Summaries of Jurisprudence

Gender-based Violence

Centro por la Justicia y el Derecho Internacional Center for Justice and International Law Centro pela Justiça e o Direito Internacional Pemonton Kowantok Wacüpe Yuwanin Pataset Summaries of Jurisprudence / Gender-based Violence Compiled by Liliana Tojo Center for Justice and International Law - CEJIL, 2010. 416 p.; 24 x 17 cm.

Reproduction of the contents of this publication is authorized as long as the source is quoted.

Compilation: Liliana Tojo

Compilation Assistant (Spanish edition): Claudia M. Martínez

Compilation Assistants (English edition): Anne Bigot (volunteer) Pilar Elizalde

Translation Team (Spanish edition): Carla Goretti (intern) Nancy V. Piñeiro (intern) Guillermo A. Tóffolo (intern)

Edition, editorial and cover design: Folio Uno S.A.

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Gender-based Violence CEJIL´S work is possible thanks to the generous contribution of the following supporters:

Dan Church Aid Diakonia Foundation to Promote Open Society (FOSI) HIVOS Ministry of Foreign Affairs of Norway Ministry of Foreign Affairs of the Kingdom of Denmark Misereor National Endowment for Democracy Save the Children - Sweden The Ford Foundation The John D. and Catherine T. MacArthur Foundation The John Merck Fund The Moriah Fund The Oak Philanthropy The Sigrid Rausing Trust United Nations Development Fund for Women (UNIFEM) – Regional Offi- ce for Brazil and the Southern Cone United Nations Voluntary Fund for Victims of Torture W. K. Kellogg Foundation

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In 2009 the Center for Justice and International Law (CEJIL) introduced the series Tools for the Protection of Human Rights, organized in themes, with the goal to facilitate hu- man rights defenders access and utilization of the standards of national and international jurisprudence. The first of these Summaries of Jurisprudence addresses the Principles of Equality and No Discrimination.

On this occasion, CEJIL is proud to present a new volume -Summaries of Jurisprudence. Gender-based Violence- which includes a selection of decisions from international organs of protection of human rights related to the protection of women victims of violence. This work is the result of an exhaustive research on the Judgments, Reports and Deci- sions of the Inter-American Court of Human Rights and Inter-American Commission on Human Rights, the European Court of Human Rights, the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, the Special Court for Sierra Leone and the Committee on the Elimination of Discrimination against Women.

This volume of international standards provides a solid jurisprudential research body and it presents a wider panorama of women’s reality in very different contexts revealing the indisputable persistence of gender-based violence in the world, in spite of the advances in the normative field. Moreover, it is necessary to emphasize that the selected cases are some of the most paradigmatic ones among those which, to date, have motivated some type of response from human rights protection systems.

We would like to recognize the initiative and work of Liliana Tojo, Program Director for Bolivia and the Southern Cone, who led this compilation. We are especially grateful to the team of collaborators involved in this project: Ryan Shanovich, John Yandell, Ekate- rina Porras Sivolobova and Chelsea Sharon who, as members of the internship program, contributed to the selection and editing of the texts; to Silvia Firmenich and Maria Luisa Coduras, teachers of the I.E.S. en Lenguas Vivas “Juan Ramón Fernández” in Buenos Ai- res (Argentina) who promoted an institutional agreement of internships allowing Nancy V. Piñeiro, Guillermo A. Tóffolo and Carla Goretti to conduct their practicum experiences with CEJIL, translating some of the texts included in this volume; and to Julieta Di Corleto who provided encouragement during the preliminary drafts of this initiative. Finally, we want to recognize the contribution of the United Nations Development Fund for Women, (UNIFEM) - Regional Brazil and Southern Cone, for the advancement of this project.

We hope that it will be a useful tool which contributes to the defense of human rights and to the eradication of violence against women, one of the more tolerated and silen- ced human rights violations.

Viviana Krsticevic Executive Director Table of Contents

Summaries of Jurisprudence on Gender-based Violence

Table of Contents:

Summaries of Jurisprudence on Gender-based Violence

I) Judgments of the Inter-American Court of Human Rights

Miguel Castro-Castro Prison v. Peru – Merits, Reparations and Costs November 25, 2006 1

González et al. v. Mexico (“Cotton Field”) – Preliminary Objection, Merits, Reparations and Costs - November 16, 2009 23

“Las Dos Erres” Massacre v. Guatemala – Preliminary objection, Merits, Reparations and Costs - November 24, 2009 63

Ii) decisions of the Inter-American Commission on Human Rights

Raquel Martín de Mejía v. Peru 71 Case Nº 10.970 - Report Nº 5/96 – March 1, 1996

X and Y v. Argentina 81 Case Nº 10.506 – Report Nº 38/96 – October 15, 1996

María Eugenia Morales de Sierra v. Guatemala 93 Case Nº 11.625 - Report Nº 4/01 – January 19, 2001

Ana, Beatriz and Celia González Pérez v. Mexico 107 Case Nº 11.565 - Report Nº 53/01 – April 4, 2001

Maria da Penha Maia Fernandes v. Brazil 127 Case Nº 12.051 - Report Nº 54/01 – April 16, 2001

Iii) Judgments of the European Court of Human Rights

Open Door and Dublin Well Woman v. Ireland - Application 137 Nº 14234/88 and 14235/88 – Judgment October 29, 1992 Aydin v. Turkey 145 Application Nº 23178/94 - Judgment September 25, 1997

Jabari v. Turkey 155 Application Nº 40035/98 - Judgment July 11, 2000

Y. F. v. Turkey 161 Application Nº 24209/94 - Judgment July 22, 2003

M. C. v. Bulgaria 165 Application Nº 39272/98 - Judgment December 4, 2003

Siliadin v. France 175 Application Nº 73316/01 - Judgment July 26, 2005

Tysiąc v. Poland 191 Application Nº 5410/03 - Judgment March 20, 2007

Bevacqua and S. v. Bulgaria 203 Application Nº 71127/01 - Judgment June 12, 2008

Salmanoğlu and Polattaş v. Turkey 211 Application Nº 15828/03 - Judgment March 17, 2009

Opuz v. Turkey 219 Application Nº 33401/02 – Judgment June 9, 2009

IV) Judgments of the International Criminal Tribunal for Rwanda

Prosecutor v. Jean-Paul Akayesu 243 Case Nº ICTR-96-4-T - Judgment September 2, 1998

Prosecutor v. Laurent Semanza 259 Case Nº ICTR-97-20-T - Judgment May 15, 2003

Prosecutor v. Mikaeli Muhimana 269 Case Nº ICTR-95-1B-T - Judgment April 28, 2005 V) Judgments of the International Criminal Tribunal for the former Yugoslavia

Prosecutor v. Delalić et al. - Čelebići 277 Case Nº IT-96-21-T - Judgment November 16, 1998

Prosecutor v. Anto Furundžija 293 Case Nº IT-95-17/1-T – Judgment December 10, 1998

Prosecutor v. Kunarac et al. - Foča 309 Case Nº IT-96-23-T & IT-96-23/1-T - Judgment February 22, 2001

VI) Judgments of the Special Court for Sierra Leone

Prosecutor v. Sesay et al. 333 Case Nº SCSL-04-15-T - Judgment March 2, 2009

VII) decisions of the Committee on the Elimination of Discrimination against Women (CEDAW)

A. T. v. Hungary 351 Communication Nº 2/2003 – Views adopted on January 26, 2005

A. S. v. Hungary 359 Communication Nº 4/2004 - Views adopted on August 14, 2006

Şahide Goekce (deceased) v. Austria 367 Communication Nº 5/2005 - Views adopted on August 6, 2007

Fatma Yildirim (deceased) v. Austria 375 Communication Nº 6/2005 - Views adopted on August 6, 2007

Inter-American Court of Human Rights

Miguel Castro-Castro Prison v. Peru

Merits, Reparations and Costs

Judgment of November 25, 2006 2 Gender-based Violence 1. […] […] treatment experimentedbytheallegedvictimsafter“OperativeTransfer 1”. grading treatment. Thefactsalsorefer totheallegedcruel,inhuman,anddegrading injured 175inmates,andsubmittedanother322inmatestoacruel,inhuman,de - Castro Prison,duringwhichtheState,allegedly, causedthedeathofatleast42inmates, 1992 and they refer to the execution of “Operative Transfer 1” within the Miguel Castro 3. 1(1) ofthesame,indetriment[the[alleged]victimsandtheirnextkin.” to Judicial Protection) of the Convention, in relation to the obligation established in Article grading treatment;” andfor theviolationofArticles8(1)(RighttoaFairTrial) and25(Right “that havingresulted [allegedly] uninjured were submittedtoacruel,inhuman, andde- Convention, indetrimentof“atleast175”inmatesthatwere injured andof322inmates in relation totheobligation establishedinArticle1(1)(ObligationtoRespectRights)ofthe mates thatdied;theviolationofArticle5(RighttoHumaneTreatment) oftheConvention, in Article1(1)(ObligationtoRespectRights)ofthesame,detriment“atleast42”- Humane Treatment) oftheAmericanConvention,inrelation tothe obligationestablished sible fortheviolationofrightsenshrinedinArticles4(RighttoLife)and5 2. 18, 1992andJune5,1997,respectively. from petitionsNo.11,015 and 11,769,received attheCommission’s Secretariat onMay State ofPeru(hereinafter “the State”or“Peru”)totheCourt.Saidapplicationoriginated Commission” or“theInter-American Commission”)submittedanapplicationagainstthe ican Convention, the Inter-American Commission on HumanRights(hereinafter “the I. On September9,2004,pursuanttothatstatedinArticles50and61oftheAmer I The facts presented by the Commission in the application occurred as of May 6, The CommissionsubmittedthepetitionforCourttodecideifStateisrespon - ntroduction O f T he C ase - Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 3 It is 35 and they were alleg- and they were 44 38

40 The official version was that 42 The inmates of pavilions 1A and 4B 37 36 Many of them had been accused and were and were accused been them had of Many 39 acts F The state authorities did not inform the Director of the criminal center, the of the criminal center, The state authorities did not inform the Director roven 43 The real objective of the “operative” was not the mentioned transfer of the in- The real In the time in which the events occurred, pavilion 1A of the Miguel Castro pavilion 1A of the Miguel Castro In the time in which the events occurred, The maximum security prison Miguel Castro Castro is a prison for men and it is is a prison for men and it is Castro prison Miguel Castro The maximum security P VIII. were accused or convicted for the crimes of terrorism or treason, or convicted for the crimes of terrorism accused were 197.16. attack, an operative designed to attack the life mates, but instead it was a premeditated Castro and integrity of the prisoners located in pavilions 1A and 4B of the Miguel Castro 197.13. 4B and 50 male, and pavilion 135 female inmates around by was occupied Prison Castro 400 male inmates. was occupied by approximately […] Prison Castro Miguel Castro 197.12. Lima, capital of Peru. de Lurigancho, to the East of the city of located in San Juan made up by 12 pavilions of 4 floors each, identified as 1-A and 1-B up to 6-A and 6-B. of 4 floors each, identified as 1-A made up by 12 pavilions central a through is pavilions to access The courtyard. own its has pavilions these of Each of each pavilion as “Roundhouse”. At the entrance of an octagonal form, known yard by a sand totality of the pavilions is surrounded called “Coop”. The is a closed area there and consists of a yard to the establishment land”. The entrance “No man’s known as yard administrative office, known as “Admissions”. edly members of the Sendero Luminoso. the Sendero members of edly prisoners, their next of kin or attorneys of the mentioned transfer. […] 1” “Operative Transfer of the Na- the reorganization No. 25421 of April 6, 1992 ordered 197.15. Law Decree of Peru in charge of the Institute (INPE) and put the National Police tional Penitentiary framework of this stipulation was within the security at the penitentiaries. It of control 1” was planned and executed. that “Operative Transfer said “operative” consisted in the transfer of the women that were imprisoned in pavilion of the women that were said “operative” consisted in the transfer Prison, to the maximum security prison for women in Castro 1A of the Miguel Castro Chorrillos. awaiting conviction, and in some cases they were acquitted. were awaiting conviction, and in some cases they 4 Gender-based Violence used as“asymbolicmeansto humiliate theotherparty.” that breach theirhumanrights,suchasactsofsexualviolence, whichinmanycasesis tions haveacknowledgedthat during thearmed conflicts womenfacespecificsituations them ingreater proportion thanthemen.Different organiza- Peruvianandinternational some acts of violencewere directed specifically toward the womenandothers affected that thewomenwere affected bytheactsofviolencedifferently thanthemen,that 223. actions. members ofsubversiveorganizationsandthatdetermined,in great measure, thestate’s the facts,highstateauthoritiesconsidered thatthesewomenlocatedinpavilion1Awere pavilion forprotection, andthattheinmatesof4Bstartinghelpingthem.Attime para. 197(23), 197(24), and 197(31)), once the female inmates started moving to that 197(20)). Later the forces were directed against pavilion 4B of the criminalcenter(supra female inmates imprisoned in pavilion 1A ofthe Miguel Castro Castro Prison (supra para. violence of the so-called “Operative Transfer 1” were directed, in firstterm, against the when analyzingtheState’s responsibility international isthatthereferred actsofextreme 222. were underitscustody. special protection measures, initsconditionofdirect protector oftheirrights,sincethey ter, thatis,people regarding whotheStatehadresponsibility toadoptsecurityand their authority, directed there actions toward people imprisoned in a state criminal cen- 221. […] The So-Called“OperativeTransfer 1”thatstartedMay6,1992 […] […] the eventsbyinmatesaccusedorsentencedforterrorism crimesortreason. Prison. Theactsofviolencewere directed againstsaid pavilions,occupiedatthetimeof IX. T C When analyzingthefactsandtheirconsequencesCourt will takeintoaccount Another importantpieceofinformationthatthisTribunal willtakeintoaccount The events,carriedoutdirectly bystateagentswhoseactionswere protected by he ontext S tate

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-A , merican nter same A I ion iolat orture V T Likewise, it is important to point out that, in one of its reports, the Obudsman of the Likewise, it is important to point out that, in one of its reports, In this regard, in its Final Report the Commission for Truth and Reconciliation of Peru and Reconciliation of Peru for Truth in its Final Report the Commission In this regard, in detri- case in the present acts that occurred The Court has verified that different the the the XI. […] Considerations of the Court […] 270. People of Peru concluded that the involvement of women in the armed conflict changed regarding cruel and violent treatment of women and caused “a more the perception ‘suspects’.” those women considered 224. It has been acknowledged that during domestic and international that during domestic been acknowledged 224. It has armed conflicts as a means of punishment against women used sexual violence parties the confronting con- of women in a domestic the rights power to breach The use of state and repression. society in effect of causing an may have the purpose them directly, affecting flict, besides or give a lesson. and send a message those breaches through 225. and sexual violence was “a practice […] of rapes conflict there stated that in the armed to state agents [… and] which “is attributable […] in first term mainly against women,” that dur Likewise, the CVR stated the subversive groups.” to members of in less measure intended the women were the acts of sexual violence against ing the mentioned conflict and degrade the population. humiliate, pressure, to punish, intimidate, 226. to the mentioned context of violence against women in ment of the women responded 313). said armed conflict (infra paras. 306 through […] attack started specifically in the prison’s pavilion occupied by the female inmates accused inmates female the by occupied pavilion prison’s the in specifically started attack (supra para. 197(13) and 197(20)). and treason or convicted of crimes of terrorism 6 Gender-based Violence Convention formspart. matters ofprotection ofwomen’s righttohumanetreatment, ofwhichtheAmerican corpusjurisin time ofthefacts,sincetheseinstrumentscomplementinternational Discrimination againstWomen, ratifiedbyPeruonSeptember13,1982,inforce atthe ratified byPeruonJune4,1996,andtheConventionEliminationofallForms Inter-American ConventiontoPrevent, AgainstWomen, Punish,andEradicateViolence ing intoconsiderationasareference ofinterpretation therelevant stipulationsofthe this Court will apply Article 5 of the American Convention and will set its scope, tak- 276. […] emotional suffering.” with thefearthattheywere goingtodie[,which]caused anintensepsychologicaland ness Deitschconcludedthatduringthefourdaysofattack “[t]heinmatesremained in suchawaythattheyfeltwere goingtodie.Inthesamesense,expertwit - was describedbythewitnessGabyBalcázar, “aclimateofdespairamong thewomen,” their prisonmatesandsawinjured pregnant womencrawlingonthefloor, generated,as 291. their stomach. especially seriousinthecaseofwomenwhowere pregnant whohadtocrawlover climb overdeadbodies,inorder toavoidbeinghitbythebullets.Thiscircumstance was which theattackwascarriedoutthatprisonershadtocrawlonground, and suffered variousinjuries.Apieceofinformationthatshowstheextreme conditions in especially dangerous due to theaforementioned conditionsoftheattack;inmates pregnant, were forced torunfrom theattackdirected topavilion4B.Thistransferwas Prison. Theinmatesthatwere locatedinthatpavilion,includingtheoneswere 290. […]

A) Regardingtheinmates Similarly, withregard tothementionedaspectsspecificviolenceagainstwomen, These characteristicsoftheattacklivedbyinmates,whowitnessed thedeathof The attackstartedagainstthewomen’s pavilion1AoftheMiguelCastro Castro “Operative Transfer 1” 1) Violations totheright humanetreatmentofinmatesasaconsequence 155 Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 7 - It is important to clarify that the evidence provided to the Court and from the Court and from to the the evidence provided to clarify that It is important that the State is responsible considers this Tribunal Based on the aforementioned, 9, 1992 and during their transfer received by the inmates after May 2) Treatments to other criminal centers and to hospitals 292. also inmates were that the pregnant one can conclude given by the inmates statements who lived through women The pregnant center. the attack to the criminal victims of seen since besides having suffering, psychological experimented an additional the attack and fear for they had feelings on anguish, despair, injured, their own physical integrity this before inmates that have been identified pregnant The the lives of their children. her son one month after the attack had approximately Mrs. Eva Challco, who Court are Hurtado; VicentaSaid Gabriel Challco was five months pregnant; Genua López, who (supra para. 197(57)). In Rojas, who was eight months pregnant and Sabina Quispe Convention, it is granted by Article 5 of the American protection this sense, besides the states expressly Pará do Belem of Convention the of 7 Article that out point to necessary action any from the state authorities and agents abstain that ensure that the States must against women. or practice of violence 293. injured of the inmates that were treatment for the violation of the right to humane constituted a violation to Article 5 of the during the events of May 6 to 9, 1992, which of the circumstances that, in the the Court considers Convention. Likewise, American conditions in which the State and the the totality of the acts of aggression case, present died and those that survived) during the days deliberately put the inmates (those that and emotional suffer a serious psychological of the attack, which caused all of them of all the members of the carried out in offense ing, constituted a psychological torture violation of Articles 5(1) and 5(2) of the American Convention, and 1, 6, and with group, Besides, this Court and Punish Torture. Convention to Prevent 8 of the Inter-American of Mrs. Eva Challco, Sabina humane treatment considers that the violation to the right to Quispe Rojas, and Vicenta were Genua López was exacerbated by the fact that they on them. Likewise, the Court effect thus the acts of violence had a greater pregnant, inflicted on Julia Marlene for the acts of torture considers that the State is responsible the American Convention and of Articles 1, 6, Olivos Peña, in violation of Article 5(2) of and Punish Torture. American Convention to Prevent and 8 of the Inter- […] […] 8 Gender-based Violence 304. and nursingwomenmustbeoffered specialconditionsduringtheirdetention. female detaineesmustbesupervisedandcheckedbyofficerpregnant protected from allformsofviolenceorexploitation.”Similarly, ithasstatedthat has statedthat“theymustnotbetheobjectofdiscrimination,andthey tained orarrested, theHigh CommissionerforHumanRightsoftheUnitedNations 303. […] pregnant. breach wasworseregarding thoseinmateswhowere injured andthewomenwhowere stituted aninhumantreatment inviolationofArticle5theAmericanConvention.This 300. […] anguish amongtheotherinmates. the caseofpregnant women.To witnessthistreatment towards themcausedgreater tion. (…)Thefacedownpositioninwhichtheyhadtoremain isespeciallyseriousin women. Thestateagentsdidnothaveanyconsiderationregarding theirspecificcondi- 298. vation offreedom.” sexual nature, threats ofcommittingthoseacts,coercion, andotherformsofdepri- manner,” and that “acts inflict damages orsuffering ofaphysical,mental,or towards awomenbecausesheisorthataffects herinandisproportionate said discriminationincludesviolencebasedongender, “thatis,theviolence directed The Committee on the Elimination of Discrimination against Women has stated that 197.49.). eral daysandinothersweeks, and theywere watchedover byarmedagents(suprapara. during almosttheentire timetheywere atthehospital,whichinsomecaseslastedsev- able conditions,were alsostrippedoftheirclothes and forced toremain without clothes It wasproven thatatthePoliceHospitalinjured inmates,whowere indeplor With regardWith tothe treatment thatmustbeoffered towomenwhoare de- during theattackoronceithadconcluded 3) Treatments receivedinthehealthcenterstowhichinmatesweretransferred The Courtconsidersthatthetreatments describedintheprevious paragraphscon- Among theinmatesthatwere intheconditionsdescribedthere were pregnant 160 159 -

Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 9 - 161 The Court points out the context in which said acts were carried out, since the said acts were The Court points out the context in which The Court considers that all inmates that were submitted to the mentioned nudity the mentioned nudity submitted to that were considers that all inmates The Court that necessary to make emphasis on the fact it is to the aforementioned, In relation 307. of State and power subject to the complete control them were women who suffered by State police of- precisely had been injured agents, absolutely defenseless, and they ficers. watched over by nude in the hospital, the females inmates to remain 308. Having forced constituted sexual health conditions in which they were, armed men, in the precarious terms, which caused them constant fear of the possibil- violence in the aforementioned caused which of all officers, police the by further even taken be violence said that ity which is added to the physical suffering them serious psychological and moral suffering, undergoing due to their injuries. Said acts of sexual violence directly already they were for the violation of the the dignity of those women. The State is responsible endangered detri- in Convention, American 5.2 of the in Article enshrined to humane treatment right and whose names those cruel treatments, ment of the six female inmates that suffered is Judgment, that for these effects included in Appendix 2 of victims of the present are part of the same. considered 305. their per that violated of a treatment victims period of time were prolonged during said sonal dignity. 306. inmates who, serious characteristics for the six female nudity had especially said forced time the were Likewise, during the entire submitted to this treatment. were as proven, up and, in some not allowed to clean themselves inmates were in this place, the female do so in the company of an armed guard they had to to use the restroom cases, in order at them while they close the door and who aimed their weapon who did not let them considers that Tribunal needs (supra para. 197.49.). The performed their physiological were that violated their personal dignity, a treatment receiving these women, besides a sheet, only with naked and covered violence, since they were also victims of sexual surrounded police force, members of the State were while armed men, who apparently as sexual violence is that men constantly observed them. What classifies this treatment of internationalthe women. The Court, following the line and taking into jurisprudence Punish, and Eradicate Violence against Prevent, account that stated in the Convention to commit- considers that sexual violence consists of actions with a sexual nature Women, which besides including the physical invasion ted with a person without their consent, may include acts that do not imply penetration or even any physical of the human body, contact whatsoever. 10 Gender-based Violence matic experiencethatmayhaveseriousconsequences and psychologicalconsequences forthem, acknowledges that sexual violence against women has devastating physical, emotional, sary” andthat“sexualrapeisusedbybothpartiesasasymbolic act.” exual aggression isoftenconsidered andpracticedasameanstohumiliatetheadver referring totheviolenceagainstwomenwithinacontextofanarmedconflict,that“[s] 313. of thepresent Judgmentthatfortheseeffects isconsidered partofthesame. and PunishTorture, indetrimentofthefemaleinmateindicated Appendix 2ofvictims the violationofArticles1,6,and8mentionInter-American Conventionto Prevent to humanetreatment enshrinedinArticle5(2)oftheAmericanConvention,aswellfor fects constitutedtorture. Therefore, theStateisresponsible fortheviolationofright finger vaginal “examination” (suprapara.309) constituted sexual rape thatdue to itsef- that theactsofsexualviolencetowhichaninmatewassubmittedunderalleged of theInter-American ConventiontoPrevent and PunishTorture, thisTribunal concludes 312. the abuseofpowerdisplayedbyagent. especially gross andreprehensible act,takingintoaccountthevictim’s vulnerabilityand 311. sor’s bodyorobjects,aswelloralpenetrationwiththevirilemember. penetration, withoutthevictim’s consent,through theuseofotherpartsaggres - traditionally considered. Sexual rapemustalsobeunderstoodasactofvaginaloranal sexual rape does notnecessarilyimply an non-consensualsexual vaginal relationship, as Criminal Law asincomparative Criminal Law,International theTribunal considersthat 310. with theexcuseofexaminingher(suprapara.197.50.). tion”, carriedoutbyseveralhoodedpeopleatthesametime,inaveryabruptmanner, who was transferred to the Police Sanity Hospital was object of a finger vaginal “inspec- 309. experiences. situation difficulttoovercome withtime,contrarytowhathappensothertraumatic psychological damagethatleavesthevictim“physicallyandemotionallyhumiliated”, en whoare imprisoned. The Special Rapporteur of the UN for Violence against WomenThe SpecialRapporteuroftheUNforViolence hasestablished, Based ontheaforementioned andtakingintoconsiderationthatstatedinArticle2 The CourtacknowledgesthatthesexualrapeofadetaineebyStateagentisan Following thejurisprudentialandlegalcriterionthatprevails bothintherealm of On theotherhand,inpresent caseithasbeenproven thatonefemaleinmate 164 167 166 162 whichare exacerbatedinthecasesofwom- Similarly, sexual rapeisanextremely trau- 163 anditcausesgreat physical and 165 This Tribunal - Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 11 - 174 At the light of the aforementioned criteria, and based on the body of evidence of criteria, and based on the body of At the light of the aforementioned Within imprisonment conditions we can mention (supra para. 197.51. and gross Below the Court will refer to some parameters and pronouncements with regard with regard to some parameters and pronouncements Below the Court will refer 4) General detention conditions to which the inmates were submitted after “Opera- were submitted after to which the inmates detention conditions 4) General 1” tive Transfer cruel, inhuman, or constitute that may the acts seriousness of of the the analysis In […] 318. to will examine the body of conditions of detention and treatment the case, this Tribunal transferred centers to which they were submitted in the criminal which the inmates were 1” (supra para. 197.44.). after the “Operative Transfer or relocated 319. an adequate mobility nor did cells that do not allow 197.52.): location in overcrowded access to natural or ar hygiene and health conditions, without reasonable they ensure tificial lighting; precarious feeding conditions; lack of adequate medical attention and attention medical adequate of lack conditions; feeding precarious lighting; tificial and others injured inmates that were there of supply of medicines, despite the fact that in illnesses in the prison; lack of warm clothes, even for those who were that acquired severe zero; under degrees several drop the temperatures where Yanamayo of prison the physiological needs when of solitary confinement; lack of attention to women’s regimen feminine denied materials of personal hygiene, such as soap, toilet paper, they were and post na- to be able to change; lack of attention to pre pads, and underwear in order manual and carry out study, read, themselves, among to talk needs; prohibition health tal in general and especially the experimented by women The damages and suffering labor. the in gross especially were mothers were that inmates the by and women pregnant 332). terms described below (infra paras. 330 to […] 322. of the inmates. Likewise, it will analyze the to said detention conditions and treatment women, special consequences that some of them had on women in general, pregnant mothers. and the inmates who were […] 316. of the to weigh in all the circumstances it is necessary or torture degrading treatments and in effects, their physical and mental of the treatments, case, such as the duration among others. age, and health conditions, gender, some cases, the victim’s 12 Gender-based Violence of thedignityinherent tothehumanperson.” treatments, damagingtotheperson’s psychicandmoralintegritytherighttorespect longed isolationandcoercive solitaryconfinementare, inthemselves,cruelandinhuman rity. fore constitutesaninhuman treatment thatisnotjustifiablebyadducingneedofsecu- along withcompletesocialisolationmaydestroy anindividual’s personality;andthere - the European CourtofHuman Rightshasdeterminedthattotalsensorialisolationused access totoiletsandallowingthembathewash theirclothesregularly.” equate tomaintainthehygieneandhealth[ofprisoners], allowingthemregular that theStatemustensure that“sanitaryconditions[inthedetentioncenters]are ad- CommitteeoftheRedCrossneeds (suprapara.319).TheInternational hasestablished 331. caused anadditionalpsychologicalsuffering intheinmatesthatwere mothers. mitted betweenmotherandchild.Theimpossibilitytocommunicatewiththeirchildren maternity, which implies, among other measures, ensuring that appropriate visitsbe per to takeintoconsiderationthespecialattentionthatmustbeoffered towomendue organizations have made emphasis on the States’ obligation ers. Several international 330. […] cases, to the effects it causes of the inmates, 323. and increases the risk of aggression and arbitrariness in prisons.” suffering andpsychicperturbations, placestheminasituationofparticularvulnerability effects itgenerates,since“isolationfrom theoutside worldproduces inanypersonmoral confinement mayonlybeusedinanexceptionalmanner, takingintoaccountthegross implied anadditionalviolation to theirrighthumanetreatment. ter itdidnotoffer herpostnatalmedicalattentionaswell (suprapara.197.57.),which the Statedidnotattendtotheir basicprenatal healthneeds, andthatregarding thelat- 332. Itwasproven thatinthecaseofinmatesEvaChallcoandSabinaQuispeRojas women. The commission of thoseexcesses causes specialandadditional suffering to imprisoned for femaledetaineeswiththeirperiod,pregnant, oraccompaniedbytheirchildren. Likewise, saidCommitteealsodeterminedthatspecialarrangements mustbemade 181 Another aspectthataffected womenwasthelackofattentiontotheirphysiological The severe solitaryconfinement hadspecific effects ontheinmatesthatwere moth- In whatrefers tothesolitaryconfinement,Courthasalready referred, inother 178 179 and it has indicated, Likewise,ithasestablishedthatsolitary 180 inter alia, that “pro- In this same sense, 187 186 -

Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 13 - This Tribunal considers that the totality of detention and treatment conditions to treatment of detention and that the totality considers This Tribunal next of kin B) Regarding the inmates’ next of kin led to the conclusion that 25 of the inmates’ the evidence has Finally, of solitary confinement cause special The Court considers that this type of measures investigate the violating facts to the right The analysis of the obligation to effectively 333. or transferred were they where centers criminal the in submitted were inmates the which - physical and psychologi 1”, constituted Transfer so-called “Operative after the relocated of the American Convention of Articles 5(2) on all of them in violation inflicted cal torture and Punish Torture. Convention to Prevent Inter-American and 1, 6, and 8 of the […] 340. to restrictions applied by the State and visiting to the strict solitary confinement suffered attack on the criminal center (supra para. 197.54. and 197.56.). the inmates after the implied a violation of the psychic integrity of said next of kin. (…) This suffering 341. with their impris- due to the deprivation of contact and relationship damage to children to the inmates’ chil- with regard said suffering presumes oned mothers, and therefore confinement (supra paras. under the age of 18 at the time of the solitary were who dren Ruth Quispe Quispe, daughter that Yovanka 197.54. and 197.56.). It has been proven the of son Hurtado, Challco VirgenSaid Sabina inmate Gabriel the and of Rojas, Quispe in said condition (supra para. 197.57.). Since the Court does inmate Eva Challco were of the inmates that at that time all the children not have sufficient evidence to identify the themselves before the age of 18, it is necessary that said people present under were months following the notification of this Judg- competent State authorities, within the 8 mentioned in the that they were and age that proves their relationship ment and prove victims of said violation. therefore, supposition and, are […] investigate the facts Obligation to effectively 343. to by the is done taking into consideration the parameters referred to humane treatment Judgment. 256 of the present Court in paragraphs 253 through the obligation to guarantee the right acknowledged in Ar regarding 344. Specifically, of the ticle 5 of the American Convention, the Court has stated that it implies the duty 14 Gender-based Violence […] American Convention. ment the State’s obligation with regard to the compliance of therights enshrined in the Punish Torture. Saidprovisions are applicabletothecasesincetheyspecifyandcomple- AgainstWomenEradicate Violence andoftheInter-American ConventiontoPrevent and ing thementionedprovisions oftheInter-American ConventiontoProtect, Punish,and along withthementionedsubstantivelawprotected inArticle5ofthesame,apply - infringements ofthesame,whichderivesfrom Article1.1.oftheAmericanConvention of therighttohumanetreatment arisesfortheStateobligationtoinvestigate 346. ments. State toinvestigatepossibleactsoftorture orothercruel,inhuman,degradingtreat- 345. according tothatstatedin Article8ofthisConvention and punish[…]othercruel,inhuman,ordegradingtreatment orpunishment.”Likewise, measures toprevent andpunishtorture withintheirjurisdiction,”aswellto“prevent vent andPunishTorture, according towhichtheStateisobliged“take[…]effective reinforced by that stated in Article 1, 6, and 8 of the Inter-American Convention to Pre- the investigationandpunishmentofsaidviolence.Theobligationtoinvestigateisalso that statedinArticle7.bofsaidtreaty, whichobligesittoactwiththeduediligencein againstWomenand EradicateViolence onJune4,1996,asofthatdateithadtoobserve In thepresent case,theCourtconsidersthatfrom thefactsdeclared asaviolation believe thananactoftorture hasbeencommitted. ish theresponsible parties, whenthere isanaccusationorwell-grounded reason to immediately aneffective investigations thatallowsittoidentify, prosecute, andpun- Humane Treatment) of said treaty, there is a state obligation to start ex officio and the same,alongwithrighttohumanetreatment pursuanttoArticle5(Right tion thehumanrightsenshrinedinConvention,establishedArticle1.1.of in thelightofgeneralobligationtoguaranteeallpersonsundertheirjurisdic- In thissamesense,theTribunal haspreviously statedthat: criminal process. investigation into the case and to initiate, whenever appropriate, the corresponding their respective authorities willproceed properly andimmediatelytoconduct an has been committed within their jurisdiction, the States Parties shall guarantee that if there isanaccusationor well-grounded reason tobelievethatanactoftorture 190 Similarly, since Peru ratified theInter-American Conventionto Prevent, Punish, 191 Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 15

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V gainst onvention onvention ion onvent on rotecti C C According to the international by Peru, the latter has the duty acquired According obligations to comply with the obligation to investigate the State must observe that In order Court will analyze if the paragraph, the to that stated in the previous According and C A P XV. […] Court Considerations of the […] 377. pursuant to that established in the American to guarantee the right to access justice obligations imposed upon it by the special- Convention, but also pursuant to the specific and punishment of in matters of prevention ized Conventions it has signed and ratified violence against women (supra para. 376). and torture 378. in the sense that “once the state authori- stated in paragraph 256 of this Judgment, a serious, of the fact, they must start, ex officio and without delay, ties become aware Peru ratified the Inter-American since investigation.” Similarly, impartial, and effective on June 4, 1996, Punish, and Eradicate Violence against Women Convention to Prevent, which obliges it to apply the 7.b. of said treaty, it must comply with that stated in Article violence. (…) due diligence to investigate and punish said 379. investigate stated in Articles 8 and 25 of the State has complied with its obligation to Conven- of the Inter-American provisions American Convention, applying the mentioned American and the Inter- and Eradicate Violence Punish, against Women tion to Prevent, since case the to applicable are provisions Said Torture. Punish and Prevent to Convention to compliance of the obligations with regard they specify and complement the State’s rights enshrined in the American Convention. […] 16 Gender-based Violence that theyremain unpunished. behaviors and the punishment of their perpetrators, in order to prevent themand avoid means, instruments, and mechanisms for the effectiveinternational prosecution of said gation tonotleavethesecrimesunpunishedandtherefore itmustusethenationaland commit these crimesisa norm ofthe ius cogens,and, therefore, the Statehas the obli- tioned intheprevious paragraphsconstitutecrimesagainsthumanity. Theprohibition to tortures committedagainst thevictimsofthiscasebystateagents,forreasons men- 404. […] subject. ing intoconsiderationtheobligationsimposedonitbytreaties ithasratifiedinthis consideration the seriousness of the facts that constitute violence against women, tak- of theseriousnessandmagnitudesame.ThatalsoimpliesthatStatetakeinto regarding thevictimsofevents,rightsdeclared violated,andthedetermination that decided by this Court in the present Judgment, including the considerations made lations tohumanrightsdeclared inthisJudgmentandforthatitmusttakeintoaccount necessary tocomplywiththeobligationinvestigateallactsthatconstitutevio- the elucidationoffacts, investigationand,initscase,punishmentofthosere- a true access to justice by the victims, within a reasonable period of time, that includes ings initiatedinthepresent casehavenotconstitutedeffective recourses toguarantee 408. […] invoked tojustifyitsnon-compliance.” imposed byitmustbecompliedwithingoodfaithanddomesticlegislationmaynot 394. […] its jurisdiction(Article1.1.). free andfullexercise oftherightsacknowledgedbuy theConventiontoallpersonunder (Article 8.1.),allthiswithinthegeneralobligation,ofsameStates,toguarantee (Article 25),thatmustbesubstantiatedpursuanttotherulesofdueprocess oflaw are obligedtooffer thevictimsofhumanrights’violations effective judicialrecourses 381. Therefore, theCourtconcludesthatthere isevidencetostatethatthedeathsand Due to all the aforementioned, this Tribunal considers that the domestic proceed- This Courthasestablishedthat“[a]ccordinglawtheobligations tointernational The Courthasheldthat,according totheAmericanConvention,StatesParties 197 208 201 Therefore, theStatemustadoptallmeasures Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 17 , eclares D ourt C The State violated the right to life enshrined in Article 4 of the American Conven- The State violated the right to life enshrined enshrined in Article 5.1. and 5.2. The State violated the right to humane treatment enshrined in Article 5.1. of the The State violated the right to humane treatment he T Unanimously, that: Unanimously, […] 3. 41 the of detriment in same, the of 1.1. Article to relation in Rights, Human on tion have been included in Appendix 1 of victims deceased inmates identified, whose names of the same, in the terms of forms part Judgment that for these effects of the present paragraphs 231 to 258 of the same. 4. to Article 1.1. of said treaty, Rights, in relation of the American Convention on Human Convention to Prevent 8 of the Inter-American and in connection with Articles 1, 6, and surviv- the of and identified inmates deceased 41 of the detriment in Torture, Punish and in Appendix 1 of victims of the present ing inmates, whose names have been included forms part of the same, in the terms of paragraphs 262 Judgment that for these effects to 350 of the same. 5. to Article 1.1. of the same, in detri- American Convention on Human Rights, in relation 341 ment of the next of kin of the inmates determined in paragraphs 336, 337, 340, and Judgment that for these effects and identified in Appendix 2 of victims of the present forms part of the same, in the terms of paragraphs 334 to 350 of the same. sponsible and the reparation of the violations to the right to life and humane treatment. life and humane treatment. to the right to of the violations the reparation sponsible and the Ameri- 8.1. and 25 of the violation of Articles for the State is responsible Therefore, same, in Article 1.1. of the included in with the obligation in relation can Convention, Punish, and to Prevent, American Convention the Inter- to Articles 7.b. of connection Convention to and 1, 6, and 8 of the Inter-American Eradicate Violence Against Women, inmates, of the of the next of kin of the 41 dead in detriment and Punish Torture, Prevent in paragraphs 336, of the next of kin of the inmates determined surviving inmates, and integrity and identified in the Chapter on the violation to personal 337, 340, and 341 of part of is considered Judgment that for these effects of the present Appendix 3 of victims the same. […] 18 Gender-based Violence 40 Cfr. Different testimonialstatementsoffered bysurviving inmatesandthenextofkinsurvivingdead 39 38 37 36 35 […] 7. the termsofparagraphs372to408same. victims ofthepresent Judgment thatfortheseeffects isconsidered partofthe same, in determined inparagraphs336,337,340,and341,identifiedAppendix3of ceased inmatesidentified,ofthesurvivinginmates,andnextkin Convention toPrevent andPunishTorture, indetrimentofthenextkin41de- AgainstWomen,Punish, andEradicateViolence and1,6,8oftheInter-American of thesame,inconnectiontoArticles7.b.Inter-American ConventiontoPrevent, 8.1. and25oftheAmericanConventiononHumanRights,inrelation withArticle1.1. 6. E ndnotes and 412,foliosbetween36434933); testimonialstatementoffered byGabyBalcázar Medinainthe and deadinmates (dossier of appendixesto the briefof pleadings and motions, appendixes between 317 2732); different formsofwrittenstatementsoffered bysurvivinginmates andthenextofkinsurviving inmates (dossierofappendixestothepetition, appendixesbetween82and246,folios1226 (dossier ofappendixestothepetition,appendix6,corresponding toacompactdisc). of Lima, Peru, Volume VII, section 2(68) Extrajudicial killings in the criminal center Canto Grande, page 770 Cfr. FinalReportoftheCommissionforTruth andReconciliation,CVR,issuedonAugust27,2003inthecity of June2006. ment oftheStateduringpublichearingheldbefore theInter-American Courtonthe26thand27thdays appendixes andtothepetition,13,14,15,folios167 through 262);andargu - Cfr. listsoftheinmatesdetainedinpavilions1Aand4BMiguelCastro Castro Prison(dossierof Inter-American Courtonthe 26thand27thdaysofJune2006. corresponding toacompact disc);andargumentoftheStateduringpublichearingheldbefore the killings inthecriminalcenterCantoGrande,page771(dossierofappendixestopetition,appendix6, city ofLima,Peru,Volume V, section2(22),Theprisons,page703andVolume VII,section2(68)Extrajudicial Cfr. FinalReportoftheCommissionforTruth andReconciliation,CVR,issuedonAugust27,2003inthe tion, appendix254,folios2781through 2787). folios 2796through 2823); andmapoftheMiguelCastro Castro Prison(dossier ofappendixestothepeti- Cfr. PhotographsoftheMiguel Castro Castro Prison (dossier ofappendixestothepetition,appendix256, 769 (dossierofappendixestothepetition,appendix6,corresponding toacompactdisc). city ofLima,Peru,Volume VII,section2(68),ExtrajudicialkillingsinthecriminalcenterCantoGrande,page Cfr. FinalReportoftheCommissionforTruth andReconciliation,CVR,issuedonAugust27,2003inthe This Judgmentis,perse,aformofreparation. The Stateviolatedtherighttoafairtrialandjudicialprotection enshrinedinArticles Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 19 note 127, para. 172; Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 118, supra note 127, para. 172; Advisory Opinion OC-18/03 of para. 120; and Case of the “Street Children” (Villagrán Morales et al.), supra note 152, para. 194. Children” para. 120; and Case of the “Street on of prisoners, Adopted by the First United Nations Congress U.N., Minimum rules for the treatment Cfr. by the Eco- held at Geneva in 1955, and approved of Offenders, of Crime and Treatment the Prevention 31, 1957 and 2076 (LXII) of May 13, 1977, 663C (XXIV) of July nomic and Social Council by its resolutions paras. 23 and 53. - General recom meeting. 11º against Women, Discrimination of the Elimination on U.N., Committee Cfr. 1at84 (1994), para. 6. mendation 19 “Violence against women”. Doc. HRI/GEN/1/Rev. Jean-Paul Akayesu. Judgment of September 2, 1998. Case No. ICTR-96-4-T, v. ICTR, Case of Prosecutor Cfr. para. 688. public hearing held before the Inter-American Court of the 26th and 27th days of June 2006; and different 2006; and different 26th and 27th days of June Court of the the Inter-American held before public hearing and dead inmates (evi- next of kin of surviving surviving inmates and the by offered forms of statements and their next of kin). of the alleged victims of representatives other group by the dence presented (dossier 2 Article 1992, 6, April on Peru of Republic the of President the by issued 25421 No. decree Law Cfr. appendix 7, folio 74). of appendixes to the petition, in the city and Reconciliation, CVR, issued on August 27, 2003 for Truth Final Report of the Commission Cfr. page 771 Grande, center Canto the criminal in killings 2(68) Extrajudicial section VII, Volume Lima, Peru, of to a compact disc). petition, appendix 6, corresponding (dossier of appendixes to the Justice of Peru on Feb- Court of Chamber of the Supreme Terrorism Judgment issued by the National Cfr. testimonial and different to the petition, appendix 274, folio 3221); ruary 3, 2004 (dossier of appendixes appendixes between 83 petition, to the surviving inmates (dossier of appendixes by the offered statements and 1482). and 112, folios between 1237 Febru- on Peru of Justice of Court Supreme the of Chamber Terrorism National the by issued Judgment Cfr. of the State 3235); and arguments 274, folio appendix to the petition, of appendixes 3, 2004 (dossier ary 2006. Court held on the 26th and 27th days of May the Inter-American during the public hearing before Ruling of the Inter- Measures. I and II, Provisional Case of the Penitenciary Center Capital Regional Yare Cfr. Case of the Internado 30, 2006, Ninth whereas; Judicial de American Court of Human Rights of March Court of Human Rights of February Ruling of the Inter-American Measures. Monagas (La Pica), Provisional Ruling of the Inter- Measures. de Urso Branco, Provisional and Case of the Cárcel 9, 2006, Ninth whereas; Eighth whereas. American Court of Human Rights of June 18, 2002, 11º meeting period.19 General Women, Against Discrimination for the Elimination of Committee U.N., Cfr. 1at84 (1994), para. 16; U.N., Human Recommendation “Violence against women”. Doc. HRI/GEN/1/Rev. Special Raporteur of Mrs. Radica Coomaraswamy, Rights Commission, 57° meeting period 2001, Report pursuant to ruling on Violence against women, with inclusion of their causes and consequences, presented by Commission, “Violencecondomned or Rights and/ Human perpetrated the women of against 2000/45 E/CN.4/2001/73, para. 44; and 87 the State in times of armed conficts (1997- 2000)”, Political Violence Obudsman of the People of Peru. Defense Report No. 80, in Peru: 1980- 1996, page 33. Cfr. supra note 21, para. 166; Case of the “Juvenile Reeducation Case of the Gómez Paquiyauri Brothers, Cfr. Institute”,

159 160 161 42 43 44 45 125 126 148 155 20 Gender-based Violence 186 181 180 179 178 174 167 166 165 164 163 162

Conflict on Women, 2001,sec.III, ref. 0798andavailableathttp://www.icrc.org. Inthesamesense,cfr. Cfr. CommitteeoftheRedCross. International Women FacingWar: ICRCStudyontheImpactof Armed Cfr. Eur.C.H.R., Case of Öcalanv. Turkey(GC), Judgment of12May2005,App.No.46221/99,para.191. and CaseofBámacaVelásquez, supranote174,para.150. Cfr. Case of De la Cruz Flores, and CaseofBámacaVelásquez, supranote174,para.150. Cfr. Case of De la Cruz Flores, cacó Reyes,supranote171,paras.95and96;CaseofLoriBerenson Mejía,supranote168,para.103. Cfr. CaseofMontero Aranguren etal.(DetentionCenterofCatia),supranote128,para.94;CaseRax- Kingdom (GC),Judgmentof18January1978,App.No.5310/71,para.162. Judgment of24April2003,App.No.24351/94,para.312;yEur.C.H.R., CaseofIreland v. TheUnited Morales etal.),supranote152,para.176.Inthissamesense,cfr. Eur.C.H.R., CaseofAktaşv. Turkey (3rd), ment ofNovember25,2000.Series C No. 70, para.162;andCase of the “Street Children” (Villagrán Cfr. CaseoftheGómezPaquiyauriBrothers, supranote21,para.113;CaseofBámacaVelásquez. Judg - of theHumanRightsCommission.Doc.E/CN.4/1995/34January12,1995,para.16. ments. ReportoftheSpecial Rapporteur, Mr. NigelS.Rodley, presented inaccordance toresolution 1992/32 tion or imprisonment, and especially torture and other cruel, inhuman, or degrading treatments or punish- Rights Commission. 50° session. Matter of the human rights of all persons submitted to any form of deten- Record of the21st Meeting, Doc. E/CN.4/1992/SR.21 of February 21, 1992, para. 35; and U.N., Human tions onTorture, PeterKooijmans,includedin:U.N.,CommissiononHumanRights.48ºsession.Summary Cfr. Oral presentation before the Human Rights Commission of the Special Rapporteur of the United Na- para. 14. sequences, pursuant to resolution 1997/44 oftheCommission. Doc. E/CN.4/1998/54 ofJanuary26, 1998, Coomaraswamy, SpecialRapporteuronviolenceagainstwomen,withtheinclusionofitscausesandcon- Cfr. U.N,HumanRightsCommission,54ºsession.Reportpresented byMrs.Radhika and 13. pursuant toresolution 1997/44 oftheCommission.Doc.E/CN.4/1998/54January26,1998,paras.12 wamy, SpecialRapporteuronviolenceagainstwomen,withtheinclusionofitscausesandconsequence, Cfr. U.N.,HumanRightsCommission,54ºmeetingperiod.Reportpresented byMrs.RadhikaCoomaras- para. 83. Cfr. Eur.C.H.R., CaseofAydin v. Turkey (GC),Judgmentof25September1997,App.No.57/1996/676/866, 1995, para.19. accordance toresolution 1992/32oftheHumanRights Commission.Doc.E/CN.4/1995/34ofJanuary12, degrading treatments orpunishments.ReportoftheSpecialRapporteur, Mr. NigelS.Rodley, presented in submitted toanyformofdetentionorimprisonment,andespecially torture andothercruel,inhuman,or Cfr. U.N.,HumanRightsCommission.50°meetingsession.Matterofthehumanrightsallpersons para. 83. Cfr. Eur.C.H.R., CaseofAydin v. Turkey (GC).Judgmentof25September1997,App.No.57/1996/676/866, supra note 157, para. 129; Case of Maritza Urrutia, supra note 157, para. 128; Case of Maritza Urrutia, supra note 150, para. 87; supra note 150, para. 87; Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 21 U.N., Minimum rules for the treatment of prisoners, Adopted by the First United Nations Congress on the on Congress Nations United First the by prisoners, Adopted of treatment the rules for Minimum U.N., by the Economic and approved held at Geneva in 1955, and of Offenders, Treatment of Crime and Prevention 15-19. of May 13, 1977, paras. 31, 1957 and 2076 (LXII) 663C (XXIV) of July by its resolutions Social Council the Impact of Armed ICRC Study on Facing War: Women International Cross. Committee of the Red Cfr. the same sense, cfr. section III. In at http://www.icrc.org, ref. 0798 and available Women. 2001, Conflict on on the Congress of prisoners, Adopted by the First United Nations treatment U.N., Minimum rules for the by the Economic in 1955, and approved held at Geneva of Offenders, of Crime and Treatment Prevention para. 1977, 13, May of (LXII) 2076 and 1957 31, July of (XXIV) 663C resolutions its by Council Social and 23. Lopes, note 3, para. 78; Case of Ximenessupra note 3, para. 147; and Case supra Areco, Case of Vargas Cfr. of June 15, 2005. Series C No. 124, para. 92. Judgment of the Moiwana Community. supra note 147, para. 54; and Soler, Gutiérrez note 3, para. 79; Case of supra Areco, Case of Vargas Cfr. Turkey Case of Ilhan v. Eur.C.H.R., same sense, cfr. supra note 21, para. 156. In the Case of Baldeón García, Case of Assenov and paras. 92 y 93; y Eur.C.H.R., [GC], Judgment of 27 June 2000, App. No. 22277/93, Bulgaria, Judgment of 28 October 1998, App. No. 90/1997/874/1086, para. 102. others v. et al., supra nota 3, para. 147; Case of Goiburú et al., supra note 5, para. 110; Case of Servellón García Cfr. and Case of Ximenes Lopes, supra note 3, para. 175. Violationin of Laws the Conven- of and Enforcement International for the Promulgation Responsibility Cfr. Rights), Advisory Opinion OC-14/94 of December tion (Arts. 1 and 2 of the American Convention on Human et al., supra note 15, para.125. Arellano 9, 1994, Series A No. 14, para. 35; and Case of Almonacid Case of Goiburú et al., supra note 5, para. 128. Cfr.

