Women and Justice: Type: International Case Law

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.)



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

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

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



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

International law, LGBTIQ

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



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

Abortion and reproductive health rights, Custodial violence

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



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.)



Prosecutor v. Semanza International Criminal Tribunal for Rwanda (2003)

Gender violence in conflict, Sexual violence and rape

Mr. Semanza was a former mayor of Bicumbi commune, and was accused of aiding and abetting genocide in connection with two massacres of Tutsis.  He was specifically alleged to have directly participated in murder and torture, and for inciting a crowd to rape Tutsi women prior to killing them, and to have personally participated in the same.  The Trial Chamber found that Mr. Semanza was guilty of a crime against humanity for his rape, torture, and murder of Tutsi women.  This case is notable for scaling back the definition of rape adopted by the Appeal Chamber of the ICTR in the Akayesu and Musema judgments.  Relying on the Kunarac decision of the Appeal Chamber of the ICTY, the Trial Chamber in this case adopted a more limited view of the definition of rape, relying on the mechanical definition requiring physical “non-consensual penetration” of the victim.  The Trial Chamber did acknowledge that other acts of sexual violence that do not satisfy this definition of rape may still be prosecuted as crimes against humanity “such as persecution, enslavement or other inhumane acts.”



Prosecutor v. Musema International Criminal Tribunal for Rwanda (2000)

Gender violence in conflict, Sexual violence and rape

Musema, the accused, was the director of a tea factory during the 1994 genocide in Rwanda, and was accused of organizing and taking part in attacks on Tutsi communes.  The Trial Chamber found that Musema had taken part in at least four separate attacks, and that he personally participated in a rape and in so doing, had encouraged others to rape the victim.  Musema was sentenced to life imprisonment. The Chamber adopted the definition of rape and sexual violence set forth in the landmark Akayesu decision, and further stated that “variations on the acts of rape may include acts which involve the insertions of objects and/or the use of bodily orifices not considered to be intrinsically sexual.”  Concurring with the approach set forth in Akayesu, the Chamber stated that the “essence of rape is not the particular details of the body parts and objects involved, but rather the aggression that is expressed in a sexual manner under conditions of coercion.”  The Trial Chamber also recognized that due to the ongoing evolution and incorporation of the understanding of rape into principles of international law, “a conceptual definition is preferable to a mechanical definition of rape” because it will “better accommodate evolving norms of criminal justice.”  The Judgment against this defendant is notable for defining rape as an element of genocide, as the Akayesu case had done, and also as a crime against humanity. 



The Prosecutor v. William Samoei Ruto, et al. (Confirmation of Charges) International Criminal Court (2011)

Gender-based violence in general, Sexual violence and rape

Under Article 7 of the Rome Statue, sexual and gender-based crimes can amount to crimes against humanity.  Although terminated by the ICC because of insufficient evidence, this case clarifies the principles for prosecuting these crimes.  Charges for the crimes against humanity of murder, forcible transfer of population, and persecution were brought due to the post-election violence in Kenya, where an attack allegedly targeted ethnic groups perceived as supporters of the Party of National Unity.  The ICC determined the key elements of such crimes against humanity are:  (i) an attack against civilians who were the primary object of the attack; (ii) widespread or systematic attacks with acts of violence having an organised nature; (iii) attacks committed pursuant to a State or an organisational policy; (iv) a nexus between the individual act and the attacks; (v) the organizer intended and had knowledge of the attacks.



The Prosecutor v. Thomas Lubanga Dyilo International Criminal Court (2012)

Gender violence in conflict, Trafficking in persons

This case concerned the war crimes of enlisting and conscripting children in DRC.  Under Article 75 of the Rome Statute, in determining reparations (including restitution, compensation and rehabilitation), the ICC should consider the scope and extent of any damage and the harm caused to the victims.  The Prosecutor encourages a gender-inclusive approach, promoting reparations that contribute to advance gender equality.  In Lubanga the ICC advanced this approach by emphasising that the court should consider the needs of victims of sexual or gender-based violence and prioritize vulnerable victims (especially when plastic surgery or HIV treatments are necessary) and severely traumatized children.  The ICC should also grant reparations without discrimination on grounds of “gender, age, race, colour, language, religion or belief, political or other opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other status.”  In fact, reparations should address any underlying injustices and avoid replicating discriminatory practices and the further stigmatisation of victims.



The Prosecutor v. Jean-Pierre Bemba Gombo (2016)

Gender violence in conflict, Sexual violence and rape

Mr. Bemba was president of the “Movement for the Liberation of the Congo” (“MLC”) and Commander-in-Chief of its military unit, the Armée de Libération du Congo (“ALC”), in the Democratic Republic of Congo (“DRC”).  In these roles, Mr. Bemba had effective authority and control over the MLC, as well as the ALC troops.  The ICC found Mr. Bemba criminally responsible for rape, both as a war crime and a crime against humanity, committed by his armed forces during the course of the 2002-2003 U.N. peacekeeping mission in the Central African Republic (“CAR”).  The ICC held that Mr. Bemba failed to take all necessary and reasonable measures to prevent or repress the commission of such crimes by his armed forces.  This decision is important because it represents the ICC’s first verdict to hold that leaders are accountable for the crimes perpetrated by their subordinates.  By employing the doctrine of command responsibility, the ICC’s goal is to prevent leaders from avoiding repercussions for crimes (including sexual crimes) that are committed by the troops under their control.



The Prosecutor v. Germain Katanga International Criminal Court (2014)

Gender violence in conflict, Sexual violence and rape, Trafficking in persons

Mr. Katanga was the leader of the Patriotic Resistance Force (“PRF”) in Ituri, an opposition group in DRC, and was accused of war crimes and crimes against humanity in relation to an attack against the village of Bogoro.  The Pre-Trial Chamber found that the PRF forces committed acts of rape and sexual slavery:  Mr. Katanga’s combatants abducted, sexually enslaved, and physically abused women.  Mr. Katanga was found guilty as an accessory to war crimes on four counts: i.e., murder, attacking a civilian population, destruction of property, and pillaging.  He was also found guilty as an accessory to murder constituting a crime against humanity.  However, he was acquitted on the charges of rape and sexual slavery committed by the PRF forces because the crimes could not be attributed to him; it could not be proved that the crimes were common practice among the combatants.  Despite Mr. Katanga’s acquittal, this case is particularly significant as it was the first case in which crimes of sexual violence, including rape and sexual slavery, were charged.



The Prosecutor v. Jean-Pierre Bemba Gombo International Criminal Court (2016)

Sexual violence and rape

Mr. Bemba was president of the “Movement for the Liberation of the Congo” (“MLC”) and Commander-in-Chief of its military unit, the Armée de Libération du Congo (“ALC”), in the Democratic Republic of Congo (“DRC”).  In these roles, Mr. Bemba had effective authority and control over the MLC, as well as the ALC troops.  The ICC found Mr. Bemba criminally responsible for rape, both as a war crime and a crime against humanity, committed by his armed forces during the course of the 2002-2003 U.N. peacekeeping mission in the Central African Republic (“CAR”).  The ICC held that Mr. Bemba failed to take all necessary and reasonable measures to prevent or repress the commission of such crimes by his armed forces.  This decision is important because it represents the ICC’s first verdict to hold that leaders are accountable for the crimes perpetrated by their subordinates.  By employing the doctrine of command responsibility, the ICC’s goal is to prevent leaders from avoiding repercussions for crimes (including sexual crimes) that are committed by the troops under their control.



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.



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

Custodial violence

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



International Planned Parenthood Federation – European Network (“IPPF EN”) v. Italy European Court of Human Rights (2013)

Gender discrimination

Italian government’s failure to take measures to ameliorate the less favorable treatment suffered by women falling into certain vulnerable categories with respect to access to abortion services was a violation of Article E (prohibition of direct and indirect discrimination) of the Revised European Social Charter (the “Charter”) in conjunction with Article 11 (right to protection of health) of the Charter. IPPF EN complaint stated that the high number of medical personnel electing to be conscientious objectors resulted in the violation of the rights of women to have access to procedures for the termination of pregnancy, thus violating their right to protection of health. Committee finds that certain categories of women in Italy are subject to discrimination in the form of impeded access to lawful abortion facilities as a combined effect of their gender, health status, territorial location and socio-economic status. Committee finds that Italian authorities should have adopted the necessary measures to compensate for deficiencies in service provisions caused by health personnel choosing to exercise their right to conscientious objection to performing abortions.



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

Custodial violence

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



The Case of Durmaz v. Turkey European Court of Human Rights (2015)

Domestic and intimate partner violence

The applicant, Ümran Durmaz, is a Turkish national who was born in 1955 and lives in ?zmir, Turkey. The case concerned her complaint of the authorities’ failure to carry out an effective investigation into the death of her daughter. Ms Durmaz’ daughter, Gülperi O., died in July 2005 in a hospital in ?zmir – where she had been working as a nurse – after her husband had taken her to the emergency department, informing the doctors that she had taken an overdose of two medicines. The doctors pumped her stomach but were unable to save her. When questioned by the police, her husband, who worked at the hospital’s pharmacy, also stated that the couple had had a row on the same day and he had hit her. Gülperi O.’s father subsequently lodged a complaint with the prosecutor, stating that she had not been suicidal, and alleging that her husband was responsible for her death. In the course of the ensuing investigation, a forensic medical examination found no trace of medicines or other drugs in Gülperi O.’s blood or in other samples taken from her body, but it noted that there was an advanced oedema in her lungs. In February 2006, the prosecutor decided to close the investigation, concluding that Gülperi O. had committed suicide. An objection by Ms Durmaz – stating, in particular, that the prosecutor had failed to question her late daughter’s husband, despite the fact that by his own admission he had beaten her, and that the prosecutor’s conclusion ran contrary to the findings of the forensic examination – was dismissed by the courts. Relying in particular on Article 2 (right to life), Ms Durmaz complained that the investigation into the death of her daughter had been ineffective. In particular, further expert reports would have been required, and the prosecutor should have investigated whether the cause of Gülperi O.’s death could have been an internal hemorrhage caused by the blows inflicted by her husband.



The Case of Emel Boyraz v. Turkey European Court of Human Rights (2015)

Employment discrimination

The case concerned a dismissal from public sector employment – a State-run electricity company – on grounds of gender. Ms Boyraz, the applicant, had worked as a security officer for almost three years before being dismissed in March 2004 because she was not a man and had not completed military service. In the Court’s opinion, the mere fact that security officers had to work on night shifts and in rural areas and had to use firearms and physical force under certain conditions had not in itself justified any difference in treatment between men and women. Moreover, the reason for Ms Boyraz’ dismissal had not been her inability to assume such risks or responsibilities, there having been nothing to indicate that she had failed to fulfil her duties, but the decisions of Turkish administrative courts. The Court also considered that the administrative courts had not substantiated the grounds for the requirement that only male staff could be employed as security officers in the branch of the State-run electricity company. The Court therefore concluded that the difference in treatment of which she had been a victim had not pursued a legitimate aim and had amounted to discrimination on grounds of sex. Consequently, there had been a violation of Article 14 in conjunction with Article 8.



Case of María Eugenia Morales de Sierra v. Guatemala Inter-American Court of Human Rights (2001)

Gender discrimination

On February 22, 1995 petitioners, the Center for Justice and International Law and María Eugenia Morales de Sierra, brought a claim against the state of Guatemala alleging that certain articles of the Civil Code of the Republic of Guatemala contravened Articles 1(1), 2, 17 and 24 of the American Convention on Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The relevant articles of the Civil Code of the Republic of Guatemala conferred the power to represent the marital union to the husband, setting aside only exceptional instances when the wife might exercise this authority; imbued the husband with the right to administer marital property, again limiting the wife’s power to exceptional circumstances; delegated the duty to care for minor children and the home to women, permitting professional engagement outside the home only to the extent that it does not impede her primary role as a mother and homemaker; instilled in men the power to oppose their wife’s activities in court “as long as he provides for her and has justified reasons”; conferred upon men the authority to represent marital children in court and to administer their property; and prevented women from exercising certain forms of guardianship. The Guatemalan Court of Constitutionality upheld these laws using women’s protection and juridical certainty as justification. The Inter-American Court, however, held that these provisions in the Guatemalan Civil Code were not justifiable. The challenged Articles were found to violate the rights established under the American Convention and CEDAW. Articles 1(1), 2, 17 and 24 of the American Convention oblige the state to guarantee the rights enshrined in the Convention, to adopt legislative measures that protect those rights, to ensure gender equality within the institution of marriage and to ensure equal treatment before the law respectively. Articles 15 and 16 of CEDAW mandate that women have equal capacity in civil matters, especially those regarding contract and property rights, and that states take appropriate measures to eliminate discrimination related to marital and family matters. The Articles in the Guatemalan Code deprived María Eugenia Morales de Sierra, and all Guatemalan women, of their rights as guaranteed in the American Convention, preventing them from advocating for their legal interests, reinforcing antiquated notions of gender roles within marriage and perpetuating systemic disadvantages that women in Guatemala face. The Court ordered Guatemala to conform its Civil Code to meet the standards enshrined in the American Convention and to compensate María Eugenia Morales de Sierra for her suffering.

 

El 22 de febrero de 1995, los peticionarios, el Centro por la Justicia y el Derecho Internacional y María Eugenia Morales de Sierra, presentaron una demanda contra el estado de Guatemala alegando que ciertos artículos del Código Civil de la República de Guatemala contradecían los artículos 1 (1), 2 , 17 y 24 de la Convención Americana sobre Derechos Humanos y la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW). Los artículos relevantes del Código Civil de la República de Guatemala: le confieren a los esposos la facultad de representar a la unión marital, dejando de lado solo unos pocos casos excepcionales en los que las esposas podrian ejercer esta autoridad; le otorgan al esposo el derecho de administrar bienes conyugales, lo que en efecto limita el poder de la esposa a circunstancias excepcionales; delegan el deber de cuidar a los niños menores y el hogar a las mujeres, permitiendo el compromiso profesional fuera del hogar solo en la medida en que no impida su papel principal como madre y ama de casa; le dan a los hombres el poder de oponerse a las actividades de su esposa en la corte "siempre que él la cuide y tenga razones justificadas;" le confirien a los hombres la autoridad de representar a los hijos conyugales en los tribunales y administrar sus bienes; y le impiden a las mujeres ejercer ciertas formas de tutela. La Corte de Constitucionalidad de Guatemala confirmó estas leyes utilizando la protección de las mujeres y la seguridad jurídica como justificación. Sin embargo, la Corte Interamericana sostuvo que estas disposiciones del Código Civil de Guatemala no eran válidas. Se determinó que los Artículos impugnados violan los derechos establecidos en la Convención Americana y la CEDAW. Los artículos 1 (1), 2, 17 y 24 de la Convención Americana obligan al estado a garantizar los derechos consagrados en la Convención, a adoptar medidas legislativas que protejan esos derechos, a garantizar la igualdad de género en la institución del matrimonio, y a garantizar la igualdad de trato ante la ley. Los artículos 15 y 16 de la CEDAW exigen que las mujeres tengan la misma capacidad en materia civil, especialmente las relacionadas con los derechos contractuales y de propiedad, y que los estados tomen las medidas adecuadas para eliminar la discriminación relacionada con cuestiones maritales y familiares. Los artículos del Código de Guatemala privaron a María Eugenia Morales de Sierra (y a todas las mujeres guatemaltecas) de sus derechos garantizados en la Convención Americana, impidiéndoles defender sus intereses legales, reforzando las nociones anticuadas de los roles de género dentro del matrimonio, y perpetuando desventajas sistémicas a las que las mujeres guatemaltecas son sometidas. La Corte ordenó a Guatemala que cumpliera con su Código Civil para satisfacer los estándares establecidos en la Convención Americana y para compensar a María Eugenia Morales de Sierra por su sufrimiento.

 

 



The Case of Serife Yigit v. Turkey European Court of Human Rights (2010)

Property and inheritance rights

The applicant, ?erife Yi?it, is a Turkish national who was born in 1954 and lives in Gaziantep, Turkey. In 1976, she married Ömer Koç (Ö.K.) in a religious ceremony (imam nikah?). Ö.K. died on 10 September 2002. The youngest of their six children, Emine, was born in 1990. On 11 September 2003 ?erife Yi?it brought an action, in her own name and that of Emine, seeking to have her marriage with Ö.K. recognised and to have Emine entered in the civil register as his daughter. The District Court allowed the second request but rejected the request concerning the marriage. The applicant further applied to the retirement pension fund (Ba?-Kur) to have Ö.K.’s retirement pension and health-insurance benefits transferred to her and her daughter. The benefits were granted to Emine but not to her mother, on the ground that her marriage to Ö.K. had not been legally recognized. The applicant appealed unsuccessfully against that decision. Relying on Article 8 of the Convention (right to respect for family life), the applicant complained about the Turkish courts’ refusal to transfer her deceased partner’s social-security entitlements to her. In its judgment of 20 January 2009 the Chamber examining the case found that it was not unreasonable for special protection to be afforded only to civil marriages in Turkey, pointing out that marriage remained an institution widely recognized as conferring a particular status on those who entered into it. It considered that the difference in treatment between married and unmarried couples with regard to survivors’ benefits was aimed at protecting the traditional family based on the bonds of marriage and was therefore legitimate and justified. Accordingly, the Chamber held by four votes to three that there had been no violation of Article 8. On 14 September 2009 the case was referred to the Grand Chamber at the applicant’s request.



Case of Plan de Sánchez Massacre v. Guatemala Inter-American Court of Human Rights (2004)

Gender-based violence in general

On July 18, 1982, special forces murdered 268 people in Plan de Sanchez, Guatemala, predominantly indigenous Mayans. The massacre was part of a broader state policy to counter insurrection that targeted indigenous populations and ravaged communities. During the attack an estimated twenty girls and young women were rounded up, raped and murdered. The remainder of the detainees was killed by grenade and open fire. The representatives of the victims and their next of kin brought suit against the State of Guatemala alleging various violations of the American Convention on Human Rights including Article 1(1): the obligation to respect the rights enshrined in the American Convention on Human Rights, Article 5: the right to humane treatment, Article 8: the right to a fair trial, Article11: the right to privacy, Article 12: the right to freedom of conscience and religion, Article 16: the right to freedom of association, Article 21: the right to property, Article 24: the right to equal protection and Article 25: the right to judicial protection. Guatemala acknowledged the international responsibility of the State and stipulated to the facts of the case before the Inter-American Court. The Court held that, in accordance with the State’s own acknowledgement, Guatemala was in breach the American Convention. With particular regard to Article 24 and 25, the Guatemalan Army abused and raped women and girls of Mayan decent during its genocidal counter-insurgence policy. These women had no recourse to the law. The Court found that the State had aggravated international responsibility for the commission of a State Crime, the commission of which was facilitated by the State’s intention, omission or tolerance during a period of grave human rights violations. The State and its agents, including the Guatemalan Army and civil collaborators, were held responsible for the tragedy that occurred at Plan de Sanchez. 

 

El 18 de julio de 1982, fuerzas especiales asesinaron a 268 personas en Plan de Sánchez, Guatemala, las cuáles eran predominantemente mujeres indígenas mayas. La masacre fue parte de una política estatal más amplia para contrarrestar la insurrección dirigida a las poblaciones indígenas y otras comunidades devastadas. Durante el ataque, aproximadamente veinte niñas y mujeres jóvenes fueron detenidas, violadas, y asesinadas. El resto de los detenidos fueron asesinados con granadas y a fuego abierto. Los representantes de las víctimas y sus familiares presentaron una demanda contra el Estado de Guatemala alegando varias violaciones de la Convención Americana sobre Derechos Humanos, las cuáles incluían el artículo 1 (1): la obligación de respetar los derechos consagrados en la Convención Americana sobre Derechos Humanos, Artículo 5: el derecho a un trato humanitario, Artículo 8: el derecho a un juicio justo, Artículo 11: el derecho a la privacidad, Artículo 12: el derecho a la libertad de conciencia y de religión, Artículo 16: el derecho a la libertad de asociación, Artículo 21: el derecho a la propiedad, Artículo 24: el derecho a protección igualitaria y el Artículo 25: el derecho a la protección judicial. Guatemala reconoció la responsabilidad internacional del Estado y presentó los hechos del caso ante la Corte Interamericana. La Corte sostuvo que, de acuerdo con el propio reconocimiento del Estado, Guatemala infringió la Convención Americana. Con especial atención a los Artículos 24 y 25, el Ejército de Guatemala abusó y violó a mujeres y niñas mayas en su política de contrainsurgencia genocida. Estas mujeres no podían recurrir a la ley. La Corte determinó que el Estado agravaba la responsabilidad internacional ya que el crimen fue cometido por el Estado mismo. Dicho acto se vió facilitado por la intención, omisión o tolerancia del gobierno durante un período de graves violaciones de derechos humanos. El Estado y sus agentes, incluído el Ejército de Guatemala y colaboradores civiles fueron declarados responsables de la tragedia ocurrida en el Plan de Sánchez.



LEVENTOĞLU ABDULKADİROĞLU v. TURKEY European Court of Human Rights (2013)

Gender discrimination

The case concerned the complaint by a woman that, under Turkish law, she was not allowed to keep just her maiden name in official documents after getting married, whereas married men kept their surname. The Court held that this difference in treatment on grounds of sex between persons in an analogous situation had no objective and reasonable justification. Accordingly, the obligation imposed on married women to bear their husband’s surname – even if they could put their maiden name in front of it – had no objective and reasonable justification, in breach of Article 8 in conjunction with Article 14.



Case of the “Las dos Erres” Massacre v. Guatemala Inter-American Court of Human Rights (2009)

Gender violence in conflict

Between December 6 and 8, 1982 a specialized group of the Guatemalan armed forces executed 251 members of the “Las Dos Erres” community. Among those killed were women and children. Women and girls, in particular, were raped and subjected to forced abortion. Soldiers beat pregnant women, at times jumping on their stomachs causing miscarriage. The case was brought before the Inter-American Court following the State’s inability or unwillingness to seek justice on behalf of the victims and their next of kin. The case against the State alleged violations of Article 1(1): the obligation to respect the rights enshrined in the American Convention on Human Rights; Article 8: the right to a fair trial; and Article 25: the right to judicial protection and enforcement. The Court held that the investigation carried out by the Guatemalan State was insufficient and that the State has a positive obligation to diligently investigate the facts of a given case. With regard to women’s rights, the Court found that the Convention of Belém do Pará, which requires that states diligently investigate and punish acts of violence against women, applied to the present case even though the Convention was not in effect at the time of the massacre. The Court found that the act of raping women during the conflict was a state practice “directed to destroying the dignity of women at a cultural, social, family and individual level” (Case of the “Las dos Erres” Massacre ¶139). The State’s failure to investigate and punish the crimes committed was held to be a violation of the American Convention and the Convention of Belém do Pará and the Court ordered the State to provide various forms of reparation including: restitution, rehabilitation and guarantees of non-repetition. In addition the Court ordered the State to “locate, prosecute, and punish the masterminds and perpetrators” (Case of the “Las dos Erres” Massacre ¶229), prohibited amnesty and mandated that alleged acts of torture and violence against girls and women, in particular, be investigated.

 

Entre el 6 y el 8 de diciembre de 1982, un grupo especializado de las fuerzas armadas guatemaltecas ejecutó a 251 miembros de la comunidad conocida como "Las Dos Erres." Entre los muertos había mujeres y niños. Las mujeres y las niñas, en particular, fueron violadas y sometidas a abortos forzados cuando los soldados golpearon a las mujeres embarazadas, a veces saltando sobre sus estómagos, causando así abortos involuntarios. El caso se presentó ante la Corte Interamericana tras la incapacidad o falta de voluntad del Estado en reclamar justicia en nombre de las víctimas y sus familiares. El caso contra el Estado alegó violaciones al artículo 1 (1): la obligación de respetar los derechos consagrados en la Convención Americana sobre Derechos Humanos; Artículo 8: el derecho a un juicio justo; y Artículo 25: el derecho a la protección judicial y la ejecución. La Corte determinó que la investigación realizada por el gobierno guatemalteco había sido insuficiente y que el Estado tiene la obligación de investigar diligentemente los hechos de cada caso. Con respecto a los derechos de las mujeres, la Corte determinó que la Convención de Belém do Pará, que exige que los estados investiguen y castiguen con diligencia los actos de violencia contra las mujeres, se aplicaban al presente caso, aunque la Convención no estuviera vigente en el momento de la masacre. El Tribunal determinó que el acto de violar a las mujeres en épocas de conflicto era una práctica estatal "dirigida a destruir la dignidad de las mujeres a nivel cultural, social, familiar e individual" (Caso de la Masacre de "Las dos Erres", párrafo 139). El hecho de que el Estado no investigara y sancionara los delitos cometidos era una violación de la Convención Americana. La Convención de Belém do Pará y la Corte le ordenaron al Estado proporcionar diversas formas de reparación, entre ellas: restitución, rehabilitación, y garantías de no repetición. Además, la Corte le ordenó al gobierno "localizar, procesar y sancionar a los autores intelectuales y perpetradores" (Caso de la Masacre de "Las dos Erres", párrafo 229), y le prohibió la amnistía, ordenando que los presuntos actos de tortura y violencia contra niñas y mujeres fueran investigados con particularidad. 



TUNCER GÜNEŞ v. TURKEY European Court of Human Rights (2013)

Gender discrimination

The applicant, Gülizar Tuncer Güne?, is a Turkish national who was born in 1966 and lives in Istanbul (Turkey). The case concerned her complaint that she had not been allowed to keep just her maiden name after her marriage in March 2005. She claimed in particular that the fact that Turkish law allowed married men but not married women to use only their own surname after marriage amounted to discrimination based on sex. She relied in particular on Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the Convention.



Prosecutor v. Akayesu International Criminal Tribunal for Rwanda (1998)

Gender violence in conflict, Gender-based violence in general, Sexual violence and rape

Mr. Jean Paul Akayesu served as the mayor of the Taba commune and was responsible for maintaining law and public order in Taba during the tragic events which took place in Rwanda in 1994. The court held that Mr. Akayesu had knowledge of the killing of thousands of Tutsis in Taba, but did not attempt to prevent such acts even though he had the duty to do so. Moreover, Mr. Akayesu was involved and even took an active role in some instances. In addition, the court held that Mr. Akayesu had knowledge of sexual assaults of civilians who sought refuge at the bureau communal by armed local militia but did not attempt to prevent such acts even though he had the duty to do so. The court found that Mr. Akayesu was guilty of genocide and crimes against humanity. On appeal, the Appeal Chambers dismissed Mr. Akayesu claims and upheld the judgment of the court a quo. This case is important because it established for the first time that sexual violence constitutes a crime against humanity and a tool of genocide by a government official. It is also worth noting that the court’s broad definitions of rape and sexual violence were the first of their kind in international law.



