking to the narrow norms of days gone by when such norms go against current value systems.”  This case was a landmark case that effectively ended the patriarchal inheritance system in Botswana.



Castles v. Secretary to the Department of Justice Supreme Court of Victoria (2010)

Abortion and reproductive health rights, International law

This case challenged a decision by the Secretary of the Department of Justice to refuse Ms. Castles’ access to in vitro fertilization (“IVF”) treatment, while she was in a low security prison.  Prior to her imprisonment for social security fraud, Ms. Castles was undergoing IVF treatment.  Although she was sentenced to only 18 months of imprisonment, Ms. Castles was nearing the age at which IVF would no longer be available to her.  Ms. Castles sought a declaratory judgment and injunctive relief to enable her to continue IVF treatment to conceive a second child with her husband.  The question decided by the Supreme Court was whether access to IVF is inherent in the right to respect privacy and family life.  The Supreme Court acknowledged that although incarceration necessarily involves a limitation of the right to liberty, it places an additional burden on the State to preserve human dignity.  International agreements, including CEDAW and ICESCR, recognize that decisions concerning the number and spacing of children, and access to health services, including in the area of sexual and reproductive health, are an aspect of the inherent dignity of a person that underlies all human rights.  The Supreme Court held that the requirement to give proper consideration to human rights required the decision-maker to consider the possible impact of the decision on a person’s human rights, but that this need not be a sophisticated legal exercise.  The Supreme Court further ordered the Department of Justice to allow Ms. Castles access to the relevant medical treatment, subject to an assessment of any countervailing security or other concerns on a visit-by-visit basis.



Affaire Songo Mboyo Tribunal Militaire de Garnison Mbandaka (2007)

Gender-based violence in general, International law, Sexual violence and rape

In December 2003, members of the Congolese army (FARDC) under the command of Lieutenant-Colonel Bokila Lolemi stationed in the village of Songo Mboyo mutinied over unpaid wages.  They targeted the local population and committed mass rapes across two nights with as many as 119 victims.  Lolemi was charged with crimes against humanity for rape of 32 women by forces under his command and effective control.  The court of first instance was the Military Garrison Tribunal of Mbandaka, which found 7 of the 12 defendants guilty, including Lolemi. Lolemi was found to have failed to exercise appropriate control over his soldiers and prevent the mass rapes, which he knew or should have known his soldiers were committing.  The decision was appealed to and confirmed by the Military Court of Equateur. Though the defendants denied the rapes, the courts disagreed, citing survivors’ testimony and medical reports. This case is significant because it is one of the first instances of a Congolese Military Court directly applying the Rome Statute (in addition to DRC law n ° 024/2002 of November 18, 2002).  The decision was issued by the same court and in the same year as the Mutins de Mbandaka case.  The case is also significant because it represented the first time that government soldiers were put on trial for rape as a crime against humanity or war crime, a fact which is significant because the FARDC are believed to be responsible for a large proportion of sexual attacks in the DRC in recent times.  The decision therefore struck a blow against military impunity for such crimes. (Lower court decision available at: https://www.legal-tools.org/doc/166854/pdf/)



Noorfadilla Binti Ahmad Saikin (Plaintiff) v. Chayed Bin Basirun et al. (Defendants) High Court of Malaya at Shah Alam (2011)

Employment discrimination, Gender discrimination, International law

The Plaintiff interviewed with the education officers of the Education Office of the Hulu Langat District to become an untrained teacher. During the interview, the Plaintiff was asked questions pertaining to her general knowledge, personal details, problem solving skills and residential address. She was not asked about her pregnancy status. The Plaintiff was accepted for the position and presented herself at an instructional meeting as instructed. At the meeting, she was told to report for duty immediately. Subsequently, an education officer asked whether anyone at the meeting was pregnant. Once the Plaintiff admitted that she was pregnant, her placement memorandum was withdrawn. The High Court held that it was not relevant whether or not there was a binding contract, as the the Defendants’ decision interfered with the Plaintiff’s right to be employed, which is contrary to Article 8(2) of the Federal Constitution, which provides that there shall be no discrimination on the ground of gender in the appointment of any office or employment under a public authority. This Article of the Federal Constitution was adopted to comply with Malaysia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The High Court declared that using pregnancy as a factor in employment is a form of gender discrimination under the Malaysian Constitution, applying CEDAW in interpreting Article 8(2) of the Constitution, because of the basic biological fact that only a woman has capacity to become pregnant.



W.J. and L.N. v. Amkoah, Jamhuri Primary School, The Teachers Service Commission and the Attorney General (Petition No. 331 of 2011) High Court of Kenya at Nairobi (Constitutional and Human Rights Division) (2011)