187 190 191 197 201 208

Inter-American Court of Human Rights

González et al. v. Mexico (“Cotton Field”)

Preliminary Objection, Merits, Reparations and Costs

Judgment of November 16, 2009 24 Gender-based Violence […] representatives onJanuary2,2008. do Pará”). The application was notified tothe Stateon December21, 2007,andto the againstWomenment andEradicationofViolence (hereinafter “theConventionofBelém with theobligationsarisingfrom Article7oftheConventiononPrevention, Punish- Respect Rights)and2(DomesticLegalEffects) thereof, togetherwithfailure to comply the Convention,inrelation totheobligationsestablishedinArticles1(1)(Obligation 8 (RighttoaFairTrial), 19(RightsoftheChild)and25(RighttoJudicialProtection) of tion oftherightsembodiedinArticles4(RighttoLife),5HumaneTreatment), 3. homicides […],aswellthedenialofjusticeandlackanadequatereparation.” authorities tothedisappearance[…];lackofduediligenceininvestigation that hadresulted inhundreds ofwomenandgirlsmurdered, thelackofresponse ofthe crimes, in spiteoffullawareness of genderrelated oftheexistence of a pattern violence tion ofthevictims,twowhomwere minorchildren, thelackofprevention ofthese 6, 2001. The State is considered responsible for “the lack of measures for the protec- and Ramos”),whosebodieswere foundinacottonfieldCiudadJuárez onNovember rera Monreal andLauraBerenice RamosMonárrez (hereinafter “Mss.González,Herrera appearance and subsequent death” of the Mss. Claudia Ivette González, Esmeralda Her 2. (hereinafter “theState”or “Mexico”),whichgaverisetotheinstantcase.(…) American Commission”)presented anapplicationagainsttheUnitedMexicanStates American CommissiononHumanRights(hereinafter “theCommission”orInter- 1. […] I. The Commission asked that the Court declare the State responsible for theviola- The applicationrelates tothe State’s responsibility allegedinternational for“thedis- On November4,2007,underArticles51and61oftheConvention,Inter- I ntroduction

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), 7 (R P of rial ) icles rt T onvention people trafficking, A iolence 67 udicial Ciudad Juárez C air V ion bligat J ase reatment ffects F Ciudad Juárez is located in the north of the state of Chihuahua, on the border is located in the north of the state of Chihuahua, on the border Ciudad Juárez T C This difference of opinion requires the Court to examine the context of the facts of the Court to examine of opinion requires This difference 1.1. a to the E (O VII. 113. than 1.2 million inhabitants, It has a population of more with El Paso, Texas. industrial city – where the “maquila industry” (manufacturing and/or assembly plants, industrial city – where “maquila,” “maquiladora” or “maquilas”) has flourished – to as referred hereinafter migrants. and foreign for Mexican of transit and a place have contributed to the development of different types of organized crime, such as drug- have contributed to the development of different trafficking, […] 112. thus State, to the be attributed can facts said the which in conditions and the case the the alleged violation of Articles 4, 5 from entailing its international derived responsibility and of Arti- to Articles 1.1. and 2 thereof, and 7 of the American Convention, in relation acquiescence, the State’s despite Furthermore, do Pará. of Belém the Convention 7 of cle occurred that violations of the and severity nature the determine to necessary still is it and Articles 1.1. to relation in the Convention, of and 25.1. 8.1. Articles to regard with this end, the Court do Pará. To and Article 7 of the Convention of Belém 2 of this treaty, obligations State’s the examining findings, and legal factual pertinent make the now will guarantee and non-discrimination. of respect, 1. Context increased the levels of insecurity and violence. increased national and international reports, mention a series of factors that converge in Ciudad national and international mention a series of factors that converge in reports, such as social inequalities Juárez, 26 Gender-based Violence young women, agenciesestablishing thatthemurderinternational victims appeared tobe,aboveall, 123. a relatively shorttime.TheStatedidnotmakeanycommentinthisregard. or in stores or other local businesses, some of whom had only lived in Ciudad Juárez for were youngwomenaged15to25years,studentsorworkersinthemaquilaindustries 122. Court considersitimportanttohighlight. 115), of violence against women since 1993, characterized by specific factors that this they haveprovided, indicate acomplexphenomenon,acceptedbytheState(suprapara. some women in Ciudad Juárez, the arguments of the parties, together with the evidence not sufficienttounderstandtheseriousnessofproblem ofviolenceexperiencedby the number, it is alarming. Over and above the numbers which, althoughsignificant,are murders and disappearances of women in Ciudad Juárez, and observes that, whatever 121. […] the beginningof1990sinlastcentury.” against womeninCiudadJuárez, aboveall,themurders thathavebeenrecorded since 115. State response tothesecrimes.” situation ofviolenceagainstwomenwhichhasprevailed since1993,andthedeficient communitiesbecauseoftheparticularlycritical both thenationalandinternational cantly. According totheCommission,“CiudadJuárez hasbecomeafocusofattention disappearances andmurders ofwomenandgirlsinCiudadJuárez hasincreased signifi- 114. quilas 1.2. Phenomenonofthemurderwomen,andnumbers The plaintiffs’ allegations were based on different reports prepared by national and In the first place, theCommission andthe representatives allegedthat thevictims 1.3. Victims The Courttakesnotethatthere are noreliable assumptionsaboutthenumber of The Stateacknowledged“theproblem itfacesowingtothesituationofviolence The Commissionandtherepresentatives allegedthat, since1993,thenumberof 100 –whoare underprivileged, 98 includinggirls, 99 women workers–especiallythoseworkinginthema- 101 students 102 ormigrants. 103 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 27 - - with 107 it was only in 109 CEDAW and Amnesty International and Amnesty CEDAW their next of kin reported their disap- their their next of kin reported 110 105 104 111 and, after days or months, their bodies were found on empty lots their bodies were and, after days or months, 106 - alleged that, accord the State the sexual characteristics of the murders, Regarding of concluded that most of the murders Office Although the Special Prosecutor’s Diverse reports establish the following common factors in several of the murders: murders: the of several in factors common following the establish reports Diverse 1.4. Method of signs were there that alleged representatives the and Commission the Second, 1.5. Gender-based violence 1.5. Gender-based denominator common the is gender of issue the representatives, the to According 108 126. result of violent sexual the were 26% of the murders for 2004, around ing to the figures acts. 127. had been and, consequently, independent of each other were women in Ciudad Juárez and occasion, of time, manner, circumstances, committed under different 125. kept in captivity, abducted and the women were pearance reports concur that around one-third of the murders had a component of sexual violence had a component of sexual of the murders one-third that around concur reports or similar characteristics. 124. - Prosecu of the Special to a report According murders. in many of the sexual violence similar revealed “have and disappearances 1993, some of the murders Office, since tor’s patternscharacteristics and/or of conduct.” 128. which “occurs as a culmination of a situation character of the violence in Ciudad Juárez, ized by the reiterated and systematic violation of human rights.” They alleged that “cruel that alleged They rights.” human of violation systematic and reiterated the by ized signs of violence, including rape and other types of sexual abuse, torture and mutila- and torture abuse, sexual of types other and rape including violence, of signs tion. 2005 that it “was able to determine that the number of cases in which there was a pat- the number of cases in which there 2005 that it “was able to determine that [the dead tern of conduct identified as the phenomenon known as ‘Muertas de Juárez’ or in other words, was about 30% of the 379 identified murders,” women of Juarez], and Eliminate Violence the Commission to Prevent women, Furthermore, 113 around indi- Commission”) the “Ciudad Juárez (hereinafter in Ciudad Juárez against Women figures, absolute as regards continued to be discrepancies cated that, even though there those classified women were of the murders of all that one-third agreed reports different pattern in which, gener those with a repeated and/or serial; the latter “are as sex-related the victim does not know her attacker and is deprived of her liberty and subjected ally, until she dies.” to multiple abuse and suffering 28 Gender-based Violence that womenare inferior.” all influencedbyaculture ofdiscriminationagainstwomenbasedontheerroneous idea the motivesformurders ofwomeninCiudadJuárez, ittoldCEDAW that“theyare 132. […] who haveparticipatedinarmedconflicts,”theneighboring cityofElPaso. desertion, andthepresence of“numerous sexualpredators” and“militaryofficials […] udad Juárez becauseitisa border city;theconsumptionofdrugs,highrateschool arms trafficking, crime,money-laundering andpeopletrafficking,whichtakeplaceinCi- are theabsenceofbasicpublic servicesintheunderprivilegedareas; anddrug-trafficking, 130. women’s socialroles hasbeenperpetuated.” tionally patriarchal attitudes andmentalities,thusthestereotyped viewofmen’s and “[t]his socialchangeinwomen’s roles hasnotbeenaccompaniedbyachangeintradi- and inCiudadJuárez shouldalsobenoted: the specificactionstakentoimprove thesituationofsubordination ofwomeninMexico financially independent. the familybecausewomenbegantopresent animageofbeingmore competitiveand becoming thehouseholdprovider.” This,according totheState, led toconflictswithin an impactontheirfamilylifebecause“traditionalroles begantochange,withwomen hiring women,themaquilaindustriescausedchangesintheirworkinglifethatalsohad the NorthAmericanFree Trade Agreement. Itindicatedthat,by givingpreference to dad Juárez, themaquiladora industrystartedupin1965,andincreased in1993with change infamilyroles, as a result ofwomenworking.TheStateexplainedthat,inCiu- factors that have ledtosituationsofviolence against womenin Ciudad Juárez isthe a culture ofgender-based discrimination.”According totheState,oneof thestructural in verydistinctcircumstancesbutare andwithdiversecriminalpatterns, influencedby 129. violence.” and, onlyinsomecases,are theymurdered asaculminationofthispublicandprivate acts ofviolenceare perpetratedagainstgirlsandwomenmerely becauseoftheirgender The Courtnotesthat,despitetheState’s denialthattherein isanykind ofpattern Other factorsmentionedbytheStateasgeneratorsofviolenceandmarginalization, Changing cultural patterns is a difficult task for any government, even more is a difficult task for any government, so Changing cultural patterns the underlyingassumptionthat womenare inferior, cannotbechanged overnight. [I]t mustbeacknowledgedthat aculture deeplyrooted instereotypes, basedon The Stateindicatedthatthemurders “havedifferent causes,withdifferent authors, 112 115 In addition, the State cited the CEDAW report to indicate that Mexico’s observationsinitsreply toCEDAW withregard to Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 29 120 According to Amnesty According 117 116

122 121 The report of the IACHR Rapporteur indicates that the violence against indicates that the violence against of the IACHR Rapporteur The report In turn, CEDAW stressed that gender-based violence, including the murders, murders, the including violence, gender-based that stressed turn,In CEDAW 118 119 Various reports agree that, although there are different motives for the murders in murders the for motives different are there although that, agree reports Various The Ciudad Juárez Commission pointed out that the emphasis placed by the Special The Ciudad Juárez The United Nations Rapporteur on violence against women explained that the vio- The United Nations Rapporteur on violence when the emerging problems of modern and alcoholism, drug addiction society — emerging problems when the to exacerbate the discrimination etc. — serve gang crime, sex tourism, trafficking, disadvan- already that are in particular those society, by various sectors of suffered peoples. and indigenous as women, children taged, such kidnappings, disappearances and the domestic violence “are not isolated, sporadic or violence “are kidnappings, disappearances and the domestic situation and a social and a structural episodic cases of violence; rather they represent in customs and mindsets” and that these situations cultural phenomenon deeply rooted of violence and discrimination.” founded “in a culture of violence are women in Ciudad Juárez “has its roots in concepts of the inferiority and subordination of of in concepts of the inferiority and subordination its roots “has women in Ciudad Juárez women.” 133. to gender violence that oc- cases relate perpetrators, many and different Ciudad Juárez systematic discrimination against women. curs in a context of 135. Office on domestic violence and on the significant changes in the social Prosecutor’s “the elements of the vio- for sex crimes, did not take into account as reasons structure women,” discrimination that specifically affects to gender-based related lence that are violence with social violence, without examining how it and this “merges gender-based women.” specifically affects 134. be understood in the context of “socially en- lence against women in Mexico can only of change [that] chal- to “forces The Rapporteur referred gender inequality.” trenched the incorporation of women into the lenge the very basis of the machismo” including new opportunities for which gives them economic independence and offers workforce, structural dis- women to overcome education and training. While ultimately empowering in the short-run. The in- violence and hardship crimination, these factors may exacerbate causes family abandonment, roles as providers ability of men to fulfill traditional machista or alcoholism, which in turn the risk of violence. Even may increase unstable relationships attempts to uphold discrimi- may be understood as desperate cases of rape and murder, outpaced by changing socio-economic conditions and the advance natory norms that are of human rights. International, the characteristics shared by many of the cases reveal that the victim’s gen- the victim’s that reveal by many of the cases International, the characteristics shared both the motive been a significant factor in the crime, “influencing der appears to have to which the women were crime, and also the type of violence and the context of the subjected.” 30 Gender-based Violence 144. of women,”alsoknownasfemicide. 143. […] participate inthesextrade.” “both caninvolvesituationsofcoercion andabuseofwomenworkinginorforced to certain casessuggestslinkstoprostitution ortraffickingforsexualexploitation,”andthat dicated that“[w]hiletheextentoftheseaspectsproblem isunclear, evidencein 136. […] constitute gender-based murders ofwomen. the Tribunal will analyzewhether, basedontheevidenceprovided bytheparties,they 145. of themtookplacewithinacontextviolenceagainstwomen. some ormanyofthemmayhavebeencommittedforreasons ofgenderandthatmost refer totheCiudadJuárez casesasmurders ofwomen,eventhoughitunderstands that of women,otherthanthemurders ofthethree victimsinthiscase.Consequently, itwill ruling onwhichmurders of womeninCiudadJuárez constitutegenderbasedmurders guments about the evidence in the case file, it is not necessary or possible to make a final Rapporteur inthisregard: conducted overthoseyears.However, theCourtnotesobservationsof theIACHR it didnotspecifytheirregularities ithadfoundintheinvestigationsandproceedings investigation andprosecution ofthemurders ofwomenbetween1993and2003(…), 147. In theinstantcase,Tribunal findsthat,bearinginmindtheevidenceandar (…) [I]ntheinstantcaseCourtwilluseexpression “gender-based murders 1.6. Regardingtheallegedfemicide The Commission’s report stressed thesexualcharacteristicsofmurders andin- Regarding thedeathsthat occurred intheinstantcase,followingsections report agirlmissingthattheyshouldreturnin48hours, whenitwasclearthere that itwasnotuncommonfor thepolicetotellafamilymemberattempting five yearsthatitwasconfronted withthesekillings.Itacknowledges, forexample, The MexicanState,foritspart, recognizes thatmistakeswere madeduringthefirst Even thoughtheStateacknowledgedthatirregularities hadbeencommittedinthe 1.7.1. Irregularitiesintheinvestigationsandproceedings 123

- Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 31

143 loss of informa- 141 slowness of the investigations or 139 146 negligence and irregularities in gathering evidence negligence and irregularities 140 135 accordingly, it forms part of the body of evidence that will accordingly, 148 According to the U.N. Rapporteur on judicial independence, following According For its part, the Special Prosecutor’s Office indicated in its 2006 report indicated in its 2006 Office For its part, the Special Prosecutor’s 144 The Tribunal observes that, although the State did not acknowledge his observes that, although the State The Tribunal 145 147 1.7.2. Discriminatory attitude of the authorities misplacement of body parts in the custody of the Public Prosecutor’s Office, Prosecutor’s Public the of custody in the parts body of misplacement [In this regard,] the State indicated that the culture of discrimination against women the State indicated that the culture [In this regard,] According to the evidence provided, the irregularities in the investigations and the in the investigations irregularities the provided, to the evidence According might be something to investigate. Both State and non-state representatives indi- non-state representatives Both State and to investigate. might be something by initial complaints would often dismiss Juárez the authorities in Ciudad cated that The PGJE soon return home. a boyfriend and would victim was out with saying the the Attorney[Office of noted a lack of of Chihuahua] further General of the state members of the judicial capacity and training at that time for technical and scientific such deficiencies were State of Chihuahua indicated that the police. Officials of the the “files” consisted of back to the first years of the killings, that, in 25 cases dating to virtually no basis sets of bones, which provided than bags containing little more pursue further investigation.

142 […] 152. the outset as a sig- at not perceived were contributed to the fact that “the murders relevant the part of the action on and forceful requiring immediate nificant problem authorities.” tion, absence of activity in the case files, during the proceedings before the Court, it did forward the document in which this ac- the document the Court, it did forward before during the proceedings knowledgement appears; a visit to Ciudad Juárez in 2001, he “was amazed to learn of the total inefficiency, incom- learnin 2001, he “was amazed to inefficiency, of the total to Ciudad Juárez a visit insensitivity and negligence of the police who investigated these indifference, petency, cases earlier.” and failure to consider the attacks on women as part of a global phenomenon of gender- of phenomenon global a of part as women on attacks the consider to failure and based violence. be examined in accordance with sound judicial discretion. be examined in accordance […] 150. included delays in starting investigations, proceedings that, in 85% of 139 earlier investigations analyzed, it had detected responsibilities that analyzed, it had detected responsibilities that, in 85% of 139 earlier investigations deficiencies and omissions that “prevent could be attributed to public servants, serious causing impunity.” murders, the respective resolving and conducting examinations, and in the identification of victims, and conducting examinations, and in the 32 Gender-based Violence responsible forthecrimes.” resulting in aninstitutional collapse thathasdeterminedthegeneralimpunityofthose been manifestly overwhelmed bythechallenge of crimesfor which itwasunprepared, phenomenon in Ciudad Juárez “had tested a system that was insufficient, whichhas Office forDrugsandCrimeindicatedthatthediversecomplexfactorsofcriminal facilitates andencouragesterribleviolationsofhumanrights,”theUnitedNations the Statedidnotspecifywhatitunderstandsby“concluded” of womenwithasexualmotive,only24had“concluded.” non-sexual motivesand,ofthese,129had“concluded”,while70casesmurders tion isacceptable,thereby fuelingitsperpetuation.” the situationinCiudadJuárez, theimpunityconfirmsthat suchviolenceanddiscrimina- concludes that“[w]hentheperpetratorsare notheldtoaccount,ashasgenerallybeen discrimination againstwomen.Thus,forexample,theReport oftheIACHRRapporteur 163. […] cases involving the murder ofwomenbetween 1993 and2003, according tofigures thattheStateprovided totheInter-American Commission,of229 punishments are less,incases ofmurders ofwomenwithsexualelements.Onthispoint, 161. […] […] cal caseofgender-based crimeswhichthriveonimpunity.” extrajudicial executionsstatesthat: “[t]heeventsinCiudadJuárez thusconstituteatypi- committed, sentenceshadbeenhandeddowninonlyfourcases. in itsanswertotheCEDAW report, itstatedthat,upuntil2004,ofthe92sexualoffenses punity. of theIACHRRapporteurindicatesthatvastmajoritymurders remained inim- very importantcharacteristicofthekillingswomeninCiudadJuárez. The2003Report 158. […] Lastly, theTribunal observesthatsomereports indicatethatimpunityisrelated to A related aspect included in the reports is that there are fewer judgments, and the