Case of the Yakye Axa Indigenous Community v. Paraguay Inter-American Court of Human Rights (2005)

Property and inheritance rights

The Inter-American Commission on Human Rights alleged that, by not respecting ancestral property rights, the Government of Paraguay threatened the Yakye Axa Indigenous Community’s access to food, water and health care, and survival in violation of Articles 4 (right to life), 8 (right to fair trial), 21 (right to property) and 25 (judicial protection) of the American Convention on Human Rights. The court noted several specific examples of dangers faced by the women of the Community, including instances in which a woman was threatened by a man wielding a shotgun and another in which a woman was sexually exploited by State workers. The court noted that Paraguay was obligated to take into account the economic and social characteristics, special vulnerability, and customary laws, values and customs of indigenous peoples in order to effectively protect them, and found that Paraguay’s delay in recognizing the Community’s leadership, legal status and claims to land violated the Community’s rights to judicial protection, a fair trial, property, and ultimately a decent life. The court also found that the Community had a right to be granted legal status in order to take advantage of its members’ full rights as a people, and that Paraguay’s ongoing refusal to recognize that status was a violation of this right. As such, the court ordered that Paraguay provide the Community – “especially children, the elderly and pregnant women” -- with reparations, including compensation, food and water, sanitation, access to health care, and rightful title to their traditional territory.



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.



Comunidad Indígena Xákmok Kásek v. Paraguay Inter-American Court of Human Rights (2010)

Property and inheritance rights

The Indigenous Community Xákmok Kásek and its members sued Paraguay because of its inability to recover certain ancestral property. The Community claimed that this lack of access to property and possession of its territory, in addition to threatening the survival of the Community, resulted in nutritional, medical and health vulnerability to its members, causing, among other things, the death of pregnant women, children, and the elderly. The court found Paraguay in violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 5 (personal integrity), 8.1 (Trial), 19 (Rights of the Child), 21 (Right to Property) and 25 (Judicial Protection) of the Convention, in relation to the obligations established in Articles 1.1 (Obligation to Respect Rights) and 2 (duty to adopt domestic law). The court ordered Paraguay to engage in a series of reparation measures, including returning land to the Community, damages and undertakings not to repeat such conduct and to assist the Community with rehabilitation. Among other measures ordered by the court, Paraguay must provide immediate “special care to women who are pregnant, both before birth and during the first months thereafter, and the newborn.”



Boso v. Italy European Court of Human Rights (2002)

Gender discrimination

In 1984, Ms. Boso, an Italian citizen who is married, decided to have an abortion despite her husband’s opposition. Mr. Boso initiated a suit against his wife claiming that the termination deprived the unborn child of its right to life. He also challenged the constitutionality of Italian legislation which provided that women could unilaterally decide whether to have an abortion. The European Court of Human Rights dismissed the complaint which alleged that the termination of a pregnancy by the applicant´s wife violated the right to life under the Convention and also his rights under Articles 8 and 12 of the Convention. The Constitutional Court dismissed the complaint on the grounds that the decision to grant the mother full responsibility was logical given the effects of pregnancy, both physical and mental, on the pregnant woman. Mr. Boso’s appeal to the Venice District Court alleging violations of Article 2, 8 and 12 of the Convention was also dismissed. The applicant’s final appeal to the Court of Cassation, again on constitutional and convention grounds, was similarly dismissed.



Omeredo v. Austria European Court of Human Rights (2011)

Female genital mutilation or female genital cutting

The applicant is a Nigerian national who fled due to not wanting to undergo female genital mutilation (FGM) and sought asylum in Austria. Austria rejected her application for asylum and she appealed, complaining under Article 3 of the Convention that she runs the risk of being forced to undergo FGM if she is expelled to Nigeria. The Court rejects her application because they reasoned that due to her age and work experience she should have been able to live in Nigeria on her own.



L.R. v. United Kingdom European Court of Human Rights (2014)

Sexual violence and rape, Trafficking in persons

The applicant is an Albanian national who was abducted and brought into the UK where she was forced to work as a prostitute. She escaped and requested asylum for fear of retribution from her abductor if she returned to Albania. Her request for asylum was rejected by the UK government and she complained that her removal was in violation of Articles 2, 3, 4, and 8 of the Convention. The UK did grant her application though, so the issue was resolved without having to consider whether there was a violation of the Convention.



Sandra Jankovic v. Croatia European Court of Human Rights (2009)

Gender-based violence in general

The applicant brought a claim in Split Municipal Court for protection against being disturbed in occupying her room. After years the applicant finally gained possession of the room and then was assaulted by several individuals. Although the applicant tried to get a criminal case brought, it was dismissed by the domestic courts. She then brought a complaint relying on Articles 3 and 8 of the Convention before this Court. The applicant argued that the national authorities failed to afford her adequate protection against violence inflicted by private individuals, which was an Article 8 violation. The Court agreed that Article 8 applied due to the circumstances under which she had been attacked and found that Article 8 had been violated due to the delay of the authorities in prosecuting the crime.



Rosendo Cantu v. Mexico Inter-American Court of Human Rights (2010)

Sexual violence and rape

Rosendo Cantu was walking home when she was stopped and questioned by a group of soldiers. When she did not give the soldiers the answers they were looking for, two of the soldiers raped her while six others watched. Subsequent to the rape, the State failed to carry out an effective investigation into the allegations of sexual violence by members of the armed forces. The Inter-American Court held that Mexico had committed an act of turtler. It placed special importance on the vulnerable situation of Ms. Cantu given the fact that she was a minor and also a member of the indigenous community. It found Mexico in violation of the right to personal integrity, dignity, privacy, the rights of the child and due process rights. It also found that the State had failed to comply with its due diligence obligations to prevent, investigate and punish violence against women and the general obligation of non-discrimination in accessing justice. The Court ordered Mexico to pay monetary compensation for the harms suffered and to also ensure that Ms. Cantu's daughter received a scholarship to study.

 

Rosendo Cantu caminaba hacia su casa cuando fue detenida e interrogada por un grupo de soldados. Cuando no les dio a los soldados las respuestas que buscaban, dos de los soldados la violaron mientras que otros seis observaron. Luego de la violación, el Estado no realizó una investigación efectiva de las denuncias de violencia sexual cometida por miembros de las fuerzas armadas. La Corte Interamericana sostuvo que México había cometido un acto de turtler. La corte puso especial importancia en la situación de vulnerabilidad de la Sra. Cantu, dado que era menor de edad y también miembro de la comunidad indígena. Encontró a México en violación del derecho a la integridad personal, la dignidad, la privacidad, los derechos del niño y los derechos del debido proceso. También encontró que el Estado no había cumplido con sus obligaciones de diligencia debida para prevenir, investigar y sancionar la violencia contra las mujeres y la obligación general de no discriminación en el acceso a la justicia. El Tribunal ordenó a México que pagara una compensación monetaria por los daños sufridos y también para garantizar que la hija de la Sra. Cantu recibiera una beca para estudiar.



Jessica Lenahan Gonzales v. United States Inter-American Commission on Human Rights (2011)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Jessica Gonzales petitioned that her human rights had not been protected. Previously the Supreme Court had ruled that her Due Process rights had not been violated after police didn't enforce a restraining order against her ex-husband, who subsequently murdered her three children. The Commission ruled that the state had not properly protected Jessica and recommended legislative reform to better protect women and children against domestic violence.



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

Custodial violence, Sexual harassment

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



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

Custodial violence

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



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

Sexual violence and rape

The applicant was raped by a group of men, some of whom were juveniles at the time. The Maribor Basic Court first acquitted them, but on appeal it was remitted to a new panel of judges. The case was delayed for a decade because some of the defendants had emigrated to Austria. The court finally tried the defendants in trials in the early 2000’s. The applicant alleged a violation of Article 3 of the Convention because the delays in the criminal proceedings against the individuals who raped her. The Court ruled that the compensation awarded to the applicant by the domestic court did not constitute consistent redress and that there was a violation of Article 3 of the Convention.



Sudan Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan African Commission on Human and Peoples' Rights (2009)

Sexual violence and rape

In 2003 an armed group known as the Sudan Liberation Movement/Army issued a political declaration and clashed with respondent State’s armed forces. The Respondent State engaged in a succession of human rights violations against suspected insurgents, including the rape of women and girls. The respondent state denied several of the allegations, argued that local remedies were not exhausted, and submitted that the claims had already been settled by other international mechanisms. The Commission noted that “cases of sexual and gender based violence against women and girls in and outside IDP camps have been a common feature of the Darfur conflict. The right to liberty and security of the person, for women and girls, and other victims of the Darfur conflict has remained an illusion.” The Commission held that the respondent State violated Articles 1, 4, 5, 6, 7(1), 12(1) and (2), 14, 16, 18(1) and 22 of the African Charter. The Commission recommended that the State take all necessary and urgent measures to ensure protection of victims of human rights violations in the Darfur region, including: conducting effective official investigations into abuses committed by members of military forces, undertake major reforms of its legislative and judicial framework, take steps to prosecute those responsible for human rights violations, and take measures to ensure that victims of human rights abuses are given effective remedies.



P.M. v. Bulgaria European Court of Human Rights (2012)

Sexual violence and rape

The applicant was raped at a party in 1991 when she was 13 years old. Her parents informed the police. The criminal proceeding started twice but were both terminated. At the third time of reopening the investigation, both people accused were convicted guilty by the court but relieved due to the expired limitation period. The European Court of Human Rights held that the case was admissible and that the authorities led the investigation ineffectively and slowly, which caused the expired limitation period. There was a violation of Article 3, prohibition of torture, of the Convention for Protection of Human Rights and Fundamental Freedoms.



M. and Others v. Italy and Bulgaria European Court of Human Rights (2012)

Sexual violence and rape

In May 2003, a Roma family with Bulgarian nationality traveled to Italy with a promise of work in a villa. M.’s parents alleged that they were threatened and forced to return to Bulgaria, leaving M.—their 17 year old daughter—in the villa, where she was raped and beaten. M.’s mother returned to Italy on 24 May and reported to the police that her daughter had been kidnapped. M. was rescued from the villa seventeen days later, on 11 June 2003. No criminal proceedings were taken against M.’s kidnapper but the police instituted proceedings against M.’s parents for perjury and libel, believing that the accusations of kidnapping were untrue and that M.’s parents had contracted to marry M. to the alleged kidnapper for a sum of money. The European Court of Human Rights found a violation of Article 3—prohibition of ill-treatment—in the investigation of rape and beating by the Italian authorities, which it ruled was ineffective. The Court found no violation of Article 3, however, in the steps taken by the police to secure the release of M.



P. and S. v. Poland European Court of Human Rights (2012)

Sexual violence and rape

The applicants, P. and S., were daughter and mother. P., a fourteen-year-old girl, was raped and impregnated by a classmate. Abortion in Poland is available in the case of rape so in May 2008 P. received a certificate from the public prosecutor to allow her to get a legal abortion in Poland. She went to three hospitals who refused to perform the operation: one brought her to a Catholic priest—who urged her not to get an abortion—without her permission. Hospital officials issued a press release after which anti-abortion campaigners harassed P. A criminal proceeding against P. on suspicion of sexual intercourse with a minor was initiated in July 2008 but later terminated, the court finding that P. could only be considered a victim, not a perpetrator. The police then alleged that S. was trying to coerce P. into having an abortion, leading to the authorities removing P. from her mother’s custody and placing her in a juvenile shelter. The Minister of Health intervened and P. got an abortion without being an officially registered patient or receiving any post-abortion care. The European Court of Human Rights held that there was a violation of Article 8: right to respect for private and family life. The Court found that the state should ensure people’s legal rights are facilitated by procedures to fulfill those rights. The Court also found that the hospital press release of information led to interference with the applicants’ lives. The Court held that there was a violation of Article 5(1) because the separation of P. from her parents was taken to prevent abortion rather than within in the purpose of the Article, which is for educational supervision. Finally, there was a violation of Article 3: the difficulties P. met in seeking abortion and subsequent trial for intercourse with a minor constituted ill treatment.



Mayr v. Bäckerei und Konditorei Gerhard Flöckner OHG European Court of Justice (2008)

Employment discrimination, Gender discrimination

Ms. Mayr was employed as a waitress with Konditorei Gerhard Flöckner, and was terminated while undergoing in vitro fertilization. Ms. Mayr then filed suit to recover payment of her salary and pro rata annual remuneration, arguing that from the date on which in vitro fertilization of her ova took place, she was entitled to the protection against dismissal provided by Austrian legislation. After proceedings in the lower courts, the Austrian Supreme Court referred to the European Court of Justice the question of whether a female worker is entitled to protection from dismissal where her ova have been fertilized but not yet transferred to her uterus. The European Court of Justice answered the question in the negative. But the Court also held that EU Directives on the implementation of equal treatment for men and women as regards access to employment, vocational training and working conditions preclude the dismissal of a female worker who is undergoing in vitro fertilization treatment where it is established that the dismissal was based on such treatment.



Pensionsversicherungsanstalt v. Kleist European Court of Justice (2010)

Employment discrimination, Gender discrimination

Mrs. Kleist, who was employed as chief physician for the pension insurance institution, was terminated pursuant to a policy requiring termination of all employees, whether male or female, upon reaching the age at which they could draw a public retirement pension. Mrs. Kleist argued that the termination policy was discriminatory because, under the pension statute, women were able to draw a pension at an age five years younger than men; thus requiring their termination five years earlier. After proceedings in the lower courts, the Austrian Supreme Court referred to the European Court of Justice the question of whether the policy constituted prohibited discrimination on the grounds of sex. The Court answered the question in the affirmative, holding that since the criterion used by such a policy is inseparable from the worker’s sex, there is a difference in treatment that is directly based on sex. Having found direct discrimination, the Court also held that the difference in treatment could not be justified by the objective of promoting employment of younger persons.



Brachner v. Pensionsversicherungsanstalt European Court of Justice (2011)

Gender discrimination, Property and inheritance rights

Ms. Brachner brought an action against the Pensionsversicherungsanstalt arguing that the implementation of an adjustment factor for pensions, established in 2008, resulted in indirect discrimination against women who were disproportionately less likely to qualify for an exceptional pension increase. Upon referral from the Austrian Supreme Court, the European Court of Justice held that (1) an annual pension adjustment scheme comes within the scope of the EU Directive guaranteeing equal treatment of men and women in matters of social security, (2) a national arrangement that excludes from an exceptional pension increase a significantly higher percentage of female pensioners would violate the Directive, and (3) the disadvantage cannot be justified by the fact that women receive their pension at an earlier age or that they receive their pension over a longer period.



Karen Tayag Vertido v. The Philippines CEDAW Committee (2008)

Gender discrimination, Sexual violence and rape

Karen Tayag Vertido, an employee of the Davao City Chamber of Commerce and Industry in the Philippines, was raped by a former President of the Chamber in 1996. The case remained at the trial court level for eight years before the Regional Court of Davao City acquitted the defendant in 2005. The Court scrutinized Vertido’s testimony with “extreme caution,” and challenged her credibility on the ground that “an accusation of rape can be made with facility.” The Court specifically declined to apply Filipino Supreme Court precedent cases establishing that failure to escape does not negate the existence of rape, stating that Vertido had ample opportunities to escape her attacker. In her complaint to the Committee on the Elimination of Discrimination Against Women, Vertido argued that the Court’s actions subjected her to revictimization and violated articles 2(c), 2(f), and 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women and CEDAW General Recommendation 19, which obliges a State to modify or abolish existing laws, regulations, and practices that constitute discrimination against women. The Committee held that the State Court erred in relying on gender-based myths and stereotypes about rape and rape victims in Vertido’s case, and stressed that there should be no assumption in law or practice that a woman gives her consent where she had not physically resisted unwanted sexual conduct. The Committee recommended that the State provide Vertido with appropriate compensation, review the definition of rape under existing law to ensure that lack of consent is a essential element of the crime of rape, remove any requirement that sexual violence be committed by violence or force, and require appropriate training for judges, lawyers, and law enforcement officers in understanding crimes of rape and other sexual offenses.



I.G. v. The Republic of Moldova European Court of Human Rights (2012)

Gender discrimination

A 14-year-old girl was allegedly raped by an acquaintance. She complained that the authorities had failed to investigate her allegations effectively and that the requirement of corroborative evidence of resistance had been discriminatory against her. The Court found a violation of Article 3 on effective investigation and ordered the State to pay the applicant just satisfaction for non-pecuniary damage and awards the applicant EUR 10,000.



Elisabeth de Blok et al. v. The Netherlands CEDAW Committee (2014)

Employment discrimination, Gender discrimination

Elisabeth de Blok and five other nationals of the Netherlands are self-employed women who gave birth between 2005 and 2006. Until 31 July 2004, self-employed persons were compulsorily insured against the risk of loss of income as a result of incapacity for work under the Incapacity Insurance Act. Under the Work and Care Act, self-employed women were also entitled to a State maternity benefits. On August 1, 2004, the Discontinuation of Access to Incapacity Insurance Act entered into force, ending the entitlement of self-employed women to maternity benefits. The six self-employed women complained to the District Court of The Hague, claiming that the State should have ensured an adequate maternity benefit scheme in keeping with article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination against Women. The District Court declared the claim unfounded. The Court of Appeal of The Hague upheld the judgment. The Supreme Court dismissed the appeal, ruling that the provisions of article 11(2)(b) of the Convention were insufficiently precise, thus making them unsuitable for direct application by national courts. In their complaint to the Committee on the Elimination of Discrimination Against Women, the six women argued that the State party violated their rights under article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination Against Women by removing the existing maternity leave scheme applicable to self-employed women up to 2004. The Committee held that article 11(2)(b) is applicable also to self-employed women and not to female employees exclusively. Further, the Committee held that, contrary to the State party’s view, the provision was directly applicable. The Committee concluded that the State party’s failure to provide maternity benefits affected pregnant women adversely and therefore constituted direct sex and gender-based discrimination against women. The Committee recommended that the State party provide reparation, including monetary compensation, for the loss of maternity benefits to the six women. The Committee noted that the Sate party amended its legislation in June 2008 to ensure that a maternity leave scheme is available also to self-employed women. However, the Committee invited the State party to address and redress the situation of women similarly situated to the authors, who are self-employed and gave birth between 1 August 2004 and 4 June 2008, when no compensation scheme for self-employed women was in place.



R.P.B. v. The Philippines CEDAW Committee (2014)

Gender discrimination, Sexual violence and rape

R.P.B., a Filipina national born in 1989 who is both deaf and mute, was raped by her 19-year-old neighbor in 2006. The case remained at the trial court level for five years before the Regional Trial Court of Pasig City acquitted the defendant in 2011. Similar to a previous case from the Philippines heard by the CEDAW Committee in 2008, Karen Tayag Vetrido v. The Philippines, the Court again declined to apply Filipino Supreme Court precedent. Instead, the Court relied on gender-based myths and stereotypes about rape and rape victims, finding that the victim should have used every opportunity to escape or resist her attacker. In addition, State authorities did not provide any interpretation for R.P.B. In her complaint to the Committee on the Elimination of Discrimination Against Women, R.P.B. argued that the Court’s actions violated article 1, and article 2(c), (d), and (f) of the Convention on the Elimination of All Forms of Discrimination against Women. In addition to relying on gender based myths and stereotypes, R.P.B. also argued that the Court failed to provided her with accessibility, on an equal basis with other victims, to the court, as a woman who is also deaf and mute. The Committee held that the provision of sign language interpretation was essential to ensure R.P.B’s full and equal participation in the proceedings, in compliance with article 2(c) and 2(d) of the Convention. Further, the Committee held that the State party erred in relying on gender-based stereotyping, which resulted in sex and gender-based discrimination and disregard for the individual circumstances of the case, such as R.P.B’s disability and age. The Committee recommended that the State provide R.P.B. with the appropriate compensation and free-of-charge counseling, review the existing law and remove any requirement that sexual assault be committed by force or violence, guarantee the free and adequate assistance of interpreters, ensure that all criminal proceedings involving rape and other sexual offences are conducted in an impartial and fair manner, free from prejudices or stereotypical notions regarding the victim’s gender, age and disability, and provide adequate and regular training on the Convention, the Optional Protocol and the Committee’s general recommendations.



Women and girls victims of sexual violence living in 22 internally displaced persons camps, Precautionary Measures No. MC-340-10 Inter-American Commission on Human Rights (2010)

Sexual violence and rape

On October 21, 2010, ten groups* filed a request on behalf of displaced women in Haiti for precautionary measures before the Inter-American Commission of Human Rights (IACHR). The groups asked the Commission to grant the request pursuant to Article 25 of the Commission’s Rules of Procedure as an urgent measure to address the multiple acts of sexual violence that women and girls in the displacement camps faced after the devastating 2010 earthquake. A report detailing the atrocities committed against women brutally attacked in the displacement camps accompanied the request. In January 2011, the Commission granted the request and issued precautionary measures and recommendations. These included sensitive and integral access to medical care for victims of sexual violence, implementation of security measures, and training of officials to deal with sexual violence and assault (including special units in the police and increased patrols). The Commission also requested that Haiti ensure the full participation of grassroots women’s groups in the planning and implementation of policies designed to combat and prevent sexual violence. Further, the Commission recommended that emergency contraception be provided for all victims of sexual violence. This decision was without precedent in the Inter-American System of Human Rights when decided. *Women’s Link Worldwide, the International Women’s Human Rights Clinic of the City University of New York (CUNY), MADRE, Bureau des Acvocats Internationaux, the Institute for Justice and Democracy in Haiti, Morrison & Foerster LLP, the Center for Constitutional Rights, and the Haitian organizations KOFAVIV, FAVILEK, and KONAMAVID.



L.M.R. v. Argentina Human Rights Committee (2007)

Sexual violence and rape

VDA, on behalf of her daughter LMR, filed a petition alleging violations of LMR’s rights under the International Covenant on Civil and Political Rights (ICCPR). The petition alleged violations of LMR’s right under article 2 (right to protection from state against violations of the rights within the ICCPR), article 3 (right to be free from discrimination), article 7 (to freedom from torture or other cruel, inhuman or degrading treatment), article 17 (freedom from arbitrary interference with privacy, family, home or correspondence, or unlawful attacks on honor or reputation), and article 18 (right to freedom of thought, conscience and religion). At the time of the incident, LMR was 20 years old but had permanent mental disability with a mental age between 8 and 10 years old. When LMR’s mother brought her to hospital after LMR complained of pains, she discovered that LMR was raped by her uncle and was 14.5 weeks pregnant. Under section 82.6 of the Argentinean Criminal Code, abortion is legal if the pregnancy is the result of the rape of a mentally impaired woman. LMR filed a police complaint and scheduled an abortion, but the abortion was prevented by an injunction against the hospital. LMR appealed unsuccessfully to the Civil Court. The Supreme Court of Buenos Aires ruled the abortion could take place. However, under pressure from anti-abortion groups, the hospital refused to perform the abortion because her pregnancy was too far advanced. LMR eventually obtained an illegal abortion. Article 2 of the Optional Protocol to the ICCPR creates an obligation for state parties to protect individuals’ rights under the Covenant. The United Nations Human Rights Committee found that court hearings caused LMR’s abortion to be delayed to the point that she required an illegal abortion. The Committee found that although forcing LRM to endure a pregnancy that resulted from rape did not constitute torture under Article 7, it did cause physical and emotional suffering and therefore still constituted a violation of LRM’s rights under Article 7. Article 7 protects individuals from mental as well as physical suffering, and the Committee saw the violation as particularly serious given LRM’s status as a person with a disability. Further, the Committee found that because the decision of whether to proceed with an abortion should only have been made between the patient and her physician, LRM’s right to privacy under Article 17 was violated. Even though the Supreme Court ruled in favor of LRM’s abortion, this litigation process was so prolonged that LRM’s pregnancy had advanced to the stage that her physician would no longer perform the abortion. This fact, the Committee reasoned, amounted to a violation of Article 2, because LRM did not, in fact, have access to an effective remedy (the abortion) and was forced to obtain one illegally. This case contributed to a growing consensus in international law that restricting women’s access to an abortion may be considered torture or cruel, inhuman or degrading treatment under Article 7 of the ICCPR. It also demonstrated that obstructing access to legal, elective medical procedures may violate the Covenant. Additionally, it indicated that the Court will analyze the right of a person with a disability under Article 7 in a way which heightens the recognized impact of the violation.

 

VDA, en nombre de su hija LMR, presentó una petición por violación de los derechos de LMR en virtud del Pacto Internacional de Derechos Civiles y Políticos (PIDCP). La petición alegaba violaciones del derecho de LMR en virtud del artículo 2 (derecho a la protección del Estado contra violaciones del derecho en virtud del PIDCP), artículo 3 (derecho a no ser discriminado), artículo 7 (a no ser sometido a torturas u otros actos crueles, inhumanos o trato degradante), el artículo 17 (libertad de interferencia arbitraria con la privacidad, familia, hogar o correspondencia, o ataques ilegales a honor o reputación), y el artículo 18 (derecho a la libertad de pensamiento, conciencia y religión). Al momento del incidente, LMR tenía 20 años de edad, pero tenía una discapacidad mental permanente que la hacía tener una edad mental entre 8 y 10 años. Cuando la madre de LMR la llevó al hospital después de que LMR se quejó de dolores, descubrió que LMR fue violada por su tío y tenía 14.5 semanas de embarazo. Bajo la sección 82.6 del Código Penal Argentino, el aborto es legal si el embarazo es el resultado de la violación de una mujer con discapacidad mental. LMR presentó una denuncia policial y programó un aborto, pero el aborto fue prevenido por una orden judicial contra el hospital. LMR apeló sin éxito al Tribunal Civil.

La Corte Suprema de Buenos Aires determinó que el aborto podría llevarse a cabo. Sin embargo, bajo la presión de los grupos contra el aborto, el hospital se negó a realizar el aborto porque el embarazo estaba muy avanzado. LMR finalmente obtuvo un aborto ilegal. El artículo 2 del Protocolo Facultativo del Pacto Internacional de Derechos Civiles y Políticos establece la obligación de los Estados parte de proteger los derechos de las personas en virtud del Pacto. El Comité de Derechos Humanos de las Naciones Unidas determinó que las audiencias judiciales causaron un retraso en el aborto de LMR hasta el punto de que ella requirió un aborto ilegal. El Comité determinó que aunque obligar a LRM a soportar un embarazo que resultó de una violación no constituía una tortura en virtud del Artículo 7, causaba sufrimiento físico y emocional y, por lo tanto, seguía constituyendo una violación de los derechos de LRM en virtud del Artículo 7. El Artículo 7 protege la salud mental de las personas además del sufrimiento físico, y el Comité consideró que la violación era particularmente grave dado el estado de LRM como persona con discapacidad. Además, el Comité determinó que debido a que la decisión de proceder o no con un aborto solo debería haberse realizado entre la paciente y su médico, se violó el derecho a la privacidad de LRM en virtud del Artículo 17. A pesar de que la Corte Suprema falló a favor del aborto de LRM, este proceso de litigio fue tan prolongado que el embarazo de LRM había avanzado a la etapa en que su médico ya no realizaría el aborto. Este hecho, razonó el Comité, equivalía a una violación del artículo 2, porque LRM no tenía, de hecho, acceso a un recurso efectivo (el aborto) y estaba obligada a obtener uno ilegalmente. Este caso contribuyó a un consenso cada vez mayor en el derecho internacional de que restringir el acceso de las mujeres a un aborto puede considerarse tortura o tratos crueles, inhumanos o degradantes en virtud del Artículo 7 del PIDCP. También demostró que obstruir el acceso a procedimientos médicos electivos y legales puede violar el Convenio. Además, el caso indicó que la Corte analizará el derecho de una persona con una discapacidad según el Artículo 7 de una manera que aumenta el impacto reconocido de la violación.