International law, Sexual violence and rape, Statutory rape or defilement

In July 2010, W.J. and L.N, 12- and 13-year-old female students at Jamhuri Primary School, were invited to the home of their teacher, Astarikoh Henry Amkoah. Amkoah forced the girls to perform household chores and later attempted to defile W.J. in the restroom and defiled L.N. in the hall. On several occasions later that month, Amkoah raped both girls. The girls’ education was severely interrupted by the trauma of Amkoah’s attacks and L.N. dropped out of school completely. Ultimately, Amkoah was acquitted in criminal court. In this suit filed by their guardians, W.J. and L.N. sued claiming that Amkoah’s actions unconstitutionally interfered with their rights to health, education, and dignity, and claimed that the school and state should be vicariously liable for the teacher’s actions. They invited the court to look at the claims from the perspective of a tort in negligence and as a human rights violation. However, the violations took place prior to the adoption of a revised 2010 Constitution, so the Court was required to rely partially on the 1963 Constitution which did not include those same guarantees. Still, the 1963 Constitution offered a right to freedom and security of the person. Additionally, the Convention on the Rights of the Child, adopted through Kenya’s Children Act, promises children the right to be free from sexual or physical violence, the right to receive an education, and the right to dignity. As a result, the Court was able to rely on the guarantees of the Children Act. Moreover, Justice Ngugi recognized the 2010 constitutional right to dignity as a continuing right, meaning that while the initial crime may have occurred prior to the 2010 Constitution’s adoption, the continuous nature of the effects of sexual violence on an individual’s dignity make the provision applicable in this case. Here, the Court determined that the criminal acquittal would not serve as a bar to the action because of the differing standards of proof in a criminal and a civil trial. Importantly, the Court decided that “any educational or other institution in which teachers or other care givers commit acts of sexual abuse against those who have been placed under their care is vicariously liable for the wrongful acts of its employees.” The court noted that because children are particularly vulnerable, it is appropriate to impose strict liability on “those in charge of educational and other institutions . . . for abuses committed by those whom they have placed in charge of vulnerable groups such as minors in educational institutions” and held the four named plaintiffs—the teacher, the school, the teachers service commission, and the state—jointly and severally liable for damages of KSH two million for W.J. and KSH three million for L.N.



Fallah v. Republic of Liberia Supreme Court of Liberia (2011)

International law, Sexual violence and rape, Statutory rape or defilement

On appeal, the Supreme Court affirmed the lower court’s judgment that appellant, Musa Solomon Fallah, was guilty of rape and upheld his sentence of life imprisonment. The appellant had been convicted previously, but the Supreme Court vacated that conviction in 2007 and ordered a de novo trial on the grounds that the appellant lacked adequate representation. The complainant, a nine-year-old girl, alleged that the appellant gagged and raped her. On appeal, the appellant contended that the testimony of the victim should be excluded from evidence because the testimony was conducted in camera. The victim testified in a closed room that allowed cross-examination by the defendant and visual access for jurors. The court held that the victim’s testimony was admissible, stating that if “a potential child victim witness would suffer ‘serious emotional distress’ and might just not be able to communicate within a reasonable fear free environment if put on the stand in the presence of the accused abuser to introduce courtroom testimony” then an in camera witness presentation is appropriate. The appellant's constitutional right to confront his accuser was preserved because he was afforded opportunity to listen to testimony and cross-examine the witness. In addition, the court referenced U.S. law on in camera testimony, citing U.S. Supreme Court cases to support its decision. The court stated: “It is the rule of general application in our jurisdiction that unless expressly contrary by the laws in vogue, common law and usages of the courts of England and of the United States, other authoritative treaties, principles and rules set forth in case law and in Blackstone and Kent Commentaries, when applicable, are deemed as Liberian Laws.” Finally, the Court held that medical testimony establishing rape, the testimony of the complainant, the appellant's admission that the complainant spent the nights in question with him, and unchallenged testimony claiming that the appellant had offered the complainant's family money in exchange for keeping the rape a secret were more than a sufficient "mountain of evidence" to sustain the conviction. It is not necessary, the Court stated, for the prosecution to produce an eye witness, "direct proof", or evidence eliminating every single possible alternative in order to meet their burden of proof beyond a reasonable doubt.



Patricia Halagueña, et al. v. Philippine Airlines Incorporated Supreme Court of Philippines (2009)

Employment discrimination, Gender discrimination, International law

Female flight attendants employed by Philippine Airlines alleged their collective bargaining agreement was discriminatory due to unequal grooming standards and a compulsory retirement requirement at fifty-five years of age for women but sixty years of age for men. At issue was whether the claim was a labor grievance such that the Regional Trial Court would lack jurisdiction to hear the claim. The Supreme Court held that the regional court had jurisdiction, because the action was not a grievance, but instead a civil action to annul a provision of the contract, and that the question for decision did not involve any determination of labor or union actions.



C.K. & 11 Others v. Commissioner of Police High Court of Kenya at Meru (2013)

Gender discrimination, International law, Statutory rape or defilement

The petitioners are eleven minors and the non-governmental organization that shelters, educates, and cares for the eleven minors. Each child claims to have been subjected to child abuse and defilement in Meru County, where police "neglected...or otherwise failed" to investigate or protect the children in any way.  The High Court of Kenya held that the police have a duty to investigate allegations of sexual abuse made by female complainants, stating that “by failing to enforce existing defilement laws, the police have contributed to the development of a culture of tolerance for pervasive sexual violence against girl children and impunity.”



In Re Estate of Lerionka Ole Ntutu (Deceased) High Court of Kenya at Nairobi (Family Division) (2008)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The sons of Lerionka Ole Ntutu filed to prevent Ntutu’s married daughters from receiving their inheritance of his estate Section 82(4) (b) of the Kenyan Constitution. Under Kikuyu customary law, only unmarried daughters were allowed an inheritance. The presiding judge held that this claim was illegitimate, stating that the law cannot deprive a person of their rights only on the basis of sex and marital status. The judge followed the precedent set by the ruling in Rono v. Rono, Kenya Court of Appeal, 2005, in circumscribing customary law to prevent violations of justice, morality, and other written law. This case marked another important step in upholding women’s rights and human rights law over harmful customary practices towards women.



