Women and Justice: Topics: Domestic and intimate partner violence, International law, Property and inheritance rights

This case represented the first trial and conviction for female genital mutilation in Ireland. The accused were originally from a French-speaking African country, and were charged and convicted with female genital mutilation and neglect of their daughter in relation to the same incident. At the time of the offence, the girl was under two years old, and her injuries were discovered when her parents brought her to the Accident and Emergency Department of an Irish hospital due to uncontrollable bleeding. Following their conviction, the victim’s parents were sentenced to an unspecified number of years imprisonment for the female genital mutilation and neglect, the sentences running concurrently. They appealed their convictions, claiming that they had not received a fair trial because (i) they did not have the opportunity to present ‘appropriate’ expert evidence and (ii) the translation of H.M.’s testimony before the jury was inaccurate. The Court of Appeal quashed the appellants’ convictions on the second ground, finding that their trial was unsafe and unsatisfactory for not having complied with either the spirit or the substance of the European Union’s Interpretation and Translation Directive, which provides for the rights to interpretation and translation in criminal proceedings. Thus, according to the court, the appellants were unable to properly exercise their right of defence. Following the judgment, the DPP requested a retrial, which was not opposed by the appellants.

With this decision, the Toulouse Court of Appeal held that a transgender woman had the right to be designated as the mother of her child when she had conceived the child before undergoing gender affirmation surgery. V., the claimant, and N.D. married and had two children. In 2009, V. successfully applied to change her civil status from male to female. She conceived the child that was the subject of these proceedings in 2014. She sought to be registered as the child’s mother, as opposed to as a surrogate, but the civil register refused. Until the decision of the Court of Appeal, only the claimant’s partner, their child’s biological mother, was listed on the child’s birth certificate. The claimant successfully argued, among other things, that it would be in the best interests of the child to have the claimant linked as the biological parent on the birth certificate. The decision was the first of its kind in France, and the result of eight years of proceedings. The Toulouse Court of Appeal referred in particular to the primacy of the child’s best interests, enshrined in the New York Convention, and to the right to respect for private and family life and the right to sexual self-determination, enshrined in the European Convention on Human Rights (Articles 8 and 14). It found that those conventions require that a child born to a couple including a transgender person have the right to have both parents legally recognized, and that those conventions were not contrary to French national law.

This decision resolved to implement the content of the ‘United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders,’ known as the ‘Bangkok Rules.’ The incorporation of such rules seeks for the creation of public policies aimed to eliminate discrimination against convicted women, establish legal protection of women’s rights in courts, and promote equality between women and men before the Justice Administration System. The decision also provided for a multidisciplinary commission composed of the Secretariat for Gender, the Directorate of Human Rights, the Directorate of International Affairs and the Penitentiary Monitoring Unit. Such commission is responsible of promoting the Bangkok Rules and raising awareness of all components of the Judiciary branch.

Esta decisión resolvió implementar el contenido de las 'Reglas de las Naciones Unidas para el Tratamiento de Reclusas y Medidas no Privativas de la Libertad para Mujeres Delincuentes', conocidas como 'Reglas de Bangkok'. La incorporación de dichas reglas busca la creación de políticas públicas dirigidas eliminar la discriminación contra las mujeres condenadas, establecer la protección legal de los derechos de las mujeres en las cortes y promover la igualdad entre mujeres y hombres ante el Sistema de Administración de Justicia. La decisión también dispuso una comisión multidisciplinaria integrada por la Secretaría de Género, la Dirección de Derechos Humanos, la Dirección de Asuntos Internacionales y la Unidad de Seguimiento Penitenciario. Dicha comisión es responsable de promover las Reglas de Bangkok y sensibilizar a todos los componentes del Poder Judicial.

The applicant was given refugee status and had successfully applied for permission for his second wife to join him in Ireland. The present case arose when he sought to have his first wife join him. In considering the legal consequences of a polygamous marriage entered into in another country, the Supreme Court ruled that, where a man had married two wives under the laws of Lebanon, the first marriage is valid under Irish law but the second is not. The appellant (husband) had married two women in a manner permissible under the laws of Lebanon (their previous state of domicile). He sought a declaration, pursuant to Section 29 of the Family Law Act 1995, that his marriage to his first wife was valid on the date of its inception. The High Court found the polygamous marriage entirely invalid. On appeal, the Supreme Court reasoned that: (a) rules of private international law require the State to recognize a marriage validly contracted under a foreign system of law unless such recognition is prohibited by public policy; (b) the Constitution and Irish public policy envisage a marriage as a union between two people based on the principles of equality and mutual commitment; (c) there is therefore no bar to recognizing a marriage “that is in fact monogamous, where the only objection is that the system of law under which the couple married would permit more than one marriage;” and (d) Irish law and the Irish Constitution preclude the recognition of a second or subsequent marriage while the first marriage is valid, although that does not mean that a subsequent marriage can never have legal consequences. The Court granted the declaration of the validity of the first marriage because it was valid when contracted and the husband’s subsequent marriage should not preclude that.

In 2007, the High Court held that the failure to allow the applicant, a transgender woman who had undergone gender-affirming surgery, to obtain a new birth certificate recording her gender as female violated her rights under Article 8 and 12 of the European Convention on Human Rights, which had been made part of Irish law, despite having found in previous proceedings involving the same applicant that her constitutional right to privacy was not disproportionately or excessively infringed. The Court agreed with the applicant that existing Irish law barred the effective recognition of her Article 8 and 12 rights in Ireland as they rendered her without the power to correct or vary the original entry on her birth certificate. The High Court considered the European Court of Human Right’s 2002 decisions in Goodwin v. United Kingdom and I. v. United Kingdom, in which the Court held that the State’s failure to have a system of law in place affording proper respect for a trans person’s Convention rights violated Articles 8 and 12 of the Convention.

The appellant, a Somali girl, applied to the Austrian government for asylum and international protection due to her precarious situation in Yemen. The appellant’s family fled to Yemen when she was four years old because her family was discriminated against in Somalia due to their affiliation with a Madhibaan minority clan. The plaintiff’s brother and father were killed and no other family remained in Somalia. Further, female genital mutilation is a common practice in Somalia. The appellant’s application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the nature of the persecution was found to be insufficiently intense or severe. It was further decided that the appellant’s genital mutilation had already happened , so the international protection against threatened genital mutilation could not apply. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, in particular, the disregard of the fact that women of minority clans in the relevant geographic areas were particularly vulnerable to risks of torture, rape, murder, and forced marriages. The lower court also failed to consider sufficiently the possibility of repeated genital mutilation. Finally, the Court referred to UNHCR’s finding that prior genital mutilation was an equally reasonable justification for the application for asylum and international protection because the victim suffered life-long physical and mental damages.

Die Beschwerdeführerin, ein somalisches Mädchen, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz aufgrund ihrer prekären Situation im Jemen. Die Familie der Klägerin floh in den Jemen, als sie vier Jahre alt war, weil ihre Familie in Somalia aufgrund ihrer Zugehörigkeit zu einem Clan der Madhibaan-Minderheit diskriminiert wurde. Der Bruder und der Vater der Klägerin wurden getötet, und keine andere Familie blieb in Somalia. Außerdem ist die weibliche Genitalverstümmelung in Somalia eine gängige Praxis. Der Antrag der Klägerin auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, dass die Art der Verfolgung nicht ausreichend intensiv oder schwer sei. Außerdem wurde festgestellt, dass die Genitalverstümmelung der Beschwerdeführerin bereits stattgefunden hatte, so dass der internationale Schutz gegen drohende Genitalverstümmelung nicht zur Anwendung kommen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, da er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt wurden, insbesondere die Tatsache, dass Frauen von Minderheitenclans in den betreffenden geografischen Gebieten besonders gefährdet sind, gefoltert, vergewaltigt, ermordet und zwangsverheiratet werden. Die Vorinstanz hat auch die Möglichkeit wiederholter Genitalverstümmelung nicht ausreichend berücksichtigt. Schließlich verwies das Gericht auf die Feststellung des UNHCR, dass eine frühere Genitalverstümmelung eine ebenso angemessene Begründung für den Antrag auf Asyl und internationalen Schutz sei, da das Opfer lebenslange körperliche und seelische Schäden erleidet.

The 90-year-old female appellant (an Iraqi national) applied to the Austrian government for asylum and international protection, stating that due to the war in Iraq, she feared for her life and for her family. She stated that she had been threatened by various battle groups. It appeared that the appellant was confined to a wheelchair and suffered from various illnesses including labyrinthine deafness, arterial hypertonia, kidney cysts, and dementia with behavioral disorder. Her application for international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that she did not meet the criteria for asylum or international protection. Among other reasons, her medical conditions were found to be insufficiently serious and of a nature that could be treated in Iraq. In addition, the fact that she still had family in Iraq to support her was found to be sufficient proof that she could lead a life without undue hardship. However, the Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of the case were not sufficiently considered, especially the appellant’s age, serious medical condition, unreasonable difficulty accessing medical treatment in Iraq. Therefore, the Court found (1) the appellant’s rights of Article 3 European Human Rights Convention to be violated, and (2) the lower court’s decision arbitrary.

Die 90-jährige Beschwerdeführerin (eine irakische Staatsangehörige) beantragte bei der österreichischen Regierung Asyl und internationalen Schutz mit der Begründung, dass sie aufgrund des Krieges im Irak um ihr Leben und ihre Familie fürchte. Sie gab an, dass sie von verschiedenen Kampfgruppen bedroht worden sei. Es stellte sich heraus, dass die Beschwerdeführerin an einen Rollstuhl gefesselt war und an verschiedenen Krankheiten litt, darunter labyrinthische Taubheit, arterielle Hypertonie, Nierenzysten und Demenz mit Verhaltensstörungen. Ihr Antrag auf internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, sie erfülle nicht die Kriterien für Asyl oder internationalen Schutz. Unter anderem wurde ihr Gesundheitszustand als nicht so schwerwiegend eingestuft, sodass dieser auch im Irak behandelt werden könne. Außerdem wurde die Tatsache, dass sie noch Familie im Irak hat, die sie unterstützen könnte, als ausreichender Beweis dafür angesehen, dass sie ein Leben ohne unzumutbare Härten führen kann. Das Verfassungsgericht hob dieses Urteil jedoch schließlich auf und stellte (neben anderen Schlussfolgerungen) fest, dass die Umstände des Falles nicht ausreichend berücksichtigt wurden, insbesondere das Alter der Beschwerdeführerin, ihr schwerer Gesundheitszustand und die unzumutbaren Schwierigkeiten beim Zugang zu medizinischer Behandlung im Irak. Daher stellte das Gericht fest, dass (1) die Rechte des Beschwerdeführers aus Artikel 3 der Europäischen Menschenrechtskonvention verletzt wurden und (2) die Entscheidung der unteren Instanz willkürlich war.