Unal Tekeli v. Turkey European Court of Human Rights (2004)

Gender discrimination

The European Court of Human rights held that a Turkish Law preventing married women from keeping their own surname after marriage is unlawful discrimination on the basis of sex. As required under Turkish law, upon marriage Ms. Unal Tekeli took her husband’s last name. She continued to use her maiden name in her professional life and put it in front of her legal surname, but could not use her maiden name in official documents. She brought suit in the Turkish Courts requesting that she be able to use her maiden name and that the law was discriminatory, but her case was dismissed both at the trial court and upon appeal. After being dismissed, she brought suit in the European Court of Human Rights, alleging discrimination. The Court first determined that differential treatment did exist because under the law, married men were treated differently from married women. Next, it found that no objective and reasonable justification existed for such differential treatment. It acknowledged that Turkey has a goal of preserving the family unit, but noted that this goal was not defeated by allowing women to keep their surnames. Thus, preserving the family unit was not a justification for the unequal treatment of married men and married women. The Court held that the difference in treatment based on sex violated international law.



Tanbay Tuten v. Turkey European Court of Human Rights (2013)

Gender discrimination

Ms. Tanbay Tuten, a university professor, was married and took her husband’s surname as required by law in 1992. She continued, however, to use her maiden name in her professional life, even though she could not use it in official documents. In 2007, she brought a proceeding in the Turkish Courts requesting that she be allowed to use only her maiden name, but was denied in the lower court and on appeal. Ms. Tuten brought her case to the European Court of Human Rights contending that the law is discrimination on ground of sex. The Court held that the difference in treatment on grounds of sex was in violation of Article 14 and Article 8 of the Convention and based its analysis on Tekeli v. Turkey.



W.H. v. Sweden European Court of Human Rights (2014)

Gender discrimination

A woman seeking asylum in Sweden was denied asylum by the Swedish Migration Board, the Migration Court, and denied an appeal of the previous decisions by the Migration Court of Appeals. The migration courts found that although the applicant belonged to a minority (Mandaean) in Iraq, the one threat she had received several years ago was not based on her minority beliefs but on her marital status (as she was divorced) and therefore her return to Iraq could not be deemed unsafe. The courts also found that the situation in Iraq did not constitute grounds for asylum nor that she was still being searched for in Iraq. Swedish law (the Aliens Act (Utlänningslagen, 2005:716)) states that “an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden.” Moreover, the Aliens Act continues, “if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) to allow him or her to remain in Sweden (Chapter 5, section 6).” The applicant brought this suit complaining that her return to Iraq would constitute a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”) The applicant lost this suit as well, as the court held that her circumstances would not prevent her from settling safely and reasonably in the Kurdistan Region of Iraq once deported from Sweden. The evidence did not show that the applicant would face a risk of treatment prohibited by Article 3 in the Kurdistan Region. The Court looked at precedent holding that the general situation in Iraq was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person’s return to that country (F.H. v. Sweden (no. 32621/06, § 93, 20 January 2009)). Taking into account the international and national reports available at the time of the decision, the Court saw no reason to alter the position taken four years before. The Court gave deference to the Swedish Migration Court’s decision and found no violation of Article 3. According to the Court, “Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens.”



González Carreño v. Spain CEDAW Committee (2014)

Domestic and intimate partner violence

In 2003, a father murdered his seven-year-old daughter Andrea during a court-approved parental visitation. Ángela González, Andrea’s mother, had previously reported instances of physical abuse to the police on numerous occasions and sought court-ordered restraining orders against him to protect herself and her daughter. The father had refused to accept supervised visitations with his daughter. After killing his daughter, the father committed suicide. The mother brought suit in national court against Spanish authorities. The court ruled against her, deciding in April 2011 that the visit regime was sound and denied the case any constitutional relevance. As a result, the mother brought this complaint to the CEDAW Committee. The Committee found for the mother, stating that in deciding the parental visitation scheme the Spanish authorities should have taken into account the existing context of domestic violence in the family. Instead, the Spanish authorities had made a routine decision that this type of visitation scheme was appropriate without taking the specific facts of this case into consideration. The Committee held that the Spanish authorities thereby failed to take the best interest of the child into account. The Committee has repeatedly found that a State can be held responsible for acts of individuals if it fails to exercise necessary diligence in order to prevent violations of the CEDAW Convention. Specifically, Spain had violated articles 2 a), d), e) and f), 5 a) and 16 paragraph 1 of CEDAW. Additionally, CEDAW ruled that Spain must provide training to judges and other professionals to avoid similar failures in the future. Spain has since stated that it will introduce new mechanisms to protect children in gender violence cases, such as requiring judges to act with precaution in their decision-making.

En 2003, un padre asesinó a su hija Andrea, de siete años, durante una visita de padres aprobada por el tribunal. Ángela González, la madre de Andrea, había denunciado previamente casos de abuso físico a la policía en numerosas ocasiones y había solicitado órdenes de restricción ordenadas por el tribunal para protegerse a ella y a su hija. El padre se había negado a aceptar visitas supervisadas con su hija. Después de matar a su hija, el padre se suicidó. La madre presentó una demanda en el juzgado nacional contra las autoridades españolas. El tribunal falló en contra de ella, decidiendo en abril de 2011 que el régimen de visitas era sólido y negó al caso cualquier relevancia constitucional. Como resultado, la madre presentó esta queja al Comité de la CEDAW. El Comité determinó que la madre indicaba que, al decidir el plan de visitas de los padres, las autoridades españolas deberían haber tenido en cuenta el contexto existente de violencia doméstica en la familia. En cambio, las autoridades españolas habían tomado una decisión de rutina de que este tipo de esquema de visitas era apropiado sin tener en cuenta los hechos específicos de este caso. El Comité sostuvo que las autoridades españolas no habían tenido en cuenta el interés superior del niño. El Comité ha encontrado repetidamente que un Estado puede ser responsabilizado por actos de individuos si no ejerce la diligencia necesaria para prevenir violaciones de la Convención de la CEDAW. Específicamente, España había violado los artículos 2 a), d), e) yf), 5 a) y 16 párrafo 1 de la CEDAW. Además, la CEDAW dictaminó que España debe brindar capacitación a jueces y otros profesionales para evitar fallas similares en el futuro. Desde entonces, España ha declarado que introducirá nuevos mecanismos para proteger a los niños en casos de violencia de género, como exigir que los jueces actúen con precaución en su toma de decisiones.



O’Keeffe v. Ireland European Court of Human Rights (2014)

Gender-based violence in general, Sexual violence and rape

Louise O’Keeffe was repeatedly sexually abused by her school principal during the 1970s. When these events were reported to the police in 1996, the complete police investigation revealed that the principal had sexually abused twenty-one former students during a ten-year period. In total, the principal was charged with 386 criminal offences of sexual abuse. O’Keeffe brought a civil action against the Minister for Education and the Attorney General of Ireland, claiming that the State had vicarious liability for the personal injury she suffered as a result of the abuse in the public school. The High Court ruled that the state did not have vicarious liability for its employee’s actions, and the Supreme Court dismissed O’Keeffe’s appeal. In January 2014, O’Keeffe brought a case to the European Court of Human Rights, alleging violations of Article 3 (torture or inhuman or degrading treatment) of the European Convention on Human Rights, and Article 13, alleging that she did not have an effective domestic remedy. The European Court of Human Rights held the following: (1) the Irish State failed to meet its positive obligation, in violation of Article 3; (2) there was no violation of the procedural obligations under Article 3 since an effective official investigation into the ill-treatment of the applicant had been carried out in 1995 once the a complaint was made by another former pupil to the police; (3) the applicant did not have an adequate remedy available to her regarding her Article 3 complaints, in violation of Article 13; and (4) the applicant was awarded 85,000 euros for the costs and expenses of the proceedings. As a result of this case, Irish Prime Minister Enda Kenny gave an apology to O’Keeffe, and, in August 2014, the Irish government submitted an Action Plan to the Council of Europe setting out the measures that have been taken since this ECtHR decision.



S.A.S. v. France European Court of Human Rights (2014)

Gender discrimination

S.A.S, a 23 year old French citizen, filed an application against France to challenge the ban on the full face veil. She argued that as a woman wearing a face veil, the ban constituted a violation of her right to private life, freedom of religion, freedom of expression and her right not to be discriminated against. The French Government recognised that the ban may represent a limitation on Article 9 of the Convention i.e. the freedom to manifest one’s religion, but argued, however, that the limitation pursued legitimate aims and was necessary in a democratic society for the fulfillment of those aims. The Government argued that the ban sought to protect equality between men and women, as to consider that women must conceal their faces in public places amounted to denying them the right to exist as individuals. The Government also argued that this forced them to express their individuality only in the private family space or in an exclusively female space. The Government indicated that the practice of wearing the veil was incompatible in French society with the fundamental rules of social communication, tolerance and the requirements of “living together”. The court held that the ban imposed by the Law of 11 October 2010 was to be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others” and thus no violation of Articles 8 or 9 of the Convention was found.



Dogru v. France European Court of Human Rights (2009)

Gender discrimination

Gender discrimination. The Muslim applicant, aged eleven at the material time, was enrolled in the first year of a state secondary school and wore a headscarf to school. On seven occasions in January 1999 the applicant went to physical education and sports classes wearing her headscarf and refused to take it off despite repeated requests to do so by her teacher, who explained that wearing a headscarf was incompatible with physical education classes. At a meeting on 11 February 1999 the school's pupil discipline committee decided to expel the applicant from the school for breaching the duty of assiduity by failing to participate actively in physical education and sports classes. The applicant's parents appealed against that decision to the appeal panel. The applicant claimed that expelling her for wearing the headscarf had amounted to an interference with her religious freedom under Article 9 of the Convention. The court however held that her rights were not infringed, following the Turkish case of Leyla Sahin (Leyla Sahin v. Turkey ([GC], no. 44774/98, ECHR 2005-XI) whereby it was found that secularism, as upheld by the French Government in that case, was of fundamental constitutional value in terms of the importance of the protection of women's rights. It was held that secularism was undoubtedly one of the fundamental principles of the State which was in harmony with the rule of law and respect for human rights and democracy. The court thus noted that secularism was the guarantor of democratic values, ensuring that all citizens are treated equally. The court confirmed that the freedom to manifest one's religion could be restricted in order to defend such values. It concluded that this notion of secularism was consistent with the values underpinning the Convention.



Siliadin v. France European Court of Human Rights (2005)

Employment discrimination, Trafficking in persons

Domestic slavery. The applicant arrived in France in 1994 aged 15 years with a passport and a tourist visa. She had agreed to work for Mr. and Mrs D. until the cost of her air ticket had been reimbursed. During this time, Mrs. D. was to attend to her immigration status and find her a place at school. In reality her passport was taken away and she became an unpaid housemaid for Mr. and Mrs. D. She worked seven days a week, without a day off, and was never paid, except by Mrs. B.’s mother who gave her one or two 500 FRF notes. At an initial hearing, Mr. and Mrs. B. were convicted; however, this was overturned on appeal. The Court of Appeal ruled that the additional investigations and hearings had shown that, while it did appear that the applicant had not been paid or that the payment was clearly disproportionate to the amount of work carried out, in contrast, the existence of working or living conditions that were incompatible with human dignity had not been established. The European Court of Human Rights rejected this decision and held that in this case there had been a domestic slavery to the fore. The Court focused on the vulnerable nature of the applicant and the fact that the work being carried out without remuneration and against her will. This case brings the issue of domestic slavery to the fore. In a report by the Committee on Equal Opportunities for Women and Men it was observed that 95% of the domestic slavery victims taken up by the Committee against Modern Slavery since 1994 were women. The case also demonstrates the specific threat that domestic slavery poses to women and highlights that over 4 million women worldwide are sold into domestic slavery each year.



France v Stoeckel, Court of Justice of the European Communities, 1991 Court of Justice of the European Communities (1991)

Employment discrimination, Gender discrimination

Gender discrimination, employment discrimination. France had a long industrial and legal tradition prohibiting night work for women, accompanied by legislation which was aimed at protecting female workers. Alfred Stoekl, the manager of Suma SA, Obenheim, a business concerned with the packaging of audio and video cassettes, violated the ban by hiring female night workers and invoked the Equal Treatment Directive in his defense. The court held that in terms of protecting female workers, discrimination is only valid if there is a justified need for a difference of treatment as between men and women. However, whatever the disadvantages of night work may be, it does not seem that, except in the case of pregnancy or maternity, the risks to which women are exposed when working at night are, in general, inherently different from those to which men are exposed. Article 5 of Council Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions is sufficiently precise to impose on the member-States the obligation not to lay down by legislation the principle that night work by women is prohibited, even if that is subject to exceptions, where night work by men is not prohibited. This case is important as its judgment led to France rejecting legislation prohibiting women from night work with effect from February 1993.



Söderman v. Sweden European Court of Human Rights (2013)

Sexual harassment

In 2002, when Eliza Söderman (applicant) was 14 years old, she discovered that her stepfather had attempted to secretly film her naked by hiding a recording video camera in the bathroom. The applicant’s mother destroyed the videotape and reported the incident to the police who prosecuted the stepfather for sexual molestation. The stepfather was acquitted on appeal in 2007 because although he had intentionally filmed the minor, his behavior was not covered under the provision of sexual molestation because he had no intention of the applicant finding out about the film. Further, the Swedish appeals court pointed out that there is no general prohibition in Swedish law of filming an individual without their consent, even if that individual is a minor. The applicant brought this complaint to the European Court on Human Rights relying on Article 8 (right to respect for private life) of the European Convention on Human Rights to which Sweden is a party. The applicant alleged that Sweden had failed to comply with its obligation to provide her with remedies against her stepfather’s violation of her personal integrity. The court held for the applicant and held that Sweden had violated Article 8. The Court held so because Swedish laws in force at the time allowed for the applicant’s stepfather to film her naked in her home without any remedy. The stepfather had been acquitted of sexual molestation not on account of lack of evidence but because his actions did not constitute sexual molestation at the time. The provision on sexual molestation has since been amended in Sweden (in 2005), which to court highlighted as evidence that the previous version of the sexual molestation provision had not protected the applicant from the act in question.



Angelique Lyn Lavallee v. Her Majesty the Queen Supreme Court of Canada (1990)

Domestic and intimate partner violence

Lavallee, a battered woman, killed her abusive partner after an argument in which he threatened her life. Lavallee utilized the expert testimony of a psychiatrist who testified in her defense regarding battered woman syndrome. Lavallee was ultimately acquitted. The Manitoba Court of Appeal overturned the acquittal, and the Supreme Court of Canada considered whether the expert testimony of the psychiatrist should have come before the court and whether the judge’s instructions on said testimony were appropriate. The Supreme Court held that the testimony was admissible “where the expert has relevant knowledge or experience beyond that of the lay person,” as in the case of battered woman syndrome, and where the testimony is relevant to understanding the “reasonableness” of the defendant’s perspective.



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

Custodial violence

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



Dekker v Stichting VJV Supreme Court of the Netherlands (1990)

Employment discrimination

D, when pregnant, applied for employment as an instructor in a youth training centre with Stichting Vormingscentrum voor Jong Volwassenen (VJV). VJV considered D to be the best candidate for job, however, as the selection committee had been informed by D that she was pregnant VJV declined to offer her employment. The ECJ held that an employer who acts in the manner VJV did was in breach of the Equal Treatment Directive, and in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC if he refuses to employ a female candidate based solely on the possible adverse consequences of her pregnancy, owing to rules on unfitness for work adopted by the public authorities, which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness. Further, the ECJ held that the application of the Equal Treatment Directive would not differ where in the circumstances described above no male applied for a post. If a woman is refused employment due to matters relating to her sex, for example pregnancy, it is always discriminatory



D.J. v. Croatia European Court of Human Rights (2012)

Sexual violence and rape

DJ was allegedly raped by his colleague. The Croatian authorities failed to conduct an effective investigation of the rape allegation by failing to conduct a proper inspection of the scene of the alleged crime, interview the injured party and other witnesses, and secure forensic evidence. The trial judge placed his emphasis on DJ alleged antisocial behavior thus lacked perceived impartiality. The ECtHR found Croatia in breach of the procedural aspect of Article 3 and 8 of the ECHR. It stressed that ‘the allegation that a rape victim was under the influence of alcohol or other circumstances concerning the victim’s behaviour or personality cannot dispense the authorities from the obligation to effectively investigate.’ The case adds to the Court’s jurisprudence recognizing violence against women as a form of ill-treatment prohibited by Article 3 of the ECHR and refines the contents of the state’s positive obligations to punish rape and investigate rape cases.



Case of Eremia v. The Republic of Moldova European Court of Human Rights (2013)

Domestic and intimate partner violence

E’s husband, a police officer, had been abusive towards her, often in the presence of their teenage daughters, whose psychological well-being was adversely affected as a result. A protection order had been issued against E’s husband upon E’s first request but was not respected by the husband and was partly revoked on appeal. E filed a criminal complaint and claimed being pressured by other police officers to withdraw the complaint. Although a criminal investigation was finally launched, and substantive evidence of the husband’s guilt was found, the prosecutor suspended the investigation for one year subject to the condition that the investigation would be reopened if the husband committed another offence during that time on basis that the husband had committed “a less serious offence” and “did not represent a danger to society.” The ECtHR found a violation of Article 3 in respect of E as the suspension of E’s husband’s criminal investigation in effect shielded him from criminal liability rather than deterring him from committing further violence against E. The Court concluded that the refusal to speed up the urgent examination of their request for a divorce, the failure to enforce the protection order and the insult of E by suggesting reconciliation since she was “not the first nor the last women to be beaten up by her husband”, and by suspending the criminal proceedings amounted to “repeatedly condoning such violence and reflected a discriminatory attitude towards the first applicant as a woman” thus violating Article 14 of the Convention. There was also a violation of Article 8 in respect of E’s daughters in respect of their right to respect of private life, including a person’s physical and psychological integrity. The Court ordered the State to pay the applicants non-pecuniary damages and cost and expenses.



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

Custodial violence, International law, Sexual violence and rape

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



Case C-136/95, Thibault [1998] ECR I-2011 European Court of Justice (1998)

Employment discrimination

T was employed by the CNAVTS as a “rédacteur juridique” (official responsible for legal drafting). According to a CNAVTS policy, any employee, after six months service, was automatically entitled to assessment of his/her performance in order to evaluate the possibility of promotion. T was on leave for over six months of the year because of both sickness and pregnancy and was denied assessment. However, had she not taken her maternity leave, she would have accumulated the required six months period necessary for the assessment. According to the relevant French legislation in force at that time, an employee was entitled to 16 weeks of maternity leave, which could be extended to 28 weeks, and that this period was “to be treated as period of actual work for the purpose of determining a worker’s rights by virtue of length of service” (L 123-1(c) Code du travail). T brought the case before the Conseil de Prud’hommes (Labor Tribunal) in Paris, which upheld her claim and ordered CNAVTS to compensate her. SNAVTS appealed to the Cour de Cassation (court of Cassation), which set aside the previous judgment and referred the case to the Conseil de Prud’hommes of Melun which reiterated the Paris tribunal’s conclusion. CNAVTS again appealed to the Cour de Cassation which referred the case to the ECJ. The ECJ held that the Equal Treatment Directive allows Member States to guarantee women specific rights on account of pregnancy and maternity. These rights are constructed so as to ensure the implementation of the principle of equal treatment between men and women. The Court stressed that, seen in this light, “the result pursued by the Directive is substantive, not formal equality”. The Court stated that Member States enjoy discretion on how to implement these rights; however, this discretion must be exercised within the boundaries prescribed by the Directive. Thibault marked the return of the pivotal principle that discrimination on grounds of pregnancy and maternity leads to direct discrimination which had been watered down since its establishment in Dekker.



A. v. Croatia European Court of Human Rights (2011)

Domestic and intimate partner violence

A, a Croatian woman was subjected to repeated violent behavior by her mentally-ill ex-husband, B, often in front of their daughter, whom on occasions turned violent towards the daughter too. Seven sets of proceedings were brought against B and although some protective measures were implemented, others were not. The prison sentences were not served and some of the treatment was not undergone due to a lack of qualified providers. A was refused an injunction prohibiting B from harassing and stalking her on basis that there was no immediate risk to her life. B was eventually imprisoned for making death threats to the judge and the judge's daughter. The ECtHR found that A would have been more effectively protected from B’s violence if the authorities had had an overview of the situation as a whole, rather than in numerous sets of separate proceedings. A failure to enforce protective measures undermined the deterrent purpose of such sanctions. It was still uncertain whether the husband had undergone any psychiatric treatment. A’s Article 8 right to respect for private life was breached for a prolonged period. The Court dismissed the allegation that domestic violence legislation applied in a discriminatory fashion in Croatia.



X and Y v. The Netherlands European Court of Human Rights (1985)

Sexual violence and rape

A mentally handicapped girl was raped but had no legal capacity to appeal against the prosecution’s decision not to press charges. The ECtHR found that positive obligations under Article 8 could arise requiring the State to adopt measures even in the sphere of the relations of individuals between themselves. Local legislation therefore suffered from a deficiency regarding the victim, which disclosed a failure to provide adequate protection.



Rantsev v. Cyprus and Russia European Court of Human Rights (2010)

Trafficking in persons

R arrived in Cyprus on an "artiste" visa. She started work as an artiste in a cabaret in Cyprus only to leave work three days later. After finding her, the manager of the cabaret where she had worked took her to the police asking them to declare her illegal in the country and to detain her. The police concluded that R did not appear to be illegal and refused to detain her. They asked the cabaret manager to collect her from the police station and to return with her later that morning to make further inquiries into her immigration status. The cabaret manager collected R and took her to the house of another employee of the cabaret, where the cabaret manager also remained. Later R fell from the window and was found dead in the street below the apartment. Following R’s death, interviews were conducted so was an autopsy. An inquest hearing was finally held nine months later in the applicant, R’s father's absence. The court decided that R died out of an accident and there was no evidence to suggest criminal liability for her death. Upon a request by the applicant, after the body was repatriated from Cyprus to Russia. Forensic medical experts in Russia carried out a separate autopsy and the findings of the Russian authorities, which concluded that R had died in strange and unestablished circumstances requiring additional investigation, were forwarded to the Cypriot authorities in the form of a request for mutual legal assistance under treaties in which Cyprus and Russia were parties. The request asked, inter alia, that further investigation be carried out, that the institution of criminal proceedings in respect of R's death be considered and that the applicant be allowed to participate effectively in the proceedings. Cyprus subsequently confirmed to the Russian Prosecution Service that the inquest into R's death was completed and that the verdict delivered by the court was final. The applicant has continued to press for an effective investigation into his daughter's death. The Cypriot Ombudsman, the Council of Europe's Human Rights Commissioner and the United States State Department have published reports which refer to the prevalence of trafficking in human beings for commercial sexual exploitation in Cyprus and the role of the cabaret industry and "artiste" visas in facilitating trafficking in Cyprus. The ECtHR found a violation of Article 2 as a result of the failure of the Cypriot authorities to investigate effectively R’s death. As regards Russia, the Court concluded that there it had not violated Article 2 as the Russian authorities were not obliged themselves to investigate R's death, which had occurred outside their jurisdiction. With respect to Article 3, the Court held that any ill-treatment which R may have suffered before her death had been inherently linked to her alleged trafficking and exploitation and that it would consider this complaint under Article 4. The Court noted that, like slavery, trafficking in human beings, by its very nature and aim of exploitation, was based on the exercise of powers attaching to the right of ownership; it treated human beings as commodities to be bought and sold and put to forced labor; it implied close surveillance of the activities of victims, whose movements were often circumscribed; and it involved the use of violence and threats against victims. Accordingly the Court held that trafficking itself was prohibited by Article 4. It concluded that there had been a violation by Cyprus of its positive obligations arising under that Article on two counts: first, its failure to put in place an appropriate legal and administrative framework to combat trafficking as a result of the existing regime of artiste visas, and, second, the failure of the police to take operational measures to protect R from trafficking, despite circumstances which had given rise to a credible suspicion that she might have been a victim of trafficking. In light of its findings as to the inadequacy of the Cypriot police investigation under Article 2, the Court did not consider it necessary to examine the effectiveness of the police investigation separately under Article 4. There had also been a violation of Article 4 by Russia on account of its failure to investigate how and where R had been recruited and, in particular, to take steps to identify those involved in R's recruitment or the methods of recruitment used. The Court held that the detention by the police following the confirmation that R was not illegal had no basis in domestic law. It further held that her subsequent detention in the apartment had been both arbitrary and unlawful. There was therefore a violation of Article 5 § 1 by Cyprus. The Court rejected the applicant's other complaints. As important as this case is for taking aim at the exploitive nature of the sex industry and the willingness of States to turn a blind eye to it, Rantsev brings with it questions regarding the very ability of the Court to adjudicate over issues emanating from Article 4 of the European Convention on Human Rights (ECHR). With the determination of the Court that obligations emanating from Article 4 of the ECHR come into play because trafficking is based on slavery, the Court reveals itself as not having truly engaged with the legal distinctions that exist between these two concepts. As a result, the Court has further muddied the waters as to where legal distinction should be made regarding various types of human exploitation, be it the forced labor, servitude or slavery.



Case C-243/95, Hill and Stapleton v. Revenue Commissioners [1998] ECR I-3739 European Court of Justice (1998)

Employment discrimination

Job-sharing was introduced into the Irish Civil Service in 1984. Job-sharers work half the number of hours of full-time workers and are paid the same hourly rate. The scale of annual incremental salary increases for job-sharers are parallel to that for full-time workers with each point on the job-sharers scale representing 50% of the corresponding point on the full-time scale. 98% of job-sharers in the Irish Civil Service are women. According to the national referring tribunal a job-sharer can acquire the same experience as a full-time worker. When H and S transferred from job-sharing to full-time work they were initially assimilated to the same point on the full-time incremental scale as that which they had occupied on the job-sharers' scale. They were both subsequently reclassified at a lower point on full-time scale on the grounds that two years on the job-sharers' scale represented one year on the full-time scale. The questions posed to the ECJ by the Labor Court in Ireland arose from the decision by H and S to contest their reclassification. The Court took the view that workers who transferred from job-sharing, where they worked 50% of full-time hours and were paid 50% of full-time pay, to full-time work, were entitled to expect both the number of hours that they worked and the level of their pay to increase by 50%, in the same way as workers converting from full-time work to job-sharing would expect these factors to be reduced by 50%, unless a difference of treatment can be justified. Such development did not occur in this case, with the result that, as former job-shares are paid less than twice their job-sharing salary, their hourly rate of pay as full-time workers is reduced. Within the category of full-time workers, therefore, there is unequal treatment, as regards pay, of employees who previously job-shared, and who regress in relation to the position which they already occupied on the pay scale. In so finding, the Court observed that the use of the criterion of actual time worked during the period of job-sharing fails to take account, inter alia, of the fact that job-sharing is a unique category of work, given that it does not involve a break in service, or of the fact that a job-sharer can acquire the same experience as a full-time worker. Furthermore, a disparity is retroactively introduced into the overall pay of employees performing the same functions so far as both the quality and quantity of the work performed is concerned. In such a case, application of provisions of the kind at issue before the national tribunal result in discrimination against female workers which must be treated as contrary to Article 119 of the Treaty. The Court of Justice concluded that it would be otherwise only if the difference of treatment which was found to exist between the two categories of worker were justified by objective factors unrelated to any discrimination on the grounds of sex. It added that it is for the national tribunal to decide if any such objective factors exist.