Meera Dhungana v. Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)

Gender discrimination, International law

A petition on behalf of the Forum for Women, Law and Development in Nepal called for revision of a law prohibiting dowries. The law imposed a much stricter sentence on the bride’s family than the grooms, making it inconsistent with the equal rights provisions in Article 11 of the Constitution of the Kingdom of Nepal and international human rights standards. The Court’s decision to revise the law, which cited earlier rulings based on Article 11, shows a continued dedication to transforming the Nepalese legal code in the interest of gender rights and equality.



In re A-T United States Executive Office for Immigration Review (EOIR) (2011)

Female genital mutilation or female genital cutting, Forced and early marriage, Gender discrimination, Harmful traditional practices, International law, Sexual violence and rape

After over six years in immigration court, an immigration judge reversed his previous judgment to give a woman from Mali asylum protection in the United States. As a child in Mali, the woman was subjected to female genital mutilation (FGM). She studied in the United States; her father then ordered her back to Mali to marry her first cousin, despite the fact that she already had three children in the U.S. Fearing forcible marriage and rape for herself and forced FGM for her daughters, the woman applied for asylum. The immigration court denied her request initially in 2004. On appeal, the Board of Immigration Appeals reasoned that FGM is a one-time occurrence, making future persecution unlikely. However, in 2008, the Attorney General intervened, pointing to the interconnectedness of sexual violence and the possibility of future persecution. The Attorney General directed that the case be reconsidered, and after a new trial, the judge granted the woman asylum, indicating that the threat of spousal rape alone was enough to constitute persecution. The case is important for asylum applicants, because violent acts like FGM are no longer to be considered isolated events unlikely to lead to further persecution.



Mensah v. Mensah Supreme Court of Ghana (2011)

Divorce and dissolution of marriage, International law, Property and inheritance rights

The petitioner filed for divorce and sought an equal share of assets acquired during the marriage.  At the time of marriage, neither party owned any property.  During their marriage, the plaintiff assisted in building their business and managed their shop while her husband continued to work for the Controller and Accountant General's Department.  The plaintiff also advised the respondent on property investments.  The respondent denied that the petitioner contributed to the business and claimed that she embezzled money from him, and therefore should not be considered an equal holder of marital assets.  The trial court and the Court of Appeals ruled in favor of the petitioner, finding that she was a joint owner of the property and was therefore entitled to an equal share of the marital assets.  The Supreme Court affirmed.  Previous case law denied a wife a share in property acquired during the marriage unless the wife could show that she had made a "substantial contribution" to the acquirement of these assets.  Yet, because more recent cases supported the "equality is equity" principle in the division of marital assets, the Supreme Court concluded that "the death knell has been sung to the substantial contribution principle, making way for the equitable distribution as provided for under Article 22 (3) of the Constitution 1992."  Thus, the court held that even if it determined that the petitioner did not make a substantial contribution to the acquisition of marital property, she would still be entitled to a share of the property.  To further support its decision, the Supreme Court referenced Article 1 and Article 5 of CEDAW, in addition to the Universal Declaration of Human Rights, which emphasize equality between the sexes.



Carmichele v. Minister of Safety and Security Constitutional Court of South Africa (2001)

International law, Sexual violence and rape

The applicant was sexually assaulted by a man who was awaiting trial for the attempted rape of another woman. Despite the seriousness of the alleged crime and the fact that the man had a prior rape conviction, the police and prosecutor had recommended that the man be released pending trial. The applicant sued the Minister for damages, arguing that the police and prosecutors had negligently failed to comply with a legal duty they owed to her to take steps to prevent the man from causing her harm. The High Court dismissed the applicant's claim and the Supreme Court of Appeal affirmed, holding that the police and prosecution did not owe her a duty of protection. On appeal, the Constitutional Court set aside the orders of the lower courts and remanded the case to the High Court for trial. It held that the State is obligated by the Constitution and international law to protect the dignity and security of women and in the circumstances, the police recommendation for the assailant's release could amount to wrongful conduct giving rise to liability. The Court also held that prosecutors, who are under a duty to place before the court any information relevant to the refusal or grant of bail, may be held liable for negligently failing to fulfill that duty.



Andrew Manunzyu Musyoka (Deceased) High Court of Kenya at Machakos (2005)

Gender discrimination, Harmful traditional practices, International law, Property and inheritance rights

The applicants are the sons and wife of the deceased and are seeking to apply the Kamba customary law that would not permit a daughter to inherit her father's estate if she is married.  The Court held that the Kamba customary law is discriminatory insofar as it seeks to prevent a married daughter from inheriting her father's estate under the Succession Act.  It specifically noted that although the Kenyan constitution specifically provides for customary law to take precedence over the Constitution in matters dealing with property inheritance after death and other personal issues, Kenya is also obligated to end discriminatory practices under CEDAW and the UDHR. 



Rex v. Rankhebe High Court of Lesotho (1987)

Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement

The accused was convicted of raping an 11 year-old girl. In considering sentencing, the High Court upheld the conviction and, citing South African and English law, noted the presumption that girls under the age of 12 are considered too young to give their consent to intercourse, but in cases involving girls between the ages of 12 and 16 the prosecution must demonstrate that there was non-consent for the accused to be convicted of rape. If a girl of 12 to 16 years old does consent to sexual intercourse with a man, then the man should be found guilty of defilement or statutory rape under the Women and Girls Protection Proclamation No. 14 of 1949. [Note: The Convention on the Rights of the Child defines a child/minor as any person under 18 years of age in the absence of domestic laws. Generally, minors do not have the capacity to give consent.]