On a petition filed by a transgender individual for violation of constitutional rights, arguing that the census excluded transgender people with disabilities. The High Court ordered the Census Commission to include transgender in a separate column. This followed a recent order dated 09 January 2017 in writ petition (No. 37499/2016), where the High Court ordered the Census Commission to include the category “Transgender” under the column “Sex” in Form-2. The transgender category was assigned code/number 3 in the said column of Form-2 under disability. The High Court’s rationale was that exclusion of persons with disabilities from the National Census would offend their welfare and future prospects as a population and therefore violate constitutional provisions of security, dignity and freedom of speech of a person. The court further observed that Pakistan had ratified the UN Convention on the Rights of Persons with Disabilities in 2011, which places an international obligation on Pakistan to collect appropriate information about persons with disabilities and to implement policies accordingly.

The plaintiff (under the pseudonym ‘Jane Doe’) brought proceedings to enforce the judgement of a United States district court against her former employers, Mr. and Mrs. Howard. The claims against them included involuntary servitude, forced labour, and human trafficking. Mr. Howard did not contest the claim and had since died. Mrs. Howard disputed the claim but failed to comply with court orders, then moved to Victoria and participated no further in the proceedings. The U.S. district court had found that the plaintiff was raped, sexually abused, and forced to work 80 hours or more per week, and entered a default judgment against Mr. and Mrs. Howard in the amount of US $3,306,468. The Supreme Court of Victoria held that all criteria for enforcing the U.S. judgment were satisfied. The fact that the U.S. judgment was a default judgment that could theoretically be set aside did not prevent it from being “final and conclusive.” While Mrs. Howard argued that the default judgment was procured by fraud and should not be enforced in Victoria, the Supreme Court found that Mrs. Howard had “no reasonable prospect of establishing” her defences, and entered summary judgment against Mrs. Howard for the equivalent of US $3,306,468, plus interest.

A Muslim woman refused to shake a male interviewer’s hand for religious reasons during a job interview. She placed her hand over her heart and explained her reasons. The recruitment process was then canceled, as the company had a policy which required employees to shake hands with both men and women. The Swedish Equality Ombudsman claimed that the cancellation was an indirect discrimination of Muslims who refuse to shake hand with a person of an opposite sex. The Swedish Labor Court first established that the right to refuse a handshake on religious grounds is protected by the European Convention on Human Rights. The court further found that the handshake policy was neither appropriate nor necessary to achieve its justified purpose (promoting gender equality at the workplace). The court ordered the company to pay the woman SEK 40,000 in damages.

Four defendants were charged with War Crimes against the Civilian Population in violation of Article 152 of the Criminal Code of Kosovo and the Geneva Conventions, for variously beating “A” and “B,” both Kosovar Albanian female civilians, raping A, and subjecting them to a mock execution. All the defendants were acquitted by the Basic Court. On appeal, the Court of Appeals affirmed the Basic Court’s acquittal of two of the defendants as the victims could not positively testify about their participation, and no other evidence conclusively linked them to the crimes. However, the panel held that the lower court failed to fully adjudicate the mock execution charge. It also dismissed as “incomprehensible” the first instance court’s ruling that there was no credible evidence that the victims had direct contact with S.S. (one of the remaining defendants who allegedly beat them), noting the victims’ testimony indicated they were certain of the identity of the defendant. The tribunal held that the lower court’s refusal to allow an in-court identification of S.S. was a violation of the Criminal Procedure Code. While the appellate court agreed that witness identification should be approached with great caution, here the victims had the opportunity to see the defendant clearly for an extended time. The panel disagreed that witness testimonies are by default unreliable, explaining that they are entitled to the same evidentiary value and analysis as any other evidence and in certain cases the victim’s testimony is the only available evidence. The appellate court then pointed out the lower court’s contradiction with regard to the rape charge: it accepted that A was kidnapped, and also that there were intercourses while she was in captivity, yet then assumed that the intercourses may have occurred with consent, only because A and H.2. (the defendant accused of raping her), had an earlier intimate relationship. The tribunal held that it was absurd to assume that someone in captivity would be able to validly express consent, and even if A did consent due to the Stockholm Syndrome, a traumatic bonding of that kind would be a psychological condition and “any consent expressed by a victim in such circumstances would hardly be considered legally valid.” The appellate court further ruled that the events took place during a war, and consent in such a coercive environment would be “void by default,” citing the definition of rape in the case law of the International Criminal Tribunal for Rwanda. On the question of whether H.2.’s actions constituted a war crime, the panel held that it was irrelevant whether he had any association with the military. The relevant factors were instead whether there was an ongoing armed conflict, whether it was governed by international or domestic conflict norms, whether the victims were protected persons under international law, and whether there was a causal link between the armed conflict and the offense. The Court of Appeals remanded the case to the Basic Court to clarify facts on the mock execution and the involvement of H.2. in the alleged rape, and to conduct an in-court identification of S.S. (Also available in English.)

The applicant, a local employee of the UN mission in Kosovo, was arrested and charged with various criminal offenses, including facilitating or compelling prostitution (Article 241 of the Criminal Code of Kosovo). The Basic Court found him guilty and sentenced him to 14 years imprisonment. The Court of Appeal affirmed the guilty verdict. The applicant filed a request for protection of legality with the Supreme Court, which rejected the request. The applicant then submitted a referral to the Constitutional Court, alleging, among other things, that he was discriminated against on the grounds of gender in violation of Article 24 of the Constitution because the trial court found credible the statement of a victim and a witness because they were women. The Constitutional Court explained that, in the applicant’s circumstance, equality before the law should be understood as a right of a party to impartial treatment and equal opportunity to exhaust legal remedies despite personal status. Under European Court of Human Rights case law interpreting Article 14 of the European Convention on Human Rights, treatment is discriminatory if it has no objective and reasonable justification – that is, if it does not pursue a legitimate aim, or there is not a reasonable relationship of proportionality between the means and aim. The court dismissed the applicant’s allegation of gender discrimination as “manifestly ill-founded,” finding that he failed to prove how and why the trial court treated him in an unequal way in relation to the victim and witness at issue, only because they were women. The tribunal rejected the applicant’s other claims and concluded that he had not substantiated his allegations of a violation of the fundamental human rights and freedoms guaranteed by the Constitution. Therefore, the applicant’s referral was declared inadmissible. (Also available in Srpski and English.)

The applicant was registered as female at birth, but has always identified himself as male. He lived and appeared as a man in all areas of life, and had begun hormonal treatment to transition. The applicant filed a request with the Civil Status Office to change his name and gender marker to reflect his male gender identity, but the request was rejected. He appealed the decision to the Civil Registration Agency, which rejected the appeal on the grounds that the applicant provided no evidence that his current name prevented his integration in society, and no medical report supporting his request for a change of his gender marker. The applicant filed a claim with the Basic Court, and, only one week later and before a decision was rendered, referred the matter to the Constitutional Court. The applicant alleged the Civil Registration Agency’s decision violated his fundamental rights and freedoms, guaranteed by Articles 23 (Human Dignity), 24 (Equality Before the Law), and 36 (Right to Privacy) of the Constitution of Kosovo, and Article 8 (Right to Respect for Private and Family Life) of the European Convention on Human Rights. The applicant requested to be exempted from the legal obligation to exhaust all legal remedies before seeking a constitutional review on the grounds that the regular courts’ legal remedy would not be effective or sufficiently certain because of his special circumstances and the length of the proceedings. The Constitutional Court surveyed foreign constitutional courts via the Venice Commission for their respective relevant case law, confirming the general requirement for an applicant to exhaust his/her legal remedies before seeking constitutional review. The court noted the existence of a very similar and recently decided case, in which a person sued the Civil Status Office and Civil Registration Agency for their refusal to grant his request to change his name and gender marker from female to male after a successful gender reassignment surgery. The Basic Court ruled for the applicant and ordered the changes made, and the decision was upheld by the Court of Appeals. The Constitutional Court therefore determined that the regular courts could furnish an effective and sufficiently certain legal remedy for the applicant. Moreover, the court noted that the applicant was not seeking review of an already lengthy court proceeding, but merely of the possibility of one, and in any event the Basic Court and Court of Appeals disposed of the above mentioned precedent in reasonable time. Accordingly, the Constitutional Court ruled the applicant’s referral inadmissible because it was premature. (Also available in Srpski and English.)

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

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

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

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

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

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

A.F. buscó un aborto para su hija de 15 años, A.G., cuyo padrastro la violó y la dejó embarazada. Los tribunales de primera y segunda instancia rechazaron la petición de A.F. porque el código penal de Argentina solo permite el aborto en casos de agresión sexual a una mujer con discapacidad mental y A.G. no tenía discapacidad mental. Sin embargo, la corte de apelaciones autorizó el aborto, sosteniendo que el estatuto relevante debe leerse de manera amplia para abarcar todos los embarazos resultantes de agresión sexual. Tras el aborto, el tutor ad-litem local y el representante de la familia ("Tutor Ad-litem y Asesor de Familia e Incapaces") discutieron la decisión de la corte de apelaciones sobre la base de que la interpretación más amplia del estatuto de la corte de apelaciones violaba las protecciones constitucionales para el feto así como las protecciones que se encuentran en los tratados de los que Argentina es signataria. A pesar de que el aborto ya se había realizado, la Corte Suprema acordó adjudicar el asunto dada su importancia y ratificó el fallo de la corte de apelaciones, señalando que (1) algunos de los tratados referenciados habían sido enmendados expresamente para permitir abortos resultantes de agresión sexual y (2) ) Cualquier distinción entre las víctimas de agresión sexual que padecen deficiencias mentales y las que no lo son es irracional y, por tanto, inconstitucional.