Bevacqua and S. v. Bulgaria European Court of Human Rights (2008)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Following divorce and during extended custody proceedings in Bulgaria, B agreed to the father having contact with the child, S. However, he refused B’s contact with S. B recovered S from the kindergarten, which led to the father threatening her and eventually entering her home seeking to recover the child. B moved to a hostel for victims of domestic violence in another town, but the authorities threatened to prosecute her for abduction of S. Despite being asked by B to make an interim order concerning custody of S, the Bulgarian courts failed to do so. In order to avoid prosecution B agreed to care for S with the father in alternate months. S was subject to further violence by the father. She was granted custody of the child eventually, but the father was not prosecuted for his violence, or for subsequent violence against her. The ECtHR found violations of B and S’ right to respect for private and family life under Art 8 of the ECHR. The Court held that the Bulgarian court's failure to adopt interim custody measures without delay had adversely affected the well-being of S and insufficient measures had been taken in reaction to the father's behavior, however, the length of proceedings had not been unreasonable.



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

Custodial violence

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



S. V. P. v. Bulgaria CEDAW Committee (2012)

Sexual violence and rape, Statutory rape or defilement

S filed a complaint on behalf of her seven-year-old daughter, V, who was sexually assaulted by a neighbor. The perpetrator, B, was indicted for sexual molestation, at which time, was not a ‘serious crime’ under the State’s criminal code and thus permitted B to enter into a plea-bargain agreement under which he admitted guilt and received a three-year suspended sentence. S brought a civil tort claim on behalf of V as she was not permitted to bring a civil claim against B in connection with B’s prosecution and received a judgment of approximately EUR 15,000 for moral damages two years later. The law did not provide for a state actor to enforce the judgment, and S was only able to collect approximately EUR 500 from B. B continued to live in the vicinity of V’s home, and she repeatedly expressed fear of further harm from him. After the assault, V was diagnosed as a person with disability. S brought a communication before the CEDAW alleging violations by Bulgaria of Articles 1, 2(a), (b), (c), (e), (f) and (g), 3, 5, 12 and 15 of CEDAW by failing to effectively protect V against sexual violence and compensation, to ensure V’s rights to health, including reproductive health and education, to provide V with proper rehabilitative services, and to guarantee V’s right against re-victimization by B. The Committee upheld all of S’s claims, ordered the State to provide V with appropriate reparations and addressed the State to adopt specified changes to State laws, including amendments to provide effective protection from re-victimization and to provide appropriate support and financial compensation to victims, and enact new policies, including health care protocols and hospital procedures, to address sexual violence against women and girls.



Case 171/88, Rinner-Kühn [1989] ECR 2743 European Court of Justice (1989)

Employment discrimination

At issue was a challenge to a German statute requiring employers to pay up to six weeks of annual sick leave for employees who worked more than ten hours per week, or more than forty-five hours per month. R-K sued her employer, an office cleaning company for whom she worked ten hours per week, after her request for eight hours of sick pay had been refused. Her claim was that, if Article 141 covered statutory-mandate sick pay provisions, the German legislation discriminated indirectly against women. The ECJ held that Article 141 covered sick pay, and that consequently the statute “must, in principle, be regarded as contrary to the aims of Art.[141]”, unless the German government could muster an argument to the contrary. The Court rejected the government’s submission that compared to full-time workers, part-timers “were not as integrated in, or as dependent on, the undertaking employing them”, declaring that “these considerations, in so far as they are only generalizations about certain categories of workers, do not enable criteria which are both objective and unrelated to any discrimination on grounds of sex to be identified.” It then announced a variation of the least-means proportionality test developed in Bilka. To mount a successful defense, Member States must convince a judge that the legislative “means chosen meet a necessary aim of its social policy,” and that these means “are suitable and requisite for attaining that aim.” The national judge has a duty to apply this test. The Court thus extended the Bilka framework to the judicial review of statutory-mandate social policy.



E.S. and Others v. Slovakia European Court of Human Rights (2009)

Domestic and intimate partner violence, Property and inheritance rights

E.S.’s ex-husband S was convicted of ill-treatment, violence and sexual abuse against E.S. and their daughters and sentenced to four years' imprisonment. E.S. requested an interim measure ordering S to move out of the council flat of which they were joint tenants. The domestic courts dismissed her request, finding it lack the power to restrict S’ right to use the property under the relevant legislation. The appellate courts upheld that decision noting that E.S. would be entitled to bring proceedings to terminate the joint tenancy after a final divorce decision and, in the meantime, she could apply for an order refraining S from inappropriate behavior. The Constitutional Court subsequently held that E.S.'s rights were not violated as she had not applied for such an order. However, it held that the lower courts had failed to take appropriate action to protect E.S.'s children from ill-treatment. It did not award compensation as it considered it provide appropriate just satisfaction by a finding of a violation. Following the advent of new legislation, E.S. made further applications and two orders were granted: one preventing S from entering the flat; the other awarding her exclusive tenancy. In the meantime, E.S. had had to move away from their home, family and friends and her children had had to change school. The ECtHR concluded that Slovakia had failed to fulfill its obligation to protect all of the applicants from ill-treatment, in violation of Articles 3 and 8. The alternative measure proposed by Slovakia, i.e. an order restraining S from inappropriate behavior, would not have provided the applicants with adequate protection against S and therefore did not amount to an effective domestic remedy. The ECtHR ordered the Slovak Republic to pay non-pecuniary damages of EUR 8,000.



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.



Jallow v. Bulgaria CEDAW Committee (2012)

Domestic and intimate partner violence, Gender discrimination

J moved from the Gambia to Bulgaria after marrying A.P., a Bulgarian national. Once in Bulgaria, A.P. subjected J to physical and psychological violence, including sexual abuse, and attempted to force her to take part in pornographic films and photographs. He also abused their daughter, M.A.P. A.P. called the Child Protection Department to stop J from breastfeeding M.A.P, during which onsite visit the social workers learned of A.P’s abuse, called the police and advised J to seek refuge but provided no guidance about where or how to do so. J found refuge for several days in an NGO-run shelter, but A.P. later found her and forced her to return to the family home. Prosecutors refused to continue investigating the alleged domestic violence due to insufficient evidence. At no time did the authorities interview J. Later, A.P. filed an application with the Sofia Regional Court alleging him being a victim of domestic violence and requesting an emergency protection order. The Court granted the order, along with temporary custody of M.A.P, based solely on his statement and without consideration of the alleged domestic violence he committed against J. Authorities did not provide J with information about M.A.P’s whereabouts or her condition, despite repeated requests. The Court dismissed A.P.’s application for a permanent protection order but the emergency order remained effective. J later agreed to a divorce, including to numerous unfavorable conditions, to regain her custody of the daughter. J submitted a communication before the CmEDAW on behalf of M.A.P. and herself alleging violations by Bulgaria of Articles 1, 2, 3, 5 and 16 (1)(c), 16(1)(d), 16(1)(f) and 16(1)(g) of CEDAW by failing to provide effective protection against domestic violence and sanction A.P. for his behavior, to consider domestic violence as a real and serious threat, to adopt effective measures to address gender-based violence against women, gender discrimination and to provide illiterate migrant woman as herself to access justice. The Committee upheld all her claims, urged Bulgaria to compensate J and M.A.P, and recommended that the State Party adopt measures to ensure that women victims of domestic violence, including migrant women, have effective access to justice and other services. It also called on the State Party to provide regular training on CEDAW and the Optional Protocol and to adopt legislative and other measures to ensure that domestic violence is taken into account in determining custody and visitation rights of children.



Driskell v. Peninsula Business Services & Others Employment Appeal Tribunal (2000)

Employment discrimination

D described, amongst others, how her manager suggested the day before her appraisal interview that, at that discussion, she should wear a short skirt and a low-cut or see-through blouse – the inference being that doing so would further her chances of a favorable appraisal. The EAT held that the “lewd words” acted as a detriment. The Court concluded that the correct approach when dealing with a course of conduct of harassment should be to limit judgment to the finding of all facts that are prima facie relevant. The judgment said that the facts of a case in which harassment is alleged “may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow”. The Court confirmed that the ultimate judgment of whether there was sexual discrimination reflects an objective assessment by the tribunal of all the facts, however important the applicant’s subjective perception.



Kalucza v. Hungary European Court of Human Rights (2012)

Domestic and intimate partner violence, Property and inheritance rights

K’s partner Gy.B. acquired ownership of K’s ex-husband share of their jointly owned flat and had it registered as his place of residence. K sought to have him evicted when their relationship ended, lodged numerous criminal complaints for rape, assault and harassment but Gy.B.was acquitted on four occasions and was convicted on only two occasions, released on parole and ordered to pay a fine. On three occasions K herself was found guilty of disorderly conduct, grievous bodily harm and assault. She also faced a trespassing charge brought by Gy.B. because she had the flat's locks changed. During the criminal proceedings, K made two requests for a restraining order against Gy.B. and both were dismissed on basis that she was also responsible for the bad relationship. Civil proceedings concerning ownership of the flat were also suspended while Gy.B.’s violent behavior against her continued and a medical report was drawn up recording her injuries with an expected healing time of eight to ten days. The ECtHR found that the Hungarian authorities had not taken sufficient measures for her effective protection, in violation of Article 8. The Court noted that it had taken the authorities too long - more than one-and-half years - to decide on K’s first restraining order request, undermining the reason behind such a measure which was to provide immediate protection to victims of violence. Sufficient reasons for dismissing the restraining order requests were not given, the courts relying simply on the fact that both parties were involved in the assaults, ruling out the possibility of a victim having acted in legitimate self-defense in the event of a mutual assault. The Court commented that restraining orders could have been issued against both parties and ordered Hungary to pay K non-pecuniary damages.



N. v. Sweden European Court of Human Rights (2010)

Gender discrimination

N and her husband X applied for asylum after arriving in Sweden, claiming persecution in Afghanistan because of X’s political position. The asylum application being rejected, N appealed claiming that, as she had in the meantime separated from her husband, she would risk social exclusion and possibly death if she returned to Afghanistan. Her appeal was also rejected. She applied for a residence permit three times, as well as for divorce from X., submitting that she was at an ever-heightened risk of persecution in Afghanistan, as she had started an extra-marital relationship with a man in Sweden which was punishable by long imprisonment or even death in her country of origin. All her applications were rejected. While being aware of reports of serious human rights violations in Afghanistan, the Court did not find that they showed, on their own, that there would be a violation of the Convention if N were to return to that country. Examining N.'s personal situation, however, the Court noted that women were at a particularly heightened risk of ill-treatment in Afghanistan if they were perceived as not conforming to the gender roles ascribed to them by society, tradition or the legal system there. The mere fact that N had lived in Sweden might well be perceived as her having crossed the line of acceptable behavior. The fact that she wanted to divorce her husband, and in any event did not want to live with him any longer, might result in serious life-threatening repercussions upon her return to Afghanistan. Among other things, the Court noted that a recent law, the Shiite Personal Status Act of April 2009, required women to obey their husbands' sexual demands and not to leave home without permission. Reports had further shown that around 80 % of Afghani women were affected by domestic violence, acts which the authorities saw as legitimate and therefore did not prosecute. Unaccompanied women, or women without a male "tutor", faced continuous severe limitations to having a personal or professional life, and were doomed to social exclusion. They also often plainly lacked the means for survival if not protected by a male relative. Consequently, the Court found that if N were deported to Afghanistan, Sweden would be in violation of Article 3.



Kell v. Canada CEDAW Committee (2012)

Gender discrimination, Property and inheritance rights

K, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada, bought a house from the N.W.T. Housing Corporation, with S her common law partner, as co-owners of the property. S subjected K to domestic violence, including economic abuse, over the subsequent three-year period. Following a request from S, a then board member of the Housing Authority, and without K’s knowledge, the N.W.T. Housing Corporation on instruction from the Rae-Edzo Housing Authority removed K’s name from the Assignment of Lease, making S the sole owner of the property. S then evicted her from the property while she sought protection in a shelter. K filed proceedings against S in the N.W.T. Supreme Court seeking compensation for domestic violence and loss of use of her home, fraudulently obtained by S, aided and abetted by the N.W.T. Government. S subsequently died, following which K’s lawyer initiated proceedings against his estate and the N.W.T. Housing Corporation. They offered K a monetary settlement but K refused as her key concern was regaining the property. The Supreme Court dismissed both proceedings for “want of prosecution.” Costs were imposed against K and subsequent appeals were unsuccessful. K filed a third action related to her interest in and right to the leasehold title and possession of the property. The property had then been sold and the Court dismissed the matter. K brought a communication to the CmEDAW alleging violations by Canada of Articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of CEDAW by allowing its agents – the N.W.T. Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and failing to ensure that its agents afford women and men equal rights in respect of ownership and enjoyment of property. The Committee found that Canada was responsible for K losing ownership of the property, in violation of Articles 2(d), 2(e), and 16(1)(h) of CEDAW, read with Article 1. However, it found that Canada had not violated Articles 14(2)(h) or 15(4), as there was no evidence K had been discriminated against as a rural woman or prevented from residing in another property in the community. The Committee recommended that Canada compensate K and provide her with appropriate housing. It also recommended recruiting and training more Aboriginal women to provide legal aid and reviewing the legal aid system to ensure Aboriginal women who are victims of domestic violence have effective access to justice.



Canada (Attorney General) v. Bedford Supreme Court of Canada (2013)

Employment discrimination

Three women challenged three Canadian Criminal Code provisions that indirectly restricted the practice of prostitution by criminalizing various related activities. Section 210, which prohibited the operation of common “bawdy-houses,” prevented prostitutes from offering their services out of fixed indoor locations such as brothels. Section 212, which prohibited “living off the avails” of prostitution, prevented anyone, including “pimps,” from profiting from another’s prostitution. Section 213, which prohibited “communicating” for the purpose of prostitution in public, prevented prostitutes from offering their services in public, particularly on the streets. On December 20, 2013, the Supreme Court of Canada unanimously decided that all three laws were unconstitutional, reasoning that the laws infringe on sex worker’s rights under the Canadian Charter of Rights and Freedoms by depriving them of “security of the person” in a way that is not in accordance with the “principles of fundamental justice.” Starting from the position that prostitution is legal in Canada, the Court declared that the three laws: “Do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks.”



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

Gender-based violence in general

A 20-year-old Y killed himself while performing his compulsory military service after being provoked by Sergeant A’s physical and verbal violence who had been informed of Y’s problems linking to his sister’s marital difficulties. The ECtHR concluded a violation of Article 2 as the authorities failed to effectively protect the victim from the improper conduct of his superiors.



L.C. v. Peru CEDAW Committee (2011)

Sexual violence and rape, Statutory rape or defilement

An 11-year-old girl was repeatedly raped by a 34-year-old man. As a result, she became pregnant and consequently attempted to commit suicide by jumping from a building. She survived the suicide attempt but sustained serious injuries which required emergency surgery. The hospital declined to perform the surgery based on the risk posed to the pregnancy, and refused to perform an abortion despite that therapeutic abortion is legal in Peru and that the pregnancy posed a danger to her physical and mental health. As a consequence, she was completely paralyzed from the neck down. The Center for Reproductive Rights and the Center for the Promotion and Defense of Sexual and Reproductive Rights filed a human rights petition on behalf of her against Peru before CEDAW alleging violations of Articles 1, 2 (c) and (f), 3, 5, 12 and 16 (e) of CEDAW by failing to implement measures that guarantee a woman’s ability to obtain essential reproductive health services in a timely manner. The Committee upheld the claim and asked Peru to provide L.C. reparation, including physical and mental rehabilitation, and issue necessary measures so that no other woman is denied her right to comprehensive healthcare and therapeutic abortion. This decision demonstrate a willingness on the part of the CEDAW to view the denial of reproductive rights as a discrimination issue and is flagged as an innovative juridical resource for reforming abortion laws.



Johnstone v. Canada (Attorney General); Hoyt v. Canadian National Railway Federal Court of Appeals and Human Rights Tribunal (2013)

Employment discrimination

In both cases, female employees sought accommodation from their employers to attend to their childcare responsibilities. In both cases, the employers refused the employees’ requests and forced the employees to either accept part-time work or an unpaid leave to care for their children. The human rights tribunal in Hoyt and the Federal Court in Johnstone found that the employees had been discriminated against on the basis of family status when they were denied full-time employment status. The employers failed to show that they would have suffered undue hardship by adjusting the female employees’ work schedules.



B.S. v. Spain European Court of Human Rights (2012)

Gender discrimination

A Spanish woman of Nigeria origin was allegedly verbally and physically abused when she was stopped and questioned while working as a prostitute in the street on two occasions. She lodged a complaint with the investigating judge who asked the police headquarters to produce an incident report in which the identities of the police officers on patrol at the time of the incidents differed from those indicated by the applicant. The judge subsequently made a provisional discharge order and discontinued the proceedings on basis of insufficient evidence. The applicant applied for a review, asking to identify the police officers and obtaining witness statements, but the request was rejected. She lodged an appeal, leading to the reopening of the proceedings at which the police officers were acquitted on basis of the police headquarters’ report. The applicant was again stopped for questioning. Her criminal complaint, review request and subsequent appeal were all unsuccessful. The ECtHR considered that the investigative steps taken had not been sufficiently thorough and effective to satisfy the requirements of Article 3 of the Convention, and found a violation of Article 3. With respect to allegations of ill-treatment, the Court was unable to find a violation in this respect due to inconclusive evidence. The Court considered that the domestic courts had not taken into account the applicant's special vulnerability inherent in her situation as an African woman working as a prostitute. The authorities had not taken all possible measures to ascertain whether or not a discriminatory attitude might have played a role in the events. The Court therefore concluded that there had been a violation of Article 14 in conjunction with Article 3.

 

Una mujer española de origen nigeriano fue supuestamente abusada verbal y físicamente cuando fue detenida e interrogada mientras trabajaba como prostituta en la calle en dos ocasiones. Presentó una queja ante el juez, el que pidió a la comisaría de policía que presentara un informe de incidentes en el que las identidades de los policías en patrulla en el momento de los incidentes no coincidieran con las indicadas por el solicitante. Despues, el juez dictó una orden de baja provisional e interrumpió el procedimiento por falta de pruebas. La solicitante solicitó una revisión, solicitando identificar a los oficiales de policía y obteniendo declaraciones de testigos, pero su solicitud fue rechazada. Ella presentó una apelación, lo que llevó a la reapertura de los procedimientos en los cuales los agentes de policía fueron absueltos con base en el informe de la sede de la policía. La solicitante fue nuevamente detenido para ser interrogada. Su denuncia penal, solicitud de revisión y posterior apelación fueron infructuosas. El TEDH consideró que las medidas de investigación tomadas no habían sido lo suficientemente exhaustivas y efectivas para satisfacer los requisitos del artículo 3 de la Convención, y encontró una violación del artículo 3. Con respecto a las denuncias de malos tratos, el Tribunal no pudo encontrar una Violación a este respecto debido a pruebas no concluyentes. El Tribunal consideró que los tribunales nacionales no habían tenido en cuenta la especial vulnerabilidad de la demandante inherente a su situación como mujer africana que trabajaba como prostituta. Las autoridades no habían tomado todas las medidas posibles para determinar si una actitud discriminatoria podría haber desempeñado un papel en los hechos. En consecuencia, el Tribunal concluyó que se había violado el artículo 14 en relación con el artículo 3.



R.K.B. v. Turkey CEDAW Committee (2012)

Employment discrimination, Gender discrimination

R.K.B.’s employer dismissed her but not the male colleague whom she was accused of having an affair with, and threatened to “spread rumours about her relationships with other men” to pressure her to sign a document, attesting that she had been paid all her benefits upon termination. R.K.B. filed a claim to the Kocaeli 3rd Labour Court against her employer alleging unfair termination based on gender stereotypes. The Court decided that the termination of her contract was not justified but not dismissing the male colleague was not discriminatory. R.K.B. appealed to the Court of Cassation, which dismissed the appeal without reference to gender discrimination. The CEDAW held that the Turkish court violated Articles 5(a), 11(1a) and 11(1d) of CEDAW by basing their decisions on gender stereotypes, tolerating allegations of extramarital relationships by male employees but not by female employees. It recommended adequate compensation to be paid to R.K.B, issued the State to take measures to implement laws on gender equality in the work environment; and to provide training to judges, lawyers and law enforcement personnel on women’s rights and gender-based stereotypes. The decision is of particular importance in a country where almost 80% of women are unemployed (Richinick) and where women’s participation in the labor force has been declining. It also stresses that mere adoption of laws is not enough to protect rights – implementation is the key. The decision also emphasizes the role of the courts (and not the executive branch) as ultimately responsible for rights’ violation.



Her Majesty the Queen v. Shafia Ontario Superior Court of Justice (2012)

Honor crimes (or honour crimes)

Mohammad Shafia, his second wife, and his son were convicted of the June 2009 murders of his three teenaged daughters and his first wife. Their bodies were found submerged inside a car in a canal near Kingston, Ontario. The Shafia family was originally from Kabul, Afghanistan, fled to Dubai before moving to Australia, and then finally moving to Montreal, Canada in 2007. The three defendants were found guilty of four counts of first degree murder and each sentenced to life in prison with parole eligibility in 25 years. The prosecutor argued that the murders were honor killings – because the three Shafia daughters had shamed the family by adopting Western lifestyles and the two older daughters had boyfriends, and because his first wife wanted a divorce and supported the three girls in their pursuit of western lifestyles. The Crown sought to admit expert trial testimony relating to the relationship between culture, religion, patriarchy and violence against women in the Middle East, Eastern Asia and around the world, specifically as to honor killing. The Ontario Superior Court of Justice held the topic of honor killing was properly the subject of expert opinion evidence, finding the presentation of expert evidence respecting culture to be routinely admitted in Canadian trial courts and the concepts of honor, family and gender dynamics within Middle Eastern and East Asian communities to be knowledge outside the scope of a typical Canadian jury. Specific questions to the expert mirroring the facts of the case were not allowed; only generic questions relating to circumstances where honor killings might take place were allowed.



Izci v. Turkey European Court of Human Rights (2013)

Gender-based violence in general

A Turkish woman was allegedly attacked by the police following her participation in a peaceful demonstration to celebrate Women’s Day in Istanbul and that such police brutality in Turkey was tolerated and often went unpunished. The ECtHR considered that the police officers had failed to show a certain degree of tolerance and restraint before attempting to disperse a crowd which had neither been violent nor presented a danger to public order,and that the use of disproportionate force against the demonstrators had resulted in the injuring of Ms Izci. Moreover, the failure of the Turkish authorities to find and punish the police officers responsible raised serious doubts as to the State’s compliance with its obligation under the ECHR to carry out effective investigations into allegations of ill-treatment. Finally, the use of excessive violence by the police officers had had a dissuasive effect on people’s willingness to demonstrate. The Court reiterated that a great number of applications against Turkey concerning the right to freedom of assembly and/or excessive use of force by law enforcement officials during demonstrations were currently pending. Considering the systemic aspect of the problem, it therefore requested the Turkish authorities to adopt general measures, in accordance with their obligations under Article 46 of the Convention, in order to prevent further similar violations in the future.



Alyne da Silva v. Brazil CEDAW Committee (2011)

Gender discrimination

A, a 28-year-old Afro-Brazilian woman, died of complications resulting from pregnancy after her local health center misdiagnosed her symptoms and delayed providing her with emergency care. A’s death is not an isolated case. Brazil's maternal mortality rates are disproportionately high for a country of its economic status and the chances of dying in pregnancy and childbirth are greatest among indigenous, low-income, and Afro-descendant women. The Center for Reproductive Rights and Brazilian partner Advocaci filed a communication before the CmEDAW alleging violations Articles 2 and 12 of CEDAW. The Committee affirmed the violations despite Brazil’s claims that it had made "qualified obstetric care" a priority in its National Plan for Women's Policies. It also highlighted that "the State is directly responsible for the action of private institutions when it outsources its medical services, and that furthermore, the State always maintains the duty to regulate and monitor private health-care institutions". The Committee recommended Brazil ensure affordable access for all women to adequate emergency obstetric care and to effective judicial remedies, provide adequate professional training for health workers, ensure compliance by private facilities with national and international standards in reproductive healthcare, and reduce preventable maternal deaths. The case was important as it was the first case on maternal mortality to be brought before CEDAW. The Committee took a leap forward in increasing coherence in international human rights law on women's economic, social and cultural rights. Further, the Committee's inclusion of factors affecting A's access to health services, such as poverty and race were a milestone in the development of an intersectional understanding of women's ESCR.



Andrew Scott Darrach v. Her Majesty the Queen Supreme Court of Canada (2000)

Sexual violence and rape

Andrew Scott Darrach was accused of sexually assault and “attempted to introduce evidence of the complainant’s sexual history” at trial as part of his defense. After the voir dire process, required under the Criminal Code of Canada, the trial judge refused to allow the introduction of evidence on the plaintiff’s sexual history. Darrach was convicted of the assault. Darrach appealed on the basis that the refusal impeded his right to fair trial. The Supreme Court determined that the trial judge had followed the Criminal Code provisions appropriately, dismissing Darrach’s appeal, and noted that forcing the complainant to testify on such history at trial would likely discourage individuals from reporting sexual crimes and also invade the privacy of victims.



Jabari v. Turkey European Court of Human Rights (2000)

Gender-based violence in general

The applicant fled to Turkey from Iran fearing that she would be convicted of having committed adultery, an offence under Islamic law, and sentenced to be stoned to death or flogged. She was arrested at Istanbul airport on the ground that she had entered Turkey using a forged passport. No charges were brought against her on account of the forged passport but she was ordered to be deported. The applicant subsequently lodged an asylum request, which was rejected by the authorities on the ground that the request had not been submitted within five days of her arrival in her Turkey. Later the applicant was granted refugee status by the UNHCR. The Ankara Administrative Court dismissed the applicant's petition against the implementation of her deportation on the grounds that there was no need to suspend it since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant. The applicant complained that her right not to be subjected to ill-treatment guaranteed under Article 3 ECHR would be breached if she were to be deported to Iran. She further complained that she had no effective remedy in the domestic law of the respondent state to challenge her deportation, in breach of Article 13. The ECtHR was not persuaded that the authorities of the respondent state conducted any meaningful assessment of the applicant's claim, including its arguability. It would appear that her failure to comply with the five-day registration requirement under the Asylum Regulation 1994 denied her any scrutiny of the factual basis of her fears about being removed to Iran. The automatic and mechanical application of such a short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention. It fell to the branch office of the UNHCR to interview the applicant about the background to her asylum request and to evaluate the risk to which she would be exposed in the light of the nature of the offence with which she was charged. The Administrative Court on her application for judicial review limited itself to the issue of the formal legality of the applicant's deportation rather than the more compelling question of the substance of her fears, even though by that stage the applicant must be considered to have had more than an arguable claim that she would be at risk if removed to her country of origin. It further observed that the government have not sought to dispute the applicant's reliance on the findings of Amnesty International concerning the punishment meted out to women who are found guilty of adultery. Having regard to the fact that the material point in time for the assessment of the risk faced by the applicant was the time of its own consideration of the case, the Court was not persuaded that the situation in the applicant's country of origin has evolved to the extent that adulterous behavior was no longer considered a reprehensible affront to Islamic law. It had taken judicial notice of recent surveys of the current situation in Iran and noted that punishment of adultery by stoning still remained on the statute book and may be resorted to by the authorities. Having regard to the above considerations, the Court found it substantiated that there was a real risk of the applicant being subjected to treatment contrary to Article 3 if she was returned to Iran. Accordingly, the order for her deportation to Iran would, if executed, give rise to a violation of Article 3. The Court held that there had been a breach of Article 13. The notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned. Since the Administrative Court failed in the circumstances to provide any of these safeguards, the Court was led to conclude that the judicial review proceedings did not satisfy the requirements of Article 13.