The Courtobservesthatvariousreports agree thatthe failure tosolvethecrimesisa 154 Furthermore, according toCEDAW “aculture ofimpunityhastakenroot which 1.7.3. Absenceofclarification 155 167 Similarly, theU.N.Rapporteuron 161 168 Itisimportanttonotethat 162 andthat,inthisregard, 160 163 159were caseswith Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 33 - The report The report 169 173 175 She disappeared that day. She disappeared 172 170 She disappeared on Monday, October 29, 2001, after leaving the leaving after 29, 2001, October on Monday, She disappeared 174 at work. On October 10, 2001, she arrived at work two minutes late and, conse- at work. On October 10, 2001, she arrived Esmeralda Herrera Monreal was 15 years old and had completed “third year of was 15 years old and had completed “third Monreal Esmeralda Herrera - old and worked for a maquila plant. Ac González was 20 years Claudia Ivette 1.8. The Court’s conclusions 1.8. The Court’s has been an there that, since 1993, the Court concludes foregoing, Based on the Facts of the case 2.1. Disappearances of the victims semester high school was 17 years old and a fifth Ramos Monárrez Laura Berenice 171 quently, was not allowed in. quently, that was filed indicated that she disappeared on Tuesday, September 25, 2001, without Tuesday, on that was filed indicated that she disappeared giving any further details. […] 167. school.” secondary 166. a close friend, “when she went out, it was almost always for short periods, to cording arrived sometimes and therefore of her daughter, because she helped her sister take care late” house where she worked as a domestic employee. house where day, September 22, 2001, to tell her that she was ready to go to a party. September 22, 2001, to tell her that she was ready day, 164. 2001, and 379 up 264 victims up until with at least of women, in the murders increase is a it unreliable, are Tribunal notes which the these figures, besides to 2005. However, levels of matter of concern to have involved extreme that some of these crimes appear have been influenced, as violence and that, in general, they violence, including sexual to discrimination which, according of gender-based by a culture the State has accepted, of impact on both the motives and the method has had an sources, various probative the ineffective of the authorities. In this regard, on the response the crimes, as well as to the been documented in relation attitudes that have and the indifferent responses to have permitted the crimes should be noted, since they appear investigation of these finds that, up The Court violence against women in Ciudad Juárez. perpetuation of the with characteristics and murders resolved, until 2005, most of the crimes had not been higher levels of impunity. of sexual violence present 2. 165. was that she telephoned a girl friend on Satur student. The last information about her 34 Gender-based Violence alone ortogooutatnight.” a goodtime,”“[t]heyevenblamedthe mothers forallowingtheirdaughterstogoout they were women,”onthepretext that“theywere withtheirboyfriend”or“outhaving witness “[a]tthattime,publicofficialsstigmatizedthevictims ofdisappearancebecause home.” it wasbecause she waslookingforit, because agoodgirl, a good woman,staysat ments bythevictims’mothers and nextofkinconcurwiththecontextdescribedbydif- life, shewasconsidered tobepartlyresponsible forwhathappened.” woman likedtohaveagoodtime,gooutdancing, malefriendsandasocial on her social role in society in the investigator’s opinion. This means that, if the murdered tions inthiscaseindicatedthat“[t]heresponsibility ofthevictimwasdeterminedbased 202. In addition, the testimony of Mrs. Delgadillo Pérez the authorities’ ac- concerning 201. go off withtheirboyfriend orwanttolivealone.” would havetolookforherdaughter, because“allthegirlswhogetlost,allofthem,[…] 200. 203. girls were veryflightyand threw themselvesatmen.” an officialtoldafriendofherdaughterthat“sheissurely withherboyfriend,because 199. boyfriend orwanderingaround withfriends,” pearance, theauthoritiestoldherthatshe“hadnotdisappeared, butwasoutwithher 198. […] daughter] hadgoneoff with herboyfriend,andwouldsoonreturnhome.” she wenttofilethecomplaintaboutdisappearance,wastoldthat“maybe[her some ‘heladas’[beer]andoffer atoasttoourhealth;becausewecan’t gowithyou.” ment tolookforLaura,”andpattedherontheshouldersaying:“gohomerelax, have “no Señora,it’s verylate,wehavetogohomeandrest andyoushouldwaitforyourmo- asked thepoliceagentstoaccompanyheradancehalllookfordaughter;theysaid The Tribunal underscores thatthetestimonyofMrs.DelgadilloPérez andthestate- The Statedidnotcontestthistestimonybythemothersofvictims. The motherofLauraBerenice Ramosstatedthatthepoliceagentstoldhershe Claudia Yvette’s mothersaidthatwhenshewenttopresent themissingreport, 2.4. Stereotypingallegedlymanifestedbyofficialstothevictims’nextofkin Esmeralda Herrera’s mothertestifiedthat,whenshe reported herdaughter’s disap- 223 229 222 226 “that,ifanythinghappenedtoher, She added that, on one occasion, she Sheaddedthat,ononeoccasion,she 224 Hermotheralsosaidthat,when 228 According tothe 225 227 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 35 249 248 233 The Convention of Belém do Pará defines violence against women as “any act or The Convention of Belém do Pará defines violence against women as “any act The Tribunal considers that, in the instant case, the comments made by officials that made the comments case, in the instant that, considers The Tribunal The violence against women in this case of the State in this case, the possible international examining responsibility Before to the the Court referred Peru, Prison v. Castro In the case of the Miguel Castro The Court also observes that the missing person’s form on which the next of kin form that the missing person’s The Court also observes 226. or physical, sexual or psychological harm which causes death conduct, based on gender, to women, whether in the public or the private sphere.” or suffering 208. the use life, and a boyfriend or that they led a disreputable with off the victims had gone In addi- stereotyping. constitute of the victims sexual preference of questions about the reveal that, at the very least, they the officials tion, both the attitude and statements of the next of kin of the victims and their complaints. towards indifferent were […] 3. […] 224. by the three deems it pertinent to establish whether the violence suffered the Tribunal under the American Convention and the victims constitutes violence against women Convention of Belém do Pará. 225. to the specific aspect of vio- in relation scope of Article 5 of the American Convention Pará do Belém of Convention the of provisions relevant the using women, against lence as all Forms of Discrimination against Women and the Convention on the Elimination of the international because these instruments complement for interpretation, a reference of the the protection corpus juris, which the American Convention is part of, as regards personal integrity of women. ferent national and international national and and authorities which public officials organizations in ferent to take steps to and willingness “lack of interest and showed a the problem” “minimized (…). problem” a serious social resolve […] 207. of the on the “sexual preferences” information required the disappearance reported victims. 36 Gender-based Violence State, irrespective ofitshierarchy, that violatetheAmericanConvention. responsibility oftheStateisbasedonactsoromissions ofanybranchorentitythe are obligedtorespect and ensure thehumanrights establishedtherein. The international 234. […] accordance withArticles8and25thereof bodied in Articles4, 5 and7ofthe American Convention and accesstojusticein 4. State. violence perpetrated against the victims, which endedtheir life, can be attributedto the violence againstwomeninCiudadJuárez. TheTribunal mustnowanalyzewhetherthe if thevictimswere gender-based andwere perpetratedinanacknowledgedcontextof Convention ofBelémdoPará.Onthesamebasis,Courtconsidersthatmurders were victimsofviolenceagainst womenaccording totheAmericanConventionand 231. of sometypebefore theydied. cepted asproved thatthey suffered physicalill-treatment andveryprobably sexualabuse 123). They were abducted and their bodies appeared in a cotton field. It has been ac- or students,aswere many of thevictims of themurders inCiudadJuárez (suprapara. 230. based violence. dicate thatmanyofthekillingswomeninCiudadJuárez are manifestationsofgender- reports oftheIACHRRapporteur, CEDAW amongothers,in- andAmnestyInternational, 229. discrimination againstwomen”(suprapara.129). statement thatthemurders ofwomeninCiudadJuárez “are influencedbyaculture of the situationofviolenceagainstwomeninCiudadJuárez (suprapara.222),andalsoits 228. Pará.” a womanimpliesnecessarilyviolationoftheprovisions intheConventionofBelémdo 227. The Courthasestablishedthat, pursuanttoArticle1(1)oftheConvention,States Obligation ofnon-discriminationandrespect andguaranteeofrightsem- All ofthisleadstheCourttoconcludethatMss.González,RamosandHerrera, Thirdly, thethree victims in thiscasewere young,underprivilegedwomen,workers Secondly, the Courtnotesthatithasestablishedabove(suprapara.133)the In theinstantcase,Courttakesnote,firstly, oftheState’s acknowledgementof This Tribunal hasestablished“thatnotallhumanrightviolationcommittedagainst 250 254 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 37 and 266 The most important factor is to determine is to factor most important The 259 258 This obligation refers to the duty of the States to the duty This obligation refers 256 As part of this obligation, the State has the legal obliga- As part of this obligation, 257 255 Accordingly, the Tribunal must verify whether Mexico fulfilled its obligation to the Tribunal Accordingly, 4.2. Obligation to guarantee the must now analyze whether the State took adequate steps to prevent The Tribunal With regard to the obligation to guarantee, the Court has established that it may to guarantee, the Court has established to the obligation With regard Regarding the obligation to respect, the Court has stated that the first obligation stated that the first the Court has to respect, the obligation Regarding tion “to prevent human rights violations and to and to use the means at its disposal to violations and to and to use the means human rights tion “to prevent committed within its jurisdiction, to identify carry out a serious investigation of violations ad- on them, and to ensure punishments to impose the appropriate those responsible, adequate compensation.” victim equate the 237. and personal liberty of Mss. the rights to life, personal integrity ensure and respect González, Ramos and Herrera. […] […] 248. whether it investigated victims, and by the three disappearance, abuses and death suffered whether it complied with the obligation to these facts with due diligence. In other words, to Article 1.1. thereof guarantee Articles 4, 5 and 7 of the American Convention, in relation and Article 7 of the Convention of Belém do Pará, which complements the international women, against violence of punishment and prevention the regards as juris corpus 236. guarantee on the specific right that the State must ways, based be fulfilled in different needs for protection. and on the specific 235. the “respecting said Article, is that of in the terms of the the States Parties, assumed by of limitations to Thus, the notion in the Convention. recognized freedoms” rights and of human in the protection necessarily included power of the State is of the the exercise rights. whether it allowed access to justice to the next of kin of the three victims, as stipulated in whether it allowed access to justice to the next of kin of the three to Articles 1.1. and 2 thereof. Articles 8.1. and 25.1. of the American Convention, in relation to organize the entire government apparatus and, in general, all the structures through through governmentstructures all the and, in general, entire apparatus to organize the and by law the free able to ensure so that they are is exercised, which public authority of human rights. full exercise “whether a violation […] has occurred with the support or the acquiescence of the gov- “whether a violation […] has occurred ernmenttaking measures without place to take act allowed the has the State or whether it or to punish those responsible.” to prevent 38 Gender-based Violence and punishactsofviolence,forproviding compensation.” acts if they fail to act with due diligence to prevent violations of rightsor to investigate 254. eliminate thisviolence. and itsArticle7.bobligestheStatesPartiestouseduediligenceprevent, punishand 253. tion oftheBeijingWorld Conference onWomen. perpetrator for15years,despiteallthecomplaintsopportunely submitted. to prevent, punishandeliminatedomesticviolence,byfailingtoconvictthe first time anddecidedthat the Statehad violated its obligation to exercise due diligence lence, theInter-American CommissionappliedtheConventionofBelémdoPará forthe 255. to prevent andrespond withduediligencetoactsofviolenceagainstwomen.” may beconcludedthatthere lawthatobligesStates isanormofcustomary international on violence against women stated that “[b]ased on practice and the opinio juris […] it failure tocomplywithitis not proved merely becausetherighthasbeenviolated. sequences. Itisalsoclearthattheobligationtoprevent isoneofmeansorconduct,and who commitsit,aswelltheobligationtocompensatevictimsforharmfulcon- treated asanunlawfulact, which,assuch,mayresult inthepunishmentofperson guard ofhumanrights,and thatanypossibleviolationoftheserightsisconsidered and measures ofalegal,political,administrativeandculturalnature thatensure thesafe- 252. […] acts are perpetratedbythe Stateorbyprivatepersons” dance withnationallegislation,punishactsofviolenceagainstwomen,whetherthose Nations urged the States to “[e]xercise due diligence to prevent, investigate and, in accor againstWomenon theEliminationofViolence oftheGeneralAssemblyUnited convict beenviolated,butalso theobligationtoprevent this degradingpractice. and lackofeffectiveness oftheState,”notonlyhad obligationtoprosecute and ofnegligence mission concludedthat,sincethe violationwaspartofa“generalpattern Since 1992,CEDAW establishedthat“States mayalsoberesponsible forprivate The ConventionofBelémdoParádefinesviolenceagainstwomen(suprapara.226) In thecaseofMariaDaPenhav. Brazil(2000),presented byavictimofdomestic vio- sonal integrityandtolifeofthevictims 4.2.1. Obligation of preventioninrelationtothe right topersonal liberty, toper The Courthasestablishedthattheobligationofprevention encompassesallthose 270 In2006,theU.N.SpecialRapporteur 269 andsodidthePlatformforAc- 268 The1993Declaration 272 TheCom- 271 273 267 - - Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 39 - 275 274 The foregoing reveals that States should adopt comprehensive measures to comply to measures that States should adopt comprehensive reveals The foregoing Furthermore, according to a report of the U.N. Secretary-General: of the U.N. to a report according Furthermore, safer for women and commu- It is good practice to make the physical environment locations, discuss women’s dangerous nity safety audits have been used to identify Prevention their safety. for improving recommendations fears and obtain women’s explicit element in urban and rural plan- of violence against women should be an safety the Improving dwellings. residential and buildings of design the in and ning travelled by women, such as to schools and educa- of public transport and routes work. factories, is part of prevention tional institutions or to wells, fields and In addition, the U.N. Special Rapporteur on violence against women has provided provided against women has on violence the U.N. Special Rapporteur In addition, 258. an they should have women. In particular, with due diligence in cases of violence against and prevention effectively, that is enforced legal framework for protection appropriate - to the respec in response to be taken measures policies and practices that allow effective in other words, strategy should also be comprehensive; tive complaints. The prevention the institutions that the risk factors and, at the same time, strengthen it should prevent the women. Furthermore, of violence against in cases response an effective can provide which it is evident that certain in specific cases in measures State should adopt preventive This should take into account that, in cases women and girls may be victims of violence. have the general obligation established in the of violence against women, the States also since the Convention of Belém do Pará American Convention, an obligation reinforced prior to State adopted by the measures the now examine will The Court into force. came the facts of this case to comply with its obligation of prevention. […] 257. 256. internationaltheir with comply to take should States that measures the on guidelines of the inter ratification namely: to prevention, regard of due diligence with obligations for women; guarantees on equality constitutional rights instruments; national human adequate redress providing legislation and administrative sanctions existence of national deal to attempt that action of plans or policies executive violence; of victims women for system justice criminal of the women; sensitization against of violence question with the support services; existence issues; availability and accessibility of and the police to gender prac- and modify and the media to raise awareness in the field of education of measures and statistics on violence against women, and collection of data tices that discriminate against women. 40 Gender-based Violence has beenineffective andinsufficient. tion ofthemurder ofwomeninCiudadJuárez, and alsotheresponse tothesekillings, 273. cal consequenceofanactor omission ofaprivateindividualistheviolationcertain possibility ofpreventing oravoidingthatdanger. Inotherwords, eventhoughthejuridi- and imminentdangerforaspecific individualorgroup of individualsandthe reasonable als intheirrelations witheachotherisconditionalonits awareness ofasituation real cause itsobligationtoadoptmeasures ofprevention andprotection forprivateindividu- does notimplyitsunlimitedresponsibility foranyactordeedofprivateindividuals,be - als withinitsjurisdiction.Indeed,aState’s obligationofguaranteeundertheConvention be heldresponsible foranyhumanrightsviolation committed between private individu- 280. against womenthatoccurred inCiudadJuárez atthetimeofthiscase. the State,were sufficientandeffective toprevent theseriousmanifestationsofviolence ditions toitslegislativeframework,althoughnecessaryandrevealing acommitmentby para. 251),theStatehasnotdemonstratedthatcreation oftheFEIHMandsomead- women. Althoughtheobligationofprevention isoneofmeansandnotresults (supra opted effective measures ofprevention that wouldhavereduced theriskfactorsfor being subjected to violence, it has not shown that, prior to November 2001, it had ad- 279. case reveal significantparallels withtheproven context. Ciudad Juárez experienced apowerfulwaveofviolenceagainstwomen.Thefactsthe 278. ments. with noconcrete actiondesigned tofindthemalive,apartfrom the reception ofstate- response, butwere theconductofvictimsand metwithvaluejudgmentsconcerning of theirbodies,mothersandnextkinapproached theauthoritieslookingfora abuse andotherill-treatment. Inthedaysbetweentheirdisappearanceanddiscovery and theirbodieswere found daysorweekslaterinacottonfieldwithsignsofsexual background, oneastudent andtheothertwoworkers.Theylefttheirhomesoneday young women of20, 17 and 15 years of agerespectively, all of themfrom a humble 277. […] The Court observes that national and international reportsThe Courtobservesthatnationalandinternational agree thatthepreven- Nevertheless, according totheCourt’s jurisprudence,itisevidentthat aStatecannot Even thoughtheStatewasfullyaware ofthedangerfacedbythesewomen The Tribunal has considered proven andtheStatehasacknowledged that,in2001, According to the facts of this case, the victims González, Ramos and Herrera were 291 (…) Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 41 296 In this case, there are two crucial moments in which the obligation of prevention in which the obligation of prevention two crucial moments are In this case, there Tribunal the victims – the disappearance of the before moment – the first Regarding the – given the bodies of the discovery before moment – the second to With regard to the according measures, that it had adopted reasonable Mexico did not prove 281. the victims and the second first is prior to the disappearance of must be examined. The bodies. the discovery of their is before 282. in the State’s disappearance does not per se result the to prevent finds that the failure of the situation of aware because, even though the State was international responsibility and of a real it has not been established that it knew Juárez, risk for women in Ciudad context of this case and the victims in this case. Even though the imminent danger for to with regard international responsibility obligations impose on it a greater the State’s in a vulnerable situation, particularly who are of women in Ciudad Juárez, the protection - not impose unlimited respon these factors do humble backgrounds, young women from the Court can only note that Moreover, sibility for any unlawful act against such women. have been initiated at least in 1998 – when the absence of a general policy which could the CNDH warned – is a fail- of the pattern of violence against women in Ciudad Juárez State to comply in general with its obligation of prevention. of the ure 283. the that risk imminent and real a was there that aware was State the case, the of context finds and killed. The Tribunal to ill-treatment victims would be sexually abused, subjected of to reports due diligence arises in regard that, in this context, an obligation of strict the first hours and days. Since operations during to search missing women, with respect activities be that exhaustive search it requires rigorous, this obligation of means is more and judicial of- police authorities, prosecutors conducted. Above all, it is essential that the necessary measures delay, without immediate action by ordering, ficials take prompt they may have been of the victims or the place where to determine the whereabouts should disappearances, which should exist for reporting Adequate procedures retained. that the The authorities should presume investigation. in an immediate effective result is no longer person has been deprived of liberty and is still alive until there disappeared any uncertainty about her fate. 284. these cases, to find the victims alive. The State did not act surrounding circumstances disappearances, the of reports the following days and hours the first during promptly human rights of another private individual, this cannot be attributed automatically to the be attributed automatically individual, this cannot of another private human rights obliga- such discharge of case and the of the circumstances the specific State, because into account. must be taken tion to guarantee 42 Gender-based Violence general obligation to guarantee the rights to life, personal integrity and personal liberty: 287. Monárrez andEsmeraldaHerrera Monreal. of BelémdoPará,tothedetrimentClaudiaIvetteGonzález, LauraBerenice Ramos 2 thereof, aswelltheobligationsestablishedinArticle7.band7.cofConvention in Article1.1.andtheobligationtoadoptdomesticlegalprovisions containedinArticle the AmericanConvention,inrelation tothegeneralobligationguaranteecontained personal integrityandlibertyrecognized inArticles4.1.,5.1.,5.2.and7.1of 286. immediately. seriousness ofthephenomenonviolenceagainstwomenandwillingnesstoact of receiving themissingreports hadthecapacityandsensitivitytounderstand prove thatithadadopted norms ortakenmeasures toensure thattheofficials incharge ance andtoadequatelyprevent theviolenceagainstwomen.Furthermore, itdidnot authorities toprovide animmediate andeffective response tothereports ofdisappear tion andArticle7.coftheConventionBelémdoPará,thatwouldhaveallowed or implementedthenecessarymeasures, pursuanttoArticle2oftheAmericanConven- 285. of violenceagainstwomenbyArticle7.btheConventionBelémdoPará. a particularlyvulnerablesituation–andoftheevengreater obligationsimposedincases larly serious owing to the context of which the State was aware – which placed women in deprivation ofliberty. Thisfailure tocomplywiththeobligation to guaranteeisparticu- reasonably beexpected,in accordance withthecircumstances ofthecase,toend their prevent thedeathandabuse suffered bythevictimsadequatelyanddidnotact, ascould ports. Theforegoing reveals thattheStatedidnotact withtherequired duediligenceto conclude reasonably thatthere were unjustifieddelaysfollowingthefilingofthese re- persons’ reports shouldnotbedealtwithurgentlyandimmediately, leadstheCourtto the attitude of the officials towards the victims’ next of kin, suggesting that the missing portant, losttheirvaluewhentheyfailedtoleadspecificsearch actions.Inaddition, bodies, theStatemerely carriedoutformalitiesandtookstatementsthat,althoughim- losing valuable time. In the periodbetween the reports and the discovery of the victims’ The obligation to investigate cases oftheviolation of theserightsarisesfrom the life, personalintegrityand liberty and 2.1.oftheConvention,derivedfromobligationtoguarantee therightsto 4.2.2. Obligationtoinvestigatethefactseffectively, inaccordancewithArticles 8.1. Based ontheforegoing, the CourtfindsthattheStateviolatedrightstolife, In addition,theTribunal findsthattheStatedidnotprove thatithadadoptednorms - Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 43 - 301 305 303 - Mexico must com In addition, 297 and to adopt the necessary laws to the necessary laws and to adopt 298 302 The State’s obligation to investigate must be complied with to investigate must be complied obligation The State’s 300 The Inter-American Court has also applied this concept in several cases. Court has also applied this The Inter-American 304 The duty to investigate is an obligation of means and not of results, which must be which is an obligation of means and not of results, The duty to investigate The Tribunal finds that, following the standards established by this Tribunal (supra by this established finds that, following the standards The Tribunal In this regard, within the framework of the obligation to protect the right to life, protect within the framework of the obligation to In this regard, Moreover, the Court has noted that this obligation remains “whatsoever the agent the Court has noted that this obligation remains Moreover, In light of this obligation, as soon as State authorities are aware of the fact, they aware authorities are In light of this obligation, as soon as State investigate and to punish violence against women. investigate and to punish […] 289. preor formality legal obligation and not as a mere as an inherent assumed by the State dained to be ineffective. ply with the provisions of Article 7.b and 7.c of the Convention of Belém do Pará, which of Belém do Pará, 7.c of the Convention of Article 7.b and provisions ply with the with due diligence, the obligation to act establishes 293. has a wider scope when deal- to investigate effectively paras. 287 to 291), the obligation whose personal liberty is or, ill-treated ing with the case of a woman who is killed or, within the framework of a general context of violence against women. Similarly, affected an “attack is racially motivated, it is particularly Court has said that where the European to having regard important that the investigation is pursued with vigor and impartiality, condemnation of racism and to maintain the continuously society’s the need to reassert the threat them from confidence of minorities in the ability of the authorities to protect 292. Court of Human Rights has developed the concept of the “procedural the European official investigation in cases of the violation of that obligation” to carry out an effective right. 291. attributed, even individuals, because, if their to which the violation may eventually be some extent, assisted by the public they would be, to investigated genuinely, not acts are international responsibility.” authorities, which would entail the State’s 290. investiga- a serious, impartial and effective should initiate, ex officio and without delay, at determining the truth and the pursuit, cap- tion using all available legal means, aimed of the facts, especially and eventual punishment of all the perpetrators prosecution ture, or may be involved. when public officials are in other words, Article 1.1. of the Convention in conjunction with the 73 substantive with the 73 substantive in conjunction 1.1. of the Convention Article in other words, and guaranteed. protected be ensured, right that must diligently in order to avoid impunity and the repetition of this type of act. In this regard, regard, of this type of act. In this and the repetition to avoid impunity diligently in order of human rights violations. encourages the repetition that impunity recalls the Tribunal 44 Gender-based Violence can render theinvestigationsineffective. surroundinganalyze thesystematicpatterns aspecifictypeof violationsofhumanrights, 366. […] […] […] inadequate topreserve the chainofcustody. the improper handlingofsome oftheevidencecollected,andiv)methodsusedwere ligible rigorintheinspectionandpreservation ofthecrimescenebyauthorities;iii) to identifywithprecision the circumstances ofthediscoverybodies;ii)neg- 306. […] […] obligation ofduediligenceintheinvestigationcasesgender-based violence. though theindividualization of the investigations could, intheory, evenadvancethem, could haveadverselyaffected theinvestigations.However, theCourt findsthat,even that theestablishmentofspecific linesofinquiryforeachtheeightCottonFieldcases 368. […] of racistviolence.” The Court’s jurisprudencehasindicated that certainlinesofinquiry, whichfailto investigate themincontext c) Allegedirregularitiesrelatingtothefragmentationofcasesandfailure sponsible andallegedfabricationofguiltyparties 4.2.2.2. Allegedirregularitiesintheactionstakenagainstthoseallegedtobere- The Courtconcludesthat,inthiscase,irregularities occurred asregards: i)thefailure of evidence,autopsies,andidentificationreturnthevictims’remains 4.2.2.1. Allegedirregularitiesincustodyofthecrimescene,collectionandhandling The representatives did notsubmitclearargumentsorsufficientevidencetoprove 306 Thiscriterioniswhollyapplicablewhenexaminingthescopeof 397 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 45 - (…) 400 In conclusion, the Court accepts the acknowledgement of responsibility for the ir the for responsibility of acknowledgement the accepts Court conclusion, the In - as re previously case is similar to what has been indicated What happened in this regularities committed during the first stage of the investigations. However, the Tribunal the committed during the first stage of the investigations. However, regularities rectified. not entirely the said deficiencies were has found that, during the second stage, in the handling of evidence, the alleged fabrication of guilty parties, The irregularities of lines of inquiry that took into account the the delay in the investigations, the absence killed, and the inex- women were the three context of violence against women in which serious negligence, violate the officials for alleged against public istence of investigations and the right of the next of judicial protection, right of access to justice and to effective that the what happened. In addition, it reveals kin and of society to know the truth about personal and integrity personal life, to rights the ensuring with comply to failed has State victims by conducting a conscientious and competent investigation. liberty of the three allows the Court to conclude that impunity exists in the instant case and The foregoing of domestic law adopted have been insufficient to deal with the seri- that the measures that it had adopted The State did not prove ous human rights violations that occurred. with Article in accordance measures, the necessary norms or implemented the required that 2 of the American Convention and Article 7.c of the Convention of Belém do Pará, due diligence. This with investigation conduct an to the authorities have permitted would when dealing with individual cases of violence against women judicial ineffectiveness of repetition the promotes and facilitates that impunity of environment an encourages […] 388. the State should be aware that all the murders took place in a context of violence against place in a context took that all the murders be aware the State should the to verify whether measures the necessary it should adopt women. Consequently, due with Investigating context. this to related is is investigating it that murder specific and estab- murders happened in other consideration what taking into diligence requires out ex officio, without connection with them. This should be carried lishing some type of for taking the initiative. of kin being responsible the victims or their next […] 370. consider to failed investigations many that observed be can it is, that context; the gards violence. In gender-based part of a generalized phenomenon of attacks on women as that the FEIHM was not examining 2003 report the CNDH indicated in its this regard, to contrary has been dealt with individually, “the phenomenon globally; rather each case cases, instead of dealing isolated, fully differentiated the legal possibilities, as if they were with them integrally”. 46 Gender-based Violence European Court considered thateven though thegeneraland discriminatory judicialpas - equal protection ofthelawandthatthisfailure doesnotneedtobeintentional.” The “the State’s failure toprotect womenagainstdomesticviolence breaches theirrightto 396. to enjoyrightsandfreedoms onabasisofequalitywithmen.” “gender-based violenceisaformofdiscriminationthatseriouslyinhibitswomen’s ability is awomanor[ii]thataffects womendisproportionately.” CEDAW hasalsoindicatedthat gender-based violence,thatis,violenceisdirected againstawoman[i]becauseshe 395. free ofviolenceincludestherighttobefree from allformsofdiscrimination. tions betweenwomenandmen”recognizes thattherightofeverywomantoalife that violenceagainstwomenis“amanifestationofthehistorically unequal powerrela- other field.” IntheInter-American sphere, the Convention of Belém do Paráindicates rights andfundamentalfreedoms inthepolitical, economic, social,cultural,civilorany irrespective oftheirmarital status,onabasisofequalitymenandwomen,human or purposeofimpairingnullifyingtherecognition, enjoymentorexercise bywomen, as “anydistinction,exclusionorrestriction madeonthebasisofsexwhichhaseffect 394. […] paragraph 9supra. Belém doParaConvention,tothedetrimentofthree victims’nextofkinidentifiedin Convention, in relation to Articles1.1. and 2thereof and toArticles7.b and 7.cof the to justiceandjudicialprotection, embodiedinArticles8.1.and25.1.oftheAmerican Esmeralda Herrera Monreal. Forthesamereasons, theStateviolatedrights of access Pará, tothedetrimentofClaudiaIvetteGonzález,LauraBerenice RamosMonárrez and to Articles1.1.and2thereof andtoArticle7.b7.coftheConventionBelémdo embodied in Articles 4.1., 5.1., 5.2.and 7.1. ofthe American Convention, in relation obligation toinvestigate–and,consequently, withitsobligationtoguarantee–therights 389. and acceptedaspartofdailylife. acts of violence in general and sends a message that violence against women is tolerated In thecaseofOpuzv. Turkey, theEuropean CourtofHumanRights statedthat CEDAW hasstatedthatthedefinitionofdiscriminationagainstwomen“includes From ageneralpointofview, CEDAW hasdefineddiscriminationagainstwomen 4.3. Obligationnottodiscriminate:violenceagainstwomenasdiscrimination Based ontheforegoing, theTribunal findsthattheStatefailedtocomplywithits 412 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 47 414 413 In the instant case, the Court finds that the State informed CEDAW that the “cul- the State informed CEDAW In the instant case, the Court finds that as evidence, considers that these statements, which the State provided The Tribunal - In addition, it has been established that, when investigating this violence, some au In the case of the Miguel Castro Castro Prison v. Peru, the Tribunal indicated that indicated Tribunal the Peru, v. Prison Castro Castro Miguel the of case the In 398. [of women against women influenced the fact that “the murders of discrimination” ture requiring at the outset as a significant problem not perceived were in Ciudad Juárez] the addition, In authorities.” relevant the of part the on action forceful and immediate of discrimination against women was “based on the State also indicated that this culture inferior” (supra para. 132). idea that women are erroneous 399. Juárez in the sense that, in Ciudad its acknowledgement of responsibility, concur with of women in Ciudad of discrimination” that influenced the murders is a “culture there above, several internationalestablished that, as observes Court the Furthermore, Juárez. made a connection between the violence against women and the discrimination reports against women in Ciudad Juárez. 400. “flighty” or that “they had run away with their thorities mentioned that the victims were 397. “must not be the object of discrimination, and they must be women detained or arrested they “must be supervised and all forms of violence or exploitation”; that from protected - for preg conditions” should be provided checked by female officers”; and that “special against a woman includes “violence directed nant and nursing women. Discrimination manner”; this includes her in a disproportionate because she is a woman, or that affects of threats nature, sexual or mental physical, a of suffering or injuries inflict that “acts and others forms of deprivation of freedom.” committing those acts, coercion sivity in Turkey was unintentional, the fact that it mainly affected women allowed it to women allowed affected the fact that it mainly was unintentional, sivity in Turkey regarded be could mother her and applicant the by suffered violence the that conclude this reach against women. To of discrimination violence which is a form as gender-based once it is shown to which the principle according Court applied the European conclusion, than of women a higher percentage of a specific rule clearly affects that the application to any unrelated of objective factors show that this is the result men, the State must lived Court found that the applicant The European gender. of discrimination on grounds victims of domestic violence, and that of reported was the highest number there where of the of these women were majority great the Moreover, all women. the victims were domestic the when they reported women victims faced problems same origin, and the assumed but complaints, the investigate not did police the that fact the as such violence, a “family matter.” that the violence was 48 Gender-based Violence identified inparagraph9supra . Articles 8.1.and25.1.ofthe Convention, tothedetrimentofvictims’nextkin and ClaudiaIvetteGonzález;as wellasinrelation tothe accesstojusticeestablishedin vention tothedetrimentofLaura Berenice RamosMonárrez, EsmeraldaHerrera Monreal guarantee therightsembodiedinArticles4.1.,5.1.,5.2.and 7.1.oftheAmericanCon- to discriminatecontainedinArticle1.1.oftheConvention, relation totheobligation stituted aformofdiscrimination,anddeclares thattheStateviolatedobligationnot 402. violence againstwomen. and useofstereotypes becomesoneofthecausesandconsequencesgender-based reasoning and language of the judicial police authorities, as in this case.Thecreation types are reflected, implicitly orexplicitly, inpolicies andpractices and, particularly, in the socially-dominant genderstereotypes, asituationthatisexacerbatedwhenthestereo- 398), thesubordination of womencanbeassociatedwithpracticesbasedonpersistent ther menorwomen.BearinginmindthestatementsmadebyState(suprapara. personal attributes,characteristicsorroles thatcorrespond orshouldcorrespond toei- 401. for Women totheeffect ofViolence,” Victims that: the words of the Inter-American Commission in its thematic report on “Access to Justice mistrust inthesystemofadministrationjustice.Inthisregard, theCourtunderscores the phenomenon,feelingwomenhavethattheyare notsafe,andtheirpersistent women is tolerated; this leads to their perpetuation, together with social acceptance of justice. Theimpunityofthecrimescommittedsendsmessagethatviolenceagainst without prejudice tothefactthatitaloneconstitutesdiscriminationregarding accessto the case,thisindifference reproduces theviolencethatitclaimstobetryingcounter, the Tribunal toconcludethat,asaresult ofitsconsequencesasregards theimpunityin boyfriends,” which,addedtotheState’s inactionatthestartofinvestigation,allows The Courttherefore findsthat,intheinstantcase,violenceagainstwomencon- Similarly, the Tribunal findsthatgenderstereotyping refers toapreconception of interpersonal relations can becomeafactor. the evidence, where stereotypes about how women should conduct themselves in tive influenceontheinvestigationofsuchcasesandsubsequentweighing canalsoexertanega- complaints ofviolence.Thesebiaseddiscriminatorypatterns and soon.Theresult isthat prosecutors, policeandjudgesfailtotakeactionon of dress, heroccupation, sexualconduct,relationship orkinshiptotheassailant that sheissomehowtoblameforwhathappened,whetherbecauseofhermanner credibility tobequestioned incasesinvolvingviolence,orleadtoatacitassumption maycauseavictim’sThe influenceexertedbydiscriminatory socio-culturalpatterns 415 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 49 together with 416 420 Furthermore, the Furthermore, 419 The prevalence of The prevalence 418 417 the Tribunal underscores that the evidence provided by the State that the evidence provided underscores the Tribunal 421 In this case, the Court finds that the State had the obligation to adopt all the posi- In this case, the Court finds that the State of children, Despite the existence of legislation for the protection This Tribunal has established that boys and girls have special rights which give rise This Tribunal The rights of girls, Article 19 of the American Convention of girls, Article 19 The rights aware of the facts, the public authorities were at the time As established previously, against children for the United Nations study on violence The independent expert does not show that, in this specific case, these measures translated into effective mea- into effective translated measures case, these this specific show that, in does not the different to mobilize resources all activating search, prompt initiating a for sures girls institutions and to deploy domestic mechanisms to obtain information to locate the prosecute investigations, and the conduct to found, were bodies their once and, rapidly State must pay special attention to the needs and rights of the alleged victims owing to State must pay special attention to the needs to a vulnerable group. their condition as girls who, as women, belong 409. the girls. Specifically, the rights of the disappeared necessary to ensure tive measures as soon as possible, once the found that they were State had the obligation to ensure because the State was aware missing; above all that they were next of kin had reported being disappeared. which girls were of the existence of a specific context in 410. 408. requires their status society and the State. Moreover, to specific obligations for the family, that must be understood as an additional right that complements all special protection to each individual. the other rights that the Convention recognizes the best interest of the child must be understood as the need to satisfy all the rights of rights the all satisfy to need the as be understood must child the of interest best the of all the interpretation adolescents, which obligates the State and affects and children a case concernsthe other rights of the Convention when minors. specific state policies, 5. […] 406. and girls (supra of young women violence and murders of a context of disappearances, para. 129). 407. is influenced by a takes a variety of forms and against children has stated that “[v]iolence and perpetrator to personal characteristics of the victim the from wide range of factors, status, age, sex Economic development, social environments.” their cultural and physical lethal violence. He factors associated with the risk of among the many and gender are puberty who have reached those affects also stated that “sexual violence predominantly risk of this type of violence. or adolescence,” and that girls face greater 50 Gender-based Violence state conducttowards thenextofkinwomenvictims ofviolenceinCiudadJuárez, 435. […] […] scriptions.” especially forthosewhoknewthattheirdaughter’s lifedidnotcorrespond tothesede- disappearance owingtotheirbehavior, “causedthenextofkinconfusionandanguish, given bytheauthorities,toeffect thattheyoungwomenwere toblamefortheir ing suffering totheirnext ofkin.Thus,theexpertreports indicatedthattheopinions the authorities,whoalsomadederogatory commentsabouttheyoungwomen,caus- their nextofkinhadtotakedifferent measures tolookforthemduetheinactivity of 419. […] […] 6. girls EsmeraldaHerrera Monreal andLauraBerenice RamosMonárrez. 19 oftheConvention,inrelation toArticles1.1.and2thereof, tothedetrimentof 411. institutions involvedwiththenecessarymeanstoensure therightsofgirls. prove that it has proper reaction mechanisms or public policies that would provide the and punishthoseresponsible effectively andpromptly. Insummary, theStatedidnot tims] tobefoundaliveandbytheabsenceofinformationduring thewholeprocess.” and by being dissuaded from filingcomplaints thatwould perhapshaveallowed[thevic- been treated, underscoring[…]howtheiranguishwasaggravatedbythismistreatment, owing tothe negligence ofthe authorities andthecallousness with which theyhave The file in the instant case includes information on the existence of a pattern of The fileintheinstantcaseincludes informationontheexistenceofapattern 6.2. Threats,intimidationandharassmentsufferedbythenext ofkin The bodyofevidencereveals that,followingthedisappearanceofthree victims, cause oftheirsearchforthetruth 6.1. Suffering of thenext of kinbecause what happenedtothe victimsand be- Right tohumanetreatment ofthevictims’nextkin Consequently, thisCourtfindsthattheStateviolatedrightembodiedinArticle 426 Furthermore, “[t]hemothers insist in thepain and suffering experienced 427 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 51 - Furthermore, Furthermore, 439 In most cases, this results in distrust and distrust in results this cases, most In 438 440 aragraphs P THE COURT DECIDES, THE COURT ive perat This judgment constitutes per se a form of reparation. with paragraphs 452 to 455 of this Judgment, con- The State shall, in accordance investigation of the facts and the execu- i) All legal or factual obstacles to the due and all available means shall be removed, judicial proceedings tion of the respective so as to prompt are that the investigations and judicial proceedings used, to ensure case; of the same or similar facts as those of the present avoid a repetition in- ii) The investigation shall include a gender perspective; undertake specific lines of - quiry concerning which must involve lines of inquiry into the respec sexual violence, and manuals tive patterns with protocols in accordance in the zone; be conducted the victims’ next Judgment; provide that comply with the guidelines set out in this full them give and regularly investigation the in progress on information with kin of are highly trained in simi- access to the case files, and be conducted by officials who X. o fear, so that they do not denounce the facts. The next of kin stated that, at times, they of kin stated that, at the facts. The next do not denounce so that they fear, seek justice. taking other steps to inquiries and told to stop making were Therefore, 602. Therefore, […] AND ORDERS, unanimously that, 11. 12. if applicable, any that are and, that is underway effectively duct the criminal proceeding the perpetrators punish and, if appropriate, prosecute to identify, opened in the future and deprivations of life of Mss. ill-treatments and masterminds of the disappearances, directives: with the following and Ramos, in accordance González, Herrera […] consisting in depreciatory, disrespectful and even aggressive treatment when they try to treatment and even aggressive disrespectful in depreciatory, consisting investigations. the about information obtain it has been reported that “the harassment and threats directed at the victims’ families, at the victims’ families, directed harassment and threats that “the it has been reported and inter have intensified as national and civil society organizations their representatives the national and international blamed for because they are increased,” national pressure has acquired. dimension that the situation 52 Gender-based Violence shall report ontheimplementationofcoursesandtraining sessions. stereotyping abouttherole ofwomeninsociety(…).Everyyear, forthree years,theState gender-basedconcerning discrimination,abuseandmurder ofwomen,andtoovercome tive toensure duediligenceinconductingpreliminary inquiriesandjudicialproceedings and coursesforpublicofficialsonhumanrightsgender, andonagender perspec- 22. […] paragraphs 507and508ofthepresent Judgment. of the disappeared women orgirlsor, if applicable, of their remains, inaccordance with any means,includinganonymously, toprovide relevant informationonthewhereabouts ing. Thiswebpagemustallowanyindividualtocommunicatewiththeauthoritiesby women andgirlswhohavedisappeared inChihuahuasince1993andwhoremain miss- page thatitmustupdatecontinuallywiththenecessarypersonalinformationonall 20. […] years. on agenderperspective(…).Inthisregard, anannualreport shallbepresented forthree standardsry Executions,andtheinternational tosearch fordisappeared persons,based Manual ontheEffective Prevention andInvestigationofExtralegal,ArbitrarySumma- and murders ofwomenin accordance withtheIstanbulProtocol, theUnited Nations tice thatare usedtoinvestigate allthecrimesrelating tothedisappearance,sexualabuse manuals, prosecutorial investigation criteria, expert services, and services to provide jus- 18. […] learns ofthefactsthatarelearns theobjectofpresent case. iv) Theresults oftheproceedings shallbepublished sothattheMexicansociety in theinvestigationshallbegivendueguaranteesfortheirsafety, and form their tasks adequately, independently andimpartially, and thosewhotakepart judicial proceedings shall have the necessary human and material resources to per iii) The different entities that take part in the investigation procedures and in the lar casesandindealingwithvictimsofdiscriminationgender-based violence; The Stateshallcontinueimplementingpermanenteducation and trainingprograms The Stateshallcreate, within sixmonthsofnotificationthisJudgment,aweb The Stateshall,withinareasonable time,continuestandardizing allitsprotocols, - Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 53 note 64, folio 1742; Report on Report 1742; folio 64, note supra Cf. Radiografía Socioeconómica del Municipio de Juárez prepared by the Municipal Research and Planning and Planning by the Municipal Research prepared de Juárez Socioeconómica del Municipio Cf. Radiografía attachment 2, folios XXV, attachments to the answer to the application, volume Institute, 2002 (case file of and 8510). 8488 to 8490, 8493, 8495 The Situ- 2002, supra note 63, folio 8492; IACHR, del Municipio de Juárez Cf. Radiografía Socioeconómica Violence - and Discrimina from be Free to Right The Mexico: Juárez, Ciudad in Women of Rights the of ation volume VII, 2003 (case file of attachments to the application, 7, Doc. 44, March tion, OEA/Ser.L/V//II.117, on the Elimina- by the Committee United Nations, Report on Mexico produced attachment 1, folio 1742); reply and Convention, the of Protocol the Optional of 8 Article under Women against Discrimination of tion of attachments 27 January 2005 (case file the Government CEDAW/C/2005/OP.8/MEXICO, from of Mexico, of the Special Rapporteur VII, attachment 3b, folio 1921); United Nations, Report to the application, volume Ertürk, Integration of the human rights Yakin on violence against women, its causes and consequences, women, Mission to Mexico, E/CN.4/2006/61/Add.4, of women and a gender perspective: violence against volume VII, attachment 3c, folio 2011), and January 13, 2006 (case file of attachments to the application, in or Women Amnesty International, Mexico: Intolerable killings: 10 years of Abductions and Murders and Chihuahua, AMR 41/027/2003 (case file of attachments to the application, volume VII, Ciudad Juárez attachment 6, folio 2267). on supra note 64, folio 1921; Report of the Special Rapporteur by CEDAW, Cf. Report on Mexico produced violence against women, supra note 64, folio 2011; Amnesty International,supra note Intolerable killings, Humanos A.C., Compen- de los Derechos y Promoción 64, folio 2268, and Comisión Mexicana de Defensa Chihuahua, 2007 (case file of attachments en Ciudad Juárez, el feminicidio sobre dio de recomendaciones 11(1), folio 6564). to the pleadings and motions brief, volume XX, attachment Homi- los Casos de Humanos sobre Derechos los de Nacional Comisión la de Especial Informe CNDH, Cf. 2003 [Special Report of the Chihuahua, en el Municipio de Juárez, cidios y Desapariciones de Mujeres in the Mu- Homicides and Disappearances of Women National Human Rights Commission on the Cases of Chihuahua, 2003] (case file of attachments to the application, volume VII, attachment nicipality of Juarez, against women, supra note 64, folio 2011, and 5, folio 2168); Report of the Special Rapporteur on violence Amnesty International, Intolerable killings, supra note 64, folio 2267. Juárez, Ciudad in Women of Rights the of Situation The IACHR, Cf. supra note 64, folios 1921 and 1922; CNDH, Informe Especial, supra note 66, by CEDAW, Mexico produced [Com- en Ciudad Juárez y Erradicar la Violencia contra las Mujeres folio 2168, and Comisión para Prevenir Primer Informe in Ciudad Juarez], and Eradication of Violence against Women mission for the Prevention de Gestión, November 2003-April 2004 (case file of attachments to the answer to the application, volume attachment 7, folio 8666). XXV, supra note 64, folio 1922, and Report of the Special Rapporteur by CEDAW, Cf. Report on Mexico produced on violence against women, supra note 64, folio 2011.