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

El 6 de julio de 2016, la demandante notificó a su empleador que estaba embarazada y que tenía intención de tomar la baja por maternidad. En la fecha de notificación, la demandante ocupaba un cargo ejecutivo temporal. El 11 de julio de 2016, el empleador notificó a la demandante que su designación temporal como ejecutiva no surtía efecto. Adicionalmente, el empleador le proporcionó un paquete de compensación por maternidad a partir de la fecha en que se revocó su designación temporal, pero este no reflejaba sus mayores ingresos como ejecutiva temporal. El Juzgado de Primera Instancia otorgó a la demandante licencia de maternidad con un salario correspondiente (1) a su condición de ejecutiva a partir de la fecha de notificación hasta 30 días antes de la fecha probable de nacimiento y (2) a su condición de no ejecutiva durante el 100 días después del nacimiento del hijo del demandante. La demandate apeló esta decisión, citando como error del tribunal de primera instancia el que se le negara la paga ejecutiva durante el período de 100 días después del nacimiento de su hijo. El empleador discutió que la orden inicial le otorgaba a la demandante paga ejecutiva desde la fecha de notificación de su embarazo debido a la subsiguiente cancelación de la condición de ejecutivo de la demandante el 11 de julio de 2016. El tribunal de apelaciones decidió a favor de la demandante, señalando que (1) la Constitución Argentina prevé la protección total de la mujer durante el embarazo y la lactancia, (2) el Tratado Internacional para la Eliminación de todas las formas de Discriminación contra la Mujer (de la cual Argentina es signataria) requiere la adopción de leyes que prevengan la discriminación por matrimonio o embarazo, y (3) la falta de adjudicación a la demandante de una compensación por maternidad correspondiente a su condición de ejecutiva sería resultar en un fracaso para asegurar la estabilidad del empleo. El tribunal de apelación decidió en contra de la solicitud de la demandante de regresar a su puesto ejecutivo después de la licencia de maternidad sobre la base de que la designación era de carácter temporal y que las leyes que protegen a las mujeres durante la licencia de maternidad no pueden alterar la naturaleza fundamental de la relación antes de la maternidad.

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

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

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

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

Decision available in English here.

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

Second instance verdict available in English here.

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

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

本件は、日本人夫婦の妻が、夫の同意を得ることなく、米国出身の11歳の息子を米国から日本に連れて帰り、米国にいる夫が東京家庭裁判所に息子の返還命令を申し立た事案である。日本が国際的な親による子の奪取を規定している「ハーグ条約」に加盟したことにより、東京家庭裁判所は返還命令の決定を下した。しかし、執行官が裁判所の命令を執行しようとしたところ、妻が強く抵抗したため、裁判所の命令を執行することができなかった。その後、夫は子の監護等を求めて人身保護請求を求めたが、高裁は夫の請求を棄却した。最高裁は、高裁の判決を破棄し、原審に差し戻した。その理由として、まず、旧判例では、人身保護法及び人身保護規則にいう「拘束」に当たるのは、意思能力がある子の監護について、子が自由意思に基づいて監護者の下にとどまっているとはいえない特段の事情があるときと示していた。本件では、子供が日本に連れて行かれた時点で自分の生活について判断する能力がなかったこと、父親とのコミュニケーションの機会が十分ではなかったと思われること、母親に大きく依存していたことなどから鑑みると、母親からの過度の精神的影響という特別な事情が存在すると最高裁は判断した。さらに、最高裁は、母親が家庭裁判所の返還命令に従わなかったこと、子を連れ去ることが著しく不当となる特段の事情がないことなどを考慮して、問題となっている拘束は紛れもなく違法であると判断した。本最高裁の全員一致による判決は、裁判所が「ハーグ条約」を遵守する姿勢を示している。

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

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

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

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

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

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

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

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

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

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

The minor applicant, a member of the Hazara ethnic group, illegally immigrated to Austria with her parents and four minor siblings from Afghanistan when she was approximately nine years old. The Federal Asylum Agency of Austria (“FAAA”) denied her and her family’s petitions for asylum. The Asylum Court reversed the denial, finding that the FAAA erred in summarily denying asylum based on the applicant’s statements without considering outside credible reports or sources relevant to the applicant’s asylum claim. The Asylum Court found that the applicant belonged to a particular social group based on her gender, age, and cultural and religious origins, and that she would have to live in accordance with the family’s conservative values if she returned to Afghanistan. As such, the applicant would not have the opportunity to pursue any goals outside the religion and customs of her community nor would she be able to protect herself against violence or undesired restrictions. Furthermore, a return would mean that the applicant would be raised to be a homemaker and married to a man chosen by her father and grandfather. The Court concluded that, if returned to Afghanistan, the applicant would find herself in a situation of permanent latent threats, structural violence, and immediate restrictions that would practically make it impossible for her to exercise her human rights. In granting the applicant’s asylum claim, the Court considered both gender-specific and child-specific factors that were not brought forth by the applicant, but rather gathered from credible investigative sources.

Die minderjährige Beschwerdeführerin ist afghanische Staatsbürgerin und Angehörige der Volksgruppe der Hazara. Sie wanderte gemeinsam mit ihren Eltern und vier minderjährigen Geschwistern illegal nach Österreich ein, als sie ungefähr neun Jahre alt war. Das Österreichische Bundesasylamt lehnte ihren Asylantrag und den ihrer Familie ab. Der Asylgerichtshof hat der Beschwerde der Beschwerdeführerin stattgegeben und ihr den Status einer Asylberechtigten zuerkannt. Nach Auffassung des Asylgerichtshofs lehnte das Bundesasylamt fehlerhaft den Antrag aufgrund der Angaben der Beschwerdeführerin ab, ohne weitere externe Berichte oder sonstige Quellen in Betracht zu ziehen, die ebenso relevant für die Beurteilung des entsprechenden Asylantrags sind. Der Asylgerichtshof stellte fest, dass die Beschwerdeführerin einer bestimmten sozialen Gruppe aufgrund ihres Geschlechts, Alters und kultureller oder religiöser Herkunft angehört, sodass sie in Übereinstimmung mit den konservativen Werten ihrer Familie leben müsste, sollte sie nach Afghanistan zurückkehren. Unter diesen Umständen würde ihr das Verfolgen von Zielen außerhalb der Religion und den Gepflogenheiten ihrer Gemeinschaft verwehrt. Sie wäre des Weiteren nicht in der Lage, sich gegen Gewalt oder ungewollte Restriktionen zu wehren. Außerdem würde eine Rückkehr für sie bedeuten, als Hausfrau und Mutter erzogen zu werden, bis sie an einen Mann verheiratet würde, den entweder Vater oder Großvater für sie aussuchen. Der Gerichtshof hat daher festgestellt, dass die Beschwerdeführerin, sollte sie nach Afghanistan zurückkehren, sich in einem Klima ständiger latenter Gefahr, struktureller Gewalt und unmittelbarer Einschränkungen wiederfinden würde, die es ihrer praktisch unmöglich machen, ihre Menschenrechte auszuüben. Indem der Gerichtshof, dem Antrag der Beschwerdeführerin stattgab, hat er sowohl geschlechtsspezifische und kind-spezifische Faktoren erwogen, die nicht von der Beschwerdeführerin vorgebracht wurden, allerdings aus glaubwürdigen investigativen Quellen stammen.

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

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

Following a request to Brazil’s Federal Supreme Court (Supremo Tribunal Federal or “STF”) by then-President Luiz Inácio Lula da Silva, the STF reviewed and upheld the constitutionality of the Lei Maria da Penha (“LMP”). The LMP is Brazil’s first law to address the problem of domestic violence against women on a national scale. The law’s provision for the creation of special courts, as well as the law’s differentiated protection of women, had come under scrutiny in many of Brazil’s lower courts as unconstitutional. The STF, however, has previously held that those articles were constitutional. President Silva argued that the LMP was constitutional due to Article 226, § 8 of the Federal Constitution, and Brazil’s ratification of the Convention on the Elimination of All Forms of Discrimination Against Women and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. The Justices agreed that the LMP does not create a law of unequal treatment between men and women, but addresses the reality of longstanding discrimination and aggression directed at women, and offers substantive mechanisms to promote equality without infringing on the rights of males. The Court also found that the provision of specialized courts is constitutional and not in conflict with state control of the local courts. Finally, with a majority vote of 10-1, the Justices held that the office of the public prosecutor can prosecute domestic violence cases even when the victim fails to appear or file a complaint against her aggressor. The majority reasoned that state intervention is necessary to guarantee the victim’s protection from the risk of ongoing violence, which may be aggravated by the victim appearing in the action against her aggressor.

O Presidente do Brasil em 2012, Luiz Inácio “Lula” da Silva, ajuizou pedido de revisão da constitucionalidade da Lei Maria da Penha (LMP) ao Supremo Tribunal Federal – STF, sob a ótica do tratamento diferenciado conferido pela Lei aos homens e as mulheres. Em breve retrospecto, a LMP é o primeiro dispositivo legal enderençando o problema da violência doméstica sofrida pelas mulheres em nível nacional. Em razão da referida lei prever a instituição de Juizados Especiais de violência doméstica e familiar contra a mulher, bem como diferenciar a proteção conferida às mulheres vítima de violência doméstica, diversas varas de primeira instância passaram a julgar os dispositivos das leis como inconstitucionais, muito embora o STF já tivesse firmado entendimento pela constitucionalidade da LMP. No pedido encaminhado pelo então presidente Lula argumentou que o parágrafo 8º do artigo 226 da Constituição Federal (o qual prevê que o Estado assegurará a assistência à família na pessoa de cada um dos que a integram, criando mecanismos para coibir a violência no âmbito de suas relações), bem como a ratificação do Brasil a Convenção sobre a Eliminação de todas as Formas de Discriminação contra a Mulher (CEDAW) e a Convenção Interamericana para Prevenir, Punir e Erradicar a Violência contra a Mulher garantiriam a constitucionalidade da LMP. Os Ministros do STF, quando da análise do assunto, entenderam a LMP não criou tratamento desigual em relação aos homens e mulheres, tendo endereçado apenas os problemas de discriminação e agressões dirigidas às mulheres, oferecendo, portanto, mecanismos de proteção que auxiliam na promoção da igualdade, sem retirar qualquer direito dos homens. O STF entendeu ainda que as provisões relativas à criação de Juizados Especiais são constitucionais, não havendo conflitos entre o controle jurisdicional estadual e local. Finalmente, a maioria dos Ministros (10-1) entendeu que as Promotorias Públicas têm competência para denunciar casos de violência doméstica, a inda que a vítima desista de aparecer em juízo ou prosseguir com a denúncia contra o agressor. A maioria justificou que a intervenção estatal se faz necessária para a garantia de proteção à vítima em razão do risco iminente de violência, a qual poderia ser agravada caso a vítima denunciasse seu agressor.