L.N.P. v. Argentina Human Rights Committee (2007)

Gender discrimination, Statutory rape or defilement

A 15-year-old girl, P, was allegedly sexually assaulted by three men. She immediately reported the attack to the police, but was kept waiting for hours at the police station and a medical center before being performed anal and vaginal palpations which caused her intense pain and despite complaining the sole anal nature of the attack. A social worker was sent to interview P's neighbors and relatives about her sexual history and morals during the investigation, leasing aside the three accused. The three accused were acquitted following a trial solely in Spanish despite the first language of P and several of the witnesses was Qom, and in which great reliance was placed on P's sexual history by the prosecution and the judge. P was not notified of her rights to participate in the trial nor of the outcome of the trial and she only became aware of the acquittal after two years and was unable to appeal. The Human Rights Committee found violations of Articles 2(3), 3, 7, 14(1), 17, 24, 26 of the Convention. The Committee found that the police, medical examiner and the court did not provide appropriate protections to P's age, discriminated against her in the emphasis that was placed on her sexual history, and denied her right of access to the courts when she was not informed of her legal rights. It also found that the events at the police station and the medical examination constituted inhumane or degrading treatment, and that the investigation had arbitrarily interfered with P's private life. The Committee called on the State to guarantee access for victims, including victims of sexual assault, to the courts in conditions of equality in the future. However the operative gender stereotypes, including that as a young women from a marginalized ethnic minority group, she was sexually promiscuous, which contributed towards the acquittal of the accused of the rape were unnamed, leaving the role of the stereotypes in discriminating against similar victims and their rights unaddressed.

 

Una niña de 15 años, P, presuntamente fue agredida sexualmente por tres hombres. Ella informó de inmediato del ataque a la policía, pero se mantuvo esperando durante horas en la estación de policía y en un centro médico antes de que se realizaran las palpaciones anales y vaginales, lo que le causó un dolor intenso, además ella especificó la naturaleza anal única del ataque. Se envió a una trabajadora social para entrevistar a los vecinos y familiares de P sobre su historial sexual y su moral durante la investigación, dejando a un lado a los tres acusados. Los tres acusados fueron absueltos después de un juicio únicamente en español a pesar del primer idioma de P y varios de los testigos era Qom, y en los que la fiscalía y el juez depositaron una gran confianza en la historia sexual de P. P no fue notificada de sus derechos a participar en el juicio ni del resultado del juicio y solo se enteró de la absolución después de dos años, cuando ya era muy tarde para apelar. El Comité de Derechos Humanos encontró violaciones de los artículos 2 (3), 3, 7, 14 (1), 17, 24, 26 de la Convención. El Comité determinó que la policía, el médico forense, y el tribunal no proporcionaron las protecciones adecuadas a la edad de P, la discriminaron por el énfasis que le pusieron en su historial sexual y negaron su derecho de acceso a los tribunales cuando no se le informó de sus derechos legales. También encontró que los eventos en la estación de policía y el examen médico constituían un trato inhumano y degradante, y que la investigación había interferido arbitrariamente en la vida privada de P. El Comité pidió al Estado que garantice el acceso de las víctimas, incluidas las víctimas de agresión sexual, a los tribunales en condiciones de igualdad en el futuro. Sin embargo, los estereotipos operativos de género, incluyendo que como mujeres jóvenes de un grupo minoritario étnico marginado, la tacharon como sexualmente promiscua, lo que contribuyó a la absolución de las acusadas de la violación no fue identificado, dejando el papel de los estereotipos en la discriminación contra víctimas similares y sus derechos no defendidos. 



Brooks v. Canada Safeway Ltd. Supreme Court of Canada (1989)

Employment discrimination, Gender discrimination

Three female Safeway employees filed a complaint with the Manitoba Human Rights Commission stating that the company plan discriminated based on sex and family status by denying benefits for loss of pay due to accident or sickness during a 17-week period during pregnancy (even if the accident or sickness at issue was unrelated to the pregnancy). The Commission’s adjudicator dismissed the claims, and this decision was upheld by the Court of the Queen’s Bench and the Court of Appeal. The Supreme Court of Canada decided that Safeway’s plan did discriminate against pregnant women. Noting that “it cannot be said that discrimination is not proven unless all members of a particular class are equally affected,” the Supreme Court of Canada determined Safeway discriminated against the employees on the basis of sex under the Manitoba Human Rights Act.



Ebcin v. Turkey European Court of Human Rights (2011)

Gender-based violence in general

A teacher was attacked in the street by two individuals who threw acid in her face. She alleged that the authorities had failed to prevent the attack on basis of a report by the Turkish Human Rights Foundation according to which 91 of 143 teacher killings in south-east Turkey between 1984 and 1995 were attributed to the PKK (Workers' Party of Kurdistan, an illegal organization). Her claim for compensation was twice set aside by the Supreme Administrative Court. Her aggressors were not arrested until six years later; the proceedings against the instigator of the aggression lasted over seven years and those against his accomplice were still pending before the Court of Cassation. The ECtHR did not hold the authorities responsible for any failure to take steps to protect the applicant individually due to lack of proof of any intimidation or threats to which she might have been subjected. But the Court found that the administrative and criminal proceedings had failed to provide prompt and adequate protection against a serious act of violence and that there had been a violation of Articles 3 and 8. The Court did not examine the case under Article 6.



Case 43/75, Defrenne v Sabena [1976] ECR 455 European Court of Justice (1976)

Employment discrimination

D worked as a flight attendant for the airline Sabena. The airline paid her less than her male colleagues who did the same work. The ECJ held that Article 119 of the Treaty of the European Community was of such a character as to have horizontal direct effect, and therefore enforceable not merely between individuals and the government, but also between private parties. Article 157 TFEU (119 TEEC, 141 TEC) was invoked which stated "Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied".



V. C. v. Slovakia European Court of Human Rights (2011)

Forced sterilization

VC, a Romani woman, was forcibly sterilized in a state hospital in Eastern Slovakia during a cesarean section. While she was in the height of labor, hospital staff insisted that she sign a consent form for sterilization, without informing her about what the procedure entailed. She was only told that a future pregnancy could kill her and was pressured to immediately undergo the procedure. VC did not understand what she was agreeing to but fearing for her life, she signed the form. After learning that the sterilization was not medically necessary, VC filed a civil lawsuit in Slovakia. All her petitions were rejected, and she filed a complaint against Slovakia at the ECtHR The Court found a violation of Articles 3 and 8 of the ECHR, i.e. the right to freedom from inhuman and degrading treatment and the right to private and family life respectively. The court noted that sterilization is never a lifesaving procedure and cannot be performed without the full and informed consent of the patient even if doctors believe that future pregnancy may pose a risk to the woman. However, it did not address whether such conduct was a violation of the right to non-discrimination (Article 14), thus falling short of addressing the crux of the problem: racial stereotypes. The ruling is the first of its kind issued by the ECHR, and will have the major effect of bringing justice to the potentially thousands of Roma women who were sterilized without their consent in Central and Eastern Europe.



Tek Tamrakar and Others v. HMG Cabinet Secretariat and Others Supreme Court of Nepal (2005)

Gender discrimination

Women of Badi origin, an ethnic minority subjected to social and economic exclusion in Nepal, are often forced into prostitution and become single mothers. The petition sought to rectify the common practice of denying citizenship and other rights to Badi children when the father cannot be found. The Court ruled that it was unconstitutional to deny citizenship on such claims and, furthermore, amended a law that gave men precedence over women in birth and death registrations. Finally, in light of the range of abuses suffered by the Badi, the Court ordered a study on problems faced by the Badi community directed that all recommendations produced be implemented. This case is remarkable not only in recognizing the impacts of ethnic and gender discrimination but also in going beyond the petitioners request to proactively address the wider range of related rights abuses.



Pun Devi Maharjan v GoN, Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2008)

Gender discrimination

A petition claimed that the traditional practice of electing young girls as Kumaris, or “goddesses”, who are expected to follow certain social restrictions and appear at religious festivals violated the rights of the child. After ordering a study the Court found that this practice did not prevent the Kumari from getting an education or qualify as child labor. Rather, the Court found Kumaris to be an important cultural and religious institution and ordered compensation for former Kumaris who had not been socially reintegrated and ordered a study to find recommendations for preserving the rights, interests, and social security of current and ex-Kumaris. This case shows an astute consideration of the balance between cultural preservation and child’s rights in a country with deep cultural and religious traditions. Additionally, it sets the important precedent of considering the practical well-being and rights of the child before implementing human rights reforms.



Hadijatou Mani Koraou v. Republic of Niger ECOWAS Community Court of Justice (2008)

Forced and early marriage, Gender discrimination, Gender-based violence in general, Harmful traditional practices, Sexual violence and rape, Trafficking in persons

Hadijatou Mani, who was born to a mother in slavery, was sold to a local chief at age 12. For the next nine years she was subjected to rape, violence, and forced labor without remuneration. When Niger’s Supreme Court failed to convict her master under Article 270.1-5 of the Nigerien Criminal Code, which made slavery illegal in 2003, Hadijatou brought her case before the ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol A/SP.1/01/05. The court ruled that Hadijatou had been a slave under the definition in Article 1 (I) of the Slavery Convention of 1926 and that in failing to convict Hadijatou’s former master, Niger had not upheld its legal responsibility to protect her from slavery under international law. This case was the first ECOWAS ruling on slavery and only the second conviction made under Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for women to fight back against the traditional slavery practices common to Niger and other ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the prohibition of slavery in Niger.



Meera Dhungana v Office of Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2007)

Gender discrimination, Property and inheritance rights

The petitioner filed to amend a provision in pension payments by the Nepalese Army that withheld payments from married daughters. The Court ruled to invalidate this measure based on the grounds that pension payments to children were stopped at 18 years, before the legal age of marriage, making it obsolete. However, the Court also acknowledged that this provision was contrary to Article 11 of the Constitution of the Kingdom of Nepal which guarantees equal rights to all, in particular highlighting that equality is meant in practical terms sometimes necessitating positive discrimination. By interpreting Article 11 of the Constitution to include positive discrimination, this case opens the door to proactive human rights defense measures.



Maria Merciadri de Morini v. Argentina Inter-American Commission on Human Rights (2001)

Gender discrimination

Maria Merciadri de Morini v. Argentina, Argentina, Inter-American Commission on Human Rights, 2001. Gender Discrimination, Political Rights, Equal Protection, Due Process. Ms. Maria Merciadri de Morini’s political party produced an election ballot that violated Argentine law. The law required election ballots to include 30% of women candidates. Ms. Merciadri de Morini’s political party only placed one woman out of five candidates where, by law, there should have been at least two women on the ballot. Ms. Merciadri de Morini brought suit against the political party for the violation of the voting law. Ms. Merciadri de Morini attempted to exhaust domestic remedies but the Argentine domestic courts violated her rights to due process and equal protection by continuously rejecting her claim. Ms. Merciadri de Morini petitioned her case to IACHR. Argentina ultimately responded to the allegation and dictated to the IACHR that the two parties had come to a friendly settlement. Argentina changed the way it regulated the voting law and recognized the violations against all women including Ms. Merciadri de Morini. The Inter-American Commission on Human Rights approved the friendly settlement between Ms. Merciadri de Morini and Argentina.

 

La señora María Merciadri, cuyo caso, "Morini contra Argentina," fue visto ante la Comisión Interamericana de Derechos Humanos en el 2001. Se analizó la discriminación de género, derechos políticos, igualdad de protección, y debido proceso. El partido político de la Sra. Maria Merciadri de Morini produjo una boleta electoral que violaba la ley argentina. La ley exigía que las boletas electorales incluyeran el 30% de las candidatas. El partido político de la Sra. Merciadri de Morini solo colocó a una mujer de cada cinco candidatas donde, por ley, debería haber al menos dos mujeres en la boleta electoral. La Sra. Merciadri de Morini presentó una demanda contra el partido político por la violación de la ley de votación. La Sra. Merciadri de Morini intentó agotar los recursos internos, pero los tribunales nacionales argentinos violaron sus derechos al debido proceso y la igual protección al rechazar continuamente su reclamo. La Sra. Merciadri de Morini solicitó su caso a la CIDH. Argentina finalmente respondió a la acusación y dictó a la CIDH que las dos partes habían llegado a un acuerdo amistoso. Argentina cambió la forma en que regulaba la ley de votación y reconoció las violaciones contra todas las mujeres, incluída la Sra. Merciadri de Morini. La Comisión Interamericana de Derechos Humanos aprobó el acuerdo amistoso entre la Sra. Merciadri de Morini y Argentina.



Sapana Pradhan Malla v Office of Prime Minister and Council of Minister and Others Supreme Court of Nepal (2007)

Gender discrimination

The Forum for Women, Law and Development in Nepal brought a petition to the Supreme Court filing for an exhaustive law ensuring privacy for vulnerable groups; particularly women, children, and persons living with HIV/AIDS. The Court ruled that enforcing the right to privacy for these and other sensitive parties in legal proceedings is inextricable from other Constitutional rights, including life and dignity, and vital to ensuring justice. Therefore, the Court ordered a directive for a law to be passed ensuring the right to privacy and set forth detailed guidelines for maintaining privacy to be followed in the interim. This ruling guarantees a crucial right to victims of gender violence and other abuses, opening a window for them to seek justice without fearing further injury from social stigma, discrimination, or retaliation. Furthermore, the ruling acknowledges that certain Constitutional rights much be positively enforced through legal codes.



Ana, Beatriz, and Celia González Pérez v. Mexico Inter-American Commission on Human Rights (1999)

Sexual violence and rape

Sexual Violence and Rape, Torture, Indigenous Populations, Failure of State Responsibility. The Mexican military illegally detained, raped, and tortured the Tzeltal native sisters Ana, Beatriz, and Celia González Pérez. The Mexican State argued that the Inter-American Commission on Human Rights (IACHR) did not have competence to review the petition because the sisters did not exhaust their domestic remedies. According to the IACHR, the sisters effectively sought relief from the Office of the Federal Public Prosecutor, which refused competence to review the sisters’ case in favor of its military counterpart. The IACHR determined the case admissible in respect of the alleged violations of rights protected in the American Convention on Human Rights: Articles 5 (right to humane treatment); 7 (right to personal liberty); 8 (right to a fair trial); 11 (right to privacy); 19 (rights of the child); and 25 (right to judicial protection).

 

Violencia y violación sexual, tortura, poblaciones indígenas, falta de responsabilidad del Estado. El ejército mexicano detuvo ilegalmente, violó y torturó a las hermanas nativas de Tzeltal, Ana, Beatriz y Celia González Pérez. El Estado mexicano sostuvo que la Comisión Interamericana de Derechos Humanos (CIDH) no tenía el poder para revisar la petición porque las hermanas no agotaron sus recursos internos. Según la CIDH, las hermanas buscaron efectivamente un alivio en la Oficina del Fiscal Federal, que se negó a revisar el caso de las hermanas a favor de su homólogo militar. La CIDH determinó el caso admisible en relación con las presuntas violaciones de los derechos protegidos en la Convención Americana sobre Derechos Humanos: artículos 5 (derecho a un trato humano); 7 (derecho a la libertad personal); 8 (derecho a un juicio justo); 11 (derecho a la privacidad); 19 (derechos del niño); y 25 (derecho a la protección judicial).



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

Custodial violence

The African Commission on Human and Peoples’ Rights found that three men convicted in the 2004 and 2005 bombings on Egyptian resort towns were tortured and denied a fair trial before being sentenced to death by Egypt’s Supreme Emergency State Security Courts, violating the African Charter on Human and Peoples’ Rights. The Commission ruled that Egypt should repeal the death sentences, immediately release the men, and provide them compensation. Additionally, the Commission found that Egypt’s state security courts were not independent and were unable to meet international fair trial standards. This ruling establishes a requirement for African states to prevent torture. It also makes clear that judicial proceedings must take place in a fair, independent court in order to uphold human rights, and that the African Commission on Human and Peoples’ right will actively enforce these standards.



Zoilamérica Narváez Murillo v. Nicaragua Inter-American Commission on Human Rights (2001)

Sexual harassment, Sexual violence and rape

Ms. Zoilamérica Narváez Murillo suffered physical (sexual abuse, rape, and sexual harassment) and psychological violence by her adoptive father, Mr. Daniel Ortega Saavedra. Mr. Ortega was a deputy in Nicaragua’s National Assembly and protected by congressional immunity from charges against him. Ms. Murillo argued to the Inter-American Commission on Human Rights (IACHR) that the Nicaraguan state denied her from enjoying access to justice for the restitution of her violated rights. The IACHR decided on whether Ms. Murillo adequately exhausted domestic remedies, which would then allow the IACHR to competently review her petition. Ms. Murillo claimed to have exhausted domestic remedies by filing suit against Mr. Daniel Ortega with the First District Criminal Court in Managua while at the same time requesting the National Assembly to suspend Mr. Ortega’s congressional immunity. The Nicaraguan State argued that Ms. Murillo did not fully exhaust domestic remedies because the National Assembly created a Special Commission to determine Mr. Ortega’s immunity and because Ms. Murillo did not file for amparo relief against the National Assembly Steering Committee’s resolutions. The IACHR held that waiting over three years for the National Assembly to reply to Ms. Murillo’s request for suspension of Mr. Ortega’s immunity was not an appropriate judicial remedy. Although all domestic remedies were not exhausted, Ms. Murillo did adequately seek available domestic judicial redress; therefore, full exhaustion of domestic remedies was not needed to determine the competency of the IACHR. Further, the IACHR held that Ms. Murillo’s petition met the admissibility requirements and that the IACHR was competent to review this case.

 

La Sra. Zoilamérica Narváez Murillo sufrió violencia física (abuso sexual, violación y acoso sexual) y violencia psicológica por parte de su padre adoptivo, el Sr. Daniel Ortega Saavedra. El Sr. Ortega era diputado en la Asamblea Nacional de Nicaragua y estaba protegido por la inmunidad del Congreso de los cargos en su contra. La Sra. Murillo argumentó ante la Comisión Interamericana de Derechos Humanos (CIDH) que el estado nicaragüense le negó el acceso a la justicia para la restitución de sus derechos violados. La CIDH analizó si la Sra. Murillo habia agotado adecuadamente los recursos internos, lo que permitiría a la CIDH revisar de manera competente su petición. La Sra. Murillo afirmó haber agotado los recursos internos al presentar una demanda contra el Sr. Daniel Ortega ante el Tribunal Penal del Primer Distrito en Managua, mientras que al mismo tiempo le pedía a la Asamblea Nacional que suspendiera la inmunidad de él. El Estado nicaragüense argumentó que la Sra. Murillo no agotó completamente los recursos internos porque la Asamblea Nacional creó una Comisión Especial para determinar la inmunidad del Sr. Ortega y porque la Sra. Murillo no presentó una demanda de amparo contra las resoluciones del Comité Directivo de la Asamblea Nacional. La CIDH sostuvo que esperar tres años antes de que la Asamblea Nacional respondiera a la solicitud de suspensión de la inmunidad de Ortega por parte de la Sra. Murillo no era un recurso judicial apropiado. Aunque no se agotaron todos los recursos internos, la Sra. Murillo buscó adecuadamente la reparación judicial interna disponible; por lo tanto, el agotamiento total de los recursos internos no fue necesario para evaluar la competencia de la CIDH. Además, la CIDH sostuvo que la petición de la Sra. Murillo cumplía con los requisitos de admisibilidad y que la CIDH era competente para revisar este caso.



State v. Secretary, Ministry of Law, Justice & Parliamentary Affairs and Others High Court of Bangladesh (1990)

Sexual violence and rape, Statutory rape or defilement

A 7-year-old Bangladeshi girl who had been raped by a neighbor was taken by her parents to receive medical treatment and submit a statement to authorities. Thereafter a judge misinterpreted a law regarding the committal of victimized children and sent the young girl to a government-run safe home, preventing her from being returned to her parents’ custody. The High Court found that the judge had acted illegally and this case was taken as an example of the urgent need for Bangladesh to update is legal code in compliance with the United Nations Convention on the Rights of the Child (CRC), signed by Bangladesh in 1990. The High Court made great strides towards defending the rights of the child with recommendations including child-specific courts in each district, mandatory knowledge of relevant law codes for justice officials who deal with children, and new laws aligned with the CRC.



Carole Louise Webb v. EMO Air Cargo (UK) Ltd., United Kingdom European Court of Justice (1994)

Gender discrimination

Carole Louise Webb v. EMO Air Cargo (UK) Ltd., United Kingdom, European Court of Justice, 1994. Gender discrimination, employment discrimination. Mrs. Webb learned that she was pregnant two weeks after starting with EMO Air Cargo, where she was hired to cover for another employee, Mrs. Stewart, during her maternity leave. Mrs. Webb expected to stay with EMO Air Cargo after covering for Mrs. Stewart, but was dismissed from the company after notifying EMO of her pregnancy. A letter from EMO clearly stated pregnancy as the reason for her dismissal. An industrial tribunal and the Court of Appeal dismissed Mrs. Webb’s claims of direct and indirect discrimination on the grounds of sex. An appeal to the House of Lords was referred to the European Court of Justice, and the European Court of Justice determined that Mrs. Webb’s dismissal was contrary to Article 2(1) and Article 5(1) of the Equal Treatment Directive. The ECJ also noted that Article 2(3) of the Equal Treatment Directive recognizes the importance of protecting women during pregnancy and after the birth of children, by allowing individual Member States to introduce protective legal provisions. Lastly, the ECJ acknowledged that the dismissal of pregnant women during pregnancy and maternity leave is prohibited, noting that exceptions to this prohibition are available only in exceptional cases in which the dismissal is unrelated to the pregnancy.



M v. The State, Supreme Court of Appeal of South Africa Supreme Court of Appeal of South Africa (2013)

Sexual violence and rape

A man in South Africa was convicted of raping his adopted daughter over the course of a sexually abusive relationship that lasted several years and was sentenced to 15 years in prison. The judge overruled claims that the victim had given consent, holding that the victim’s lack of resistance did not qualify as active consent. Furthermore, the judge held that that the perpetrator had knowingly employed sexual grooming techniques to leverage the victim into sexual acts. In refuting the perpetrator’s claims that he believed the victim to be consenting, the judge in this case took an important step in defending victim’s rights and acknowledging the complicated power dynamics that often underlie sexual crimes. This case opens the path for victims of similarly complex patterns of sexual abuse to come forward and claim their rights, providing vital recourse for the many victims of sexual crimes in South Africa.



Bracebridge Engineering Ltd. v. Darby Employment Appeal Tribunal (1990)

Sexual harassment

Sexual harassment. Two of Mrs. Darby’s male supervisors, Mr. Daly and Mr. Smith, grabbed and sexually assaulted Mrs. Darby in the works manager’s office at Bracebridge. Mr. Smith threatened Mrs. Darby with a written warning when she attempted to get away from him, but she was eventually able to run away from the men. Mrs. Darby reported the incident, but the general manager did not take action against the men and Mrs. Darby subsequently resigned. An Industrial Tribunal upheld Mrs. Darby’s complaints of sex discrimination and unfair dismissal, awarding £3,900 to Mrs. Darby. Bracebridge appealed to the Employment Appeal Tribunal, and the Employment Appeal Tribunal dismissed Bracebridge’s appeal. The EAT found no error in the Industrial Tribunal’s finding of sex discrimination by Bracebridge, noting that the single incident of sexual harassment was sufficiently detrimental to Mrs. Darby and therefore no pattern of harassment was necessary to reach this finding. The EAT also noted that the incident took place in the workplace and was perpetrated by Mrs. Darby’s supervisors, further supporting a finding of sex discrimination under s.6(2)(b) of the Sex Discrimination Act. The EAT also found no error in the Industrial Tribunal’s finding of constructive dismissal (unfair dismissal) by Bracebridge, because the company failed to respond appropriately when Mrs. Darby reported the incident and Mrs. Darby left her position at the company as a result of Bracebridge’s failure to act.



Zoilamérica Narváez Murillo v. Nicaragua Inter-American Commission on Human Rights (2009)

Sexual harassment, Sexual violence and rape

Ms. Zoilamérica Narváez Murillo suffered physical (sexual abuse, rape, and sexual harassment) and psychological violence by her adoptive father, Mr. Daniel Ortega Saavedra. Mr. Ortega was a deputy in Nicaragua’s National Assembly and protected by congressional immunity from charges against him. The Inter-American Commission on Human Rights (IACHR) held in 2001 that it had competence to review Ms. Murillo’s petition. The IACHR withheld on deciding the case on the merits in hopes that the parties would amicably come to a settlement. On June 9, 2009, Ms. Murillo sent a communication to the IACHR, which expressed her willingness to withdraw the lawsuit against the state of Nicaragua. Ms. Murillo requested that the IACHR keep the reasons of her amicable withdraw confidential.

La Sra. Zoilamérica Narváez Murillo sufrió violencia física (abuso sexual, violación y acoso sexual) y violencia psicológica por parte de su padre adoptivo, el Sr. Daniel Ortega Saavedra. El Sr. Ortega era diputado en la Asamblea Nacional de Nicaragua y estaba protegido por la inmunidad del Congreso de los cargos en su contra. La Comisión Interamericana de Derechos Humanos (CIDH) sostuvo en 2001 que tenía competencia para revisar la petición de la Sra. Murillo. La CIDH se negó a decidir el caso en cuanto al fondo con la esperanza de que las partes llegaran a un acuerdo amistoso. En efecto, el 9 de junio de 2009, la Sra. Murillo envió una comunicación a la CIDH, que expresaba su disposición a retirar la demanda contra el estado de Nicaragua. La Sra. Murillo solicitó a la CIDH que mantuviera la confidencialidad de los motivos de su retiro amistoso.



Sapana Pradhan Malla and Others v, Office of Prime Minister and Others Supreme Court of Nepal (2006)

Gender discrimination

The Women, Law and Development Forum of Nepal won a petition calling for the Supreme Court to order revision of a law setting the legal age for marriage at 18 years for women and 22 years for men. The Court held that this law promoted gender inequality in contradiction of Article 11 of the Constitution and acknowledged that it can cause significant harm in a country where female literacy rates are low and there are high levels of gender discrimination. The Court also ordered for better enforcement of these laws in light of the continued prevalence of child marriage. Here the Supreme Court of Nepal has once again heeded a petition from a civilian organization and privileged gender equality in reformulating laws, showing a willingness to uphold women’s rights, promote social change, and respond to activism from groups such as the Women, Law, and Development Forum.


Atala Riffo and Daughters v. Chile Inter-American Court of Human Rights (2010)

Gender discrimination

Karen Atala Riffo, a judge in Chile, and her husband separated in 2002 and agreed that she would retain custody of their three daughters. After a few years, Ms. Atala began to live with her female partner. In response, her husband filed for custody claiming that the mother’s homosexuality was detrimental to the children. The lower court confirmed the grant of custody to the mother, finding that there was no evidence that homosexuality was pathological conduct that would make Ms. Atala unfit as a mother. On appeal, however, the Supreme Court of Chile granted custody to the father, on the basis that the mother’s sexuality would cause irreversible harm to the children’s development. Ms. Atala took the case to the Inter-American Court of Human Rights (“IACHR”), marking the first time that the IACHR heard a case related to LGBT rights. The IACHR held that sexual orientation is a suspect class and that the Chilean courts had discriminated against Atala in the custody case in violation of the American Convention’s right to equality and non-discrimination. In 2012, the court ordered Chile to pay Atala USD $50,000 in damages and $12,000 in court costs. The Chilean government agreed to abide by the IACHR’s ruling.