ndnotes E 63 64 65 66 67 68 […] 54 Gender-based Violence 71 70 69 105 104 103 102 101 100 99 98

Mexico produced by CEDAW, Cf. IACHR, The Situation of the Rights of Women in Ciudad Juárez, on violenceagainstwomen,supranote64,folio2011. Cf. ReportonMexicoproduced byCEDAW, supranote64,folio1922,andReportoftheSpecialRapporteur Gestión, supranote67,folio8666,andReportonMexicoproduced byCEDAW, supranote64,folio195. Cf. ComisiónparaPrevenir contralasMujeres yErradicarlaViolencia enCiudadJuárez, PrimerInformede de recomendaciones, supra note65,folio6564. folio 2168,andComisiónMexicanadeDefensayPromoción delosDerechos HumanosA.C.,Compendio Cf. Report on Mexico produced by CEDAW, Ciudad Juárez, InformeFinal,supranote87,folio14525. Cf. OfficeoftheSpecialProsecutor fortheInvestigationofCrimes related totheMurders of Women in of theSpecialRapporteuronextrajudicial, summaryorarbitraryexecutions,supranote73,folio2053. Cf. IACHR,TheSituationoftheRightsWomen inCiudadJuárez, supranote64,folio1744,andReport note 64,folios2257and2271. Intolerable killings,supra violence againstwomen,supranote64,folio2012,andAmnestyInternational, Mexico produced byCEDAW, supranote64,folios1924and1926;ReportoftheSpecialRapporteuron Cf. IACHR, The Situation of the Rights of Women in Ciudad Juárez, volume XXVII,attachment12,folio9016). formas deejercer laviolenciacontralasmujeres” (casefileofattachmentstotheanswerapplication, informe degestión,May2005-September2006,citingtheSecondProgress Reportentitled“Elfeminicidio: folio 3911),andComisiónparaPrevenir contralasMujeres yErradicarlaViolencia enCiudadJuárez, Tercer notary publicbyexpertwitnessMonárrez FragosoonNovember20,2008(meritscasefile,volumeXIII, the Murders ofWomen inCiudadJuárez, InformeFinal,supranote87,folio14605;statementmadebefore ings, Rapporteur on violence against women, Cf. ReportonMexicoproduced byCEDAW, supranote64,folios1924and1926;ReportoftheSpecial note 64,folios2257and2271. Intolerablekillings,supra violence againstwomen,supranote64,folio2012,andAmnestyInternational, Mexico produced byCEDAW, supranote64,folios1924and1926;ReportoftheSpecialRapporteuron Cf. IACHR, The Situation of the Rights of Women in Ciudad Juárez, public bytheexpertwitnessJusidmanRapoportonApril21,2009(meritscasefile,volumeXIII,folio3806). International, Cf. IACHR, The Situation of the Rights of Women in Ciudad Juárez, Crimes related totheMurders ofWomen inCiudadJuárez, InformeFinal,supranote87,folio14605. killings, extrajudicial, summary orarbitrary executions, Mexico produced byCEDAW, supranote64,folios1924and1926;ReportoftheSpecialRapporteuron Cf. IACHR, The Situation of the Rights of Women in Ciudad Juárez, supra note64,folio2257;OfficeoftheSpecialProsecutor fortheInvestigationofCrimes related to supra note 64, folios 2256 and 2271, and Office of the Special Prosecutor for the Investigation of Intolerable killings, supra supra note 64, folios 1921 to 1922; CNDH, Informe Especial, note 64, folios 2256 and 2271, and testimony given before notary note 64, folio 2012; Amnesty International, Intolerable kill- supra note 64, folio 2012; Amnesty International, - supra note 64, folios 1924 and 1927, and Amnesty Interna note 73, folio 2052; Amnesty International, Intolerable supra note73, folio 2052;Amnesty International, supra note 64, folio 1742; Report on supra note 64, folio 1744; Report on supra note 64, folio 1744; Report on supra note 64, folio 1744; Report on supra note 64, folio 1764; Amnesty supra note 66, Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 55 note 73, folio 2052; Amnesty 2052; 73, folio note supra note 64, folio 1744; Report on Report 1744; folio 64, note supra on Report 1735; folio 64, note supra note 67, folio 8663. See also, Report on Mexico produced by CEDAW, supra note 64, folio by CEDAW, produced supra note 67, folio 8663. See also, Report on Mexico note 64, folio 1927, and final report of the Observatorio Ciudadano, report of the Observatorio 1927, and final supra note 64, folio by CEDAW, Mexico produced supra note 81, folio 6640. of the supra note 64, folio 1744; Report in Ciudad Juárez, the Rights of Women Cf. IACHR, The Situation of executions, arbitrary or summary extrajudicial, on Rapporteur Special supra note 64, folio 1922; Report of the Special Rapporteur on violence by CEDAW, Mexico produced against women, supra note 64, folios 2001 to 2002, and Amnesty International, Intolerable killings, supra note 64, folios 2259 and 2269. note 64, folio 2271. killings, supra note 64, folio tional, Intolerable Juárez, Ciudad in Women of Rights the of Situation The IACHR, Cf. International, Recomendación 44/1998, supra note killings, supra note 64, folio 2271; CNDH, Intolerable supra note 64, folio 1927. by CEDAW, on Mexico produced 72, folio 2154, and Report Women in of related to the Murders for the Investigation of Crimes Prosecutor Cf. Office of the Special noting that the Ciudad it is worth regard, note 87, folio 14608. In this Informe Final, supra Ciudad Juárez, murders that the “[a]lthough it is true that it has been difficult to prove Commission indicated that, Juárez have analyzed Office] should the [Special Prosecutor’s to serial killers, related are of women in Ciudad Juárez what of evidence be may there which in those cases; paradigmatic by constituted phenomenon criminal the characteristics and/or patterns similar of women with of “murders calls Office] Prosecutor’s the [Special its analysis Office “has not yet approached it complained that the Special Prosecutor’s conduct.” Similarly, y Erradicar la perspective, despite international (Comisión para Prevenir a gender from recommendations” informe de gestión, supra note 101, folio 9073). Tercer en Ciudad Juárez, Violencia contra las Mujeres gestión, supra note 101, folios 8996 and 8997. cases, the Special to 90 referred Institute the Chihuahua Women’s report, to the 2005 CEDAW According Office and the Delegate of the Office of the Attorney General of the Republic in Ciudad Juárez Prosecutor’s supra note 64, by CEDAW, on Mexico produced mentioned 93 cases and the NGOs counted 98 (Cf. Report folio 1924). Commission, report of the Ciudad Juárez first progress These allegations concur with the conclusions of the characterized by employ- the maquila industries were which indicated that, during the 1970s and 1980s, a cultural shock within this “produced in a context of male unemployment; ing women almost exclusively, it was the women who supported the household” the families” and when “the men could not find work, de Informe Primer Juárez, en Ciudad Violenciala Erradicar Mujeres y las contra Prevenir para (Comisión Gestión, notary public by expert witness Pineda Jaimes on April 15, 2009, merits case 1922; statement made before file, volume VIII, folio 2825, and testimony of expert witness Jusidman Rapoport, supra note 99, folio 3778). supra note 64, folio 1957. by CEDAW, Report on Mexico produced supra note 64, folio 1960. by CEDAW, Report on Mexico produced Juárez, Ciudad in Women of Rights the of Situation The IACHR, Cf.