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

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

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

Die applikant is seksueel aangerand deur 'n man wat verhoorafwagtend was weens die poging tot verkragting van 'n ander vrou. Ondanks die erns van die beweerde misdaad en die feit dat die man 'n vorige skuldigbevinding aan verkragting gehad het, het die polisie en aanklaer aanbeveel dat die man vrygelaat word afhangende verhoor. Die applikant het die Minister vir skadevergoeding gedagvaar, met die argument dat die polisie en aanklaers hul plig versuim het en nalatig was om stappe te doen om te voorkom dat die man haar skade berokken. Dit was hul wettige plig wat hul aan haar verskuldig was om stappe te doen om te voorkom dat die man haar skade berokken. Die Hooggeregshof het die aansoeker se eis van die hand gewys en die Hoogste Appèlhof het bevestig dat die polisie en aanklaers nie 'n beskermings plig aan haar verskuldig is nie. Op appèl het die Konstitusionele Hof die bevele van die laer howe tersyde gestel en die saak weer aan die hooggeregshof voorgelê. Daar is van mening dat die staat deur die Grondwet en die internasionale reg verplig is om die waardigheid en sekuriteit van vroue te beskerm, en in die omstandighede kan die polisie se aanbeveling vir die vrylating van die aanvaller neerkom op onregmatige optrede wat hul aanspreeklikheid tot gevolg het. Die Hof het ook bevind dat aanklaers wat onder die plig is om inligting rakende die weiering of toestaan ​​van borgtog voor die hof te plaas, aanspreeklik gehou kan word vir nalatige versuim om daardie plig na te kom.

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

The purpose of the framework strategy is to provide for a consistent and effective implementation of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the “Convention”) in BiH which was the first legally binding document of the Council of Europe in the field of preventing and combating violence against women. The strategy constitutes a comprehensive framework that defines the specific manner in which the Convention will be implemented in BiH and the way in which the legal and institutional framework will be harmonized with the Convention. It also defines the priorities in the field of preventing and combating violence against women and domestic violence, identifies responsible institutions, and introduces the framework of monitoring and reporting on the implementation of the strategy and the Convention. English translation available here.

This report by the Eurasian Coalition on Male Health (ECOM.ngo) discusses the status and treatment of LGBTQ people in Georgia, specifically gay men, other men who have sex with men (MSM), and trans people. It explains existing legal protections for LGBTQ people, societal attitudes, human rights violations, and recommendations for future progress. (PDF is in English. The External Link offers Russian, English, and Estonian.)

The Criminal and Criminal Procedural Codes of Ukraine were amended in December 2017 to adopt provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention). In part, these amendments increased the punishment for an illegal abortion (meaning that it was conducted by a person who had no special medical education; or forcing an abortion without voluntary consent, which is punishable by a fine of 50-100 tax-free minimum incomes, community service of 100-240 hours, correctional labor for up to two years, or restriction of liberty for up to two years, or imprisonment for the same term. The amendments criminalized forcing an abortion and forced sterilization without consent. Rape (i.e., sexual acts involving vaginal, anal, or oral penetration using the genitals or any other item, without voluntary consent) is punishable with imprisonment for three to five years and sexual violence (nonconsensual, non-penetrative sexual assault) is punishable by imprisonment for up to five years. Finally, consent is valid if it is a person's exercise of free will, with consideration of attending circumstances.

У грудні 2017 року до Кримінального та Кримінально-процесуального кодексів України були внесені зміни, що містять положення Конвенції Ради Європи «Про запобігання насильству щодо жінок і домашньому насильству та боротьбу з ними» (Стамбульська конвенція), ухваленої у 2011 році. Внаслідок цих змін статтю 134 Кримінального кодексу України, яка передбачає кримінальну відповідальність за незаконне проведення аборту (проведення аборту особою, яка не має спеціальної медичної освіти; примус до проведення аборту без добровільної згоди потерпілої), було змінено, в частині посилення відповідальності за це небезпечне злочинне діяння (тобто тепер незаконний аборт карається штрафом від 50 до 100 неоподатковуваних мінімумів доходів громадян або громадськими роботами на строк від 100 до 240 годин, або виправними роботами за на строк до двох років, або обмеженням волі на строк до двох років, або позбавленням волі на той самий строк). Також криміналізовано примус до аборту без добровільної згоди потерпілої, а також примусову стерилізацію без добровільної згоди потерпілої особи. Змінено статті, які передбачають кримінальну відповідальність за зґвалтування та сексуальне насильство. Зокрема, зґвалтування (тобто вчинення статевих дій, пов’язаних із вагінальним, анальним або оральним проникненням в тіло іншої особи за допомогою статевих органів або будь-якого іншого предмета без добровільної згоди потерпілої особи) карається позбавленням волі на строк від трьох до п’яти років, а також сексуальне насильство (не пов'язане з проникненням в тіло іншої особи без добровільної згоди потерпілої особи) карається позбавленням волі на строк до п'яти років. Примітка: Згода вважається добровільною, якщо вона є результатом вільного волевиявлення особи, з урахуванням супутніх обставин.

The Colombian Constitution of 1991 promotes values and principles that protect and defend the role of women in society. Article 13 prohibits discrimination based on sex, race, national or family origin, religion, language, and political or religious opinion. Article 40 stipulates that authorities must guarantee the adequate and effective participation of women at all decision levels in the Public Administration. Article 42 covers equal rights and duties in domestic and family relationships, providing that any form of violence in the family is considered a severe offense to its integrity and unity and will thus be sanctioned. The Constitution aims to achieve gender equality for Colombian women. Colombia also ratified, by virtue of the Decree Law 251 of 1981, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of 1979.

La Constitución colombiana de 1991 promueve valores y principios que protegen y defienden el papel de la mujer en la sociedad. El artículo 13 prohíbe la discriminación por motivos de sexo, raza, origen nacional o familiar, religión, idioma y opinión política o religiosa. El artículo 40 establece que las autoridades deben garantizar la participación adecuada y efectiva de las mujeres en todos los niveles de decisión de la Administración Pública. El artículo 42 contempla la igualdad de derechos y deberes en las relaciones domésticas y familiares, disponiéndose que toda forma de violencia intrafamiliar se considera una falta grave a la integridad y unidad y, por tanto, será sancionada. La Constitución tiene como uno de sus objetivos lograr la igualdad de género para las mujeres colombianas. Colombia también ratificó, en virtud del Decreto Ley 251 de 1981, la Convención sobre la Eliminación de Todas las Formas de Discriminación contra la Mujer (CEDAW) de 1979.

Section 321a (1) and (3) provide that a person who holds a woman captive who has been impregnated through the use of coercion, with the intent to influence the ethnic composition of a population or to commit other serious violations of international law, is punishable by imprisonment for a term of 5-15 years, or, if such an act results in the death of a person, a term of 10-20 years or life imprisonment. The abovementioned applies where such acts are performed as part of an extended or systematic attack against a civilian population.

Gemäß § 321a (1), (3) ist eine Person mit 5 bis 15 Jahren Gefängnis zu bestrafen, wenn sie im Rahmen eines systematischen und ausgedehnten Angriffskrieges gegen die Zivilbevölkerung eine Frau gefangen hält, die unter Anwendung von Zwang geschwängert wurde und dies mit dem Ziel erfolgt, die ethnische Zusammensetzung der Bevölkerung zu beeinflussen oder andere schwere Verletzungen des Internationalen Rechts vorzunehmen. Wenn die Handlung den Tod der anderen Person herbeiführt, ist die Strafe zwischen 10 und 20 Jahren oder sogar lebenslänglicher Freiheitssrafe festzusetzen.

The National Plan of Action for the Implementation of the Resolution Nº 1325/2000 of the UN Security Council on Women, Peace and Security was approved by the Angolan President in June 2017, revoking all legislation that contravenes it. The UN Resolution Nº 1325/2000 emphasizes the uneven impact of armed conflicts on men and women, and appeals for a higher degree of participation of women, and the integration of gender equality in the prevention, management, and resolution of armed conflicts. As such, it highlights the importance of gender equality in all phases of construction of peace and gives women the role not as victims, but as important actors in the peacemaking process. The National Plan follows those principles by planning to: 1) increase women’s participation in the construction of peace and related decision-making, 2) guarantee the formation and habilitation of women and girls, 3) promote and protect women’s and girls’ human rights in zones of conflict and post-conflict through empowerment and elimination of gender and sexual violence, among other objectives. In this respect, the plan also includes a series of activities, goals and execution times, and the expected result as an effective policy to implement the plan's objectives.

O Plano Nacional de Ação para a Implementação da Resolução Nº 1325/2000 do Conselho de Segurança das Nações Unidas sobre Mulheres, Paz e Segurança foi aprovado pelo Presidente da Angola em Junho de 2017, revogando toda a legislação que viola o plano. A Resolução Nº 1325/2000 da ONU enfatiza o impacto desigual dos conflitos armados para homens e mulheres, e apela para um maior grau de participação das mulheres, e para a integração da igualdade de gênero na prevenção, administração e resolução dos conflitos armados. Como tal, ele realça a importância da igualdade de gênero em todas as fases de construção da paz e dá às mulheres papeis não de vítimas, mas de importantes atrizes no processo de pacificação. O Plano Nacional segue esses princípios ao planejar: 1) o aumento da participação feminina na construção da paz e relacionada a tomadas de decisão, 2) a garantia da formação e habilitação de mulheres e garotas, 3) a promoção e proteção dos direitos humanos de mulheres e garotas em zonas de conflito e pós-conflito por meio do empoderamento e eliminação de violência sexual e de gênero, junto de outros objetivos. Nesse sentido, o plano também inclui uma série de atividades, metas e tempos de execução, e o resultado esperado como uma política efetiva para implementar os objetivos do plano.