Jit Kumari Pangeni (Neupane) and Others v. Prime Ministers and Council of Ministers and Others Supreme Court of Nepal (2008)

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

A woman who had been a repeated victim of marital rape petitioned the Supreme Court of Nepal to make sentencing for marital rape on par with sentencing for other types of rape. The Court found that punishing marital rape differently from other forms of rape violated equal rights provisions in the Interim Constitution and international law, especially considering that prior sentencing guidelines of three to six months put the victim in danger of repeated violence and rape. Although the Court did not have the power to change sentencing terms on existing offences, it directed the legislative authorities to change sentencing terms for marital rape, showing recognition of the gravity of rape as a violation of rights and dignity while also exhibiting a proactive will to reform legal codes in the name of equality.



Chile v. Javier Sebastián Parra Godoy Angol Criminal Court (2013)

Gender violence in conflict

While the victim was sleeping, her partner Sebastian Javier Parra Godoy attacked her by striking her in the head. She suffered near-fatal head injuries as a result of the blow. On February 5, 2013, the criminal court in the province of Angol found Mr. Godoy guilty of the crime of attempted intimate femicide. In their ruling, the judges explicitly referenced the fact that the case presented a case of gender-based violence. It concluded that that Parra Godoy had acted as a result of traditional views considering women as subordinate perpetuating stereotypes of violence and coercion. The court stated that in such cases, international standards of human rights such as the Inter-American Convention to Prevent, Punish and Eradication of Violence Against Women and the general recommendations of the Committee on the Elimination of Discrimination Against Women (CEDAW) should apply. The prosecutor Raul Espinoza explained that the main challenge of the case was the absence of direct evidence because the only potential witnesses were the victim, who was sleeping at the time of the attack and who suffered neurological damage which affected her memory, and the victim’s autistic son, who was mentally handicapped. To bring the case, he relied instead on strong circumstantial evidence.



Somprasad Paneru and Others v. Office of the Prime Minister and Council of Ministers and Others Supreme Court of Nepal (2006)

Trafficking in persons

Citing reports that a traditional custom called Kamlari sends over 10,000 children between the ages of 7 and 8 into servitude for wealthy households or small businesses, a petition called for new controls on this practice which is against both Nepalese constitutional law and the Convention on Rights of the Child, 1989 (CRC). The Court ordered the Government of Nepal to frame laws to abolish Kamlari and ensure protection of affected children. In addition, the Court called on the government to develop comprehensive legislation addressing the underlying issues that perpetuate such harmful practices, such as education and employment, especially amongst girls and women. By rooting out the base causes for harmful traditional practices, the Supreme Court of Nepal showed a crucial willingness to identify and address the societal problems driving harmful practices, providing hope for real change in women’s and human rights.



Hajduová v. Slovakia European Court of Human Rights (2010)

Domestic and intimate partner violence

Mrs. Hajduová was verbally and physically assaulted by her (now former) husband, who repeatedly threatened to kill her and her children. Mrs. Hajduová’s husband was convicted, and the district court ordered psychiatric treatment but no incarceration. The psychiatric hospital did not carry out the treatment, and Ms. Hajduová’s husband was released as the district court failed to order the hospital to retain him for psychiatric treatment. After his release, he verbally threatened Mrs. Hajduová and her lawyer. As a result, they filed criminal complaints against him, and the district court, in accordance to its earlier decision, arranged for psychiatric treatment and transported Mrs. Hajduová’s husband to a different hospital. Mrs. Hajduová filed a complaint with the Constitutional Court; she cited the violation of her right to liberty and security the right to a fair trial, the right to integrity and privacy and the right to the protection of private and personal life and claimed that the district court failed to ensure her husband’s placement in a psychiatric hospital immediately after his conviction. The Constitutional Court rejected her complaint on the grounds that she should have pursued an action for the protection of her personal integrity before ordinary courts. Mrs. Hajduová then filed a claim with the European Court of Human Rights (the “European Court”) alleging the failure of the Slovak Republic to fulfill its positive obligations to protect her from her husband, in violation of the right to private and family life (Article 8 of the Convention). Under Article 8, the State has positive obligations to implement effective measures to ensure respect for private and family life, and the duty to protect the physical and moral integrity of an individual from attack by other persons. The European Court further held that Mrs. Hajduová’s husband’s history of physical abuse and menacing behavior was sufficient to establish a well-founded belief that his threats would be carried out. It was the domestic authorities’ failure to ensure that Mrs. Hajduová’s husband was duly detained for psychiatric treatment which enabled him to continue his threats against her and her lawyer. The lack of sufficient measures taken by the domestic authorities, in particular the district court’s failure to comply with its statutory duties to ensure psychiatric treatment, amounted to a breach of the State’s positive obligation under Article 8 of the Convention to secure respect for the Mrs. Hajduová’s private life. The European Court awarded the claimant EUR 4,000 in damages.



Goekce v. Austria CEDAW Committee (2007)

Domestic and intimate partner violence

Sahide Goekce’s husband shot and killed her in front of their two daughters in 2002. Before her death, Ms. Goekce had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The Vienna Public Prosecutor denied police requests to detain Mr. Goekce, and stopped the prosecution against him on the basis of insufficient grounds of prosecution two days before Ms. Goekce’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in Ms. Goekce’s death. The complaint to the Committee on behalf of the decedent stated that Austria’s Federal Act for the Protection against Violence within the Family provides ineffective protection for victims of repeated, severe spousal abuse and that women are disproportionately affected by the State’s failure to prosecute and take seriously reports of domestic violence. The Committee found that although Austria has established a comprehensive model to address domestic violence, it is necessary for State actors to investigate reports of this crime with due diligence to effectively provide redress and protection. The Committee concluded that the police knew or should have know that Ms. Goekce was in serious danger, and were therefore accountable for failing to exercise due diligence in protecting her. By allowing the perpetrator’s rights to supersede Ms. Goekce’s human rights to life and to physical and mental integrity, Austrian law enforcement violated it obligations under article 2 to end gender discrimination through the modification or enactment of appropriate legislation, and its article 3 obligation to guarantee women’s exercise and enjoyment of human rights and fundamental freedom on a basis of equality with men. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for failure to do so.



Kontrová v. Slovakia European Court of Human Rights (2007)

Domestic and intimate partner violence

Mrs. Kontrová, (the claimant) a married women with two children, filed a criminal complaint against her husband, accusing him of assaulting and beating her with an electric cord. In her complaint, she mentioned the long history of physical and psychological abuse by her husband and submitted a medical report indicating that her latest injuries would prevent her from working for at least seven days. This statement was later modified upon the advice of a police officer, so that it could have been treated as a minor offence and the police decided to take no further action. One month later, the Police Department received two night emergency calls reporting that Mrs. Kontrová’s husband had a shotgun and was threatening to kill himself and the children. Despite the fact that the following morning Mrs. Kontrová went to the police station and inquired about her criminal complaint from the previous month as well as the incident of the previous night, the police took no further action and no new criminal complaint was filed. Four days later, Mrs. Kontrová’s husband shot and killed their two children and himself. Criminal proceedings initiated against the police officers involved in the case on the grounds of dereliction of duty produced no tangible results, and Mrs. Kontrová’s complaints lodged in the Constitutional Court were dismissed twice on the grounds that they were inadmissible. Mrs. Kontrová filed a claim with the European Court of Human Rights alleging a breach of the protection of her rights to life, privacy, a fair trial and right for an effective remedy. The local police department knew all about Mrs. Kontrová and her family, which triggered various specific obligations, such as registering the complaint, launching a criminal investigation and commencing criminal proceedings against Mrs. Kontrová’s husband, which the police failed to do. The direct consequence of this was the death of Mrs. Kontrová’s children and husband. The European Court further held that the Slovak Republic failed to fulfill its obligation to achieve an ‘effective’ remedy and Mrs. Kontrová’s compensation. The only action available to Mrs. Kontrová related to the protection of her personal integrity and this provided her with no such remedy. This amounted to a breach of right to an effective remedy , in connection with a breach right to life. The European Court held that an examination of the other Articles was not necessary and awarded her EUR 25,000 in damages.



Yildirim v. Austria CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

Fatma Yildirim sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to Yildirim’s numerous reports of assault and dangerous criminal threats, the Austrian police issued an expulsion and prohibition-to-return order against her husband. The police also recommended that her husband be detained, but the Vienna Public Prosecutor twice denied the request. Yildirim appealed to the Vienna Intervention Center after her husband repeatedly came to her workplace to harass and threaten her; the Center asked the police to pay more attention to Yildirim’s case. When Yildirim finally filed a petition for divorce at the Vienna District Court of Hernals, her husband followed her home from work and fatally stabbed her. The complaint stated that the State’s action violated article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) because the Austrian criminal justice system negatively impacts women through the public prosecutors’ failure to treat cases of domestic violence seriously. The complaint also cited the failure of judicial officials and law enforcement to collect data and maintain statistics on domestic violence instances denied Yildirim the enjoyment of her human rights in violation of article 2 and 3 of CEDAW on eliminating laws, regulations, and customs that adversely effect women . Finally, the complaint stated a violation of article 5 of the Convention on eliminating social and cultural attitudes towards women in the State’s continual treatment of domestic violence as a social or domestic problem rather than a serious crime. The Committee held that the Austrian police force’s failure to detain Yildirim’s husband was in breach of the State’s due diligence obligation to protect Yildirim, noting that a perpetrator’s rights cannot superseded women’s human rights to life and to physical and mental integrity. The Committee also took note of the correlation between lenient attitudes towards women’s cultural subordination and domestic violence. Although Austria prosecuted Yildirim’s husband to the fullest extent for her death, the Committee found violations of articles 2, 3, and 5 and recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Prevention against Violence within the Family, and ensure enhanced coordination between police and judicial officers to protect women victims of gender-based violence.



V.K. v. Bulgaria CEDAW Committee (2011)

Divorce and dissolution of marriage, Domestic and intimate partner violence, Gender discrimination

Ms. V.K., a Bulgarian citizen residing in Poland, sought to obtain a divorce from her husband after years of physical, emotional and economic abuse. Following a series of incidents in which her husband physically abused and intimidated both mother and children, Ms. V.K. took her children and left Poland for Bulgaria in order to hide from her husband and to seek protection and support from her family and the State. Once in Bulgaria, Ms. V.K. filed an application pursuant to the State’s Law on Protection against Domestic Violence, asking for an immediate protection order against her husband, invoking the Convention (CEDAW) and other human rights treaties. The District Court issued the order for immediate protection, but rejected Ms. V.K.’s application for a permanent protection order. On appeal, the Regional Court upheld the decision of the District Court. After exhausting all available domestic remedies, Ms. V.K. lodged a complaint with the CEDAW Committee alleging that the State had failed to provide her with effective protection against domestic violence, in violation of the Convention. She further claimed that the absence of a special law regarding the equality of women and men in the State, and the lack of recognition of violence against women as a form of discrimination, interfered with her human rights. Upon consideration, the Committee found that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband, along with the unavailability of shelters for battered women, violated the State’s obligation to effectively protect her against domestic violence. The Committee further concluded that the refusal of the State’s courts to issue a permanent protection order against Ms. V.K.’s husband was based on discriminatory notions of what constitutes domestic violence.



Abramova v. Belarus CEDAW Committee (2011)

Gender discrimination, Sexual harassment

Ms. Abramova, a citizen of Belarus, is a journalist who was arrested for her activism on behalf of the “For Freedom” movement and convicted of “minor hooliganism.” She was held in a temporary detention facility for five days, where she shared a small, unheated cell with an unenclosed toilet area that lay in open view of the all-male staff. During her detention, the male prison staff directed numerous humiliating comments at Ms. Abramova, treatment that the male detainees at the facility did not receive. Upon her release, Ms. Abramova submitted a complaint of violation of her rights in detention to authorities at the Interior Department, who informed her that her allegations had not been verified. Ms. Abramova then filed a complaint with the Prosecutor’s Office, again with a response that her claims had not been confirmed. Next, Ms. Abramova filed an application to the District Court under civil procedure, but the court claimed that it lacked jurisdiction and rejected her application. She appealed, and the Judicial Board rejected her appeal. Ms. Abramova proceeded to file a complaint to the District Court under administrative procedure, which again refused to initial civil proceedings. On appeal, the Judicial Board reversed the decision of the District Court and remanded the case for new consideration; on remand, the District Court dismissed Ms. Abramova’s complaint on procedural grounds. She submitted a complaint to the CEDAW Committee alleging that the conditions under which the State detained her constituted inhuman and degrading treatment, and that such treatment amounted to discrimination against her on the basis of gender. The Committee found that Ms. Abramova’s temporary detention in poor, unhygienic conditions, in a facility staffed exclusively by men, amounted to inhuman and degrading treatment and discrimination on the basis of her gender. Further, the Committee found that the State was in violation of its obligations under the Convention (CEDAW).



Teixeira v. Brazil CEDAW Committee (2011)

Gender discrimination

Alyne da Silva Pimentel Teixeira, a Brazilian national of African origin, suffered a high-risk pregnancy and was repeatedly denied timely care at public health facility, before dying of a digestive hemorrhage following delivery of her stillborn fetus. The husband of the deceased then filed a civil claim for material and moral damages, and twice requested the judicial mechanism of tutela antecipada, which requests the judge to anticipate the protective effects of a decision. The first request was ignored and the second denied. The mother of the deceased then submitted a complaint to CEDAW Committee, alleging that the State violated her daughter’s right to life and health under the Convention (CEDAW). The State contended that the evidence offered no link between the deceased’s gender and the possible errors committed, and that such errors therefore did not fall within the definition of discrimination set out in the Convention. Upon consideration, the Committee found that the death of the deceased must be regarded as maternal, that the deceased was denied appropriate services in connection with her pregnancy, that the State failed to fulfill its obligations under the Convention pursuant to the right to health, and that the State’s lack of appropriate maternal health services has a differential impact on the right to life of women. The Committee directed the State to take the following steps: compensate the deceased’s family, ensure women’s right to safe motherhood and affordable access to adequate emergency obstetric care, provide adequate professional training for health workers, ensure that private health care facilities comply with national and international standards on reproductive health care, and ensure that sanctions are imposed on health professionals who violate women’s reproductive health rights.



Diene Kaba v. Canada Human Rights Committee (2008)

Domestic and intimate partner violence, Female infanticide and feticide, Forced and early marriage, Harmful traditional practices

Diene Kaba was severely beaten by her husband when she intervened to prevent the clitoral excision of her six-year-old daughter. Both mother and daughter fled Guinea and arrived in Canada where Kaba claimed refugee status for herself and her daughter on the grounds of membership of a particular social group as single women and victims of domestic violence, and in view of the serious risk of her daughter’s excision. The Immigration and Refugee Board (IRB) refused to grant refugee status for lack of credibility. Kaba then applied for an exemption to the permanent resident visa requirement on the basis of humanitarian and compassionate considerations, as well as a pre-removal risk assessment. The IRB rejected both applications and ordered her removal from Canada. Kaba included supporting documents in each application, including reports confirming the risk of excision in Guinea and a letter from her uncle in Guinea that attested to her husband’s threats to harm Kaba if he ever saw her again, or kill her if she did not return his daughter to him. Kaba’s husband had subsequently obtained a court order forcing Kaba’s brother and mother to do everything possible on pain of severe penalties to return his daughter to him in Guinea. The affidavits for the order show that Kaba’s daughter faced certain excision and forced marriage upon her return to Guinea. In her complaint to the Committee, Kaba cited violations of several articles of the International Covenant on Civil and Political Rights, including article 7 prohibiting torture and cruel, inhuman, and degrading treatment or punishment. The Committee held that there was no question that subjecting a woman to genital mutilation amounted to treatment prohibited under article 7 of the Covenant, and although Kaba’s daughter was fifteen at the time the Committee addressed the communication, the context and particular circumstances of her case demonstrated a real risk of genital mutilation upon her forced return to Guinea.



Karen Noelia Llantov Huaman v. Peru Human Rights Committee (2005)

Gender discrimination

Karen Noelia Llantoy Huamán, a 17-year-old Peruvian, decided to terminate her pregnancy when she discovered that carrying her anencephalic fetus to term would pose serious risks to her health. When she arrived at Archbishop Loayza National Hospital in Lima to obtain the abortion procedure, the hospital director refused to allow the procedure because article 119 of the Criminal Code permitted therapeutic abortions solely when termination was the only way of saving the mother’s life or avoiding serious and permanent damage to her health. Huamán gave birth to an anencephalic daughter who died four days later, causing Huamán to fall into a deep depression. In her complaint to the Committee, Huamán asserted that by forcing her to continue her pregnancy, the hospital caused her not only physical pain but mental suffering in violation of article 7 of the Covenant on Civil and Political Rights prohibiting cruel and inhuman treatment. Huamán also cited a violation of article 17, which protects women from interference in decisions that affect their bodies, lives, and opportunity to exercise their reproductive rights. Finally, she claimed that Peru’s failure to adopt economic, social, and cultural measures to safeguard her rights under article 17 was tantamount to a violation of article 24 of the Covenant. The Committee concluded that the State’s refusal to allow Huamán to obtain a therapeutic abortion was the direct cause of the suffering she experienced, and that the protection from physical pain and mental suffering under article 7 is particularly important in the case of minors. The Committee noted that Huamán’s case presented the conditions for a lawful abortion, and the refusal to act in accordance with her wishes to terminate the pregnancy equated to a violation of article 17. Finally, in the absence of any information from Peru on Huamán’s claim that she did not receive the medical and psychological support necessary during her pregnancy, the Committee found that the facts presented reveal a violation of article 24 which guarantees State protection to minors.



Saadia Ali v. Tunisia CAT Committee (2008)

Gender-based violence in general

Saadia Ali, a dual French/Tunisian citizen, was attempting to obtain an official document from the court of first instance in Tunis when she was taken into custody, stripped of her clothing, and beaten by a prison guard in front of fifty male prisoners for verbally criticizing a Tunisian public official. Upon regaining consciousness, Ali was given a summary trial without due process and a suspended sentence of three months imprisonment for attacking a public official. Ali’s lawyer initiated a complaint with the office of the State prosecutor, which rejected the complaint without further explanation. In her complaint to the Committee Against Torture, Ali alleged violations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT), and cited violations of internationally recognized standards on the administration of justice and articles 25 and 26 of Tunisia’s Code of Criminal Procedure. The Committee held that Tunisia’s actions towards Ali were tantamount to torture and violated articles 1, 12, 13, 14, and 16 of the Convention. The deliberate infliction of severe pain and suffering upon Ali by Tunisian public officials constituted torture under article 1 and cruel, unusual, or degrading treatment within the meaning of article 16. The Committee also held that the State’s dismissal of the complaint and delay in investigating Ali’s case established a violation of articles 12 and 13, under which a State has the obligation to promptly investigate allegations of torture. The State’s failure to act on the complaint and immediately launch an investigation equated to a breach of the State’s obligations under article 14 to provide redress to victims of torture in the form of restitution, compensation, and rehabilitation.



C.T. v. Sweden CAT Committee (2006)

Sexual violence and rape

C. T., a Hutu citizen of Rwanda and a member of the PDR-Ubuyanja party, was arrested for her political affiliations and incarcerated in a Kigali prison. While incarcerated, she was repeatedly raped, under the threat of execution if she did not comply, and become pregnant. C. T. escaped to Sweden and requested asylum for herself and her son; her request was denied by the Migration Board for lack of credibility. She filed a complaint with the Committee Against Torture, arguing that her forced return to Rwanda would subject her to further human rights violations and possibly result in her death. The Committee Against Torture held that C. T.’s removal to Rwanda would constitute a violation of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which obligates state parties not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Addressing the issue of C. T.’s credibility, the Committee invoked its prior holding that victims of torture cannot be held to a standard of complete accuracy when recalling the facts of their experience, and held that domestic authorities erred in ignoring medical reports appended to the complaint which substantiated C. T.’s claims of rape and torture. The Committee concluded that given the continued state of ethnic tension in Rwanda and C. T.’s past victimization, return to Rwanda presented a foreseeable, real, and personal risk of danger for C. T. and her son.



A.S. v. Hungary CEDAW Committee (2006)

Forced sterilization

Andrea Szijjarto was sterilized without her informed consent by a Hungarian hospital during an emergency cesarean section procedure. While in a state of shock due to blood loss, Szijjarto was asked to provide her written consent to tubal ligation by signing an illegible hand-written note describing the procedure in terms she did not understand. Szijjarto charged the hospital with negligence in failing to obtain her full and informed consent to the coerced sterilization. Both the town and county courts held that the hospital was at least partially negligent in its legal duties to Szijjarto, but rejected her claim and appeal for failure to prove a lasting handicap and causal relationship between permanent loss of reproductive capacity and the conduct of the hospital’s doctors. The Committee on the Elimination of Discrimination Against Women held that Hungary violated Szijjarto’s rights under article 10(h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on access to information on family planning, article 12 guaranteeing women appropriate medical services in connection with pregnancy, and paragraph 1(e) of article 16 on a woman’s right to freely choose the number and spacing of her children. The Committee recognized the serious consequences of coercive practices including forced sterilization under its General Recommendation No. 21, and held that the Hungary had violated Szijjarto’s right to information on family planning and the sterilization procedure. The Committee also held that lack of informed consent constituted a breach of the obligation under article 12 and General Recommendation No. 24 to ensure the delivery of acceptable medical services in a manner that respects a woman’s dignity. Accordingly, the Committee recommended the State provide compensation to Szijjarto and amend its Public Health Act allowing doctors’ discretion to administer sterilization procedures when “appropriate in given circumstances.”



A.S. v. Sweden CAT Committee (2000)

Domestic and intimate partner violence, Gender discrimination

A.S.’s husband was mysteriously killed during training with the Iranian Air Force, and the Iranian government subsequently declared him to be a martyr. As the widow of a martyr, A.S. was required to submit to the rigid rules of the Bonyad-e Shahid Islamic society, a foundation which supported and supervised the families of martyrs. In accordance with the aims of Bonyad-e Shahid, a high-ranking leader forced A.S. to be his wife in a sigheh marriage, a temporary marital arrangement that requires no registration or witnesses and is used as a measure to prevent women from being sexually active outside of marriage. A.S. was forced to live with her sigheh husband and perform sexual services for him at his command. A.S. later fell in love with a Christian man, and when the two were discovered together by the Iranian Revolutionary Guards, A.S. was taken into custody at the Ozghol police station in Tehran. A.S. was severely beaten by her sigheh husband for five to six hours. A.S. managed to obtain a visa to visit her sister in Sweden, and upon her arrival she applied for asylum; her application was rejected by both the Swedish Immigration Board and the Aliens Appeal Board. Since her departure from Iran, A.S. had been sentenced to death by stoning for adultery. In her complaint to the Committee, A.S. alleged that her forced return to Iran would constitute a violation of Sweden’s article 3 obligation not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The Committee referred to the report of the Special Representative of the Commission on Human Rights on the situation of human rights in Iran which confirmed that Iran had recently sentenced several married women to death by stoning for adultery. Considering that A.S.’s account of events was consistent with the Committee’s knowledge about present human rights violations in Iran, the Committee held that in accordance with article 3 of the Convention, Sweden should refrain from forcing A.S. to return to Iran.



Salgado v. United Kingdom CEDAW Committee (2007)

Gender discrimination

Constance Ragan Salgado, a British citizen, moved to Colombia with her husband, a Colombian, and gave birth to a son. Salgado attempted to obtain British nationality for her son, but the British Consul in Bogotá stated that British nationality passed only though the paternal line. Although the British Nationality Act of 1981 amended British law to confer equal rights to men and women, Salgado’s son did not qualify because he was over 18. The Legislation again changed in 2002 with the passage of the Nationality, Immigration and Asylum Act which allowed children born to British mothers between 1961 and 1983 to register as British nationals if they satisfied certain other conditions. Salgado’s complaint alleged sex-based discrimination under the British Nationality Act of 1948 which restricted nationality descent to British fathers. Salgado raised issues under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, which calls for the elimination of all discriminatory laws, regulations and customs that discriminate against women, and article 9 paragraph 2 under which State parties must grant women equal rights with men with respect to the nationality of their children. She claimed that the discrimination was ongoing because her son failed to qualify for citizenship under the various amendments to the Act. Although the Committee held that the complaint was inadmissible ratione temporis because the events occurred before the Covention’s entry into force in the United Kingdom, it based its decision on the fact that Salgado’s son had reached the age of majority, at which time he could have applied for British nationality on his own. The Committee noted that the United Kingdom had enacted the challenged legislation prior to the Optional Protocol’s entry into force. The Committee also recommended that Salgado challenge the legislation by way of judicial review in the British High Court before turning to the Committee for further redress.



Bullock v. Department of Corrections Human Rights Review Tribunal (2008)

Employment discrimination, Gender discrimination, Harmful traditional practices

Ms. Bullock, the plantiff, was made to sit in a row behind the male employees and was not given a speaking role in a company event. The plantiff believed the her employer was participating in gender discrimination and attempting to justify this as a company policy that followed traditional Mauri customs. The tribunal ruled that Ms. Bullock's employer was in fact practicing gender discrimination according to the Human Rights Act of 1993.



Case nr B 4231-06 Court of Appeals of Sweden (2007)

Female genital mutilation or female genital cutting

["A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years."] A woman was sentenced to three years imprisonment for having commissioned the genital mutilation of her daughter, and damages in the amount of 450 000 SEK were awarded to the daughter. The mother claimed that the "surgery" was carried out without her knowledge on the day of her daughter's birth. It was established that the mother's testimony was false and that the genital mutilation had been performed during a trip to Somalia in 2001. The mother was also sentenced for gross violation of integrity since she had regularly assaulted and beat the plaintiff. The daughter had also frequently been forced to undergo examination by the mother of the genital area, often in conjunction with men paying visits to the family. The court found that the examination had violated the plaintiff and was intended to violate her privacy. [Decision on file with Avon Global Center]



Slovak Republic, Supreme Court, Decision No. 36/2005, File No. 2 Cdo 67/03 Supreme Court of the Slovak Republic (2005)

Gender discrimination

Ms X.Y. (the claimant) had worked as a nurse in the Hospital in the city of Velký Krtíš (the employer) since November 30, 1998.  On April 11, 2002, the claimant received a notice of the termination of her employment due to her failure to take an oath in accordance with new legislation.  The new legislation came into force on April 1, 2002, when the claimant was on maternity leave.  The notification of the new legal prerequisite was posted in the halls of the hospital making it almost impossible for workers on maternity leave to be informed.  The claimant sued the employer for unlawful termination of employment, arguing that the termination was discriminatory on the grounds of her gender.  The district court ruled in favor of the claimant; however, on appeal the regional court quashed the decision and dismissed the case.  The claimant appealed to the Supreme Court which held that the termination was unlawful for a number of reasons.  Firstly, the employer failed to perform its legal obligations to enable the claimant to take the oath. Secondly, the acts of the employer with respect to the termination of employment were discriminatory.  The employer had disadvantaged a certain group of its employees, in particular those on maternity leave, by failing to provide them with notice about the new requirement to take the oath, breaching the prohibition of discrimination established in labor relations.  This was in breach of the prohibition of discrimination under Section 13 of the Labor Code of the Slovak Republic.  Lastly, the Supreme Court held that the employer had abused its rights as an employer, which is in violation of moral principals.  The Supreme Court further held that the termination would have been lawful if the employer had duly informed the claimant about the new regulations and provided her with a chance to comply with them, and ordered a re-examination of the issue by the district court.