Vaux v. Vaux High Court of Malawi (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination, International law, Property and inheritance rights

The petitioner-wife sought dissolution of her marriage on the grounds of abuse by the respondent-husband, who repeatedly physically abused her and threatened her with physical force when she tried to stop him from drinking. She also asked for maintenance for the couple's daughter. The Court granted the dissolution of marriage and noted that the types of mistreatment the petitioner suffered at the hands of her husband constituted gender-based violence as defined by the Declaration of the Elimination of Violence Against Women because it was based on the unequal power relations between the husband and wife and caused the petitioner serious psychological suffering.  



Attorney General v. Unity Dow Court of Appeal of Botswana at Lobatse (1992)

Gender discrimination, International law

The respondent, Ms. Unity Dow, brought a case to the High Court of Botswana asserting that sections 4 and 5 of the Citizenship Act violated her right to equal protection of the law and protection from discrimination on the basis of sex because the sections of the Citizenship Act treated children differently depending on whether they were born to citizen mothers or to citizen fathers. The respondent had one child with an American man prior to their marriage and two children after. Botswana's citizenship requirements allowed only children born outside of marriage to inherit their mother's citizenship, so the respondent's first child was a citizen of Botswana while the two born during her marriage were not. Though not the central issue of the case, the Court noted that an immediate effect of the law could be the expulsion of the husband and non-citizen children from Botswana. The Court of Appeal upheld the High Court's decision in finding that the Citizenship Act discriminated on the basis of gender under both the Botswana Constitution and the Declaration on the Elimination of Discrimination Against Women because it punishes a female citizen for marrying a non-citizen male. In addition, the Court considered similar cases in different countries in reaching its opinion.  (High Court decision available at: https://www.law.cornell.edu/sites/www.law.cornell.edu/files/women-and-ju...)



Legislation

Marriage (Amendment) Act of 2001 (2001)

Forced and early marriage, International law

The Marriage Act was amended in 2001 to make it illegal for any person under the age of 18 to marry. In accordance with the Convention on the Rights of the Child (CRC), the amendment stipulates that no minor below the age of 21 years may marry without the consent of parents or a legal guardian. The amendment provided for the registration of Customary, Muslim, Hindu, and other religious marriages.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 264e: War Crimes (2019)

Forced and early marriage, Forced sterilization, Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Art. 264e provides for a criminal penalty of not less than three years for any person who commits certain specified offenses in connection with an armed conflict, including (among other things) raping a person of the female gender protected by international humanitarian law or, after she has been forcibly made pregnant, confining her unlawfully with the intent of affecting the ethnic composition of a population, forcing a person to tolerate a sexual act of comparable severity or forcing a person protected by international humanitarian law into prostitution or to be sterilized.  In especially serious cases, and in particular where the offense affects a number of persons or the offender acts in a cruel manner, life imprisonment may be imposed. In less serious cases, imprisonment of not less than one year may be imposed. Unofficial English translation available here.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 264a: Crimes Against Humanity (2019)

Forced and early marriage, Gender violence in conflict, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Provides for a criminal penalty of not less than five years for any person who commits certain specified offenses as part of a widespread or systematic attack directed against any civilian population, including (1) assuming and exercising a right of ownership over a person, in particular in the form of trafficking in persons, sexual exploitation or forced labor; and (2) raping a person of the female gender or, after she has been forcibly made pregnant, confining her unlawfully with the intent of affecting the ethnic composition of a population, forcing a person to tolerate a sexual act of comparable severity or forcing a person into prostitution or to be sterilized. Unofficial English translation available here.



Schweizerisches Strafgesetzbuch/Swiss Penal Code, Article 66a: Mandatory expulsion of foreign nationals for female genital mutilation and certain other offenses (2019)

Female genital mutilation or female genital cutting, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Article 66a provides that a foreign national shall be expelled from Switzerland for a period of five to 15 years if they are convicted of, among other things, female genital mutilation (Penal Code Art. 124, para. 1), forced marriage or forced registered partnership (Penal Code Art. 181a), trafficking in human beings (Penal Art. 182), sexual acts with children (Penal Code Art. 187, para. 1), sexual coercion (Art. 189), rape (Art. 190), sexual acts with persons incapable of judgement or resistance (Art. 191), encouraging prostitution (Art. 195), aggravated pornography (Art. 197, para. 4, second sentence – pornography containing genuine sexual acts with minors), genocide (Art. 264), crimes against humanity (Art. 264a), serious violations of the Geneva Convention of 1949 (Art. 264c), and other war crimes (Art. 264d and 264h). Unofficial English translation available here. 



Law No. 26 of 2000 - Establishing the Ad Hoc Human Rights Court (2000)

Forced sterilization, Gender violence in conflict, Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

Article 9 defines crimes against humanity to include violent acts such as rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or other forms of sexual violence.



Law No. 7 of 1984 on the Elimination of All Forms of Discrimination Against Women (1984)

Gender discrimination, International law

This law ratifies the UN treaty on the convention on Elimination of All Forms of Discrimination Against Women (adopted by the UN General Assembly on 18 December 1979 (resolution 34/180)) to help prevent any gender-based discrimination against women and ensuring that women will have equal rights and opportunities in all fields of life.



Law No. 68 of 1958 (1970)

Gender discrimination, International law

This law ratifies the UN treaty on the convention on Political Rights of Women (Convention on the Political Rights of Women open for signature on 31 March 1953) recognizing that everyone has a right to take part in the government of their country and recognizing women’s right to vote and participate in the political process of the country. This law gives the same rights to Indonesian women as is provided under the convention and protects those rights under Indonesian Law.