108 . IACHR, The Situation of the Rights of Women in Ciudad Juárez, supra 64, folio 1744. in Ciudad Juárez, Women Situation of the Rights of 106 . IACHR, The 107 109 informe de Tercer en Ciudad Juárez, y Erradicar la Violencia las Mujeres contra 110 Comisión para Prevenir 111 112 115 116 117 56 Gender-based Violence 147 146 145 144 143 142 141 140 139 135 123 122 121 120 119 118

Report onMexicoproduced byCEDAW, supranote64,folio1957 Juárez, InformeFinal,supranote87,folios14575and14609. Office oftheSpecialProsecutor fortheInvestigationofCrimes related totheMurders of Women inCiudad 2100. Report oftheU.N.SpecialRapporteuronindependencejudgesandlawyers, supranote74,folio Intolerablekillings,supra note64,folio2279. and AmnestyInternational, Recomendación 44/1998,supranote72,folio2154;CNDH,InformeEspecial, supra note66,folio2227, Experts,supranote76,folio1897;CNDH, Cf. ReportoftheUnitedNationsCommitteeInternational Cf. testimonyofwitnessDoretti, supranote141,folios2371and2372. witness Doretti, supranote141,folio2332. Experts, the United Nations Committee of International Cf. IACHR,TheSituationoftheRightsWomen inCiudadJuárez, supranote64,folio1750;Reportof before notarypublicbywitnessDoretti onApril17,2009(meritscasefile,volumeVI,folio2326and2327). to theMurders ofWomen inCiudadJuárez, InformeFinal,supranote87,folio14579,andstatementmade Experts, comendación 44/1998, supra note 72, folio 2140; Report of the United Nations Committee of International Cf. IACHR,TheSituationoftheRightsWomen inCiudadJuárez, supranote64,folio1750;CNDH,Re- Observatorio Ciudadano,supranote81,folio6714. in theJuristsAuditorium,Reforma211,Mexico,D.F., February16,2006,annex4ofthefinal report of and totheCommunitySpecialProsecutor forCrimesrelated againstWomen, toActsofViolence 14610; Press conference offered GeneralforHuman Rights, ServicestoVictims bytheAssistantAttorney Crimes related tothe Murders ofWomen inCiudadJuárez, Informe Final, supra note 87,folios14579 and comendación 44/1998,supranote72,folio2140;OfficeoftheSpecialProsecutor fortheInvestigationof Cf. IACHR,TheSituationoftheRightsWomen inCiudadJuárez, supranote64,folio1767;CNDH,Re- supra note64,folio2274. Mexico produced by CEDAW, Intolerablekillings, supranote64, folio 1924, and AmnestyInternational, Cf. IACHR, The Situation of the Rights of Women in Ciudad Juárez, of theSecretaryChihuahuatoSpecialRapporteurFebruary11,2002). ofGovernment IACHR, The Situation of the Rights of Women in Ciudad Juárez, the letterofSecretaryChihuahuatoSpecialRapporteurFebruary11,2002). of Government IACHR, TheSituationoftheRightsWomen inCiudadJuárez, supranote64,folios1748and1750(citing Gestión, supranote67,folio9074. ComisiónparaPrevenir contralasMujeres yErradicarlaViolencia enCiudadJuárez, PrimerInformede Report oftheSpecialRapporteuronviolenceagainstwomen,supranote64,folios2001and2002. Cf. ReportonMexicoproduced byCEDAW, supranote64,folios1937and1949. of theSecretaryChihuahuatoSpecialRapporteurFebruary11,2002). ofGovernment IACHR, The Situation of the Rights of Women in Ciudad Juárez, Intolerablekillings,supranote64,folio2269. Amnesty International, supra note76,folio1929,OfficeoftheSpecialProsecutor fortheInvestigationofCrimes related supra note 76, folios 1898 and 1899; testimony of supra note 64, folio 1750 (citing the letter supra note 64, folio 1766 (citing the letter supra note 64, folio 1746, Report on Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 57 note 64, folio 1964. In this regard, it should be noted it should this regard, 1964. In folio note 64, supra that, in its report, CEDAW indicated: “The Government assures us that judgments have been rendered in rendered been have judgments that us Government“The indicated: assures CEDAW report, its in that, nearly all of the civil society sources to involve sexual violence, whereas only 4 of the 90 cases considered After and that some of the accused may not be guilty. either, state that those 4 cases have not been resolved phase.” appeal the in still is that case and punished, and convicted has been one prisoner only years, eight supra note 64, folio 1934). by CEDAW, (Report on Mexico produced note 64, folio 1766. supra in Ciudad Juárez, IACHR, The Situation of the Rights of Women or arbitrary executions, supra note 73, folio Report of the Special Rapporteur on extrajudicial, summary 2053. Office Prosecutor’s official of the Public a deputy before Ivonne Ramos Monárrez Cf. appearance of Claudia Women, on of Murders and the Disappearances to Investigate Office Prosecutor’s to the Special attached and 2621) folio 17, attachment VIII, volume application, the to attachments of file (case 2001 1, October attached Office of the Public Prosecutor’s a deputy official appearance of Rocío Itxel Núñez Acevedo before Women, on October 5, of Office to Investigate the Disappearances and Murders to the Special Prosecutor’s Cf. Response of the Mexican Government to the CEDAW report under Article 8 of the Optional Protocol to of the Optional Protocol under Article 8 report of the Mexican GovernmentCf. Response to the CEDAW volume XXV, answer to the application, file of attachments to the January 27, 2005 (case the Convention, folios 8612 to 8653). attachment 6, 1734. supra note 64, folio in Ciudad Juárez, Women Situation of the Rights of Cf. IACHR, The Commission of InternationalReport of the United Nations note 76, folio 1869 Experts, supra to the final because according between the global figures, inconsistencies are It should be noted that there of women in of murders had been 328 cases Office, up until 2003 there of the Special Prosecutor’s report of related to the Murders for the Investigation of Crimes Prosecutor (Office of the Special Ciudad Juárez supra note 87, folio 14646). Informe Final, women in Ciudad Juárez, of Investigation the for Office Prosecutor’s Special Chihuahua, of state the of Office AttorneyCf. General’s of the State to the to the fourth monthly report 2003. Attachments Ciudad Juárez, of Women, Murders 2003 (case file of attachments to the answer Commission on Human Rights of February 17, Inter-American XLII, attachment 75, folio 15446). to the application, volume 2005 report indicated in its to as “concluded”, CEDAW the cases that the State refers In general, regarding as having been concluded or and recorded, that it was concerned considered, about the fact that cases are nor the courts, “even though the accused have neither been arrested before brought solved when they are and also in supra note 64, folio 1950). Furthermore, by CEDAW, punished” (Report on Mexico produced the disprove to information it had “obtained sufficient indicated that the CNDH 2005 report, general, in its affirmations of the PGJE [Office of the Attorney had been General of the state of Chihuahua], that cases to support these assertions” (CNDH, Informe Especial, supra note 66, folio solved without any legal grounds 2234). by CEDAW, produced Mexico Report on Cf. Cf. Missing Person Report No. 225/2001, processed on September 25, 2001, with regard to Laura Berenice to Laura Berenice 25, 2001, with regard on September Cf. Missing Person Report No. 225/2001, processed volume VIII, attachment 11, folio 2609), and (case file of attachments to the application, Ramos Monárrez 2001 (case file of attachments to the application, volume VIII, attachment 19, folio 2625).

167 168 169 148 154 155 160 161 162 163 170 58 Gender-based Violence 227 226 225 224 223 222 175 174 AppearanceofIrmaMonreal Jaimebefore anofficialofthePublicProsecutor’s Officeattachedtothe 173 172 171

2611). September 25,2001(casefileofattachmentstotheapplication,volumeVIII,12and14,folio to theOfficeofSpecialProsecutor toInvestigateMurders of Women andDisappearancesofPersonson appearance ofBenitaMonárrez Salgadobefore adeputy officialofthePublicProsecutor’s Officeattached 13579). attachments totheanswerapplication, volumeXXXVII,attachment50,docketIIIII,folio tion Agencyreporting ontheinterviewwithBenitaMonárrez SalgadoonOctober15,2003 (casefileof Cf.testimonyofMrs.Monárrez, supranote183,andfilecard issuedbytheHeadofFederalInvestiga - Cf. testimonyofMrs.Monárrez, supranote183. Cf. testimonyofMrs.González,supranote183. 2006 (casefileofattachmentstotheapplication,volumeII,appendix5 I,folio141). Cf. communication presented by Josefina González before the Inter-American Commission in September Cf. testimonyofMrs.Monreal Jaime,supranote183. testimony ofexpertwitnessAzaolaGarrido,supranote186,folio3369). authorities said they could not do anything “because she had obviously gone off with her boyfriend” (Cf. the applicationvolumeXXVII,attachment42,folio9802).Similarly, thevictim’s brother testifiedthatthe the petitionfiledbefore theInter-American Commission onMarch 6,2002(case fileofattachmentsto Cf. Testimony givenbyMrs.Monreal, supranote183.SeealsothestatementbyIrmaMonreal Jaimein before theInter-American CourtonApril28,2009. volume VIII,attachment13,folio2613),andtestimonygivenbyMrs.Monreal atthepublichearingheld October 30,2001,withregard toEsmeraldaHerrera Monreal (casefileofattachmentstotheapplication, Cf. appearanceofIrmaMonreal Jaime,supranote174;MissingPersonReportNo.241/2001,processed on 2001 (casefileofattachmentstotheapplication,volumeVIII,attachment29,folio2653). of theSpecialProsecutor to InvestigateMurders ofWomen andDisappearances ofPersonsonOctober30, given byMrs.Gonzálezatthepublichearingheldbefore theInter-American CourtonApril28,2009. the answertoapplication,volumeXXXII,attachment50docketII,I,folio11102),andtestimony gate Murders ofWomen andDisappearancesofPersonsonOctober12,2001(casefileattachmentsto deputy officialofthePublicProsecutor’s OfficeattachedtotheofSpecial ProsecutortoInvesti- Cf. MissingPersonReportNo.234/2001,supranote172;appearanceofMayelaBandaGonzálezbefore a volume VIII,attachment8,folio2603). on October12,2001,withregard toClaudiaIvetteGonzález(casefileofattachmentstheapplication, the application,volumeVIII,attachment23,folio2637)andMissingPersonReportNo.234/2001processed Prosecutor toInvestigateMurders ofWomen andDisappearancesofPersons (casefileofattachmentsto Cf. StatementmadeonOctober24,2001,byJuanAntonioMartínezJacobobefore theOfficeofSpecial ments totheanswerapplication,volumeXXXV, attachment50,docketII,volumeIV, folio12974). Investigate andProsecute theMurders ofWomen ofChihuahuaonSeptember28,2007(casefileattach- Informationtakenfrom thereport issuedbytwoJudicial PoliceagentsattachedtotheJointAgency Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 59 - note 187, folio 3481. supra note 187, folio of witness Delgadillo Pérez, Cf. testimony 3494 and 3495. supra note 187, folios of witness Delgadillo Pérez, Cf. testimony No. 2609; Missing Person Report note 170, folio Report No. 225/2001, supra Missing Person Judgment of November Reparations and Costs. Peru. Merits, Prison v. Castro Miguel Castro Cf. Case of the para. 276. 25, 2006. Series C No. 160, of Belém do Pará. Article 1 of the Convention supra note 22, para. 295. Venezuela, et al. v. Case of Perozo and Objection, Merits, Reparations Preliminary Peru. v. Santa Cruz García and Cantoral Huamaní Case of Cf. Honduras, Fernández 2007. Series C No. 167, para. 79, and Case of Kawas Costs. Judgment of July 10, v. supra note 190, paras. 72 and 73. OC- Convention on Human Rights, Advisory Opinion “Laws” in Article 30 of the American Cf. The Word A No. 6, para. 21. 6/86 of May 9, 1986. Series v. 113; Case of Perozo Colombia, supra note 252, paras. 111 and v. Massacre” Cf. Case of the “Mapiripán supra note 30, para. 62 Peru, v. supra note 22, para. 298, and Case of Anzualdo Castro Venezuela, 166; July 29, 1988. Series C No. 4, para. Merits. Judgment of Honduras. Rodríguez v. of Velásquez Cf. Case Peru, v. note 190, para. 137, and Case of Anzualdo Castro Honduras, supra Case of Kawas Fernández v. supra note 30, para. 62 Honduras. Merits, supra note 257, para. 174, and Case of Anzualdo Castro Rodríguez v. Case of Velásquez Peru, supra note 30, para. 62 v. Hon- Honduras. Merits, supra note 257, para. 173; Case of Godínez Cruz v. Rodríguez v. Case of Velásquez C No. 5, para. 182, and Case of Gangaram Panday v. duras. Merits. Judgment of January 20, 1989. Series of January 21, 1994. Series C No. 16, para. 62. Suriname. Merits, Reparations and Costs. Judgment Peru, supra note 248, para. 276. Prison v. Castro Cf. Case of the Miguel Castro et al. v. Honduras. Merits, supra note 257, para. 166; Case of Perozo Rodríguez v. Cf. Case of Velásquez supra note 30, para. 63. Peru, v. supra note 22, para. 149, and Case of Anzualdo Castro Venezuela, 19: Violence session, 1992, U.N. Doc. HRI\ against women, 11° General recommendation Cf. CEDAW, at 84 (1994), para. 9. GEN\1\Rev.1 General Assembly resolution ViolenceCf. United Nations, Declaration on the Elimination of against Women. 23, 1994, Article 4.c. 48/104 of 20 December 1993. A/RES/48/104, February Beijing, September 4 to 15, 1995, Bei- on Women, Conference United Nations, Report of the Fourth World at the 16° plenary session held on September 15, 1995. jing Declaration and Platform for Action approved para. 124 b. A/CONF.177/20/Rev.1, Report of the Special Rapporteur on violence against women, supra note 64. Brazil, Annual Report, 2000, IACHR, Case 12,051, Report No. 54/01, Maria Da Penha Maia Fernandes v. (2000). Doc.20 rev. OEA/Ser.L/V.II.111 has ruled similarly. Brazil, supra note 272, para. 56. CEDAW IACHR, Maria Da Penha Maia Fernandes v. (2005), it determined that the State had not complied with the obliga- Hungary v. Thus, in the case of A.T. In par her. against the victim and to protect the violence tions established in the Convention to prevent

228 229 233 248 249 250 254 255 256 257 258 259 266 267 268 269 270 271 272 273 60 Gender-based Violence 305 304 303 302 301 300 298 297 296 291 275 274

Panamá, Cf. CaseofthePuebloBelloMassacre v. Colombia,supranote261,para.143;CaseofHeliodoro Portugalv. Austria, 39°session,23Julyto10August2007,para.12.1.4and12.1.5). due diligencebecauseithadnotdetainedhim(Cf.CEDAW, CommunicationNo.6/2005,FatmaYildirim v. which thevictimwasmurdered byherhusband,CEDAW foundthattheStatehadfailedinitsobligationof Ms. A.T. v. Hungary, 32°session,January26,2005para.9.3).Similarly, inthecaseofYildirim v. Austria,in immediate protection ofwomenvictimsdomesticviolence”(Cf.CEDAW, CommunicationNo.2/2003, domestic violenceandsexualharassmentthatnoprotection orexclusionorders orsheltersexistforthe ticular, thatnospecificlegislationhasbeenenactedtocombat itstatedthatwas“particularlyconcerned 49, para.97,andCaseofGaribaldiv. Brazil, supranote252,para.23. Judgment of June 7, 2003. Series C No. 99,para. 112; Case of Valle Jaramillo et al. v. Colombia, Cf. CaseofJuanHumbertoSánchezv. Honduras. Preliminary Objection, Merits,ReparationsandCosts. March 2000,paras.78to83. Akkoç v. Turkey, Judgmentof10October2000,paras.77to99;ECHR,Kiliçv. Turkey, Judgmentof28 Cf. ECHR,Ergiv. Turkey, Judgmentof28.07(1)998,ReportsJudgments,n.81,paras.85-86,andECHR, v. Honduras,supranote190,para.78. Case ofthePuebloBelloMassacre v. Colombia,supranote261,para.145,andCaseofKawasFernández 252, para.141. Cf.CaseofAnzualdoCastro v. Peru,supranote30,para.179,andCaseofGaribaldiv. Brazil,supranote 252, para.113 Cf. CaseofAnzualdoCastro v. Peru,supranote30,para.123,andCaseofGaribaldiv. Brazil,supranote Cf. CaseoftheMiguelCastro Castro Prisonv. Peru,supra note248,para.344 No. 186,para.115,andCaseofPerozo etal.v. Venezuela, supranote22,para.298. v. Panamá. Preliminary Objections,Merits,ReparationsandCosts.JudgmentofAugust12,2008.SeriesC Cf. CaseofthePuebloBelloMassacre v. Colombia,supranote261,para.142;CaseofHeliodoro Portugal 116. and 63,ECHR,CaseofOsmanv. theUnitedKingdom,Judgmentof28October1998,paras.115and bia, Indigenous Communityv. Paraguay, supranote261,para.155,andCaseofValle Jaramilloetal.v.- Colom Cf. CaseofthePuebloBelloMassacre v. Colombia,supranote261,para.123;CaseoftheSawhoyamaxa 72, folio2155. Mexico produced byCEDAW, supranote64,folio1924,andCNDH,Recomendación44/1998, supra note Cf. IACHR, The Situation of the Rights of Women in Ciudad Juárez, Secretary-General, Sixty-first session,A/61/122/Add.1,July6,2006,para.352. United Nations, General Assembly, In-depth study on all forms of violence against women.Report of the Commission onHumanRightsresolution 1995/85,UNDoc.E/CN.4/1999/68,10March 1999,para.25. against women,itscausesandconsequences,RadhikaCoomaraswamy, submittedinaccordance with againstwomeninthefamily:ReportofSpecialRapporteuronviolence Cf. UnitedNations,Violence supra note49,para.78.SeealsoECHR,CaseofKiliçv. Turkey, Judgment of28March 2000,paras.62 supra note297,para.144,andCaseofValle Jaramilloetal.v. Colombia,supranote49,para.101. supra note 64, folio 1749; Report on supra note Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 61 Cf. ECHR, Case of Angelova and Iliev v. Bulgaria, Judgment 26 July 2007, para. 98. Bulgaria, Judgment 26 July of Angelova and Iliev v. Cf. ECHR, Case 2007. Judgment of May 11, Reparations and Costs. Colombia. Merits, v. Rochela Massacre Cf. Case of the paras. 156, 158 and 164. Series C No. 163, 2235. , supra note 66, folio Cf. CNDH, Informe Especial 19: Violence against women, supra note 268, paras. 1 and 6. General recommendation Cf. CEDAW, Peru, supra note 248, para. 303. v. Prison Castro Cf. Case of the Miguel Castro Doc. 68, January 20, Americas, OEA/Ser.L/V/II. violence in the of victims to justice for women IACHR, Access 1822). to the application, volume VII, attachment 2, folio 2007 (case file of attachments of violence against children, the independent expert for the United Nations study United Nations, Report of 29 August 60/231, A/61/299, to General Assembly resolution submitted pursuant Paulo Sérgio Pinheiro, 2006, paras. 25, 29 and 30. 2002. 28, August of OC-17/02 opinion Advisory Child. the of Rights Human and Condition Juridical Cf. Peru. Merits, Reparations v. Paquiyauri Brothers Series A No. 17, paras. 53, 54 and 60; Case of the Gómez and Bosico Girls para. 164, and Case of the Yean and Costs. Judgment of July 8, 2004. Series C No. 110, 8, September of Judgment Costs. and Reparations Merits, Objections, Preliminary Republic. Dominican v. 2005. Series C No. 130, para. 133. Case of the 57 and 60, and note 417, paras. 56, Child, supra Status and Human Rights of the Cf. Juridical Dominican Republic, supra note 417, para. 134. Jean and Bosico Girls v. 1999, and health, twentieth session, A/54/38/Rev.1, 24: Women General recommendation Cf. CEDAW, Dominican Republic, supra note 417, para. 134. para. 6, and Case of the Jean and Bosico Girls v. Article 4 (case file of attachments to the answer to Cf. Political Constitution of the United Mexican States, Girls, of Rights the of Protection the for Law and 9816) folio XXVIII, volume 43, attachment application, the Official Gazette on May 29, 2000, Articles 2 to 5 (case Boys and Adolescents, published in the Federation’s attachment 103, volume XLIII, folio 16049). file of attachments to the answer to the application, (case file of attachments to the and Adolescents of the National Council for Children Such as the creation XLIII, folios 16065 to 16068); the National System for answer to the application, attachment 104, volume file, volume III, folio 1082); the National Action Plan to the Integral Development of the Family (merits case (merits case file, volume Deal With Exploitation of Children Sexual Prevent, and Eliminate the Commercial Child Abuse (merits case file, volume III, folio 1085). III, folio 1082), and the Campaign to Prevent notary public by expert witness Lira Kornfeld on April 21, 2009 (merits case file, Cf. statement made before volume XI, folio 3340). Cf. testimony of expert witness Lira Kornfeld, supra note 426, folio 3340. supra note 64, folios 1745 and 1770, Juárez, in Ciudad Cf. IACHR, The Situation of the Rights of Women supra note 64, folio 1924. by CEDAW, and Report on Mexico produced supra note 64, folios 1748 and 1769 in Ciudad Juárez, Cf. IACHR, The Situation of the Rights of Women supra note 64, folio 1946. by CEDAW, Cf. Report on Mexico produced

306 397 400 412 2009, paras. 180, 191 and 200. Judgment of 9 June Turkey, 413 , Case of Opuz v. 414 415 416 417 418 419 420 421 426 427 438 439 440 62 Gender-based Violence Inter-American Court of Human Rights

“Las Dos Erres” Massacre v. Guatemala

Preliminary Objection, Merits, Reparations and Costs

Judgment of November 24, 2009 64 Gender-based Violence […] is stillpendingasoftoday. the lackofanexhaustiveinvestigation,prosecution, andpunishmentofthoseresponsible permissive useofjudicialresources, theunjustifieddelaybyjudicialauthorities,and some exhumationmeasures were performed.However, thealleged indiscriminateand with hislastnames.Theinvestigationsonthismassacre beganuntil1994,duringwhich participating kaibilesabductedachildsurvivor, tookhimtohishome,andregistered him beaten to the point of abortions. Additionally, in the context of the massacre one of the previously suffered blowsandmistreatment, andalotofwomenhadbeenraped munity’s inhabitantsincludedchildren, women,andmen.Theindividualsexecutedhad en andchildren were taken tothesameplace.Alongwayalotofgirlswere raped hand-tied, andledthemtoanunfinished wellwere they were shot.Afterward, thewom- 79. […] 1. […] the specializedgroup within thearmedforces ofGuatemalanamedkaibiles which occurred between December 6and8,1982.Thismassacre wasperformedby of the community (parcelamiento) of Las Dos Erres, la Libertad, Department of Petén, prosecution, andpunishmentofthoseresponsible for themassacre of251inhabitants 2. […] VIII. I.