Slovak Republic, Supreme Court, Decision No. 113/1999, File No. 3 To 61/98 Supreme Court of the Slovak Republic (1998)

Sexual violence and rape, Trafficking in persons

In the summer of 1995, Mr. P.Š. and Mr. K.P. (the defendants) transported juvenile Ms. Š.N. and juvenile Ms. A.G. (the Aggrieved) to Prague under the guise of providing employment.  The defendants intended to sell the Aggrieved to R.R. into prostitution. After examining the Aggrieved primarily on the basis of their moral standing and their relationship with the defendants, the district court acquitted both defendants. Subsequently, the Prosecutor appealed the decision to the Supreme Court.  The Supreme Court quashed the decision of the district court and found the defendants guilty of trafficking in women.  It further held that an examination of the moral standing and the relationship of the Aggrieved to the defendants was unreasonable.  The Supreme Court clarified that the criminal act of trafficking in women is committed if a woman is lured (i.e., by promises, offers of money, etc.), hired (conclusion of any agreement, including illegal agreements about the trafficking of women to another country), or transported to another country (crossing of a border being sufficient, the specifics of the actual location not required) for the purpose of prostitution.  It is irrelevant whether the women in question actually worked as prostitutes or not, the intention to work as a prostitute is sufficient.  The Supreme Court ordered the district court to re-examine the case.



Slovak Republic, Supreme Court, Decision No. 6/1984, File No. 3 To 3/28 Supreme Court of the Slovak Republic (1984)

Sexual violence and rape

Ms. L.G. (the Aggrieved) a mentally disabled female, under the age of 15, was forced into sexual intercourse with A.G. (the defendant).  The district court found the defendant guilty of attempted rape, even though the defendant had confessed to a number of facts during the police investigation and the trial including knowledge of the fact that the Aggrieved was under the age of 15 and the fact that he took advantage of the Aggrieved party’s mental condition and fully knowing that she would not resist, proceeded to rape her.  The district court´s decision relied on the testimony of an expert witness who examined the condition of Ms. L.G., and concluded that no sexual intercourse had occurred due to the undamaged status of the hymen. The Prosecutor appealed the decision to the Supreme Court, which quashed the decision of the district court and found the defendant guilty of rape.  The defendant had exploited the vulnerable nature of Ms. L.G., and the fact that she was under the age of 15.  The defendant also knew that Ms. L.G. would not resist him, as a result of her mental state, as evidenced by submissions from a number of experts.  The decision did not consider the status of the claimant’s hymen, since the defendant´s penetration was proven.  The Supreme Court sentenced the defendant to 8 years in a correctional facility. 



Slovak Republic, District Court, File No. 17C/65/2009 District Court (2009)

Sexual harassment, Sexual violence and rape

Ms V.Š. (the claimant) was sexually assaulted by her colleague, Mr. S.B. (the defendant) at work.  The criminal court found the defendant guilty of sexual violence by means of an agreement on crime and punishment.  The claimant sued the defendant for damages sustained as a result of the defendant’s actions.  The claimant supported her claims with the opinion of a psychological expert, who stated that the claimant had suffered damage to her dignity, honor and personal and intimate life, as well as material costs.  The amount of non-pecuniary damage awards is determined with regard to the facts of each case individually and the opinion of the court.  As a result of the sexual assault, the claimant was traumatized, depressed and afraid to go to work because of the obvious threat posed by the defendant. The district court held that the protection of privacy and other aspects of the personal life of each individual is paramount.  Every individual has the right to make decisions about his/her intimate and sexual life and in this case, such right was grossly violated.  Furthermore, under Section 11 of the Civil Code, the claimant has the right to protect her life, health, honor, dignity, privacy, name and expressions of personal value.  The district court held that the defendant was obliged to pay to the claimant non-pecuniary damages in the amount of EUR 3,319.



NJA 2008 s. 1096 I and II Supreme Court of Sweden (2008)

Sexual violence and rape

["A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape (…)" Chapter 6, Section 1 of the Swedish Penal Code.]  The Supreme Court ruled on the distinction between a sexual act and sexual intercourse. Although the victim in this case was a child, the decision still gives some guidance with respect to crimes against adults. A man took an eight-year-old girl with him to a backyard, where he kept a firm hold of the girl and pulled her pants and panties down against her will. For a moment, the man pressed his penis in between the girl's buttocks, which inflicted certain pain to the girl. However, since the offense was brief and since the man had neither touched the girl's genitals nor anus, the act was not considered comparable with sexual intercourse. The man was convicted of sexual abuse of a child. (The distinction was important at the time but the legal definitions have since changed and even without sexual intercourse or penetration it would now be possible to convict someone for rape of a child.) [Decision on file with Avon Global Center]



NJA 2008 s. 482 Supreme Court of Sweden (2008)

Sexual violence and rape

["A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape (…)" Chapter 6, Section 1 of the Swedish Penal Code.] The Supreme Court found that the accused had committed rape when the man put his fingers into a sleeping woman's vagina. When the woman woke up she indicated that she was not interested in sexual intercourse with the man, whereupon he stopped his behavior. However, as the woman was asleep and thus in a helpless state when the man carried out the sexual act, he had unduly exploited her helplessness. The Supreme Court stated that the sexual offence was of such serious nature that it qualified as rape.  Acts such as forced sexual intercourse or other forms of forced penetration typically constitute the most offensive sexual assaults. [Decision on file with Avon Global Center]



NJA 2008 s. 482 II Supreme Court of Sweden (2008)

Sexual violence and rape

["A person who, otherwise than as provided in Section 1 first paragraph, induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years. / This shall also apply to a person who carries out a sexual act other than provided for in Section 1 second paragraph with a person, under the conditions otherwise specified in that paragraph./ If a crime provided for in the first or second paragraph is considered gross, a sentence to imprisonment for at least six months and at most six years shall be imposed for gross sexual coercion. In assessing whether the crime is gross, special consideration shall be given to whether more than one person assaulted the victim or in any other way took part in the assault or whether the perpetrator otherwise exhibited particular ruthlessness or brutality. (…)" Chapter 6, Section 1 of the Swedish Penal Code.]  [A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape to imprisonment for at least two and at most six years. (…)" Chapter 6, Section 2 of the Swedish Penal Code.]  In this case, the Supreme Court held that sexual coercion had occurred when a man masturbated to another person that was asleep. The victim was at the time 17 years old and had provisionary employment at the perpetrator's company. The incident took place in a hotel room during a trip arranged by the company. The Supreme Court found that the victim was, at the time of the crime, in such helpless condition as referred to in Chapter 6, Section 1 Swedish Penal Code but that the sexual act was not comparable to sexual intercourse. The circumstance that the victim was 17 years old and worked for the perpetrator was not considered to make the offense gross. The Supreme Court therefore found the accused guilty of sexual coercion. [Decision on file with Avon Global Center]



Slovak Republic, Constitutional Court, Decision No. 10/2010-36, 2010 Constitutional Court of the Slovak Republic (2010)

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

Ms M.V. (the claimant) was sterilized while giving birth to her second child.  She was informed that sterilization would be performed on her shortly before delivery by C-section, to which she did not give her written consent.  The day after giving birth, while inquiring about her own health and that of her child, she was informed that sterilization was performed due to health reasons, as another pregnancy could be dangerous.  She was given a form to sign for the “sake of her health,” which she did without reading or inquiring due to her concerns about the well-being of her newborn child.  The claimant only later found out that sterilization was not a “life-saving” procedure after speaking with a representative from a non-governmental organization.  Her claim was dismissed by the district and regional courts based on hospital records which contained her written consent and the testimonies of the doctors and other staff members.  She filed a claim with the Constitutional Court which held that the decisions of the district and regional courts did not sufficiently address the claimants claims, in breach of the claimants' right to a fair trial. The Constitutional Court awarded the claimant EUR 1,500 damages and ordered the re-examination of the matter by the district court.



Slovak Republic, Constitutional Court, Decision No. 194/06-46, 2006 Constitutional Court of the Slovak Republic (2006)

Forced sterilization

Mrs. I.G., Mrs. R.H. and Mrs. M.K. (the claimants of Roma ethnicity) were sterilized while giving birth to their children.  The claimants initiated criminal proceedings on the grounds of unlawful sterilization, claiming that their consent (or informed consent in the case of R.H.) was not given.  Criminal proceedings were stopped by the regional prosecutor with the conclusion that no unlawful act had been committed.  The claimants filed a formal complaint against the decision, in part claiming that the investigation did not examine the substantive material issue, the lack of consent to sterilization.  This formal complaint was dismissed by the regional prosecutor. The claimants petitioned the Constitutional Court to address the decision to discontinue criminal proceedings by the regional prosecutor; they claimed among other things the breach of their right to private and family life  and of their right to privacy.  The Constitutional Court held that sterilization was not a “life-saving” procedure, as claimed by the regional prosecutor and the hospital.  Therefore, the explanation given by the regional prosecutor for the discontinuation of criminal proceedings on these grounds was unfounded.  The Constitutional Court further held that the investigation did not exhaust all possible avenues, and completely ignored the issue of consent.  This and the subsequent dismissal of the complaint amounted to inhumane or degrading treatment of the claimants affecting their private and family lives.  The Constitutional Court awarded each claimant 50,000 SK (EUR 1,659.70) in damages and ordered the regional prosecutor to re-examine the issue.



Opuz v. Turkey European Court of Human Rights (2009)

Domestic and intimate partner violence

State failure to protect victims from domestic violence. Applicant brought this case against Turkey, alleging failure to protect her and her mother from domestic violence, violence which resulted in her mother's death and her own mistreatment. The victim and her mother were repeatedly abused and threatened by the victim's husband, abuse which was medically documented. The victim's husband and his father were at one point indicted for attempted murder against the two women, but both were acquitted. The abuse continued after the acquittal and eventually resulted in the husband's father killing the victim's mother. The husband's father was tried and convicted for intentional murder, but because he argued provocation and exhibited good behavior during the trial, his sentence was mitigated and he was released pending an appeal. Taking into consideration regional and international treaties as well as the domestic situation in Turkey, the ECHR held that Turkey violated Articles 2, 3, 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR ordered Turkey to pay the victim non-pecuniary damages and costs.



De La Cruz-Flores v. Peru Inter-American Court of Human Rights (2004)

Gender-based violence in general

De La Cruz-Flores was detained, charged and convicted by a "faceless judge" for the crime of terrorism. In 2003, laws were passed ordering the annulment of judgments made by secret judges and practitioners. De La Cruz-Flores, however, remained in captivity, captivity she argued was arbitrary. The Court held that Peru violated De La Cruz-Flores's rights under Articles 1(1), 5, 7 and 8 of the American Convention on Human Rights. The Court ordered Peru to reinstate De La Cruz-Flores in her previous employment, grant her any previous retirement benefits, pay her costs, pecuniary and non-pecuniary damages, grant her medical and psychological treatment and provide her with a grant for professional development.



N.S.F. v. United Kingdom CEDAW Committee (2007)

Divorce and dissolution of marriage, Domestic and intimate partner violence

N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.



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

Custodial violence, Gender-based violence in general

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



Case of Abdulaziz, Cabales and Balkandali v. the United Kingdom European Court of Human Rights (1985)

Gender discrimination

Three lawfully and permanently settled residents of the UK challenged the Government's refusal to permit their husbands to join or remain with them on the basis of the 1980 immigration rules in force at the time. The rules applied stricter conditions for the granting of permission for husbands to join their wives than vice versa. These conditions did not apply to the wives of male permanent residents. The Court found that Article 8 encompassed the right to establish one's home in the State of one's lawful residence, and that being forced to either move abroad or be separated from one's spouse was inconsistent with this principle. On this basis the applicants claimed that, as a result of unjustified differences of treatment in securing the right to respect for their family life, based on sex, race and, in the case of Mrs. Balkandali, birth, they had been victims of a violation of Article 14 of the Convention, taken in conjunction with Article 8. The applicants claimed there was no objective and reasonable justification for the difference in treatment, rather the Government's claims ignored the modern role of women and the fact that men may be self-employed and create rather than seek jobs, as in the case of Mr. Balkandali.



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

Custodial violence, Sexual violence and rape

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



Commission of the European Communities v. United Kingdom European Court of Justice (1983)

Gender discrimination

The Commission brought a charge against the United Kingdom for failing to fully implement the Directive 76/207. The Commission’s complaint is that the legislation enacted in the United Kingdom does not state that provisions contrary to equal treatment in any collective agreement will be void. The UK legislation also has an exception for private households and the practice of midwifery. The Court decided that the UK failed to meet its obligations under the treaty.



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

Custodial violence, Sexual violence and rape

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



Johnston v. Chief Constable European Court of Justice (1986)

Gender discrimination

A new regulation was instituted that women in the Royal Ulster Constabulary would not be given firearms to carry or trained in them. Johnston was a police officer who filed a complaint of sexual discrimination. The Court recognizes that the policy was instituted by the Chief Constable to protect women from risks and that it is up to a national tribunal to determine whether this type of action meant for public safety is allowed in light of Directive 76/207.



Zwaan-de Vries v. The Netherlands Human Rights Committee (1987)

Employment discrimination, Gender discrimination

F.H. Zwaan-de Vries is a Netherlands national who worked for several years before becoming unemployed. Zwaan-de Vries qualified for unemployment benefits under the Unemployment Act until 1979, at which time she applied for continued support through the Unemployment Benefits Act (WWV). The Municipality of Amsterdam rejected her application in accordance with section 13 subsection 1 of WWV (the “breadwinner” clause) because she was a married woman. The WWV provision that required applicants to prove that they are the family’s “breadwinner” in order to qualify for benefits did not apply to married men. On appeal, the Municipality of Amsterdam affirmed the rejection, after which the author appealed to the Board of Appeal in Amsterdam. The Board of Appeals held that Zwaan-de Vries’ complaint was invalid, and the Central Board of Appeal affirmed this holding. In her complaint to the Committee, Zwaan-de Vries argued that the Netherlands violated article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In interpreting the scope of article 26, the Committee took into account the “ordinary meaning” of each element of the article in its context and in light of its object and purpose, noting that article 26 derives from the principle of equal protection of the law without discrimination as contained in article 7 of the Universal Declaration of Human Rights. Thus, article 26 is concerned with the obligations imposed on States in regard to their legislation and its application. The Committee cited Hendrika Vos v. The Netherlands for the principle that differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. However, since the WWV required only women to prove their status as “breadwinner”, the differentiation was not reasonable. Therefore, the Netherlands violated article 26 of the Convention when it denied Zwaan de Vries a social security benefit on an equal footing with men.



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

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

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



Report on Admissibility of Jessica Gonzales and Others v. United States Inter-American Commission on Human Rights (2007)

Domestic and intimate partner violence

State duty to enforce court-ordered protective order.  Jessica Gonzales' three children were killed when local police failed to enforced a restraining order against her estranged husband.  The Supreme Court of the United States ruled that no affirmative duty exists on the part of the government to enforce a protective order.



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

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

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



Collins and Akaziebie v. Sweden European Court of Human Rights (2007)

Female genital mutilation or female genital cutting, Harmful traditional practices

The first applicant, the mother, filed for asylum upon arriving in Sweden, claiming she had fled Nigeria while pregnant with her daughter, the second applicant, in an attempt to flee the female-genital mutilation ("FGM") that would have been performed on her during childbirth if she stayed in Nigeria. The Swedish Migration Board rejected the asylum application, explaining that FGM was not grounds for asylum, and that FGM was outlawed by Nigerian law so it was unlikely the first applicant would be submitted to the procedure upon return to Nigeria. The Swedish Aliens Appeal Board rejected the applicant's appeal, rejecting her argument that FGM was a deep-rooted Nigerian tradition, carried out despite modern law. Following several more attempts within Sweden to be granted asylum, the applicants filed a complaint with the ECHR, alleging that if they were returned to Nigeria, they would face a high likelihood of being submitted to FGM. The argued this would violate Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The ECHR rejected the complaint, ruling that the applicants had failed to "substantiate that they would face a real and concrete risk of being subjected to female genital mutilation upon returning to Nigeria.



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

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, receive and impart information and the right 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.



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

Property and inheritance rights

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.



T.A. v. Sweden CAT Committee (2003)

Gender-based violence in general, Sexual violence and rape

T.A. and her husband are Bangladeshi citizens and members of the Jatiya party. After T.A. was arrested for participating in a political demonstration and released, the police, accompanied by members of an opposing political party, arrested T.A. and her four-year-old daughter. At the police station, T.A. endured torture including repeated rape until she confessed to the crime of illegal arm trading. She was released after she signed a document stating that she would not take part in any further political activity. T.A. fled to Sweden with her daughter where she applied for refugee status. The Migration Board that received her application did not contest her allegations of rape and torture, but concluded that these acts could not be attributed to the State; rather, they were to be regarded as acts of individual policemen. T.A. appealed to the Alien Appeals Board, submitting medical certificates that supported her account of torture and the traumatic experience it had on her daughter. The Alien Appeals Board upheld the Migration Board’s decision and stated that because of a political change in Bangladesh since the incident, T.A. would not be subjected to further torture if she returned. In her complaint to the Committee, T.A. argued that given the medical evidence of the case, a deportation order would in itself constitute a violation of article 16 of the Convention under which State parties are obliged to prevent cruel, inhuman, or degrading treatment conducted by the State or its public officials. The Committee considered T.A.’s complaint in regards to a State’s obligation under article 3 not to expel or to return a person to another State where there are substantial grounds for believing that he or she would be in danger of torture. The Committee noted that T.A. belonged to a political party in opposition to the current ruling party in Bangladesh, and that torture of political opponents was frequently practiced by state agents. Taking into account the Bangladeshi police’s ongoing search for T.A. because of her political affiliations, the Committee concluded that T.A. would be exposed to a serious risk of torture if she returned to Bangladesh, and therefore her forced deportation would violate article 3 of the Convention.



Zimbabwe Human Rights NGO Forum v. Zimbabwe African Commission on Human and Peoples' Rights (2006)

Sexual violence and rape

Violence erupted in Zimbabwe between the constitutional referendum of 2000 and the parliamentary elections. Supporters of ZANU (PF) engaged in various human rights violations including the rape of women and girls. The respondent state claimed that it could not be held accountable because those committing the crimes were non-state actors and the actions were not encouraged by any government policy. The Commission determined that "[a] state can be held complicit where it fails systematically to provide protection of violations from private actors who deprive any person of his/her human rights." However, the Commission found that the complainant had the burden of "establishing that the state condones a pattern of abuse through pervasive non-action." Here, the Commission found that Zimbabwe violated the victims' rights to judicial protection and to have their case heard under articles 1 and 7(1), respectively, of the African Charter. It explained that the the state had adopted Clemency Order 1 of 2000 (which permits those who have committed politically motivated crimes to be exonerated, with the exception of murder, rape, and other similar crimes) and that Zimbabwe did not "demonstrate due diligence" in providing justice for the victims of the violent crimes. The Commission requested that Zimbabwe investigate the reported crimes, bring those who committed the crimes to justice, and provide victims with adequate compensation. This case is important because it establishes that a state can be held accountable for the human rights violations of private actors. Under this case, if the state does not address mass rape with "due diligence," then the state itself can be held accountable.



Ato del Avellanal v. Peru Human Rights Committee (1988)

Gender discrimination, Property and inheritance rights

In 1978, the court of first instance ruled in favor of Graciela Ato del Avellanal on a claim for overdue rent owed to her by tenants of two apartment buildings she owned in Lima. The Superior Court reversed the judgment in 1980 because article 168 of the Peruvian Civil Code stated that when a woman is married, only the husband is entitled to represent matrimonial property before the Courts; therefore, Avellanal did not herself have standing to sue. Avellanal appealed to the Peruvian Supreme Court, arguing that the Peruvian Magna Carta and the Peruvian Constitution guarantee equal rights to both men and women. After the Supreme Court upheld the lower court’s decision, Avellanal interposed the recourse of amparo (an order to guarantee protection of the complainant’s constitutional rights), claiming a violation of article 2(2) of Peru’s Constitution, which the Supreme Court rejected. In her complaint to the Committee, Avellanal cited violations on the ground that Peru discriminated against her because she was a woman. With respect to the requirements set forth in article 14 of the Covenant on Civil and Political Rights that all persons shall be equal before the courts and tribunals, the Committee noted that the Superior Court reversed the lower court’s decision on the sole ground that Avellanal was a woman and did not have standing as such under Peruvian Civil Code article 168. The Committee also concluded that the facts before it disclosed a violation of article 3 of the Covenant which requires the State party to undertake “to ensure the equal right of men and women to the enjoyment of all civil and political rights,” and article 26 which provides that all persons are equal before the law and are entitled to its protection.



Pauline Muzonzo Paku Kisoki v. Sweden CAT Committee (1996)

Gender-based violence in general, Sexual violence and rape

Pauline Muzonzo Paku Kisoki was raped in her home in front of her children by security forces after refusing to allow the government party MPR to host a party rally at her restaurant in Kisanto. She was detained and taken to Makal prison in Kinshasa where the guards forced the women prisoners to dance before they beat and raped them. Kisoki stated that she was raped more than ten times while in prison. After she managed to escape when her sister bribed a prison supervisor, Kisoki fled to Sweden where she immediately requested asylum. The Swedish Board of Immigration denied her request, concluding that the political climate in Zaire (now the Democratic Republic of Congo) had improved, and Kisoki would not suffer persecution or harassment for her past activities. After the Alien Appeals Board confirmed the decision, Kisoki submitted a new request which referred to the report of the Special Rapporteur of the Commission on Human Rights on the situation of rights violations in Zaire. Her application was denied again on the ground that Kisoki could not introduce new evidence. Her complaint to the Committee accused Swedish authorities of basing their decision on a false image of Zaire. Kisoki cited the Commission on Human Rights report to demonstrate that female prisoners are often raped, and a background paper from the Office of the United Nations High Commissioner for Refugees the show that the Zairian Security Police expose return asylum seekers to long sessions of interrogation. The Committee held that Kisoki’s history of working with the opposition party and of detention and torture provide substantial grounds to believe she would face further persecution and torture if she returned to Zaire. Thus, expulsion or return would be violation of article 3 which obligates State parties not to expel or return a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.



Velasquez-Rodriguez Case Inter-American Court of Human Rights (1988)

Gender-based violence in general

States are responsible for private acts of violence (duty to investigate, prosecute and punish).



K.L. v. Peru Human Rights Committee (2003)

Gender-based violence in general

HRC held that Peruvian government violated Article 7 (the right to be free from cruel, inhumane and degrading treatment), Article 17 (the right to privacy) and Article 24 (special protection of the rights of a minor) when it denied 17 year-old the right to a legal therapeutic abortion.



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

Gender discrimination

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



Maria Mamerita Mestanza Chavez v. Peru Inter-American Commission on Human Rights (2003)

Forced sterilization

Forced sterilization.  A complaint was raised against Peru for the forced sterilization of Mestanza Chavez, forced sterilization which eventually caused her death. The complaint alleged that she was pressured into sterilization as part of a government objective to curve the population numbers of poor, Indian and rural women. After the sterilization, Mestanza Chavez fell ill from complications and eventually died.  The complaint alleged the violation of Articles 4, 5, 1, and 24 of the American Convention on Human Rights,  Articles 3, 4, 7, 8, and 9 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, Articles 3 and 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, and Articles 12 and 14(2) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The parties reached a friendly settlement under which Peru agreed to investigate and punish those responsible for the forced sterilization, pay the victim's next of kin moral and corollary damages, pay the victim's medical expenses to her next of kin, provide her children with free primary, provide secondary and public university education to the victim's children, and pay money for the victim's spouse to purchase a home. Peru also agreed to amend its reproductive laws to eliminate any discriminatory policies within such laws.



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

Sexual violence and rape

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



Cantoral-Huamaní and García-Santa Cruz v. Peru Inter-American Court of Human Rights (2007)

Gender-based violence in general

The IACHR lodged an application against Peru for the violation, among other things, of the right to free association. Garcia-Santa Cruz was founder of a women's organization in a mining community, and provided support to the families of miners during a mining strike. Garcia-Santa Cruz was executed, and the Court held that her execution was an attempt to intimidate miners into not unionizing. The Court held this type of intimidation to be a violation of the freedom of association (Article 16 of the American Convention). The Court also found Peru to have violated Articles 1(1), 4, 5, 7, 8(1) and 25 of the American Convention on Human Rights. The Court ordered Peru to investigate and punish those who carried out these violations, to publicly acknowledge international responsibility for these violations, to provide psychological services to the victims' next of kin, and to pay pecuniary and non-pecuniary damages and costs.



Maria Eugenia Morales de Sierra v. Guatemala Inter-American Commission on Human Rights (2001)

Gender discrimination

Discrimination in marriage.  Challenge to Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 of the Guatemalan Civil Code, which define role of each spouse within the institution of marriage, creating distinctions between men and women in violation of Articles 1(1), 2, 17 and 24 of the American Convention on Human Rights.

 

Discriminación en el matrimonio. Desafío a los artículos 109, 110, 113, 114, 115, 131, 133, 255 y 317 del Código Civil de Guatemala, los cuáles definen el papel de cada cónyuge dentro de la institución del matrimonio, creando distinciones entre hombres y mujeres en violación de los artículos 1 ( 1), 2, 17 y 24 de la Convención Americana sobre Derechos Humanos.



Dung Thi Thuy Nguyen v. The Netherlands CEDAW Committee (2006)

Gender discrimination

Dung Thi Thuy Nguyen worked part-time as a salaried employment agency worker as well as together with her husband as a co-working spouse in his enterprise. For her salaried employment, Nguyen was insured under the Sickness Benefits Act (ZW), and for work at her husband’s enterprise she was insured under the Invalidity Insurance (Self-Employed Person) Act (WAZ). When Nguyen applied for maternity leave in 1999, she received benefits from her ZW insurance, but her WAZ insurance denied her coverage because of an “anti-accumulation clause” which allowed payment of benefits only insofar as they exceed benefits payable under the ZW policy. Nguyen objected to the withholding of her benefits and applied for review with the Breda District Court, who dismissed the complaint. The Central Appeals Tribunal upheld the lower judgment on appeal, stating that the WAZ insurance policy did not result in unfavorable treatment of women as compared to men. Nguyen’s complaint to the Committee cited a violation of article 11, paragraph 2 (b) of the Convention on the Elimination of All Forms of Discrimination against Women under which the State party is obligated to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority, or social allowance. The Committee held that it is state’s discretion to determine the appropriate maternity benefits within the meaning of article 11 for employed women, and separate rules for self-employed women accounting for fluctuated income and related contributions did not amount to a violation. The dissent, however, argued that the law of the Netherlands which provides for a financially compensated maternity leave for women who are both salaried and self-employed does not take into account the situation of these women who work more hours per week than a full-time salaried employee entitled to full maternity benefits. The anti-accumulation clause, therefore, constitutes indirect sex-discrimination because the policy assumes that mainly women work as part-time salaried employees in addition to working as family helpers in their husband’s enterprises.