The National Plan of Action for the Implementation of the Resolution Nº 1325/2000 of the UN Security Council on Women, Peace and Security was approved by the Angolan President in June 2017, revoking all legislation that contravenes it. The UN Resolution Nº 1325/2000 emphasizes the uneven impact of armed conflicts for men and women, and appeals for a higher degree of participation of women, and to the integration of gender equality in the prevention, management, and resolution of armed conflicts. As such, it highlights the importance of gender equality in all phases of construction of peace and gives women the role not as victims, but as important actors in the peacemaking process. The National Plan follows those principles by planning to: 1) increase women’s participation in the construction of peace and related decision-making, 2) guarantee the formation and habilitation of women and girls, 3) promote and protect women’s and girls’ human rights in zones of conflict and post-conflict through empowerment and elimination of gender and sexual violence, among other objectives. In this respect, the plan also includes a series of activities, goals and execution times, and the expected result as an effective policy to implement the plan's objectives.

O Plano Nacional de Ação para a Implementação da Resolução Nº 1325/2000 do Conselho de Segurança das Nações Unidas sobre Mulheres, Paz e Segurança foi aprovado pelo Presidente da Angola em Junho de 2017, revogando toda a legislação que viola o plano. A Resolução Nº 1325/2000 da ONU enfatiza o impacto desigual dos conflitos armados para homens e mulheres, e apela para um maior grau de participação das mulheres, e para a integração da igualdade de gênero na prevenção, administração e resolução dos conflitos armados. Como tal, ele realça a importância da igualdade de gênero em todas as fases de construção da paz e dá às mulheres papeis não de vítimas, mas de importantes atrizes no processo de pacificação. O Plano Nacional segue esses princípios ao planejar: 1) o aumento da participação feminina na construção da paz e relacionada a tomadas de decisão, 2) a garantia da formação e habilitação de mulheres e garotas, 3) a promoção e proteção dos direitos humanos de mulheres e garotas em zonas de conflito e pós-conflito por meio do empoderamento e eliminação de violência sexual e de gênero, junto de outros objetivos. Nesse sentido, o plano também inclui uma série de atividades, metas e tempos de execução, e o resultado esperado como uma política efetiva para implementar os objetivos do plano.

Ratified by BiH in November 2013, this Convention opens the path for creating a legal framework at the pan-European level to protect women against all forms of violence and to prevent, prosecute, and eliminate violence and domestic violence against women. The Convention also establishes the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), which is responsible for monitoring the implementation of the Convention. Its members are elected by the state parties. The structure of the treaty is based on the “four Ps”: (1) prevention, (2) protection and support of victims, (3) prosecution of offenders, and (4) integrated policies. The Convention also establishes obligations in relation to the collection of data and supporting research in the field of violence against women. Article 2 of the Convention indicates that the provisions shall apply in time of peace and also in situations of armed conflicts. The treaty came into effect in Bosnia on the 1 August 2014.

This law sets the procedure for granting refugee status; the status of subsidiary protection; cessation and revocation of a refugee status and the status of subsidiary protection; temporary protection, identification documents; the rights and obligations of asylum-seekers, refugees, and aliens under subsidiary protection; and other issues related to asylum in BiH. Article 9 of the Law on Asylum enhances the protection of women as it prohibits the discrimination of aliens on all grounds stipulated in the Law on the Prohibition of Discrimination, including sex, sexual orientation, gender identity, and sexual characteristics. English translation available through RefWorld External URL.

The law aims to put in place measures to eliminate gender-based violence against women in order to achieve equality and respect for human dignity by adopting a comprehensive approach to prevention of all forms of violence, to punish its perpetrators, and to protect victims of violence. The law applies to vulnerability and all forms of violence, including physical, moral, sexual, political, and economic. It adopts the internationally agreed definition of violence against women consistent with the Declaration on the Elimination of Violence against Women adopted by the UN General Assembly in 1993.

Pursuant to Article 143, one who commits rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, knowing such offense is part of a widespread or systematic attack directed against any civilian population, shall be punished by imprisonment of at least 15 years for committing crimes against humanity. Article 145 states that one who commits rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave violation of the Geneva Conventions, shall be punished by imprisonment of not less than 10 years for the commission of war crimes. Similarly, Article 147 punishes the same war crimes as Article 145 in conflicts of a non-international character. Articles 163 – 166 criminalize human trafficking, slavery, and related offenses including smuggling migrants and destroying victims’ identification papers. Penalties for violations of these articles include fines and imprisonment from between 1 – 12 years. Articles 179-180 prohibit sterilization without consent and female genital mutilation. The Criminal Code also punishes sexual violence including rape (Article 227), sexual harassment (Article 183), sexual assault (Article 228), and sex trafficking and forced prostitution (Articles 229, 234). Finally, Articles 239 and 248 contain gender-neutral bans on forced and early marriage and domestic violence, respectively. (Unofficial English version available here.)

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

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

This law criminalizes the act of human trafficking and sets out minimum and maximum sentencing standards (up to 15 years) for its various permutations, such as in assisting or abetting such a crime. It also states that Indonesia will cooperate with regional and international authorities in order to thwart any actions relating to human trafficking and sexual exploitation.

Peraturan ini mengkriminalisasikan tindak pidana perdagangan orang dan menetapkan standar hukuman minimum dan maksimum (maksimal 15 tahun) untuk berbagai bentuknya, seperti dalam membantu dan bersengkongkol tindak pidana tersebut. Peraturan juga menyatakan bahwa Indonesia akan bekerja sama dengan otoritas regional dan internasional untuk menggagalkan setiap tindakan yang berkaitan dengan perdagangan manusia dan eksploitasi seksual.

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

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

The Criminal and Criminal Procedural Codes of Ukraine were amended in December 2017 to adopt provisions of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) adopted in 2011. As a result of these amendments, forced marriage (i.e. forcing a person to marry or to continue being in a forced marriage, or to enter into a cohabitation without official registration of marriage, or to continue such cohabitation) is punishable by restraint of liberty for up to three years or imprisonment for the same period and domestic violence (i.e. deliberate systematic violence against a spouse or ex-spouse or other person with whom the perpetrator is in family or intimate relationship, leading to physical or psychological suffering, disorder of health, disability, emotional dependence) is punishable with a sentence of public work for up to 240 hours, detention for up to six months, restraint of liberty for up to five years, or imprisonment for up to two years. In addition, the amendments: (i) introduce new crimes, such as “illegal abortion or sterilization” (i.e., performed by a person without medical education or without consent of the victim) which is punishable by imprisonment for up to 3 years; (ii) establish punishment for rape of a spouse or ex-spouse or other person with whom the perpetrator is in a family or intimate relationship (imprisonment for up to 10 years); and (iii) increase punishment for sexual violence to up to 15 years, if such acts resulted in serious consequences.

The Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment ("the Act") aims to promote equal opportunities and treatment of men and women in the workplace. The Act falls under Article 1 of the Constitution’s mandate for the government to ensure equality under law and promote measures to ensure the health of working women during pregnancy and after childbirth. Japan enacted the Act in 1985 upon the United Nation’s ratification of Convention on the Elimination of all forms of Discrimination against Women. The Act prohibits employment discrimination based on sex at each stage of recruitment, assignment, and promotion. It also prohibits discriminatory treatment based on marriage status, pregnancy, and childbirth. In addition, an Amendment to the Act in 2017 obligates employers to take steps to prevent harassment based on a protected status. To ensure its effectiveness, the Act requires that employer violations of the statute be publicly announced, and a fine imposed on employers who violate the reporting obligation.

「雇用の分野における男女の均等な機会及び待遇の確保等に関する法律」は、職場における男女の均等な機会及び待遇を促進することを目的としている。本法は、憲法第1条の「法の下の平等を確保し、働く女性の妊娠中及び出産後の健康を確保するための措置を推進すること」に該当します。 日本は、国連の女性差別撤廃条約の批准を受けて、1985年に本法を制定した。 同法は、採用、配置、昇進の各段階において、性別に基づく雇用差別を禁止した。また、婚姻関係、妊娠・出産に基づく差別的取り扱いも禁止している。2017年、同法改正により、雇用主は保護されるべき地位に基づくハラスメントを防止するための措置を講じることが義務付けられた。 その実効性を確保するため、同法では、雇用主が法令に違反した場合にはその違反を公示し、罰金を課すことができる。

The applicant’s child was adopted without his consent, but with the permission of the mother. After two years of domestic litigation and in consideration of his daughter’s best interests, he no longer sought to overturn the adoption, but requested damages from the government for the violation of his rights. The European Court of Human Rights found that the adoption of a child of unmarried parents without the father’s knowledge or consent was in accordance with Irish law and pursued the legitimate aim of protecting the rights and freedoms of the child. However, the Court found that the law violated the European Convention on Human Rights because it interfered with the applicant’s right to family life under Article 8(1), which would be permissible only if the interference were “necessary in a democratic society.” The Court found that the Irish Government had advanced no reasons relevant to the welfare of the child to justify such a departure from the principles governing respect for family ties. The Court also considered that Article 8 was not restricted to families based on marriage. Finally, because the applicant had no rights under Irish law to challenge the adoption decision either before the Adoption Board or in court, there was a violation of his right to a fair and public hearing by an independent and impartial tribunal under Article 6(1) of the Convention. The Court awarded pecuniary and non-pecuniary damages as well as legal costs and expenses.

In this case, the three applicants were Irish residents, but had abortions in the United Kingdom because abortion was unlawful in Ireland. Two of the applicants sought abortions for health and/or wellbeing-related reasons, while the third applicant was unable to establish her eligibility for a lawful abortion in Ireland. The third applicant was in remission for cancer and, due to a lack of information on the impact of the pregnancy on her remission and the effect of her treatment on the pregnancy, sought the abortion because of the risks involved with the pregnancy. The court found that while the European Convention of Human Rights did not confer a right to abortion, the prohibition of abortion in circumstances involving the applicant’s health and/or well-being, and the fact that the third applicant was unable to establish her eligibility came within the scope of the applicants’ right to their private lives under Article 8 of the Convention. The Court found no violation of Article 8 with respect to the first and second applicants because the interference with the right was in accordance with Irish law and “moral values deeply embedded in the fabric of society in Ireland”; however, the Court found that the prohibition violated the third applicant’s Article 8 right because there were no “effective and accessible procedures” that would allow the third applicant to establish that she qualified for a lawful abortion in Ireland. The State therefore had failed to comply with the “positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which she could have established whether she qualified for a lawful abortion in Ireland.” In 2018, Ireland enacted the Health (Regulation of Termination of Pregnancy) Act, which allows abortion (i) during the first 12 weeks of pregnancy, (ii) when the fetus has a condition that is likely fatal, or (iii) to protect the life or health of the woman.