Constitution of the Federal Democratic Republic of Ethiopia

Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Gender-based violence in general, Harmful traditional practices, International law

Article 9 of the FDRE Constitution provides that all international treaties ratified by Ethiopia are integral parts of the law of the land. Similarly, Article 13.2 provides that fundamental rights and freedoms shall be interpreted in a manner conforming to the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia. Ethiopia has ratified many of these treaties including ICCPR, ICESCR, and CEDAW. Article 35 of the FDRE Constitution pertains to the Rights of Women. The article provides for equal rights under the constitution, equal rights with men in marriage, entitlement to affirmative measures, protection from harmful traditional practices, the right to maternity pay, the right to consultation, property rights (including acquiring and controlling and transferring property), employment rights, and access to family planning education. It is worth noting that this article explicitly imposes an obligation and accountability on the state to protect women from violence at Article 35.4:  “The State shall enforce the right of women to eliminate the influences of harmful customs. Laws, customs and practices that oppress or cause bodily or mental harm to women are prohibited.”



Lei Nº 11.340 (2006)

Domestic and intimate partner violence, International law

On August 7, 2006, Law No. 11.340 was enacted to create a new body of legal provisions tackling the issue of domestic violence against women in Brazil. Commonly known as “Lei Maria da Penha” (or Maria da Penha Act), the new law criminalized different forms of domestic violence against women, established stricter punishment for offenders, facilitated preventive arrests, and created other special protective and relief mechanisms for women, including special courts, designated police stations, and shelter for women. The new law, considered a landmark statute, was named after Maria da Penha, a Brazilian bio-pharmacist who became paraplegic after being shot and electrocuted by her husband. After nearly two decades of ineffective criminal prosecution, Maria da Penha took the case to the Inter-American Commission on Human Rights, where Brazil was ultimately criticized for its inefficient treatment of issues regarding domestic violence (case available here). In effect since 2006, the Maria da Penha Act has been praised by the United Nations as one of the most progressive laws in combatting domestic violence against women.



On the Amendments to the Criminal and Criminal Procedure Codes of Ukraine in order to implement the provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (2017)

Domestic and intimate partner violence, Forced and early marriage, Forced sterilization, Gender discrimination, Gender-based violence in general, International law, Sexual violence and rape

The Criminal and Criminal Procedural Codes of Ukraine were amended in December 2017 to adopt provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) adopted in 2011.  As a result of these amendments, forced marriage (i.e. forcing a person to marry or to continue being in a forced marriage, or to enter into a cohabitation without official registration of marriage, or to continue such cohabitation) is punishable by restraint of liberty for up to three years or imprisonment for the same period and domestic violence (i.e. deliberate systematic violence against a spouse or ex-spouse or other person with whom the perpetrator is in family or intimate relationship, leading to physical or psychological suffering, disorder of health, disability, emotional dependence) is punishable with public works for up to 240 hours or detention for up to six months, or restraint of liberty for up to 5 years or imprisonment for up to two years.  In addition, the amendments:

introduce new corpus delicti, such as “illegal abortion or sterilization” (i.e. performed by a person without medical education or without consent of the victim) which is punishable by imprisonment for up to 3 years;establish punishment for rape of a spouse or ex-spouse or other person with whom the perpetrator is in a family or intimate relationship (imprisonment for up to 10 years); andincrease punishment for sexual violence to up to 15 years, if such acts resulted in serious consequences.


Gender Law of 10 May 2007 (2007)

Abortion and reproductive health rights, Divorce and dissolution of marriage, Employment discrimination, Gender discrimination, Harmful traditional practices, International law, LGBTIQ, Property and inheritance rights, Sexual harassment

The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.


International Case Law

G.N. v. Burundi Committee Against Torture (2017)

International law, Statutory rape or defilement

G.N., a mother, brought the action on behalf of her nine-year-old daughter, C.N.  A friend of the family, Captain D.K., was conducting night patrols and he stopped by the family home.  G.N.’s husband was not at home, so the Captain said he was going to leave and wanted to take C.N. with him home.  G.N. declined saying it was late, but when she returned to the kitchen to finish cooking the meal and then called for her daughter, she was no longer there.  Neighbors informed G.N. that she had left with D.K.  She looked for C.N., but did not see her.  The serviceman was a friend of the family.  She thought C.N. would soon return.  When G.N.’s husband returned home, she informed him that C.N. had not returned and he reassured her so they decided to wait.  C.N. returned home the next day.  G.N. eventually learned from C.N. that D.K. had taken her to his house, raped her, and, when she cried, threatened her with his firearm if she made any more noise.  He sent her to sleep with his own children and the next day gave her 500 Burundian francs (USD 0.30). He told her never to speak about the rape and threatened her and her mother if she revealed their secret.  However, a week after the incident, her mother persisted in asking C.N. because she could not stand up and said she had a stomach ache.  The victim’s father raised the issue with Captain D.K., who proposed an out of court settlement, which was rejected by G.N.  G.N. took C.N. for a medical examination, which confirmed the rape and she reported the rape to the military prosecutor’s department.  G.N. appealed to the domestic courts, which dismissed the case because of the ten-day period between the incident and reporting of it and the calmness and availability of the Captain.  After seeking domestic remedies with no action taken, G.N. appealed to the Committee submitting that her daughter was the victim of a violation of articles 2(1), 12, 13 and 14, read in conjunction with article 1 and, alternatively, with article 16 of the Convention.  The Committee found that the sexual abuse to which C.N. was subjected by an official of the State acting in his official capacity and the associated acts of intimidation fall within the scope of article 1 of the Convention.  The Committee also determined the investigation was not impartial, effective and prompt, contrary to articles 12 and 13 of the Convention.  It relied on the fact it was closed quickly and prosecutors did not seek additional evidence to pursue the case or arrest any other suspects, meaning the perpetrator of the rape has gone unpunished even though Burundi law provides that rape is punishable by life imprisonment when committed against a child under the age of 12.  As the child received no redress, the Committee also found that Burundi violated its obligations under article 14 of the Convention.  Finally, the Committee urged Burundi to: (1) promptly reopen an investigation; (2) provide reparation including compensation for the material and moral harm caused, restitution, rehabilitation, measures of satisfaction and a guarantee of non-repetition; (3) prevent threats/acts of violence against G.N. and C.N. for lodging the complaint; and (4) advise the Committee within 90 days of the steps taken. 