C and to At ar A) ContextoftheCase Context ofthecase,backgr The applicationisr T I ntroduction rial onventi A V ound 4:30p.m.thekaibilestook themenoutofschool,blindfoldedand A rticles iolation

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udical case ound oftheMassacre,Proceeding andInternal 8

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Inter-American Court of Human Rights - “Las Dos Erres” Massacre v. Guatemala 65 - nal jurisdiction has Convention, in relation to Articles 1 and 2 Convention, in relation esidents of the village of Las Cruces approached Las Dos of Las Cruces approached esidents of the village Lack of investigation of all of the facts of the massacre Lack of investigation of all of the facts of

C.1 Lack of a complete and thorough investigation of the alleged facts of the mas Lack of a complete and thorough investigation ound 6:00 p.m. two girls arrived at the community, and they were raped by raped and they were girls arrived at the community, ound 6:00 p.m. two

The Court observes that the investigation carried out in the inter The Court observes that the investigation C) sacre and those responsible, and other omissions

Articles 8 and 25 of the American On December 9, 1982, r On December 9, 1982, At ar

not been complete and thorough, given that it only refers to infringements to life, and given that it only refers not been complete and thorough, members of the community against to the facts of the alleged torture not to those related - and female population. In this re and other alleged acts of violence against the children of the […] Convention of Belém do the Commission indicated that “the provisions gard, withPará […] should be taken into consideration, as they impose the obligation of acting On thedue diligence when investigating and punishing acts of violence against women.” the State responsible of the Court to declare requested other hand, the representatives 7.b offor not complying with the rights contained in Articles 1, 6, and 8 of the CIPST and of thesenot accept the violation did the State Finally, do Pará. Belém Convention of the 136. thereof; Articles 1, 6 and 8 of the Inter-American Convention against Torture, and Convention against Torture, Articles 1, 6 and 8 of the Inter-American thereof; do Pará. Article 7.b of the Convention of de Belem […] by the kaibiles, mainly by sub-instructors. Upon reaching the well, the kaibiles made the well, the kaibiles made the Upon reaching mainly by sub-instructors. by the kaibiles, point guerrilla, and at that part of the whether they were and asked them victims kneel the corpses them, throwing mallet or shot with an iron them on the head they struck well.(…) inside the 80. loose, and saw all over the place, animals on the and found household utensils Erres by displayed cruelty the that given ground, the on placentas and cords, umbilical blood, women by beat- to pregnant they caused abortions the point where the soldiers reached until the fetus came out miscarried. (…) ing them or even jumping on their abdomen […] 2. two military instructors. On the following day, when the kaibiles left they took the two when the kaibiles day, instructors. On the following two military six other they left Before again, and subsequently slit their throats. girls and raped them also shot. and they were community, families arrived at the 81. 66 Gender-based Violence clarify whatoccurred orchargethoseresponsible three days(supra abortions and other types of sexual violence against girls and women, perpetrated during alleged actsoftorture againstthepopulationandchildren ofthecommunity, aswell facts described,aswelltheCEHreport of1999,theStatehadofficialknowledge of screams andwails[…]ofthegirlsbeingraped.”TheCourtverifiesthatin relation tothe César FrancoIbáñezdeclared that“they also began[…]rapinggirls[,]youcouldhearthe women were pulled[b]ytheirhairandkicked.”Additionally, onthesamedatewitness seen] thatthemenwere beatenwiththeweaponsandkickedtoground […]and declaredvivor SaloméArmandoGómezHernández onDecember 1,1995that“[hehad raping them,[but] also killingthem at thattime[…]they were savagelyraped.”Alsosur and that “that’s […] how they were massacring [and for women] it [was]not only […] Likewise, they indicated that “Instructor Manuel Pop Sun […]raped [one girl]drastically” were part of the guerrilla [and they] also raped some girls in front of their parents.” the mensotheywouldtellthemwhere theweaponswere andwhointhecommunity May 27,1997indicatedthat“whiletheyhadthemgathered […]theybegantotorture munity ofLasDosErres, the statementsoftheexkaibilesincriminalproceeding of June 14,1994wasforthecrimeofmurder tothedetrimentofthoseburiedincom- 138. do ParáonApril4,1995,therefore ithadtoguaranteecomplianceasofthattime State intheratificationofCIPSTonJanuary29,1987andConventionBelém tious jurisdictiononMarch 9,1987.Thisobligationwassubsequentlyconfirmedbythe due diligence,whichwasstillpendingatthetimeofrecognition oftheCourt’s conten- the timeoffacts,Statehadobligationtoinvestigateallfactswith 137. a violationoflawortreaty whichdoesnotexistinthejuridicallifeofaState.” when the facts occurred, and both procedurally and substantively it is not possible to claim Conventions “onthegrounds [that]neitherofthemwaseffective fortheStateattime treatment)” “international ing compliancewiththerightsenshrinedinAmericanConvention,”aswell women. [T]heseprovisions […]specifyandcomplementtheState’s obligationsregard- […] withregards totheprevention andpunishmentoftorture andviolenceagainst […] inconformitywiththespecificobligationssetforthspecializedConventions established that“[theState]hasthedutytoguaranteerightofaccessjustice even iftheyhadnotbeenadoptedatthetimeofmassacre. TheCourthasthus

Specifically The CourtnotesthatinconformitywiththeAmericanConvention,ef 145 . corpus jurisonthematterofprotection ofpersonalintegrity(humane , theCourtnotesthatalthoughcomplaintfiledby FAMDEGUA on para. 78to81).However, theStatedidnot initiate an investigationto 146 . fective at 144 - , Inter-American Court of Human Rights - “Las Dos Erres” Massacre v. Guatemala 67

- merican A the

and generate obliga- of 152 cogens) 63.1. (jus 150 icle rt A of

” 148 ion pplicat , which maintain the case in impunity. Specifically, the Specifically, de jure, which maintain the case in impunity. egoing, the State should have initiated, ex officio and without egoing, the State should have initiated, (A ) such as investigating and punishing those practices, in conformity such as investigating and punishing those 151 , constitutes a breach of the State’s obligations in relation to grave human in relation obligations of the State’s , constitutes a breach egard, the Court deems that the lack of investigation of grave facts against the lack of investigation of grave facts against the Court deems that egard, 149 e particularly chosen as victims of sexual violence. Likewise, in another case Likewise, in another of sexual violence. chosen as victims e particularly on the foregoing, the State must use the necessary means, in conformity with in means, necessary the use must State the the foregoing, on de facto and ions eparat onvention ” In the case of Las Dos Erres, pregnant women were subject to induced abor women were pregnant Dos Erres, ” In the case of Las In this r Based Based on the for The Court notes, as context, that as indicated by the CEH, during the armed conflict CEH, during the armed as indicated by the notes, as context, that The Court C 147

XI. R 140. system- sexual violence in armed conflicts and/or and such as torture humane treatment atic patterns para. 79 to 81). Likewise, in the expert opinion of opinion expert the in Likewise, 81). to 79 para. (supra acts barbaric other and tions it was indicated that Gómez Dupuis, performed in August 2005, psychologist Nieves grave cruelty caused the victims […] and acts of extreme rape, “exemplifying torture, integrity. damages to their mental its domestic legislation, to effectively direct the investigations so as to identify, prosecute, prosecute, the investigations so as to identify, direct its domestic legislation, to effectively all and remove for the crimes committed in Las Dos Erres, and punish those responsible obstacles, […] 233. […] with the American Convention and in this case in light of the CIPST and the Convention with the American Convention and in this of Belém do Pará. 141. delay, a serious, impartial and effective investigation of all of the facts of the massacre of all of the facts of the massacre investigation a serious, impartial and effective delay, the violation of the right to life and other specific violations against humane to related a gen- women, with against violence and acts of alleged torture such as the treatment, Articles 8.1. and 25.1. of the Convention, and der perspective and in conformity with Convention 1, 6, and 8 of the Inter-American the specific obligations set forth in Articles of Belem do Pará. and 7.b of the Convention against Torture rights violations, which infringe non-revocable laws rights violations, which infringe non-revocable 139. occurred within the same context as this massacre, the Court established as a proven fact a proven as established the Court massacre, as this same context within the occurred of massacres, in the context a State practice, executed rape of women was that “[t]he and individual at a cultural, social, family, the dignity of women to destroying directed level. women wer tions for the States 68 Gender-based Violence 149 148 147 146 145 144 6 State mustensure thattheinvestigationcoversfollowingcriteria: E

ndnotes rape can constitute torture when it has been committed by state agents against people in their custody. Sep. 2, 1998. para. 687, 688. On the other hand, the European Court of Human Rights has indicated that consent, orinstigationofapublicofficer. Cf.ICTR,Trial Ch to torture, indicatingthattheformercanconstitutetorture ifcommittedbyorwiththeacknowledgements, 2001. para.656,670,816.Similarly, CriminalTribunal theInternational forRwandahasalsocompared rape ment, Feb.20,2001.para.488,501;andICTY, Trial ChII.Prosecutorv. case). Furundzija. intimidating, humiliating,ordiscriminatingthevictimathird party. Cf.ICTY, Trial ChII. systematic practiceagainstthecivilpopulation,orwithintentionofobtaining information,punishing, to torture andothercruel,inhumane,degradingtreatment, whenithasbeencommittedwithina CriminalTribunalInternational fortheFormerYugoslavia, whichhasqualifiedsexual violenceascomparable In thisr reparation” (appendixesto theapplication,appendix8,f.2811). of thevictimsduetoMassacre oftheLasDosErres Community[…]andthemeasures forpsychosocial Cf. Case ofthePlandeSánchezMassacrev ferent crimesandthosewho committedthem. Criminal CodeofGuatemala1973)theStatehadpossibilityinvestigatingandidentifyingdif- In conformitywiththelegislationef Cf. CaseoftheMiguelCastroPrisonv Cf. CaseoftheMiguelCastroPrisonv and motions,appendix30,f.10936) tions putintopracticetheextreme crueltyoftheirtrainingmethods.”(Appendixestothebriefpleadings 1999; “thekaibileswere a special counterinsurgencyforce oftheGuatemalanArmy, whoindifferent opera- (hereinafter ofSilence”),Guatemala:UnitedNationsOfficeforProject “CEH,Guatemala:Memory Services, Accor against girlsandwomen. alleged actsoftorture, inlightofthedifferentiated impactsoftheallegedviolence munity, otherpossibleseriousinfringementstohumanetreatment, particularly, the case tookplace,including,apartfrom themurder of theinhabitantsofcom- ofhumanrightsviolationsexistingatthetimethatfactsinstant pattern b) effectively investigateallfactsofthemassacre, taking intoaccountthesystematic (…) corresponding tothosefacts, andexecutethependingarrest warrants; Expert opinionofNievesGómezDupuisAugust2005“r ding totheReportbyCommissionforHistoricalClarification,Guatemala:MemoryofSilence v. Judgment, Nov. egard, lawdifferent itisworthnotingthatininternational courtshaveruledonthis,suchasthe Judgment, Dec.10,1998.para.267.i,295;ICTY, Trial ChII.Prosecutorv. 16, 1998.para.941;ICTY, Appeals Ch.Prosecutorv. Delali ć 254 TheStatemustalsoeventuallyapplythepunishments fective inGuatemalaatthetimeoffacts(Articles27and69 . GuatemalaReparationsandCosts,supranote143,para.49.19. . Peru,supranote27,para.276,377and379 . Peru,supranote27,para.377. I. Prosecutorv. Akayesu,Jean-Paul.Judgment, egarding thedamagesto mentalhealth Kunarac etal.Judgment,Feb.22, et al(Čelebićicase).Judg- Delalić etal(Čelebii Prosecutor v. Anto Cf. Inter-American Court of Human Rights - “Las Dos Erres” Massacre v. Guatemala 69 Case of Maslova and Nalbandov Nalbandov and Maslova of Case omen, in its General Recommendation No. omen, in its General Recommendation Judgment, Sep. 25, 1997. Para. 86, 87, and 87, 86, Para. 1997. 25, Sep. Judgment, o Castro Prison v. Peru, supra note 27, para. 378. Peru, supra note 27, Prison v. o Castro . Paraguay, supra note 19, para. 131. . Paraguay, Case of the Rochela Massacre v. Colombia, Massacre v. 128; Case of the Rochela supra note 19, para. . Paraguay, Judgment. Jul. 7, 2008. Para. 108. Russia. Judgment. Jul. v. 19 “Violence of armed conflicts States must has established that within the framework against women,” that the laws for the States to ensure it recommended additionally, and punitive measures; adopt protective to the victims; as well protection and dignity of all women, and provide the integrity against attacks respect response of the of violence and the effectiveness of the causes and effects as to perform an investigation including compensation. reparations, for procedures and that they enshrine efficient measures; Cf. Case of Goiburú et al. v Cf. Case of Goiburú 59. Peru, supra note 28, para. Castro v. 132, and Case of Anzualdo supra note 34, para. v Cf. Case of Goiburú et al. Cf. Case of the Miguel Castr of Discrimination Against W The Committee on the Elimination ECHR. Case of Aydin v. Turkey. Turkey. v. Aydin of Case ECHR.

150 151 152 254

Inter-American Commission on Human Rights

Raquel Martín de Mejía v. Peru

Case Nº 10.970

Report Nº 5/96

March 1, 1996 72 Gender-based Violence with theintentionoftellingMrs. MejíathatherhusbandmightpossiblybetakentoLima About twentyminuteslaterthe samepersonreturnedtotheMejías’home,apparently her perfumesandfinallyraped her. (…) subversive movements; however, without listening to her he began to spray himself with Mrs. Mejíatriedtoexplainhimthatneithershenorher husbandbelongedtoany […] identity documents. Mejía--wentintothehouse, apparentlyof Fernando toaskMrs. Mejíaforherhusband’s the Mejías’houseagain.Oneofthem--theonewhohadbeen inchargeoftheabduction six andtenmilitarypersonnelwiththeirfacesconcealedbyblack skimasksshowedupat That samenight,about15minutesaftertheabove-describedevents,agroup ofbetween pickup. Theeventsdescribedwere witnessedbyhiswife,RaquelMartíndeMejía. then theoneinchargeofoperationordered himintoayellowgovernment-owned wearing militaryuniformswentinandoneofthemstruckDr. Mejíawithhisweapon; manded toseeDr. MejíaEgocheaga.Whenheopenedthedoor, Fernando sixindividuals upattheMejías’homeandde- masks andcarryingsubmachinegunssuddenlyturned At 11:15thatnight(June15)[1989],agroup ofpersonswiththeirfacescovered byski […] […] 11), bothinconnectionwithArticle1(1)oftheConvention. 2. […] Convention onHumanRights(hereinafter theConvention): be declared responsible forviolationofthefollowing rightsrecognized intheAmerican jía EgocheagaandofhiswifeRaquelMartíndeMejía.Thispetitionrequested thatPeru Commission) received apetitionreportingMe- violationof thehumanrightsofFernando On October17,1991,theInter-American CommissiononHumanRights(hereinafter the II. In regard toRaquelMejía,righthumanetreatment andrighttoprivacy(Article F acts R epor ted

Inter-American Commission on Human Rights - Raquel Martín de Mejía v. Peru 73

ions onsiderat C To presume the facts relating to the repeated violation of Raquel Mejía presume the facts relating to the repeated To by Peruvian Army personnel to be true a. Presumption of facts eneral G 1. V. […] […] case, (…) the Commission (…) has decided: In the present […] the case B. Considerations on the substance of by helicopter the next day. He then dragged her into the room and raped her again. her again. raped and room the into dragged her then He next day. the helicopter by one who had as- that the in a state of terror of the night spent the rest Raquel Mejía life. and for her husband’s fearing for her safety would come back and saulted her […] had and tortured Fernando that confirmed [The autopsy] (…) severely been had Mejía (…) a bullet in the head. died from […] anonymous June 28 and 30, 1989, Raquel Mejía received occasions, between On three of the ho- death if she persisted with the investigation her with phone calls threatening micide of her husband. […] to first going 1989, August in Peru left Mejía Raquel safety, her for feared she Because she was granted political asylum. the United States and then to Sweden, where […] 74 Gender-based Violence sexual violationsinemergency areas, todatenomember ofthesecurityforces operating hasstatedthatdespitetheexistenceofalarge numberofcases Amnesty International victims meantthatalargepercentage ofthesecaseswere neverevenreported”. with otherfactorssuchasthedifficultyofsubmit­ the civilcourts,astheywere required todobylaw. Thissituationofimpunitytogether courts tooknoactioninthesecasesandfailedtoplacethe accusedatthedisposalof even inthosecaseswhere complaintswere filedwithcompetentauthorities.Themilitary ported... thatthoseguiltyof[rapeandothersexualabuses] were rarely brought totrial The U.N.SpecialRapporteuragainstTorture observesinthisconnection that“itisre- lice havenomeansopentothemforobtainingaremedy fortheviolationsoftheirrights. women whohavebeenvictimsofsexualabusebymembers thesecurityforces orpo - organizationswhich expressly bodiesandnongovernmental notethat tergovernmental petition inthedomesticcourtsare supportedbydifferent documentspublished byin- The Commissionobservesthatthereasons givenbythepetitionerfornotsub­ […] because: of herhusband,shedidnotreport thesexualabusetowhichshehadbeensubjected theabductionandsubsequenthomicide laration withtheOxapampapoliceconcerning Raquel MejíainformedtheCommissionthatwhen,onJune20,1989,shefiledherdec- […] the commissionofabusesagainstRaquelMejía. in theCommission’s view, topresume theresponsibility oftroops ofthePeruvianArmyin tial evidenceprovided, whilenotdirectly pertainingto thecaseinquestion,issufficient, night andwere perpetratedbythesameindividuals.Onthesegrounds, thecircumstan- connected withthesexualabusethatsheunderwentsincetheytookplacesame The CommissionconsidersthattheactsagainsthusbandofRaquelMejíaare closely me tobeostracizedandexposedgreater dangerorphysicalharm... [I was]fearfulthattheviolationscommittedagainstmypersonwouldhavecaused Raquel Mejía permit remediesforthehumanrightsviolationssufferedbyFernandoand b. To presumethe nonexistenceofeffectivedomesticrecoursesthatwould ting evidenceorsociety’s attitudetothe mitting a 87 Inter-American Commission on Human Rights - Raquel Martín de Mejía v. Peru 75 - stitutes a violation of of the Fourth Geneva Con- Geneva Fourth the of 94

89 91 90 The repeated sexual abuse to which Raquel Mejía was subjected consti- The repeated sexual abuse to which Raquel a. on Convention American the of 11 Article and 5 Article of violation a tutes Human Rights 88 3. Analysis Current international securi- Current law establishes that sexual abuse committed by members of State or as a result by the of a deliberate practice promoted whether as a result ty forces, ­ of this crime, con the occurrence by the State to prevent of failure the victims’ human rights, especially the right to physical and mental integrity. the victims’ human rights, especially the right to physical and mental integrity. 27 Article internationalof context the In law, humanitarian - pro explicitly of war times in civilians due to concerningof 1949 vention the protection Women who have been raped by members of the security forces do not report these do not report who have been raped by members of the security forces Women that those responsible public humiliation and the perception assaults for two reasons: against with reprisals usually threatened are will never be punished. In addition, they them. themselves or their families if they do report Human Rights Watch also maintains that it is practically impossible to prove a charge of to prove also maintains that it is practically impossible Human Rights Watch specifies that The emergency legislation of the security forces. rape against a member duty” fall under military jurisdiction, in accor crimes committed in the “performance of Human Rights Watch, for its part, has observed that despite the widespread incidence of the widespread for its part, has observed that despite Human Rights Watch, have of the security forces very few police and even fewer members sexual abuse in Peru, filed with the appropriate complaints were even in cases where been tried for this abuse, the police and demonstrates that the evidence gathered contrary, authorities. On the thereby violations and grant them promotions, those guilty of these protect armed forces commission of these crimes. implicitly tolerating the sexual abuse is a common crime--and dance with the Code of Military Justice. Although have been no rape cases in which the not one of the so-called “duty crimes”--there jurisdiction. courts have exercised ordinary […] in those areas has been tried for rape; neither have effective investigations been made been made investigations neither have effective been tried for rape; has in those areas sexual abuse by been victims of by women who have complaints submitted following soldiers. 76 Gender-based Violence American ConventiontoPrevent andPunishTorture, whichstates: ever, intheinter-American sphere, actsconstitutingtorture are establishedintheInter- The letteroftheConventiondoesnotspecifywhatistobeunderstood bytorture. How - Rights stipulatesinitsArticle5that: humanrightslaw,In thecontextofinternational theAmericanConventiononHuman humanity. Yugoslavia, considers rape practiced on a systematic and large scale a crime against humanitarian law committed in the territory of theformer ous violationsof international TribunalArticle 5oftheStatuteInternational establishedforinvestigatingtheseri- Moreover, Article 76 hibits sexualabuse. integrity orhealth”includessexualabuse. “serious offense” of “deliberately causing great suffering or seriously harming physical individually constitutesawarcrime. es”. As establishedin the Fourth Convention and Protocol I, any act of rapecommitted when these practices are basedon racial discrimination they con­ insofar astheyare theoutcome ofharmdeliberatelyinfluencedonaperson. ditional totheConventions,includeprohibition againstrapeandothersexualabuse prohibits rapeorothertypes ofsexualabuse.Article85.4., treatment” ous offenses” or“warcrimes”includes rape inthatitconstitutes“torture orinhuman Article 3 can bevictimsofrape,forced prostitution orothertypesofabuse. common Article3sinceitwasnecessarytostrengthen theprotection ofwomen,who has stated that the prohibition laid down in Protocol II reaffirms and complements the be applicationtoapersonofmethods designedtoefface thevictim’s personalityor measure, as a penaltyorforanyother purpose. Torture willalsobe understoodto investigation, asameansofintimidation, asapersonalpunishment,preventive cal andmentalpainorsuffering isinflictedonaperson forpurposesofcriminal ...torture willbeunderstoodtoanyactperformedintentionallybywhichphysi- ment ortreatment... 2. respected. 1. 102 106 No oneshallbesubjectedtotorture ortocruel,inhumandegradingpunish- Every personhastherighttohavehisphysical,mentaland moralintegrity common to the four Geneva Conventions and Article 4.2. 97

The International CommitteeoftheRedCross TheInternational (ICRC)hasdeclared thatthe 95 99 Article 147 of Additional Protocol I to the 1949 Geneva Conventions expressly 96 of thatConventionwhichlistsactsconsidered as“seri- 101 In the case of non international conflicts,both Inthecaseofnoninternational 98 100 foritspart,statesthat stitute “seriousoffens- 105 103 of Protocol II ad- 104 TheICRC Inter-American Commission on Human Rights - Raquel Martín de Mejía v. Peru 77 112

111 In this connection, the above-mentioned Special Rap- In this connection, the above-mentioned Moreover, rape is considered to be a method of psycho- rape is considered Moreover, 110 109

107 it must be an intentional act through which physical and mental pain and suf- pain and mental physical which through act intentional be an must it with a purpose; it must be committed acting at the by a public official or by a private person it must be committed 1. a person; fering is inflicted on 2. 3. instigation of the former. to diminish his physical or mental capacity, even if they do not cause physical pain do not cause physical even if they capacity, his physical or mental to diminish anguish. or mental Rape causes physical and mental suffering in the victim. In addition to the violence suf- Rape causes physical and mental suffering are cases, in some or, hurt commonly are the victims committed, it is time at the fered also nature this of abuse of subject the made being of fact The pregnant. made even having been humili- on the one hand, from causes a psychological trauma that results, the condemnation of the members suffering from ated and victimized, and on the other, what has been done to them. of their community if they report […] to be combined: elements have to exist three for torture Accordingly, physical and mental the Commission considers that rape is a the first element, Regarding of an act of violence. The definition of rape con- abuse that is perpetrated as a result Code confirms this by using the phrasing tained in Article 170 of the Peruvian Criminal obliges a person to practice the sex act...” “[h]e who, with violence or serious threat, noted that sexual abuse is one of the various has The Special Rapporteur against Torture methods of physical torture. Raquel Mejía was a victim of rape, and in consequence of an act of violence that cause Raquel Mejía was a victim of rape, and in after having As she states in her testimony, her “physical and mental pain and suffering”. She was in alone in her room”. been raped she “was in a state of shock, sitting there “public ostracism”. “The complaint for fear of suffering no hurry to file the appropriate the matter because they feel humiliated. In addi- victims of sexual abuse do not report know tion, no woman wants to publicly announce that she has been raped. She does not children the stake, at is family the of integrity the [Moreover], react. will husband her how might feel humiliated if they know what has happened to their mother”. logical torture because its objective, in many cases, is not just to humiliate the victim but logical torture also her family or community. porteur has stated that, particularly in Peru, “...rape would appear to be a weapon used porteur has stated that, particularly in Peru, to punish, intimidate and humiliate.” 78 Gender-based Violence provided.” jority of casesthe necessary psychological treatment andcare will not and cannot be personality andthelong-term effects are perforce extremely harmful,since inthema- attack againsthumandignity. Women are affected inthemostsensitivepartoftheir The SpecialRapporteuragainstTorture hasstatedthat“Rapeis a particularlybase parts ofparagraphs1and2thisarticleread asfollows: dignity, within the framework of abroader right, namely the right to privacy. Therelevant Said articlespecifiesthataStatemustguaranteeeverybodyprotection oftheirhonorand the provisions ofArticle11 oftheConvention. The petitionershavealsoassertedthatthesexualabusesuffered byRaquelMejíaviolates […] security forces whohadhimself accompaniedbyalargegroup ofsoldiers. As concluded in the foregoing, the man who raped Raquel Mejía was member of the trated byapublicofficialorprivateindividualattheinstigationofformer. The third requirement ofthedefinitiontorture isthattheactmusthavebeenperpe- another room andforthe life ofherhusband. ized notonlyforherownsafetybutalsothatofdaughterwhowassleepingin before leavinghethreatened tocomebackandrapeheragain.RaquelMejíafeltterror ficial inthepreviouswouldnotservetoprotect government her. Onthesecondoccasion, connected withterrorism and, finally, herthatfriendshipwithaformerof- warned as asubversive,likeherhusband.Healsotoldthatnamewasonlistofpersons According to her testimony, the man who raped her told her that she, too, was wanted Raquel Mejíawasrapedwiththeaimofpunishingherpersonallyandintimidatingher. intimidation. to Prevent andPunishTorture includes,amongotherpurposes,personalpunishmentand intentionally, i.e.toproduce acertainresult inthevictim.TheInter-American Convention The secondelementestablishesthatforanacttobetorture itmusthavebeencommitted life... 2. 1. No one may be the object of arbitrary or abusive interference with his private Everyone hastherighttohavehishonorrespected andhisdignityrespected. 113 -