The complainant in this case was informed that her fetus was suffering from a fatal fetal abnormality and would die in utero. At the time, she was unable to terminate her pregnancy in Ireland, so she traveled to the UK to obtain an abortion there, returning after 12 hours because she could not afford to stay longer. After returning to Ireland, she had no access to aftercare or counseling. The complainant applied to the UN Human Rights Committee (“the Committee”), claiming that Ireland had violated her rights under Articles 2(1) (freedom from discrimination, including sex-based), 3 (gender equality), 7 (freedom from torture, cruel, inhuman, or degrading treatment), 17 (right to privacy), 19 (freedom of information, including health-related), and 26 (equal protection of the law) of the International Covenant on Civil and Political Rights (“ICCPR”). The Committee found that because of the unavailability of abortion and other care, Ireland had violated the complainant’s rights under the following ICCPR articles: Art. 7 by denying the complainant reproductive health care and bereavement support, forcing her to continue carrying a dying fetus, compelling her to travel abroad to terminate her pregnancy, and causing her to feel extremely vulnerable, stigmatized, and abandoned; Art. 17 by interfering arbitrarily in the complainant’s right to privacy by denying respect for her physical and psychological integrity and reproductive autonomy; and Art. 27 by discriminating against the complainant for obtaining an abortion because the Irish healthcare system provides bereavement counseling to pregnant women after stillbirth resulting from carrying a fetus with fatal impairments to term, but not to women who terminate such pregnancies. The Committee held that Ireland had to provide the complainant with an effective remedy, including adequate compensation, and had to amend domestic law on the voluntary termination of pregnancy to comply with the ICCPR. In 2018, Ireland enacted the Health (Regulation of Termination of Pregnancy) Act, which allows abortion (i) during the first 12 weeks of pregnancy, (ii) when the fetus has a condition that is likely fatal, or (iii) to protect the life or health of the woman.

The applicant was a Lithuanian citizen working in an administrative role in the Polish Embassy in Vilnius. She filed a complaint against her male colleague for sexual harassment to the Lithuanian Equal Opportunities Ombudsperson and was later dismissed from her position. The Lithuanian courts declined jurisdiction citing the state-immunity rule. The European Court of Human Rights found that the courts erred in refusing access to a fair trial as guaranteed by Article 6 of the ECHR and awarded the applicant EUR 10,000 of pecuniary and non-pecuniary damages to be paid by the respondent State.

Pareiškėja buvo Lietuvos pilietė, atlikusi administracines pareigas Lenkijos ambasadoje Vilniuje. Ji pateikė skundą Lietuvos lygių galimybių kontrolierei prieš kolegą vyrą dėl seksualinio priekabiavimo, o vėliau buvo atleista iš pareigų. Lietuvos teismai teigė neturintys jurisdikcijos spręsti šią bylą dėl valstybės imuniteto doktrinos. Tačiau, Europos Žmogaus Teisių Teismas nustatė, kad teismai suklydo atsisakydami dalyvauti bylos nagrinėjime, kurį garantuoja EŽTK 6 straipsnis, ir priteisė ieškovei 10 000 EUR turtinės ir neturtinės žalos, kurią turi sumokėti valstybė atsakovė. Šaltinį galima rasti lietuvių kalba (neoficialus vertimas): https://hudoc.echr.coe.int/eng?i=001-172790

The applicant suffered continuous mental and physical abuse by her partner. She brought a complaint to the court, which was forwarded to the public prosecutor, after which the investigations were discontinued on multiple occasions. When the applicant tried to start a new request, it was refused because of the statute of limitations. The ECtHR ruled that the criminal investigation into the acts of violence was ineffective and breached Article 3 of the Convention, which dictates that no one should be “subjected to torture or inhuman or degrading treatment or punishment.” The applicant was awarded non-pecuniary damages.

Pareiškėja patyrė nuolatinį psichinį ir fizinį smurtą nuo savo partnerio. Ji pateikė teismui skundą, kuris buvo perduotas prokurorui, tačiau tyrimas buvo nutrauktas kelis kartus. Kai pareiškėja bandė pateikti naują prašymą, jis buvo atmestas dėl senaties termino. EŽTT nusprendė, kad baudžiamasis tyrimas dėl smurto veiksmų buvo neveiksmingas ir pažeidė Konvencijos 3 straipsnį, kuris diktuoja, kad niekas neturėtų būti „kankinamas ir nepatirtų nežmoniško ar žeminančio elgesio ar baudimo“. Pareiškėjai priteista neturtinė žala. Vertimas lietuvių kalba: https://hudoc.echr.coe.int/eng?i=001-175424

The decedent sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to the decedent’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. The decedent appealed to the Vienna Intervention Center (“VIC”) after her husband repeatedly came to her workplace to harass and threaten her; the VIC asked the police to pay more attention to the decedent’s case. When the decedent 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 stated that the failure of judicial officials and law enforcement to collect data and maintain statistics on domestic violence instances denied the decedent 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 CEDAW 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 the decedent’s estranged husband was in breach of the State’s due diligence obligation to protect the decedent, 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 the decedent’s husband to the fullest extent for her death, the Committee found violations of Articles 2 and 3 upon which they 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.

Die Verstorbene wollte sich von ihrem Ehemann scheiden lassen. Dieser drohte ihr, dass er sie und die Kinder umbringen würde, sollte sie jemals ein förmliches Scheidungsverfahren anstrengen. Als Reaktion auf die zahlreichen Anzeigen der Verstorbenen von Übergriffen und gefährlichen Drohungen erließ die österreichische Polizei einen Wohnungsverweis und ein Rückkehrverbot gegen den Ehemann. Die Polizei hat außerdem empfohlen, den Ehemann festzunehmen, allerdings hat die Staatsanwaltschaft Wien dies zweimal zurückgewiesen. Die Verstorbene hat die Wiener Interventionsstelle gegen Gewalt in der Familie („Interventionsstelle“) angerufen, nachdem der Ehemann wiederholt auf ihrer Arbeitsstelle erschien, um sie zu belästigen und zu bedrohen; die Interventionsstelle ersuchte die Polizei, der Angelegenheit um die Verstorbene mehr Aufmerksamkeit zu schenken. Letztlich beantragte die Verstorbene die Scheidung bei dem Bezirksgericht Hernals in Wien. Kurz darauf folgte der Ehemann seiner Frau von der Arbeit nach Hause und erstach sie. Die Beschwerde bringt vor, dass das staatliche Verhalten eine Verletzung von Artikel 1 der UN-Frauenrechtskonvention darstelle. Das Wiener Strafsystem wirkt sich negativ auf Frauen aus, indem die Staatsanwaltschaft versagt, Fälle von häuslicher Gewalt ernst zu nehmen. Weiterhin geht aus der Beschwerde hervor, dass das Unterlassen der Gerichtsbediensteten und Staatsanwaltschaft, Daten zu sammeln, und Statistiken über häusliche Gewalt zu führen, der Verstorbenen das Recht nahm, ihre Menschenrechte wahrzunehmen. Dies stelle eine Verletzung von Artikel 2 und 3 der UN-Frauenrechtskonvention dar, die eine Vernichtung von Gesetzen, Richtlinien und sonstigen Gewohnheiten, die Frauen negativ beeinflussen, verlangen. Zuletzt meinen die Beschwerdeführer, eine Verletzung von Artikel 5 der UN-Frauenrechtskonvention liege vor. Hiernach obliegt dem Staat eine Pflicht, soziale und kulturelle Vorurteile zu überkommen, um häusliche Gewalt gegenüber Frauen als ernstzunehmende Straftat zu erkennen, und nicht weiterhin als rein soziales oder häusliches Problem abzutun. Der Ausschuss stellte fest, dass das Unterlassen der österreichischen Polizei, den Ehemann festzunehmen, die staatliche Schutzpflicht gegenüber der Verstorbenen verletzte. Hierbei betonte er, dass die Rechte des Straftäters nicht schwerer wiegen können als die Menschenrechte der Frau auf Leben und psychische sowie physische Unversehrtheit. Der Ausschuss hat darüber hinaus auf die Korrelation zwischen der kulturellen Unterwerfung einer Frau und häuslicher Gewalt hingewiesen. Obwohl die Staatsanwaltschaft den Ehemann wegen der Tötung der Verstorbenen mit allen rechtlichen Mitteln verfolgte, befand der Ausschuss, dass der Staat seine Pflichten aus Artikel 2 und 3 der UN-Frauenrechtskonvention verletzte. Der Ausschuss empfahl daher, dass Österreich die Durchsetzung und Überwachung der Einhaltung des Bundesgesetzes zum Schutz vor Gewalt in der Familie verbessert, eine verbessere Koordinierung von Polizeiarbeit und Staatsanwaltschaft sicherstellt, um Frauen vor Gewalt zu schützen.

The plaintiff brought an action against the Pensionsversicherungsanstalt (literally translated: Pension Insurance Institution) claiming a higher pension, 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.

Die Klägerin erhob Klage gegen die beklagte Pensionsversicherungsanstalt, mit der sie die Zahlung einer monatlichen Rente verlangte. Sie brachte vor, dass die Festsetzung eines Anpassungsfaktors im Jahr 2008 bezüglich ihrer Pension eine mittelbare Diskriminierung von Frauen darstelle, da Frauen überproportional häufig nicht die Voraussetzungen für eine außerordentliche Pensionserhöhung erfüllten. Der Oberste Gerichtshof legte dem Europäischen Gerichtshof diese Angelegenheit zur Vorabentscheidung vor. Der EGMR befand, dass (1.) ein jährliches Pensionsanpassungssystem in den Anwendungsbereich der EU-Gleichbehandlungsrichtlinie im Bereich der sozialen Sicherheit fällt; (2.) das vorlegende Gericht zu der Annahme berechtigt wäre, dass die entsprechende nationale Regelung, die eine überproportional höhere Zahl von Frauen von einer außerordentlichen Pensionserhöhung ausschließt, im Widerspruch zur EU-Richtlinie steht; und (3.) dieser Nachteil nicht durch die Tatsache gerechtfertigt werden kann, dass Frauen ihre Rente in einem früheren Alter erhalten, oder dass sie länger Rente beziehen als Männer.