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.



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.



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.



D.T. v. Canada Human Rights Committee (ICCPR) (2017)

Harmful traditional practices, Honor crimes (or honour crimes), 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. 



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.



C. v. Australia Human Rights Committee (ICCPR) (2018)

Divorce and dissolution of marriage, International law, LGBTIQ

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 (ICCPR) (2018)

Gender-based violence in general, International law, Sexual violence and rape

The Government of Nepal declared a state of emergency in response to a rebellion by the Maoist party and granted powers to the Royal Nepal Army to arrest individuals on suspicion of involvement in terrorist activities through and to keep them in detention for up to 90 days without charge.  The first author, Sarita Devi Sharma, is the sister of Himal Sharma, Secretary-General of a Maoist-affiliated political party in Nepal.  Ms. Sharma and her friend B.M. were followed and asked about Ms. Sharma’s brother, then they were handcuffed, placed in a van and taken to Army barracks.  She was detained and held from October 2003 through 30 June 2005.  Once her husband, the second author, became aware of her disappearance, he submitted an application to the National Human Rights Commission denouncing her disappearance and submitted a writ petition to the Supreme Court of Nepal demanding an order of habeas corpus, which the court rejected, claiming lack of evidence proving her illegal detention.  He also informed Amnesty International about her disappearance, but they never received a reply from the Government when they inquired about her.  During the first four-five months, she was routinely interrogated, beaten, held underwater for long periods of time and threatened with rape.  After that, she suffered ill health and was taken to a hospital.  In the hospital, she sent a letter secretly to her husband who, after several months of not hearing any further information, shared it with members of All Nepal National Independent Student Union Revolutionary who included information about her condition in a press release.  As a result, Ms. Sharma was interrogated harshly and beaten.  Ms. Sharma was then moved to a small, dark room and kept in isolation.  Her husband filed a new petition for habeas corpus with the Supreme Court, which ordered her release.  The Committee determined that Nepal produced no evidence to show that, while Ms. Sharma was held in incommunicado detention, it met its obligations to protect her life, and that this failure resulted in a violation of article 6(1) of the Covenant.  In addition, the Committee found that the enforced disappearance and incommunicado detention of Ms. Sharma, and the acts of torture and conditions to which she was exposed constituted violations of article 7 of the Covenant.  Further, the Committee concluded that the enforced disappearance and arbitrary detention of Ms. Sharma amounted to a violation of article 9 (1-4) of the Covenant.  The enforced disappearance deprived her of the protection of the law and her right to recognition as a person before the law in violation of article 16 of the Covenant.  The anguish and distress suffered by Ms. Sharma’s husband and son, the third author, due to her enforced disappearance also were found to constitute a violation of article 7 of the Covenant.  The Committee determined that neither Ms. Sharma did not receive an adequate remedy (246,000 Nepalese rupees), in violation of article 2 (3), in conjunction with articles 6, 7, 9 (1-4) and 16, and her husband and son received no interim relief, which constituted a violation of article 2 (3), read in conjunction with article 7 of the Covenant.  Moreover, the Committee stated that Nepal was obligated to provide an effective remedy.  This remedy should include:  (1) conducting a thorough and effective investigation into the facts surrounding the detention and the treatment suffered in detention; (2) prosecuting those responsible for the violations committed and making the results public; (3) providing detailed information about the results of the investigation to Ms. Sharma and her family; (4) ensuring that any necessary and adequate psychological rehabilitation and medical treatment is provided; and (5) providing adequate compensation and appropriate measures of satisfaction for the violations suffered.  Further, in order to prevent the occurrence of similar violations in the future, the Committee stated that Nepal should ensure that its legislation:  (1) criminalizes torture and enforced disappearance and provides for appropriate sanctions and remedies; (2) guarantees that such cases give rise to a prompt, impartial and effective investigation; (3) allows for the criminal prosecution of those found responsible for such crimes; and (4) amends the 35-day statutory limit for claiming compensation for torture, in accordance with international standards.