Democratic Republic of Congo v. Republics of Burundi, Rwanda, and Uganda African Commission on Human and Peoples' Rights (2003)

Sexual violence and rape, Gender violence in conflict

The armed forces of Burundi, Rwanda, and Uganda engaged in systematic violence against the people of the Democratic Republic of Congo (the DRC). As part of that violence, approximately 2,000 HIV-positive Rwandan and Ugandan soldiers raped Congolese women and young girls in order to spread AIDS to the Congolese population. The DRC brought the complaint asserting, among other things, that the mass rape and deliberate infection of women and girls with HIV constituted a violation of human rights under the African Charter. The respondents did not deny the occurrence of mass rape and infection, but responded that "there is never group responsibility for violations" like rape. The Commission noted that the mass rape of women and girls as a tool of systematic violence violated article 76 of the first Protocol Additional to the Geneva Conventions of 1949, which provides that "[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other forms of indecent assault" and also "offend[ed] the African Charter and the Convention on the Elimination of All Forms of Discrimination Against Women." It therefore held that this offense violated articles 60 and 61 of the African Charter, which enable the African Commission to draw inspiration from international law on human and peoples' rights and take into consideration general principles of law, such as the humanitarian law principles contained in the Geneva Conventions. The Commission urged the respondent states to abide by their obligations under the African Charter and other applicable international and regional law and immediately withdraw their armed forces from the DRC. The Commission also requested that adequate reparations be paid to the DRC for and on behalf of the victims of the human rights violations.


“White Van" (Paniagua-Morales et al.) v. Guatemala Inter-American Court of Human Rights (1998)

Acid violence

The IACHR submitted this case to the Court to determine whether Guatemala had violated the American Convention on Human Rights by "acts of abduction, arbitrary detention, inhuman treatment, torture and murder committed by agents of the State, of Guatemala against eleven victims," some of them women. The Court held that Guatemala violated Articles 1(1), 4(1), 5(1), 5(2), 8(1) and 25 of the American Convention on Human Rights, as well as Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture. The Court ordered Guatemala to investigate and punish those responsible for the violations, and to pay reparations to the victims and their next of kin.

 

La Comisión Internacional de Derechos Humanos presentó este caso a la Corte para determinar si Guatemala había violado la Convención Americana sobre Derechos Humanos por "actos de secuestro, detención arbitraria, trato inhumano, tortura y asesinato cometidos por agentes del Estado de Guatemala contra once víctimas", algunos de ellas mujeres. La Corte sostuvo que Guatemala en efecto violó los artículos 1 (1), 4 (1), 5 (1), 5 (2), 8 (1) y 25 de la Convención Americana sobre Derechos Humanos, así como los artículos 1, 6 y 8. de la Convención Interamericana para Prevenir y Sancionar la Tortura. La Corte le ordenó a Guatemala investigar y sancionar a los responsables de las violaciones, y pagar compensación a las víctimas y sus familiares.



Zhen Zhen Zheng v. The Netherlands CEDAW Committee (2007)

Trafficking in persons

Petitioner was trafficked into the Netherlands and request for asylum was denied because she could not give details about her trip from China and did not have identity documents.  Although the Committee held complaint to be inadmissible for non-exhaustion of domestic remedies, the dissent found that due to vulnerable situation of victims of trafficking, the complaint should be admissible and that the State did not act with due diligence in failing to recognize that Ms. Zheng may have been victim of trafficking.



Lovelace v. Canada Human Rights Committee (1981)

Gender discrimination

Sandra Lovelace was born and registered as a Maliseet Indian but lost her rights and status as such in accordance with section 12(1)(b) of Canada’s Indian Act after she married a non-Indian in 1970. Lovelace noted that the law did not equally adversely impact Canadian Indian men who marry non-Indian women, and therefore alleged that the law is gender discriminatory in violation of articles 2, 3, 23, 26, and 27 of the Covenant on Civil and Political Rights. Supreme Court of Canada rulings in The Attorney-General of Canada v. Jeanette Lavell and Richard Isaac v. Yvonne Bédard held that section 12(1)(b) of the Indian Act is fully operative irrespective of any inconsistency with the Canadian Bill of Rights on account of sex discrimination. Although the Committee noted that the relevant provision of the Indian Act does not legally restrict the right to marry as guaranteed in article 23 of the Covenant, the Act does seriously disadvantage Canadian Indian women who want to marry a non-Indian man by limiting their family options to a domestic partnership. Lovelace raised specific issues in her complaint pertaining to her inability to continue living on the Tobique Reserve as a result of her marriage, which, according to the Committee, suggests a violation of article 27 of the Covenant which guarantees that ethnic, religious, of linguistic minorities shall not be denied the right to enjoy their own culture, to profess or practice their own religion, or to use their own language. The Committee considered the merits of the Indian Act in preserving the identity of the Maliseet tribe, but ultimately concluded that in light of the dissolution of Lovelace’s marriage to a non-Indian, there was no reasonable or necessary justification to deny Lovelace the right to return to the Tobique Reserve where she was born and raised. Canada’s refusal to allow Lovelace to do so was tantamount to a violation of her rights under article 27 of the Covenant.



Molina-Theissen v. Guatemala Inter-American Court of Human Rights (2004)

Sexual violence and rape

This case was submitted to the Court by the IACtHR to determine if human rights violations were committed by Guatemala in relation to the forced disappearance of 14-year old Marco Antonio Molina Thiessen by the Guatemalan army. The Molina Thiessen family was comprised of left-leaning academics and was therefore considered a threat to the military regime in place at the time of the forced disappearance. Prior to child's disappearance, his sister, Emma Guadalupe, was detained and illegally incarcerated, during which time she was repeatedly raped and physically and psychologically tortured. She managed to escape and Marco Antonio's abduction was seen as retaliation against the family for Emma Guadalupe's escape. After the forced disappearance, the Molina Thiessen family never again saw Marco Antonio and was forced to seek political asylum in a number of other countries. Guatemala acknowledged its international responsibility for these incidents. The Court found Guatemala to have violated numerous articles of the American Convention on Human Rights to the detriment of Marco Antonio, and "Articles, 5(1) and 5(2) (Right to Humane Treatment); 8 (Right to a Fair Trial); 17 (Rights of the Family), and 25 (Judicial Protection) of the American Convention on Human Rights, and that it failed to comply with the obligations established in Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) thereof, to the detriment of the next of kin of Marco Antonio Molina Theissen," including his sister, Emma Guadalupe.

 

Este caso fue presentado a la Corte por la Corte Interamericana de Derechos Humanos para determinar si Guatemala cometió violaciones de los derechos humanos en relación con la desaparición del ejército guatemalteco de Marco Antonio Molina Thiessen, de 14 años. La familia Molina Thiessen estaba compuesta por académicos de izquierda politicamente y, por lo tanto, se consideraba una amenaza para el régimen militar vigente en el momento de la desaparición. Antes de la desaparición del niño, su hermana, Emma Guadalupe, fue detenida y encarcelada ilegalmente, tiempo durante el cual fue violada repetidamente y torturada física y psicológicamente. Ella logró escapar y el secuestro de Marco Antonio fue visto como una represalia contra la familia por su escape. Después de la desaparición de Marco Antonio, la familia Molina Thiessen nunca más volvió a verlo y se vio obligada a buscar asilo político en otros países. Guatemala reconoció su responsabilidad internacional por estos incidentes. La Corte determinó que Guatemala había violado numerosos artículos de la Convención Americana sobre Derechos Humanos en detrimento de Marco Antonio, y "Artículos, 5 (1) y 5 (2) (Derecho a un trato humano); 8 (Derecho a un juicio justo 17; (Derechos de la familia), y 25 (Protección judicial) de la Convención Americana sobre Derechos Humanos, y que no cumplió con las obligaciones establecidas en los Artículos 1 (1) (Obligación de respetar los derechos) y 2 (Derechos nacionales). Efectos legales), en el detrimento de los familiares de Marco Antonio Molina Theissen," incluída su hermana, Emma Guadalupe.



S.W.M. Broeks v. The Netherlands Human Rights Committee (1987)

Employment discrimination, Gender discrimination

S.W.M. Broeks, a married Netherlands national, worked as a nurse for several years before her employer dismissed her for reasons of disability. Broeks received benefits under the Netherlands social security system for five years before her unemployment payments were terminated under Netherlands law. Broeks contested the termination in domestic courts, but the Central Board of Appeal confirmed the decision of a lower municipal court not to continue unemployment payments to Broeks. In her complaint to the Committee, Broeks claimed that the Netherland’s Unemployment Benefits Act (WWV) made an unacceptable distinction on the grounds of sex and status, and discriminated against her as a woman in violation of article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to its protections. Broeks argued that because she was a married woman at the time of the dispute, the law excluded her from continued unemployment benefits. Under section 13 subsection 1 of the Unemployment Benefits Act (WWV), a married women, in order to receive WWV benefits, had to prove that she was a “breadwinner” – a condition that did not apply to married men. The Committee concluded that the differentiation that appears to be one of status is actually one of sex, placing married women at a disadvantage compared with married men, amounting to a violation of article 26 of the Covenant.



Monica Carabantes Galleguillos v. Chile Inter-American Commission on Human Rights (2002)

Gender discrimination

Discrimination against pregnant girl in school.  Chile agreed to cover the educational expenses of a pregnant teenager who was expelled from her school for being pregnant.



Plan de Sánchez Massacre v. Guatemala Inter-American Court of Human Rights (2004)

Gender-based violence in general, Sexual violence and rape

The IACHR submitted this case to the Court, alleging violations by Guatemala of the rights to humane treatment, to judicial protection, to fair trial, to equal treatment, to freedom of conscience and of religion, and to private property, in combination with the obligation to respect rights. These allegations arose from a massacre carried out by the Guatemalan army against a primarily Mayan community. During the massacre, approximately 20 girls ages 12 to 20 were mistreated, raped and murdered. Guatemala acknowledged its international responsibility for the massacre and withdrew any objections to the allegations. The Court found that Guatemala "breached the rights set forth in Articles 5(1) and 5(2) (Right to Humane Treatment); 8(1) (Right to Fair Trial); 11 (Right to Privacy); 12(2) and 12(3) (Freedom of Conscience and Religion); 13(2) paragraph a and 13(5) (Freedom of Thought and Expression), 16(1) (Freedom of Association), 21(1) and 21(2) (Right to Property), 24 (Right to Equal Protection) and 25 (Right to Judicial Protection) of the American Convention on Human Rights; and that it did not fulfill the obligation to respect rights set forth in Article 1(1) of that Convention, as set forth in paragraphs 47 and 48 of the instant Judgment." 

 

La Corte Interamericana de Derechos Humanos presentó este caso a la Corte, alegando violaciones por parte de Guatemala de los derechos humanos, con respecto a la protección judicial, a un juicio justo, a un trato igualitario, a la libertad de conciencia y de religión, y a la propiedad privada, en combinación con la obligación de respetar dichos derechos. Estas acusaciones surgieron a partir de una masacre llevada a cabo por el ejército guatemalteco contra una comunidad principalmente maya. Durante la masacre, aproximadamente 20 niñas de 12 a 20 años fueron maltratadas, violadas y asesinadas. Guatemala reconoció su responsabilidad internacional por la masacre y retiró cualquier objeción a las acusaciones. El Tribunal determinó que el país "violó los derechos establecidos en los artículos 5 (1) y 5 (2) (Derecho a un trato humano); 8 (1) (Derecho a un juicio justo); 11 (Derecho a la privacidad); 12 (2) ) y 12 (3) (Libertad de conciencia y religión); 13 (2) párrafos a y 13 (5) (Libertad de pensamiento y expresión), 16 (1) (Libertad de asociación), 21 (1) y 21 ( 2) (Derecho a la propiedad), 24 (Derecho a la igualdad de protección) y 25 (Derecho a la protección judicial) de la Convención Americana sobre Derechos Humanos, y que no cumplió con la obligación de respetar los derechos establecidos en el artículo 1 (1) de esa Convención, tal como se establece en los párrafos 47 y 48 de la presente Sentencia. "



Vos v. The Netherlands Human Rights Committee (1986)

Gender discrimination

The Committee held that differences of treatment based on reasonable and objective criteria do not amount to prohibited discrimination.



X and Relatives v. Colombia Inter-American Commission on Human Rights (2008)

Sexual violence and rape

Rape by military members. Case was brought before the Commission against Colombia for failing to prosecute members of the Colombian military for sexually assaulting the victim. The Complaint sought to have Colombia assume international responsibility for violating articles 1(1), 5, 7, 8, 10, 11 and 22 of the American Convention on Human Rights, as well as Articles I, V, VII, XI, XVIII and XXVI of the American Declaration of the Rights and Duties of Man. Colombia and the petitioners were able to reach a friendly settlement under which the victim was awarded moral and material damages. Under the friendly settlement, Colombia also agreed to pay for the victim's education, provide her with medical and psychological services, and other necessary services to fully compensate the victim and her family. Colombia also agreed to reopen the criminal investigation and to work with the victim to fully investigate and prosecute her case.



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.



Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica Inter-American Court of Human Rights (1984)

Gender discrimination

Challenge to gender-based nationality law.

Desafío a la ley de nacionalidad que se basa en género sexual. 



A.T. v. Hungary CEDAW Committee (2005)

Domestic and intimate partner violence

A.T. is a Hungarian woman whose husband subjected her to continued domestic violence resulting in her hospitalization and ten medical certificates documenting separate incidents of abuse. Hungarian law did not provide a mechanism for A.T. to obtain a protection order against her husband, and accordingly, A.T. submitted a motion for injunctive relief for her exclusive right to the family apartment. The Budapest Regional Court denied the motion and held that A.T.’s husband had a right to return and use the apartment, stating that A.T.’s battery claims against him lacked substantiation and that the court could not infringe on her husband’s right to property. Her complaint to the Committee called for the introduction of effective and immediate protection for victims of domestic violence in Hungary, as well as effective interim measures to prevent irreparable damage to A.T.’s person in accordance with article 5, paragraph 1 of CEDAW’s Optional Protocol. The Committee held that Hungary’s domestic violence jurisprudence was deeply entrenched in gender stereotypes which constituted a violation of Hungary’s obligation under article 2 of CEDAW to promote gender equality through appropriate legislation. Hungary’s lack of specific legislation to combat domestic and sexual violence led the Committee to conclude that the State had violated its article 5 obligation to eliminate prejudices and customs grounded in female inferiority, and article 16 obligation to end discrimination against women in matters relating to marriage and the family. The Committee recommended that Hungary enact domestic and sexual violence legislation and allow victims to apply for protection and exclusion orders which forbid the abuser from entering or occupying the family home.



Girls Yean and Bosico v. Dominican Republic Inter-American Court of Human Rights (2005)

Gender discrimination

The IACHR submitted an application to the Court to determine whether the Dominican Republic had violated Articles 1(1), 2, 3, 8, 19, 20, 24 and 25 of the American Convention on Human Rights to the detriment of Dilcia Oliven Yean and Violeta Bosico Cofi. The application was based on the fact that the two girls had been denied Dominican birth certificates despite having been born within Dominican territory, leaving the girls stateless and without nationality. This also caused one of them, Violeta, to not be admitted to school since you must present a birth certificate to attend school in the Dominican Republic.  The Dominican Republic eventually granted the girls their birth certificates and then argued that by doing so, the girls' cause of action before the commission was null. The girls, however, argued that receiving their birth certificates did not remedy the fact that they had been stateless for four years. The Court found the Dominican Republic violated Articles 1(1), 3, 5, 18, 19, 20, and 24 of the American Convention on Human Rights and ordered the Dominican Republic to issue a public apology to the girls and to pass legislation consistent with Article 2 of the American Convention which would make it simple to acquire citizenship upon late declaration of birth. 

 

La Comisión Interamericana de Derechos Humanos presentó una solicitud a la Corte para determinar si la República Dominicana había violado los artículos 1 (1), 2, 3, 8, 19, 20, 24 y 25 de la Convención Americana sobre Derechos Humanos con respecto a Dilcia Oliven Yean y Violeta Bosico Cofi. La solicitud se basó en el hecho de que a las dos niñas se les habían negado los certificados de nacimiento dominicanos a pesar de haber nacido en el territorio nacional, lo cuál las dejó sin patria y sin nacionalidad legal. Esto también causó que una de ellas, Violeta, no fuera admitida en la escuela, ya que es requerimiento para asistir una escuela del país el presentar un certificado de nacimiento. La República Dominicana finalmente le otorgó a las niñas dichos certificados y luego argumentó que como ya estaba hecho, la causa de acción de las niñas ante la comisión era nula. Las niñas, sin embargo, argumentaron que recibir sus certificados de nacimiento no remedió el hecho de que habían sido despatriadas durante cuatro años. La Corte determinó que la República Dominicana en efecto violó los artículos 1 (1), 3, 5, 18, 19, 20 y 24 de la Convención Americana sobre Derechos Humanos y le ordenó a la República Dominicana emitir una disculpa pública a las niñas y aprobar leyes consistentes con el artículo 2 de la Convención Americana, lo cual facilitaría la adquisición de la ciudadanía en el momento de la declaración tardía de nacimiento.



Case of Airey v. Ireland European Court of Human Rights (1979)

Domestic and intimate partner violence

Family law, domestic violence and the right of access to court.  Petitioner, a domestic violence survivor, could not find legal assistance to appear before a court.  The Court ruled that member states must guarantee effective access to the courts.



Commission of the European Communities v. France European Court of Justice (1988)

Gender discrimination

The Commission brought proceedings against France claiming that it failed to adopt all of the measures required by Council Directive 76/207 within prescribed time. The French government argues that removing special rights for women that are in place should be left to the two sides of industry. However, the Court thinks that leaving industry to work out the issue through collective negotiation without any time limit is unacceptable and the French Republic violated the treaty.



Commission of the European Communities v. Italian Republic European Court of Justice (1983)

Gender discrimination

The Commission brought an action against the Italian Republic that they failed to properly implement legislation adopting Directive 76/207. The Commission argues that the Italian government did not properly implement certain requirements, such as equal working conditions, into national law. The Court notes that Article 189 of the EEC Treaty permits a country to implement its own form of legislation. There is no infringement of Directive 76/207 if the national law lets anyone bring the matters covered under the Directive before the courts. So the Court found for the Italian Republic.



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

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

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

 

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



Public Ministry  v. Stoeckel European Court of Justice (1991)

Gender discrimination

The region had a national law that women cannot be employed in working at night, especially in factories and plants. Suma was a company that had to lay off people and switch to a continuous shift-work system because of economic difficulties. Thus, it had women employees work night shift as well, which violated French Law. The company argued that Article 5 of Council Directive 76/207/EEC demanded equal treatment for men and women when it comes to working conditions. The Court ruled that the directive was specific enough that the Member State was obligated not to pass the legislation it had.



Malawi African Association and Others v. Mauritania African Commission on Human and Peoples' Rights (2000)

Sexual violence and rape

Between 1986 and 1992 violence escalated between the northern Mauritanian population and the southern black ethnic groups. The Northern Mauritanian population's military raided the south, detained hundreds of individuals, imposed curfews, and inflicted various forms of violence and intimidation. The complaint notes that men from the southern black ethnic groups were subjected to forms of torture and humiliation (such as the "jaguar" where a "victim's wrists are tied to his feet . . . [,] then [he] is suspended from a bar and kept upside down, sometimes over a fire, and is beaten on the soles of his feet") while the women were "simply raped." The Commission determined that the mass rape and other forms of violence violated the African Charter, in particular Article 6. Article 6 states that "every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law." The Commission requested that the respondent state compensate the victims of the violations and carry out an assessment of the "deep-rooted causes" of the "degrading practices" (it did not specify whether it considered these practices to include rape).



Dranichnikov v. Australia Human Rights Committee (2004)

Gender discrimination

HRC held sex discrimination claim inadmissible for non-exhaustion of domestic remedies because of High Court judgment in petitioner's favor.



Case of Schmidt v. Germany European Court of Human Rights (1994)

Gender discrimination

Gender-based service-or-tax requirement.  The Court found a law that required men only to serve as firefighter and required women to pay a tax was discriminatory in violation of the ECHR.



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.



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.



Hofmann v. Barmer Ersatzkasse European Court of Justice (1984)

Gender discrimination

The plaintiff is the illegitimate father of a child and took off work to take care of the child for a while. He applied for maternity leave and was turned down by the defendant, his employer. The country’s court decided that the legislation only permitted maternity leave and no paternity leave. In interpreting Directive 76/207, the Court decided that it was not meant to force member states to grant the same leave to fathers even if that is what the parents decide.



Paulina Del Carmen Ramirez Jacinto v. Mexico Inter-American Commission on Human Rights (2007)

Sexual violence and rape

Forced motherhood after rape. A complaint was lodged against Mexico for failing to allow a minor to receive an abortion after she was raped. The complaint alleged the violation of Articles 1, 5, 7, 8, 11, 12, 19, and 25 of the American Convention on Human Rights, Articles 1, 2, 4, 7, and 9 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, Article 10 of the Additional Protocol to the American Convention in the Area of Economic, Social, and Cultural Rights, Articles 9, 17, and 24 of the International Covenant on Civil and Political Rights, Articles 3 and 12 of the Universal Declaration of Human Rights, Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women and Articles 19, 37, and 39 of the Convention on the Rights of the Child.  Mexico and the petitioner reached a friendly settlement under which the government of Baja California would pay the victim's legal and medical expenses, provide her with school and housing expense assistance, medical and psychological services, free public higher education for her child, a computer and a printer, moral damages. The Mexican state also committed itself to increasing awareness and availability of legal termination of pregnancy.

Maternidad forzada tras la violación. Se presentó una queja contra México por no permitir que un menor de edad se hiciera un aborto después de haber sido violada. La denuncia alegó la violación de los artículos 1, 5, 7, 8, 11, 12, 19 y 25 de la Convención Americana sobre Derechos Humanos, los artículos 1, 2, 4, 7 y 9 de la Convención Interamericana sobre la Prevención, sanción y erradicación de la violencia contra la mujer, artículo 10 del Protocolo adicional a la Convención Americana en materia de derechos económicos, sociales y culturales, artículos 9, 17 y 24 del Pacto Internacional de Derechos Civiles y Políticos, Artículos 3 y 12 de la Declaración Universal de los Derechos Humanos, artículo 12 de la Convención sobre la eliminación de todas las formas de discriminación contra la mujer y artículos 19, 37 y 39 de la Convención sobre los Derechos del Niño. México y la peticionaria llegaron a un acuerdo amistoso en virtud del cual el gobierno de Baja California pagaría los gastos legales y médicos de la víctima, le proporcionaría asistencia para gastos escolares y de vivienda, servicios médicos y psicológicos, educación superior pública gratuita para su hijo, una computadora e impresora, mas compensacion por daños morales. El estado mexicano también se comprometió a aumentar la conciencia y la disponibilidad de la interrupción legal del embarazo.



M.C. v. Bulgaria European Court of Human Rights (2003)

Sexual violence and rape

The victim, a 14-year old, alleged she was raped by two men, but an ensuing investigation found insufficient evidence of the girl having been compelled to have sex. The investigation found that force was not used and that therefore rape had not occurred. Before the ECHR, therefore, the victim alleged that Bulgarian law failed to protect her because it required force to be present for rape to have occurred, a higher standard than in other countries, where for example, only non-consent was necessary. She also challenged the thoroughness of the investigation. The ECHR found that Bulgaria violated its positive obligations under Articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It ordered Bulgaria to pay the victim non-pecuniary damages and costs.



Arjona Camacho v. Securitas Seguridad España, SA European Court of Justice (2015)

Employment discrimination

Ms. Arjona Camacho was dismissed from her position as a security guard at a juvenile detention center. The Social Court No. 1 of Cordoba in Spain found that her dismissal constituted discrimination on the grounds of sex, and referred to the European Court of Justice the question of whether EU law (specifically Article 18 of Directive 2006/54/EC) requires a national court to grant punitive damages, i.e., damages that go beyond the amount necessary to compensate the actual loss and damage caused by the discriminatory act, even when the concept of punitive damages does not exist within the legal tradition of that national court. The European Court of Justice found that, although punitive damages may be awarded under such circumstances, they are not required under EU law. If the national law does not provide a ground for the award of punitive damages, EU law does not independently provide such a right.

 

La Sra. Arjona Camacho fue despedida de su puesto como guardia de seguridad en un centro de detención juvenil. El Juzgado de lo Social Nº 1 de Córdoba en España determinó que su despido constituía una discriminación por motivos de sexo y remitió al Tribunal de Justicia de las Comunidades Europeas la cuestión de si la legislación de la UE (específicamente el artículo 18 de la Directiva 2006/54 / CE) exige una tribunal nacional para otorgar daños punitivos, es decir, daños que van más allá del monto necesario para compensar las pérdidas y daños reales causados ​​por el acto discriminatorio, incluso cuando el concepto de daños punitivos no existe dentro de la tradición legal de ese tribunal nacional. El Tribunal de Justicia de las Comunidades Europeas determinó que, aunque en tales circunstancias se pueden otorgar daños punitivos, no están obligados por la legislación de la UE. Si la legislación nacional no proporciona un motivo para la concesión de daños punitivos, la legislación de la UE no puede proporcionar dicho derecho de forma independiente.



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

Custodial violence

In April 1992, the Petitioner, Mónica Feria Tinta, was arrested during a raid by DINCOTE, the counter-terrorism branch of the Peruvian police. The police believed that Ms. Tinta was a member of the Sendero Luminoso, a communist militant group in Peru. During the raid, Ms. Tinta was blindfolded, beaten and raped by some of the police officers. When Ms. Tinta protested the sexual violence, the officers beat and kicked her. After the raid, the officers took Ms. Tinta to a DINCOTE facility, where she was detained for more than a year in cells infested with roaches and rats. While detained, DINCOTE officers deprived Ms. Tinta of access to her attorney, forced her to urinate in a can in the presence of two male officers, and doused her with cold water if she resisted their orders. The Inter-American Commission on Human Rights (the “IACHR”) found that the Peru violated Ms. Tinta’s rights by failing to conduct a serious investigation of her claims, even though her claims “fit a pattern known to have existed at that time” and involved violence (¶ 207). According to the IACHR, Peru had a duty to investigate Ms. Tinta’s claims of rape, including ordering medical tests and examinations, to either corroborate or disprove Ms. Tinta’s claims. The IACHR concluded that Peru, inter alia, violated the rights recognized in articles 5(1), 5(2) and 11 of the American Convention on Human Rights (the “American Convention”), as well as Article 1 and 6 of the Inter-American Convention to Prevent and Punish Torture. Noting its well-established precedent that “rape committed by members of the security forces of a state against the civilian population constitutes, in any situation, a serious violation of the human rights protected by Articles 5 and 11 of the American Convention,” the IACHR established that rape is particularly reprehensible when it perpetrated by a state agent against a detainee, because of the victim’s vulnerability and the agent’s abuse of power (¶ 188). In addition, noting that various reports had shown a pattern of rape and sexual abuse against women by members of Peru’s security forces, the IACHR found that such sexual violence was part of a “broader context of discrimination against women” (¶ 65).