The plaintiff was employed as a waitress with Konditorei Gerhard Flöckner, and was terminated while undergoing in vitro fertilization (“IVF”). She then filed suit to recover payment of her salary, claiming the termination was invalid under the Maternity Protection Act. She argued that from the date of her IVF treatment (two days before termination of her employment) she was entitled to national legislative protections against dismissal. 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 before IVF implantation. The European Court of Justice answered the question in the negative. However, the Court also held that EU Directives on the implementation of equal treatment for men and women regarding access to employment, vocational training, and working conditions preclude the dismissal from employment of a woman who is undergoing IVF where it is established that the dismissal was based on such treatment.

Die Klägerin war als Kellnerin bei der Beklagten angestellt. Ihr wurde gekündigt, während sie sich einer Behandlung zur in vitro Befruchtung unterzog. Aus Sicht der Klägerin war die Kündigung rechtswidrig nach dem Mutterschutzgesetz und sie klagte ihren Lohn ein. Sie argumentierte, dass ihr seit dem Tag der in vitro Behandlung (zwei Tage vor der Kündigung) der Kündigungsschutz unter dem Mutterschutzgesetz zustand. Nachdem die Parteien durch die unteren Gerichte zogen, legte der Oberste Gerichtshof die Frage dem Europäischen Gerichtshof für Menschenrechte zur Vorabentscheidung vor. Die Frage lautete, ob einer weiblichen Arbeitnehmerin der vorgebrachte Kündigungsschutz zusteht, bevor die befruchteten Eizellen in die Gebärmutter eingesetzt wurden.

Domestic and intimate partner violence. 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 the claimant's husband had a shotgun and was threatening to kill himself and the children. Despite the fact that the following morning the claimant 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, the claimant'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 the claimant's complaints lodged in the Constitutional Court were dismissed twice on the grounds that they were inadmissible. The claimant 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 the claimant and her family, which triggered various specific obligations, such as registering the complaint, launching a criminal investigation and commencing criminal proceedings against the claimant's husband, which the police failed to do. The direct consequence of this was the death of the claimant's children and husband. The European Court further held that the Slovak Republic failed to fulfill its obligation to achieve an 'effective' remedy and the claimant's compensation. The only action available to the claimant 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.

The applicant married Mr. S. in 1994, and had a daughter with him in 1995. Since that time, the applicant and Mr. S. never lived in a common household. In 1996, the District Court pronounced the dissolution of marriage, which became final in 1997, and gave custody to the applicant. Mr. S. was ordered to contribute to child maintenance. In 1996, the applicant brought an action against Mr. S. with the District Court, seeking an order that he contribute to her maintenance as his spouse. After multiple hearings, appeals, and remittance to the District Court, the District Court finally ruled in 2002 that during the relevant period, Mr. S. had been obliged to contribute to the applicant’s maintenance. The Regional Court dismissed both parties’ appeals. In 1997, the applicant lodged an action with the District Court seeking an order that Mr. S. contribute to her post-divorce maintenance, as she was unable to provide for herself alone. After another lengthy process of hearings, appeals, remittance, and re-examination, the District Court ruled in 2002 that Mr. S. had been obliged to contribute to the applicant’s maintenance. Upon Mr. S.’s appeal, the Regional Court modified the judgement in 2003 and detailed new amounts Mr. S. must pay. In 2000, the applicant lodged a petition with the Constitutional Court complaining of undue delays in the above two sets of proceedings and two other sets of proceedings. The court found that the District Court had violated her right to a hearing without unjustified delay in the above actions. However, at that time, the Constitutional Court lacked jurisdiction to draw legal consequences from the finding. The applicant then argued the above proceedings violated her right to the “reasonable time” requirement in Article 6 Section 1 of the European Convention. The Government admitted that this right had been violated. The court held that there had been a violation of this requirement, and that the respondent State must pay the applicant damages.

The eight applicants in this case were all women of Roma ethnicity. They each suspected they had been sterilized during caesarian section deliveries at two different hospitals. Both hospitals denied the applicants’ requests to obtain copies of their medical records, and the applicants brought actions in different District Courts. The courts ordered the hospitals to allow access to the records and handwritten notes to be taken, but dismissed the request to make photocopies of the records. The Regional Courts both upheld the decision on appeal. The Constitutional Court also upheld the decision of the lower court. Subsequently, the applicants’ legal representatives were permitted to make copies of the applicants’ records due to the passage of the Health Care Act of 2004. Only one applicant did not receive her records and was informed they were lost, but she received a summary of her surgical procedure confirming she had been sterilized. The applicants argued that the hospital’s refusal to allow copies of their medical records violated their Article 8 right to respect for their private and family life. The applicants argued that the State’s prohibition on photocopying medical records prevented them from gathering evidence required for future litigation in violation of their Article 6 right to access a court. The State argued that the Health Care Act of 1994 did not allow legal representatives of applicants to photocopy records, and this prevented potential abuse of records. The European Court of Human Rights found that access to health and reproductive status information was relevant to private and family life under Article 8, and that the burden lay with the refusing party to give compelling reasons for refusal. The Court found the State’s argument was not sufficiently compelling, and that the State had violated the applicants’ rights under Article 8. The Court also found a violation Article 6’s provision of a right to access a court, and awarded the applicants damages.

The petitioner, a domestic violence survivor, could not find affordable legal assistance to appear before a court. The Court ruled that member states must guarantee effective access to the courts, including access to counsel.

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.

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.

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.

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.

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.

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.

The applicant intended to change her patronymic (this term means a part of a personal name was traditionally derived from the name of the father of the person concerned) to disassociate herself from her biological father and associate herself more closely with her stepfather and half-brother. Despite the fact that the woman successfully changed her surname to the surname of her stepfather, she was not allowed to change her patronymic. The authorities' main argument was that new legislation prohibited such a change, which the applicant argued was an illegal and unjustified restriction of her rights. She appealed the decision to the local court, which concluded that the state authorities acted in accordance with the law, after which a change of a patronymic was only legally possible when the father of the person concerned had previously changed his forename. The appellate court and the Higher Administrative Court upheld the decision of the first-instance court. The woman appealed to the European Court of Human Rights (“ECtHR”), alleging that there was a violation of her right to private and family life under Article 8 of the Convention on Human Rights. The ECtHR drew attention to the fact that the Ukrainian legislation regulating change of a forename or surname was flexible, but did not provide sufficient reasons for the restrictions on changing the patronymic. Thus, the ECtHR held that authorities failed to comply with their obligations under Article 8 of the European Convention on Human Rights by denying her right to change the patronymic, which was an important aspect of woman`s private and family life. In the most recent version of the Civil Code, the right to change one`s patronymic is established without restriction.

Заявниця мала намір змінити своє по батькові (цей термін означає частину особистого імені, що традиційно походить від імені батька відповідної особи), щоб відмежуватися від свого біологічного батька та більш тісно пов’язати себе із вітчимом та неповнорідним братом. Незважаючи на те, що заявниця успішно змінила своє прізвище на прізвище свого вітчима, їй не дозволили змінити по батькові. Основним аргументом уповноважених осіб було те, що нове законодавство забороняло таку зміну, що, на думку заявниці, було незаконним та необґрунтованим обмеженням її права. Жінка оскаржила відмову до місцевого суду, який дійшов висновку, що державні органи діяли у відповідності до закону, який визначав, що зміна по батькові можлива тільки у тому випадку, коли батько такої особи попередньо змінив своє ім’я. Суди апеляційної інстанції та Вищий адміністративний суд залишили рішення суду першої інстанції без змін. Жінка звернулася до Європейського суду з прав людини (“ЄСПЛ”), стверджуючи, що мало місце порушення її права на приватне та сімейне життя відповідно до статті 8 Конвенції з прав людини. ЄСПЛ звернув увагу на те, що українське законодавство, яке регулювало зміну імені чи прізвища було гнучким, але не містило достатніх підстав для обмежень щодо зміни по батькові. Таким чином, ЄСПЛ постановив, що органи влади не виконали своїх зобов’язань за статтею 8 Європейської конвенції з прав людини, відмовивши їй у праві змінити по батькові, яке було важливим аспектом приватного та сімейного життя жінки. В останній редакції Цивільного кодексу право на зміну по батькові встановлено без обмежень.

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.

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.

In 1984, a married Italian woman decided to have an abortion despite her husband’s, the applicant, opposition. The applicant initiated a suit against his wife claiming that the termination deprived him of his right to be a potential father and 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 Constitutional Court dismissed the complaint on the grounds that the decision to grant the mother full responsibility on the abortion was logical given the effects of pregnancy, both physical and mental, on pregnant women. The applicant’s appeal to the Venice District Court alleging violations of the Italian Constitution and of the European Convention on Human Rights was also dismissed. The applicant’s appeal to the Court of Cassation, again on constitutional and convention grounds, was similarly dismissed. Finally, the applicant brought the case before the European Court of Human Rights. The Court 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, as “manifestly unfounded.”

Nel 1984, la Sig.ra Boso, una cittadina italiana sposata, decideva di abortire nonostante l’opposizione del marito. Il Sig. Boso iniziava un procedimento contro la moglie ritenendo che l’aborto lo avesse privato del diritto a diventare padre e avesse privato il nascituro del diritto alla vita. Il Sig. Boso contestava inoltre la costituzionalità della legge italiana che prevedeva che la donna potesse unilateralmente decidere se abortire. La Corte Costituzionale rigettava il ricorso in quanto riteneva che dare alla madre piena responsabilità sulla possibilità di abortire era logico in quanto è sulla donna incinta che ricadono gli effetti della gravidanza, sia fisici che mentali. L’impugnazione del Sig. Boso di fronte al Tribunale distrettuale di Venezia, nella quale veniva contestata la violazione della Costituzione italiana e della Convenzione europea dei diritti dell’uomo, veniva rigettata. Anche l’impugnazione di fronte alla Corte di Cassazione, di nuovo basta su violazioni della Costituzione e della Convenzione, veniva respinta. Infine, il Sig. Boso adiva la Corte Europea dei diritti dell’uomo. Quest’ultima rigettava il ricorso nel quale si contestava il fatto che l’aborto da parte della moglie del ricorrente violava il diritto alla vita e i diritti di cui agli articoli 2, 8 e 12 della Convenzione.