O.G. v. Russian Federation CEDAW Committee (2017)

Domestic and intimate partner violence, International law

O.G. was in a civil partnership with K. who used drugs and alcohol and had a gambling addiction.  After O.G. left him, he sent her harassing texts, attempted to visit her, and when she refused to let him in her building, he hit her.  She reported the events to a Crisis Center for Women.  K. was sentenced to four months of labor which was suspended to a six-month probation and ordered to pay $50.  After his release, he continued to send texts to O.G. threatening to kill her.  She filed seven criminal complaints with the police, who took no action claiming there was nothing they could do because K. would not come to the police station and he was not acting on his threats.  O.G. filed a complaint with CEDAW alleging that the Russian Federation failed to fully implement the Convention by not introducing legislation on domestic violence, and that the authorities had violated her rights under the Convention by not responding adequately to her claims or implementing protective orders to ensure her safety, not providing any effective remedy or psychological support, not conducting meaningful investigation, and allowing prosecution to be time barred due to a two-year statute of limitation.  The Committee decided in O.G.’s favor, rejecting the Russian authority’s argument that O.G.’s claim to be a domestic violence victim was unsubstantiated because he was not a member of her family at the time of the alleged violence, finding that there is no statutory time limit on how long after the end of a relationship a partner can claim that violence falls within this definition.  The Committee determined that Russia had not adopted comprehensive legislation to prevent and address violence against women, and noted recent amendments to national legislation that decriminalized battery under which many domestic violence cases are prosecuted due to the absence of a definition of “domestic violence.”  This failure to amend legislation relating to domestic violence directly affected O.G.’s access to remedies and protection.  The Committee determined Russia violated O.G.’s rights under articles 1, 2 (b)-(g), 3 and 5 (a) of the Convention. It recommended that Russia provide financial compensation to O.G., adopt comprehensive legislation to prevent and address violence against women, including domestic violence, reinstate criminal prosecution of domestic violence, introduce a protocol for handling domestic violence complaints at the police station level to ensure adequate protection, renounce private prosecution in domestic violence cases, ratify the Istanbul Convention, provide mandatory training for judges, lawyers and law enforcement personnel on the Convention and related documents, investigate allegations of gender-based violence against women promptly and provide safe and prompt access to justice, provide rehabilitation programs to offenders, and develop and implement effective measures with relevant stakeholders such as women’s organizations, to address stereotypes and practices that condone or promote domestic violence.  A written response and report on actions taken was due to the Committee within six months. (Available in English, Russian, Arabic, Chinese, French, Spanish.)



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.



Garnaga v. Ukraine European Court of Human Rights (2013)

Gender discrimination, International law

The applicant requested Ukrainian authorities to change her patronymic to the one derived from her stepfather’s name and was refused because local legislation allowed a citizen to change the patronymic only in the event of a change of his/her father’s name.  At the same time, the applicant successfully changed her surname to the surname of her stepfather.  The Court held that given that the Ukrainian legislation recognizes the right of the individual to change his/her name and the procedure of changing names is flexible, the denial on changing the patronymic was not sufficiently justified.  Furthermore, the court held that the authorities had not secured the applicant’s right to respect for her private life as no reasons had been given by the Ukrainian authorities for denying the applicant her right to decide an important aspect of her private and family life and no such justification had otherwise been established.



Y. v. Slovenia European Court of Human Rights (2015)

International law, Sexual violence and rape, Statutory rape or defilement

Applicant is a citizen of Ukraine who came to Slovenia as a teenager with her family.  Applicant alleged that when she was 14 a family friend repeatedly sexually assaulted her.  The police investigated and an expert in gynecology examined the applicant.  After complaints and a letter from the State Prosecutor’s Office to the local police a criminal complaint was issued.  The ensuing investigation and trial extended over a period of eight years.  During that time the defendant was allowed to repeatedly cross examine the applicant.  Moreover, a lawyer with whom the applicant had shared confidential information about the case was allowed to represent the defendant.  The defendant was acquitted, the applicant was referred to civil court for damages, and the applicant received a settlement from the government for the undue delays in the proceedings.  The Court found that Slovenia violated the European Convention of Human Rights in two ways.  Slovenia violated Article 3 when it failed to promptly investigate and prosecute the complaint of sexual abuse.  Furthermore, Slovenia violated Article 8 because it failed to sufficiently protect the applicant’s personal integrity and privacy in the proceedings.



Case of W. v. Slovenia European Court of Human Rights (2014)

International law, Sexual violence and rape

In 1990 at age 18, W. was raped by a group of seven men.  Three other men aided and abetted the rape.  Seven months later, the court acquitted the men of all charges, finding that the victim had not “seriously resisted sexual intercourse.”  The Public Prosecutor appealed the judgement and in 1991, a year after the assault, the appellate court overturned the acquittal.  The Slovenian authorities attempted to locate the perpetrators, but two defendants had emigrated to Austria and could not be found.  Between 1995 and 2001, the victim wrote eight letters to the court urging the proceedings to continue and five hearings were adjourned for failure of some of the defendants to appear.  Various excuses, such as frequent changes in the presiding judges, were offered to the victim as excuses for the stalled proceedings.  Finally, in May 2001, the authorities issued an international arrest warrant for the defendants located abroad.  In June 2002, six defendants were found guilty of rape and aggravated rape.  However, due to the passage of time, they were only sentenced to eight months to one year of prison.  The last defendant was extradited in 2004, convicted of aiding and abetting the rape, and sentenced to eight months in prison.  The victim received €5,000 from the Slovenian government in recognition of delay in prosecuting the defendants; however, the European Court of Human Rights (ECtHR) found that this amount (while the statutory maximum in Slovenia) was insufficient redress.  The ECtHR noted that Slovenian authorities failed to proceed with the case in a diligent manner and that the defendants received prison sentences of less than the minimum sentences prescribed by law.  Thus, the domestic authorities failed to comply with their obligations under Article 3 of the European Convention of Human Rights.  The ECHR, deciding in equity, awarded the victim €15,000 in addition to the €5,000 she received from the domestic authorities.



Case of Bălşan v. Romania European Court of Human Rights (2017)

Divorce and dissolution of marriage, Domestic and intimate partner violence, International law

Applicant is a Romanian citizen who alleged that her husband had been violent towards her and their children on numerous occasions.  The assaults intensified when the applicant initiated divorce proceedings against her husband.  The applicant’s husband assaulted and threatened her on multiple occasions, for which she required and obtained medical treatment.  She then used her medical records as proof when she lodged formal complaints against her husband at the prosecutor’s office.  She told prosecutors of the incidences of violence and the fact that her husband repeatedly locked her out of their shared residence.  The police did not pursue criminal charges and only imposed an administrative fine, holding that the applicant had provoked the disputes.  A similar pattern of abuse, medical attention, and contact with the authorities occurred over a period of months.  The applicant brought the case to the European Court of Human Rights alleging that the State “had failed to protect her from domestic violence and to hold the perpetrator accountable.”  The Court found that there were violations of Article 3 and Article 14 of the European Convention on Human Rights, which forbid torture and discrimination, respectively.  The Court found that the authorities were aware of the violence against the applicant, and thus they had an obligation to act on the complaints.  The applicant exhausted domestic avenues, but without success.  The state’s responses did not comply with international standards about required state action to violence against women and domestic violence. (Available in English, Romanian, and Croatian. English version is official.)



Organisation Mondiale Contre la Torture et Ligue de la Zone Afrique pour la Défense des Droits des Enfants et Elèves (pour le compte de Céline) v. Democratic Republic of the Congo African Commission on Human and Peoples' Rights (2016)

Gender-based violence in general, International law, Sexual violence and rape, Statutory rape or defilement

The complainants filed suit on behalf of a 17-year-old girl who was violently attacked and raped by two men.  Local police, who allegedly knew the attackers, witnessed the beginning of the attack but did not aid the victim.  The complainants further alleged that the Kinshasa police knew that an organized gang had attacked the victim and other girls and the identities of the attackers, but refused to take action to dismantle the gang due to their limited financial resources.  The Commission held that the Democratic Republic of the Congo (“DRC”) had violated several articles of the African Charter on Human and Peoples’ Rights (the “Charter”) due to the failure of (i) police to take action to prevent the rape and (ii) competent authorities to provide justice to the victim.  The Commission requested the DRC (1) take measures to find and punish the attackers; (2) accord the victim adequate reparation as well as medical and psychological assistance; (3) take measures to prevent sexual violence and rape in the parts of its territory where these offenses are common; (4) take measures to change patterns of behavior linked to violence against women and girls, including sexual violence and rape; (5) establish rehabilitation programs for girls who are victims of sexual violence and rape; and (6) organize training sessions for law enforcement and judges on the treatment of sexual violence and rape, under conditions conforming to the pertinent dispositions of the Charter.



Prosecutor v. Gacumbitsi International Criminal Tribunal for Rwanda (2004)

International law, Sexual violence and rape

Mr. Sylvestre Gacumbitsi served as the mayor of the Rusumo Commune during the tragic events that took place in Rwanda in 1994. The Trial Chamber found Mr. Gacumbitsi guilty of genocide and the crimes against humanity of extermination and rape. The Trial Chamber held that Mr. Gacumbitsi planned, instigated, ordered, committed, and aided and abetted the killing and raping of Tutsi civilians. Moreover, Mr. Gacumbitsi was directly involved in certain instances in such acts. This case is important, among others, since the Trial Chamber has used a broad definition of rape - recognizing various forms of sexual violence as constituting rape.



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.



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.



Sawhoyamaxa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2006)

Abortion and reproductive health rights, Gender discrimination, International law, Property and inheritance rights

This case involved issues involving the exposure of vulnerable members of indigenous communities, particularly children, pregnant women, and the elderly. A petition was filed against Paraguay on behalf of the Sawhoyamaxa Indigenous Community, alleging violations of, among other things, the right to fair trial and judicial protection, the right to property and the right to life. The petition noted that these violations placed children, pregnant women and the elderly in particularly vulnerable situations. The Court found Paraguay to be in violation of Articles 1(1), 2, 3, 4(1), 8, 19, 21 and 25 of the American Convention on Human Rights. The Court ordered Paraguay to formally and physically convey to the Sawhoyamaxa their traditional lands, to establish a community development fund, to pay non-pecuniary damages, to provide the Sawhoyamaxa with basic necessities until their lands were restored, to provide the Sawhoyamaxa with the necessary tools for communication to access health authorities, and to domestically enact legislation creating a mechanism for indigenous communities to reclaim their traditional lands.



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.



Maria da Penha Fernandes v. Brazil Inter-American Commission on Human Rights (2000)

Domestic and intimate partner violence, International law

The Applicant, Maria da Penha Fernandes, brought this case to the Inter-American Commission, arguing that Brazil effectively condoned violence against women through ineffective judicial and prosecutorial action. The Applicant was shot in the back by her husband while she was sleeping.  She survived, but was paralyzed from the waist down.  Her husband received a sentence of two years in prison after 19 years of trial.  The Inter-American Commission found that the delays and the lack of protections in Brazil for domestic violence survivors amounted to violations of da Penha's human right to live free from violence and to access justice.



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.



Aumeeruddy-Cziffra and 19 other Mauritian Women v. Mauritius Human Rights Committee (1981)

Gender discrimination, International law

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.