The 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. The committee found 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. The committee held 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.

La mancata adozione da parte del governo italiano di misure volte a migliorare il trattamento meno favorevole subito dalle donne che rientrano in determinate categorie vulnerabili in materia di accesso ai servizi di aborto è stata considerata una violazione dell’articolo E (divieto di discriminazione diretta e indiretta) della Carta sociale europea riveduta (la “Carta”) in combinato disposto con l’articolo 11 (diritto alla protezione della salute) della Carta. Il ricorso di IPPF EN sosteneva che l’elevato numero di personale medico che sceglie di essere obiettore di coscienza ha portato alla violazione del diritto delle donne di avere accesso alle procedure per l’interruzione della gravidanza, violando così il loro diritto alla protezione della salute. Il Comitato ritiene che certe categorie di donne siano oggetto di discriminazione nella forma di impedimento all’accesso di centri per l’aborto legali come effetto combinato del loro genere, stato di salute, ubicazione territoriale e stato socio-economico. Il Comitato ritiene che le autorità italiane avrebbero dovuto adottare le misure necessarie per compensare le carenze nelle prestazioni dei servizi causate dal personale sanitario che sceglie di esercitare il proprio diritto all’obiezione di coscienza all’esecuzione degli aborti.

At issue was a challenge to a German federal statute requiring employers to pay up to six weeks of annual sick leave for employees who worked more than 10 hours per week, or more than 45 hours per month. The applicant sued her employer, an office cleaning company for whom she worked ten hours per week, after the employer refused her request for eight hours of sick pays. Her claim was that, if Article 141 EC Treaty (ex-Article 119 EEC) and Council Directive 75/117 covered statutorily mandated sick pay provisions, the German legislation discriminated indirectly against women since the number of women impacted negatively was significantly higher than the number of men. The ECJ held that sick pay falls within the scope of Article 141 EC, which provides for the equal payment of women and men, and considered the German statute to be incompatible with the aims of Article 141 EC, unless “the distinction between the two categories of employees were justified by objective factors unrelated to any discrimination on grounds of sex.” The Court rejected the German government’s submission that compared to full-time workers, part-time workers “were not as integrated in, or as dependent on, the undertaking employing them,” declaring that “those 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.” To mount a successful defense, Member States must convince their national court that the legislative “means chosen meet a necessary aim of its social policy and that they are suitable and requisite for attaining that aim.” The Court thus extended its framework concerning the scope of judicial review of statutory-mandate social policy, as established in Case 170/84, Bilka-Kaufhaus GmbH v Karin Weber von Hartz, (1986) ECR 1607.

Gegenstand des Verfahrens war die Überprüfung eines deutschen Bundesgesetzes, das von Arbeitgebern verlangt, Arbeitnehmern, die mehr als zehn Stunden pro Woche oder mehr als fünfundvierzig Stunden pro Monat arbeiten, einen jährlichen Krankenurlaub von bis zu sechs Wochen zu zahlen. Die Klägerin verklagte ihren Arbeitgeber, eine Büroreinigungsfirma, für die sie zehn Stunden pro Woche arbeitete, nachdem ihr Antrag auf acht Stunden Krankengeld abgelehnt worden war. Sie machte geltend, dass, sofern Artikel 141 EG-Vertrag (ex-Artikel 119 EWG) und die Richtlinie 75/117 des Rates die gesetzlichen Vorschriften über die Lohnfortzahlung im Krankheitsfall umfassen, die deutschen Rechtsvorschriften Frauen mittelbar diskriminieren, da die Zahl der Frauen, die von den fraglichen Vorschriften negativ betroffen seien, deutlich höher sei als die Zahl der Männer. Der EuGH stellte fest, dass die Lohnfortzahlung im Krankheitsfall in den Anwendungsbereich von Artikel 141 EG-Vertrag fällt, der die gleiche Bezahlung von Frauen und Männern vorsieht, und hielt das deutsche Gesetz für unvereinbar mit den Zielen von Artikel 141 EG-Vertrag, es sei denn, wenn „die unterschiedliche Behandlung der beiden Arbeitnehmerkategorien durch objektive Faktoren gerechtfertigt ist, die nichts mit einer Diskriminierung aufgrund des Geschlechts zu tun haben“. Der Gerichtshof wies das Vorbringen der deutschen Regierung zurück, dass Teilzeitbeschäftigte im Vergleich zu Vollzeitbeschäftigten „nicht in einem anderen Arbeitnehmern vergleichbaren Masse in den Betrieb eingegliedert und ihm verbunden“, und erklärte, dass „diese Erwägungen (...) jedoch lediglich verallgemeinernde Aussagen zu bestimmten Kategorien von Arbeitnehmern dar“ stellen und man könne diesen „keine objektiven Kriterien entnehmen, die nichts mit einer Diskriminierung aufgrund des Geschlechts zu tun haben“. Um sich erfolgreich zu verteidigen, müssen die Mitgliedstaaten ihr nationales Gericht davon überzeugen, dass die „gewählten Mittel einem notwendigen Ziel [ihrer] Sozialpolitik dienen und für die Erreichung dieses Ziels geeignet und erforderlich sind". Der Gerichtshof erweiterte damit seinen Rahmen für die gerichtliche Kontrolle der gesetzlich vorgeschriebenen Sozialpolitik, der in der Rechtssache 170/84, Bilka-Kaufhaus GmbH gegen Karin Weber von Hartz, (1986) EUGH, 1607, festgelegt wurde.

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.

An Afro-Brazilian woman 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. Her 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 husband of the deceased then filed a civil claim for material and moral damages, and twice requested the judicial mechanism of injunctive relief (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 Rio de Janeiro 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.

A vítima, uma mulher afro-brasileira que sofria com uma gravidez de risco, foi morta em razão do descaso do sistema público de saúde do Estado do Rio de Janeiro, após diversas negativas de atendimento apropriado a ela, ocasionando sua morte e de seu filho natimorto. Sua morte não se trata de um caso isolado. Com efeito, as taxas de mortalidade de gestantes são desproporcionalmente altas para um país com o status econômico do Brasil. Nesse aspecto, o risco de mortalidade durante a gravidez ou durante o parto é maior entre a população indígena, de baixa renda e afrodescendentes, o que explica o porquê desse caso ser relevante. O marido da vítima entrou com Pedido de Reparação de Danos Morais e Materiais e com dois pedidos de Tutela Antecipada, a fim de antecipar os efeitos da decisão. Contudo, o primeiro pedido de tutela antecipada não foi analisado pelo Judiciário, enquanto o segundo pedido foi negado. Em vista da ineficiência do Poder Judiciário brasileiro, a mão da vítima submeteu uma reclamação ao Comitê da CEDAW, sob o argumento de violação dos direitos à vida e à saúde de sua filha por parte do Estado do Rio de Janeiro. O Estado do Rio de Janeiro, por sua vez, argumentou acerca da inexistência de conexão entre o gênero da vítima e os possíveis erros médicos ocorridos, não sendo aplicável a definição de discriminação estabelecida pela CEDAW. Quando da análise do caso, o Comitê entendeu que: (i) a morte da vítima deveria ser considerada uma “morte materna” evitável, uma vez que foi negado atendimento apropriado relativo à gravidez da vítima; (ii) o Estado do Rio de Janeiro falhou em garantir o direito à saúde no termos da Convenção da CEDAW; e (iii) a ausência de atendimento médico adequado às gestantes por parte do Estado impacta diferentemente no direito à vida das mulheres. O Comitê ainda estabeleceu medidas a serem tomadas pelo Estado do Rio de Janeiro, tais como compensação à família da vítima, garantia do direito da mulher em ter uma gestação segura e atendimento obstétrico adequado, realizar atendimento adequado aos profissionais da saúde, garantir que o atendimento médico atenda o padrão nacional e internacional relativo à saúde reprodutiva, bem como garanta que as penalidades sejam imposta aos profissionais de saúde que violem os direitos reprodutivos das mulheres.

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

The plaintiff, an unmarried father, took off six months from work to take care of the child while the child’s mother was working for which he demanded “maternity” leave payments for from the defendant, the relevant sickness fund. The defendant refused to pay. The German lower social court decided that the legislation only permitted maternity leave and not paternity leave. On appeal, the German state social court involved the European Court of Justice (“ECJ”) in order to interpret Directive 76/207 with respect to the raised issue. In interpreting Directive 76/207, the ECJ decided that the Directive cannot force member states to grant the equivalent of paid maternity leave to fathers, even if the parents decide that the father is responsible for child care. The ECJ held that the member states have discretion to regulate “the social measures which they adopt in order to guarantee […] the protection of women in connection with pregnancy and maternity and to offset the disadvantages which women, by comparison with men, suffer with regard to the retention of employment.”

Der Kläger, der Vater wurde, ließ sich für sechs Monate von der Arbeit freistellen, um sich um das Kind zu kümmern, während die Mutter des Kindes ihrer Beschäftigung nachging. Er verlangte von der zuständigen Krankenkasse, der Beklagten, die Zahlung von „Mutterschaftsurlaub“ für den unbezahlten Urlaub. Die Beklagte weigerte sich zu zahlen. Das deutsche Landessozialgericht entschied, dass nach den Rechtsvorschriften nur Mutterschaftsurlaub, nicht aber Vaterschaftsurlaub zulässig sei. In der Revisionsinstanz hat das deutsche Landessozialgericht den Gerichtshof angerufen, um die Richtlinie 76/207 im Hinblick auf die aufgeworfene Frage auszulegen. Bei der Auslegung der Richtlinie 76/207 entschied der Gerichtshof, dass die Richtlinie die Mitgliedstaaten nicht zwingen kann, Vätern das Äquivalent eines bezahlten Mutterschaftsurlaubs zu gewähren, selbst wenn die Eltern entscheiden, dass der Vater für die Kinderbetreuung zuständig ist. Der Gerichtshof stellte fest, dass die Mitgliedstaaten über einen Ermessensspielraum verfügen, wenn es darum geht, die sozialen Maßnahmen zu regeln, „die sie ergreifen, um [...] den Schutz der Frau bei Schwangerschaft und Mutterschaft zu gewährleisten und die für die Frau anders als für den Mann tatsächlich bestehenden Nachteile in Hinblick auf die Beibehaltung des Arbeitsplatzes auszugleichen“.

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.