Inter-American Commission on Human Rights - Raquel Martín de Mejía v. Peru 79

114 it declares the petitions concerning the human rights violations suffered by Raquel the petitions concerning rights violations suffered it declares the human - for the violation of the right to humane treat the Peruvian State is responsible supra, p. 4. supra, p. 5. onclusions U.N., idem supra, Note 13 para. 433. Amnesty International, idem supra, Note 15, p. 22. , idem supra, Note 19, p. 3. Human Rights Watch Idem Idem theirfor respect to circumstances, all in entitled, are persons Protected concernsit as insofar 27, Article reads: us, their manners and cus- and convictions and practices, their religious family rights, their persons, their honour, especially against all acts of violence or and shall be protected toms. They shall at all times be humanely treated, any attack against shall be especially protected Women and public curiosity. against insults and thereof threats, or any form of indecent assault... prostitution against rape, enforced in particular, on their honour, Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), in application of Articles 47 of the Convention and 39 of its Regulations: in application of Articles 47 of the Convention (…) b. Mejía admissible. admissible it concludes that: to the petitions considered In regard a. of honor and dignity (Article 11) of ment (Article 5) and the right to protection of and guarantee the exercise to respect Raquel Mejía and of the general obligation (Article 1.1); these rights contained in the Convention

ndnotes E VI. C […] 87 88 89 90 91 94 95 The Commission, on the basis of the considerations analyzed in this report, formulates in this report, analyzed considerations of the basis the on Commission, The the following conclusions: 1. The Commission considers that sexual abuse, besides being a violation of the victim’s of the victim’s being a violation sexual abuse, besides considers that The Commission respect, In this to their dignity. a deliberate outrage implies mental integrity, physical and European of “private life”.The included in the concept a question that is it becomes to a person’s of private life extends that the concept Rights has observed Court of Human and consequently includes his sex life. physical and moral integrity, 2. […] 80 Gender-based Violence 114 114 113 112 111 110 109 107 106 105 104 103 102 101 100 99 98 97 96

of theformerYugoslavia, 32I.L.M.,1159,1173,1174(1993). tions ofpersonsresponsibleforseriousviolationsInternationalHumanitarianLaw committedintheterritory See U.N., idemsupra,Note12,para.580. D. Blair, idemsupra,Note49,p.855. U.N., idemsupra,Note13,para.431. D. Blair, RecognizingRapeasaMethodofTorture, 19N.Y.U. Rev.L &Soc.Change821,854. U.N. Doc.E/CN.4/1986/15,para.119. See Article2oftheConvention. May 5,1994,p.17. 1987) 1375. QuotedinD.ThomasandR.Ralph,idemsupra,Note30,p.95. 1949, Yves Sandoz,ChristopheSwinarski, BrunoZimmerman,eds.(Geneva: MartinusNijhoff Publishers, ontheAdditionalProtocols ICRC Commentary Final Report...,idemsupra,Note34,p.18 and anyformofindecentassault; Attacks againstpersonaldignity, especiallyhumiliatinganddegradingtreatment, rape,forced prostitution physical and mentalintegrity of persons, in particular homicide and crueltreatments suchastorture...... (e) and inallplaceswithrespect tothepersonsreferred toinparagraph1: persons, theirhonor, theirreligious convictionsandpractices.... 2. Thefollowingshallbeprohibited atalltimes have ceasedtoparticipateinthem,whetherornotdeprivedoftheirliberty, shallbeentitledtorespect oftheir Article 4(2)ofProtocol II,for itspart,states: 1.Allpersonswhoare notparticipating directly inthehostilities,or torture andordeals; ...(c)Attacksagainstpersonaldignity...” “(a) Attacks against life andbodily integrity, especially homicide in all its forms, mutilations,cruel treatment, Article 3states: Thefollowingare prohibited, atanytimeandinplace... Final Report...,idemsupra,Note34,p.17. against personaldignity. apartheid andotherinhumandegradingpractices,basedonracialdiscrimination,thatentailanoutrage when committed intentionally and in violation of the Conventions or the Protocol: Article 85(4)statesthat: ...Thefollowingactswillbeconsidered seriousoffenses underthepresent Protocol protected inparticularagainst rape,forced prostitution andanyotherformofindecent assault. Article 76,entitled“Protection ofWomen”, specifiesthat: 1.Women shallbeafforded specialrespect and AJIL 426. ICRC, Aide Mémoire (Dec. 3, 1992) cited in T. Meron, Rape as a Crime under International Humanitarian Law, 87 Final Report...,Idemsupra,Note34,p.17. ing ...wilfullyfactofcausinggreat suffering orserious injurytobodyorhealth...” against personsorproperty protected bythepresent Convention:...torture orinhumantreatment, includ- Article147reads: Seriousoffenses are thosethatinvolveoneormore ofthefollowingacts,“ifcommitted

United Nations: X andYvs.TheNetherlands,Application8978/80,SeriesA.No.167. Secretary General Report on aspects of establishing an international tribunal for the prosecu- Secretary of 8June,1977totheGenevaConventions12August (a) Attacksagainstthelife,healthand ... (c) The practices of

Inter-American Commission on Human Rights

X and Y v. Argentina

Case Nº 10.506

Report Nº 38/96

October 15, 1996 82 Gender-based Violence sense ofmodesty(pudor). of thechild’s parents andthatthesearch wasmuchlessrigorous inorder topreserve their that, insuchcases,theinspectionswere alwaysperformedinthepresence ofoneorboth these inspectionswere Securityaffirmed alsoperformedonminors,theChiefofInternal was decidedthatvisualinspectionswouldbeperformed. gloves andthedangeroftransmittingAIDSorotherdiseases tovisitorsorinspectors,it but, becauseoftheflow femalevisitors, approximately 250women, alackofsurgical started sometimeago. Headdedthat,atfirst,gloveswere usedforfriskingthatarea or narcotics into the prison in their vaginas, the practice of searching that area had been of amparo onthepresent case,becausetherelatives ofinmatesometimesbrought drugs tentiary System(JefedelaDireccióninhisdeclarationonthewrit delaSeguridadInterna) 3. […] […] ment ofArgentinaregarding thesituationofMs.Xand herthirteen-year-old daughterY. 1. OnDecember29,1989,theCommissionreceived- acomplaintagainsttheGovern by prisonpersonnelthatnoexceptioncouldbemadeinher case. of inspectionsandhadalwaysprotested againsttheprocedure, buthadbeeninformed 4. women (Article24),inrelation toArticle1.1. the personcondemnedorontrial(Article5.3)and,furthermore, discriminatesagainst to suchaprocedure (Article11),andisadegradingpenalmeasure whichextends beyond a violationoftheAmerican Convention asitoffends the dignityofpersonssubjected The petitionallegesthatthispracticebytheFederalPenitentiaryService(SPF)constitutes lodged awritofamparo (“recurso deamparo”) demandingthattheinspections cease. was incarcerated intheDefendants’ Prisoninthefederalcapital.OnAprilof1989Ms.X spections eachtimetheyvisitedherhusbandandthefatherofchild,whoat Human Rights. Ms.Xandherthirteen-year-old daughterwere submittedtovaginalin- Federal) acted in violation of the rights protected under the American Convention on of UnitNo.1theFederalPenitentiaryService(UnidaddelServicioPenitenciario prison authoritieswho,routinely performedvaginalinspectionsonthewomenvisitors The complaintallegesthatthe ArgentineState,andparticularlyFederalGovernment’s I. According SecurityoftheFederalPeni- toMajorMario LuisSoto,ChiefofInternal Regarding Ms. X, MajorSoto declared thatshehadbeen submittedtobothtypes F acts

5 3

4 Astothefactthat 2

Inter-American Commission on Human Rights - X and Y v. Argentina 83 -

9

whether the requirement that Ms. X and her daughter undergo a vaginal inspec- her daughter undergo X and that Ms. the requirement whether them prevented of the procedure and the performance whether this requirement is nalys The petitioners allege that the requirement that visitors to Unit 1 submit to vaginal that visitors to The petitioners allege that the requirement the by not invoked was child, of the rights the protects which 19, Article Although The Government of Argentina argued that all of the measures it adopted are accept- The Government it adopted are that all of the measures of Argentina argued Therefore, when considering this case the Commission must examine two separate the Commission must examine two separate when considering this case Therefore, 1) rights and X is in compliance with the visit with Mr. each physical contact tion before Convention on Human Rights; in the American guarantees present 2) the American Convention, particularly under their rights protected fully exercising from of honor and 11 (protection treatment), those enshrined in Articles 5 (right to humane Articleto relation in child), the of (rights 19 and family) the of (protection dignity), 17 exercise and guarantee the full and free 1.1, which obliges the States Parties to respect discrimination. in the Convention without recognized of all the provisions to be per in order that visitors undergo a vaginal inspection The requirement VI. A mitted a physical contact visit 48. visits was an illegitimate in- to be permitted personal contact inspections in order or searches it is alleged that the measure, Moreover, of the right to family. with their exercise terference in itself contravened the rights protected by not being in compliance with the Convention, and its application violated not this requirement by that instrument, and that existence of and honor, guaranteed by Article 17 but also the right to privacy, only the right to family, integrity guaranteed by Article 5. by Article 11, and the right to physical protected dignity, 49. as one of the alleged victims was a 13-year- petitioners, the Commission considers that to According examined. also be should provision events this of the the time old child at the general principle of international law iura novit curia international bodies have the even if these have not power and even the duty to apply all pertinent legal provisions, been invoked by the parties. 50. under the circumstances reasonable and were provisions to the Convention’s able restrictions A. General Considerations […] 47. issues: B. 84 Gender-based Violence accomplish thoseobjectives. circumstances present inArticle32.2andbeproportionate andreasonable inorder to of ademocraticsociety;3)anditsapplicationmustbestrictlyconfinedtothespecific by law;2)benecessaryforthesecurityofallandinaccordance withthejustdemands way affects therightsprotected bytheConventionshouldnecessarily: 1)beprescribed Convention suchmeasures shouldmeetthree specificconditions. Ameasure thatinany 60. […] […] the provisions oftheConvention,andwhatare thepermissible limitationstothoserights. of thecase. TheCommissionmustthusconsiderwhatare theState’s obligationsregarding possible from itsarbitraryandabusiveapplication. plying thisprocedure sothatallpersonssubjectedtoitare grantedasfullaguarantee measure maybeimposedandsetsforthwhatconditionsmustobeyedbythoseap - tion, mustbeprescribed byalawwhichclearlyspecifiesthecircumstances whensucha involves athreat ofviolation toanumberoftherightsguaranteedunderConven- 64. […] probing, ofdetaineesandprisonersmaysometimesbenecessary. ner, typeofcontact,etc. Itisalsorecognized thatcorporalsearches, andevencorporal prisoners anddetainees,which alsoregulate theirvisitation rights astotime,place,man- 66. […] The Commissionconsidersthatinorder tobeconsidered incompliancewiththe rights protectedbytheConvention 1.

(…) [A]measure asextreme asthevaginalsearch orinspectionofvisitors, that The Commissionisaware thatallcountrieshaverulesregarding thetreatment of 1) The lawfulness of the measure 1) Thelawfulnessofthemeasure b. State obligationsto“respectandensure”theimpositionofconditionson 2) Necessity in a democratic society for the security of all 2) Necessityinademocraticsocietyforthesecurityofall The imposition of limitations The impositionoflimitations 17

Inter-American Commission on Human Rights - X and Y v. Argentina 85 The Commission would like to underline the fact that a visitor or visitor a that fact the underline to like would Commission The Vaginal searches or inspections are nevertheless an exceptional and very and exceptional an nevertheless are inspections or searches Vaginal 3) Reasonableness and proportionality of the measure3) Reasonableness and proportionality of the The reasonableness and proportionality of a measure can only be ascertained of a measure and proportionality The reasonableness or inspection, in a of a vaginal search The Commission considers that the lawfulness b) Non-existence of an alternative option of in- search such as the procedures, It would seem that other and less restrictive The present case, however, entails the rights of visitors whose rights are not auto- rights are of visitors whose entails the rights case, however, The present prior to entry general searches the need for does not question The Commission […] 71. examination of a specific case. The Commission notes that a vaginal search the through Con- body. as it involves the invasion of a woman’s measure a restrictive than is more lawfulness, of the measure’s involved in an analysis the balancing of interests sequently, vagi- of the case in standard higher a to interest government’s the hold necessarily must nal inspections or any corporal probing. 72. test: 1) it must be absolutely necessary to achieve particular case, must meet a four-part must not exist an alternative 2) there option; the security objective in the particular case; - be carried out by an appropri and 4) it must 3) it should be determined by judicial order; ate health professional. […] […] 76. guaranteeing internalreasonable means of efficient and a more mates and their cells, are 67. inmates. contact with the by virtue of their matically limited 68. prisons. into search. of type intrusive not be auto- his or her rights to family life should seeks to exercise a family member who principle, on considered, be cannot and act illegal an committing of suspected matically may be exception- in question Although the measure to security. to pose a grave threat cannot be maintained that security in certain specific cases, it ally adopted to guarantee public to ensure in order to all visitors is a necessary measure its systematic application safety. 86 Gender-based Violence ensure security in the case of inmates. well-being andsafety, hasagreater latitudetoapplywhatmeasures maybenecessaryto state, which has custody of all of those persons in detention and is responsible for their by itsverynature, results inanumberoflimitations to theexercise oftheirrights. The security. Inaddition,itshouldnotbeignored thatthespeciallegalpositionofprisoners, C. […] inspection wasanabsolutelyinadequateandunreasonable method. tion afforded toherbythestate.Becauseofchild’s age,itisevidentthatthevaginal thus entirely dependenton thedecisiontakenbyhermother, Ms.X,andontheprotec - consent waspossible.AtthetimeoffactsMs.Ya13-year-old childwhowas 79. […] pose areal threat tosecurityorare carryingillegalsubstances. in veryspecificcircumstances andwhenthere is reasonable causetobelieve thatthey the prisonstosuchanextreme procedure. Searches ofvisitorsshould becarriedoutonly search the inmates after apersonalcontact visit, than submit all of the womenvisitorsto human dignity. Itwouldhaveobviouslybeenamore reasonable andsimplermeasure to detainees andprisonersare sometimesjustifiable,usingmethodscompatiblewiththeir stricted anditmaytherefore occurthatcorporalsearches, andevencorporalprobing, of 3, whichread: 86. 87. in order toensure that suchtreatment doesnot generateagreater degree ofanguish forms anykindofphysicalintervention inindividuals,itmustobservecertainconditions 1. The rightsprotected by the Convention Moreover, theCommissionwouldalsoliketonotethatincaseofYnoreal 3. ishment ortreatment (...) 2. respected 1. The petitionersallegedaviolationofArticle5,inparticular, ofitsparagraphs 2and The procedure inquestion isnotperseillegal.Nevertheless,whenthe stateper The righttophysicalintegrity:Article5 Punishment shallnotbeextendedtoanypersonotherthanthe criminal. No oneshallbesubjectedtotorture ortocruel,inhuman,degradingpun- Every personhastherighttohavehisphysical,mental,and moralintegrity By definition, a detainee’s personal libertiesare re- - Inter-American Commission on Human Rights - X and Y v. Argentina 87 The object of The object of 20 Everyone has the right to have his honor respected and his dignity recognized. and honor respected have his right to has the Everyone his private with interference abusive or of arbitrary object the be one may No of the law against such interference Everyone has the right to the protection Right to Privacy: Article 11 Right to Privacy: Article Article 11 of the Convention stipulates that: 1. 2. honor his on attacks unlawful of or correspondence, his or home, his family, his life, or reputation. 3. or attacks. - covers, in addition to the protec The right to privacy guaranteed by this provision Article 11.2 specifically prohibits “arbitrary or abusive” interference with this right. “arbitrary or abusive” interference Article 11.2 specifically prohibits 2. 90. 91. the physical and moral integrity of the person. tion against publicity, Article 11, as well as of the entire Convention, is essentially to protect the individual the individual Convention, is essentially to protect Article 11, as well as of the entire the state by public officials. Nevertheless, it also requires against arbitrary interference The effectiveness. provision’s this to ensure to adopt all necessary legislation in order into which no one can has a sphere right to privacy guarantees that each individual own. In this sense, various guarantees one’s intrude, a zone of activity which is wholly zones of the person create the sanctity of the Convention which protect throughout privacy. 92. which should always indicates that in addition to the condition of legality, This provision is imposed on the rights of the Convention, the state has be observed when a restriction The notion of “arbi- “arbitrary or abusive” interferences. a special obligation to prevent unreasonableness and to elements of injustice, unpredictability refers trary interference” the issues of the by this Commission when it addressed considered already which were and inspections. of the searches and proportionality reasonableness, necessity, and humiliation than that which is inevitable. Such a measure should always be the the be always should measure a Such inevitable. is which that than humiliation and to the as over the decision control some which assures order a judicial of consequence feel defenseless to it does not that the person subjected its application and necessity of be performed by qualified should always the measure Moreover, the authorities. before the from that no physical harm results to ensure care the necessary personnel exercising that those in such manner so as to ensure the examination and conducting procedure integrity has been af- it do not feel that their mental and moral persons submitted to fected. […] 88 Gender-based Violence between the prisoner and his or her family, notwithstanding the restrictions of personal 98. […] above inorder toguarantee thelegalityofpractice. only, withthe strictcompliancebytheauthoritieswithstandards whichwere outlined presence ofaparticularlyserious situationandinveryspecificcircumstances, andthen a familymemberwasindetention. Theserightsshouldhavebeenrestricted onlyinthe dignity andhonorrespected whentheysoughttoexercise theirrightstofamily, evenif that isdifficulttoevaluate. Ms.Xandherdaughterhadarighthavetheirprivacy, ing a13yearoldchildtosuchprocedure couldresult inseriouspsychologicaldamage of shameandanguishinalmostallpersonswhoare submittedtoit. Inaddition,subject- question, whetheritsapplicationisjustifiableornot,likelytoprovoke intensefeelings volves aparticularlyintimateaspectofwoman’s privatelifeandthattheprocedure in 93. interferences bythestateanditspublicfunctionaries. families and torespect the fundamental rights of all persons against arbitrary and abusive it, thestateisstillobligedtofacilitateandregulate contactbetweendetaineesandtheir necessarily restricts thefullenjoymentoffamilybyforcibly separatingamemberfrom this right,inevitablyaffect itsexercise andcompleteenjoyment. Thoughimprisonment circumstances suchasincarceration ormilitary service, eventhoughtheydonotsuspend 97. the righttohonoranddignitywere violatedwhiletheysoughttoexercise thisright. other rightsprotected bytheConvention,particularlytheirrighttopersonalintegrityand lege that theexercise ofthis right suffered an illegitimate restriction and that a number of to benon-derogable even in extreme circumstances. Intheinstantcase,petitioners al- existence andsociety, ingeneral.ItisarightsobasictotheConventionthatitconsidered 96. the rightsofherfamilyguaranteedinArticle17,whichstates: 95. The Commissionhasconsistently heldthatthestateisobligatedtofacilitatecontact 3. Nevertheless, theCommissionwould like tounderscore thatthepresent case in- The right to family life can suffer certain limitations that are inherent to it. Special Article 17recognizes thecentral role ofthefamilyandfamily-lifeinindividual’s to protection bysocietyand theState. 1. It isallegedthatundueinterference withMs.X’s andherchild’s visitcontravened Rights oftheFamily:article17 The familyisthenaturalandfundamentalgroup unitofsocietyandisentitled 21

Inter-American Commission on Human Rights - X and Y v. Argentina 89 Indeed, and particularly because of the of because particularly and Indeed, 22 Usually, the possibility of conducting personal contact visits contact personal conducting of possibility the Usually, In all actions concerning children, whether undertaken by public or private so- In all actions concerning whether children, Personal contact visits are not a right, and indeed in many countries, this type of a right, and indeed in many countries, not are Personal contact visits 4. Rights of the Child: Article 19 Article 19 reads: as by his condition required of protection Every minor has the right to the measures state. and the society, a minor on the part of his family, Nations Convention on the Rights of the Argentina has also ratified the United Article 3 1. administrative authorities or legislative bod- institutions, courts of law, cial welfare of the child shall be a primary consideration. ies, the best interests must be the subject that children The text of the American Convention recognizes - Commission has re the In this respect of the prisoner. in the condition liberty implicit respect for ensuring a fundamental requirement rights are that visiting peatedly indicated - pro to right the corollary, and, as a inmate of the and freedom integrity personal the of parties. affected the all for family the of tection exceptional circumstances of imprisonment, the state must establish positive provisions positive provisions imprisonment, the state must establish of exceptional circumstances Thus, the relations. right to maintain and develop family guarantee the to effectively and right must adjust themselves to the ordinary this restricting necessity of any measures of imprisonment. requirements reasonable 99. option. an even not is visit of the internal Nevertheless, when the discretion prison authorities. is largely left to the and their by prisoners which the right to family is exercised the manner in state regulates that constitute an infringe- out procedures families, it cannot impose conditions or carry by the Convention, at least without due process ment of any of the other rights protected that the action of the obliged to ensure All States Parties to the Convention are of law. out carried internalof its the organization as well as state system are and legal apparatus within certain boundaries of legality. […] 101. 102. that: Child, which provides 103. of “measures all to adopt duty a has State the that and attention, and care special of by his condition.” A child is especially vulnerable to violations to his required protection in standing no legal have as children status, very of their by virtue because, rights her or 90 Gender-based Violence fulness ofavaginalsearch orinspectioninaspecificcase,these requisites mustbemet: 114. […] […] preserve achild’s senseofmodesty(pudor)accorded thepetitioneradequateprotection. of oneorboththechild’s parents, andthatthesearch belessrigorous andseekto Security to protectof Internal minors--that the inspections be performed in the presence The Commissiondoesnotconsiderthattheexistingrequirements describedbytheChief the measure wasdeemednecessary requiring thatitbeperformedbymedicalpersonnel. proper judicialauthorityto decideonthepropriety oftheprocedure, andintheevent against abuseoractualphysicaldamagethatcouldhavebeenoffered byrequiring the rights oftheConvention. Furthermore, thestatedid notgrantYtheminimumprotection ality whichare amongthenecessary conditionstotheimpositionofanyrestriction onthe without observingtherequirements oflegality, necessity, reasonableness andproportion - potentially couldhaveviolatedanumberoftherightsguaranteedbyConvention who didnothavethelegalcapacitytoconsent,apotentiallytraumaticprocedure that 104. IntheinstantcaseStateofArgentinahasproposed andperformedonaminor, taken toguaranteethechild’s rightsandwellbeing. whenever stateauthoritiestakeactionsthatmayinanywayaffect achild,specialcare is on their well being. situationsthatmayhavegraveconsequences most casestomakedecisionsconcerning performing thesesearches andinspectionsundertheseconditions, theStateofArgen- fulfillment oftheirprisonvisits withoutjudicialandappropriate medicalguaranteesand 116. […] c VIII. 4) 3) 2) case; 1) In Report No. 16/95,theCommission concluded that inorder to establish the law- The Commissionthusconcludes thatbyimposinganunlawfulconditionforthe it mustbecarriedoutbyanappropriate healthprofessional. it shouldbedeterminedbyjudicialorder; and there measure; mustnotexistanalternative it must be absolutely necessary to achieve the lawful objective in the particular onclusions The state has a special duty to protect children and to ensure that,

Inter-American Commission on Human Rights - X and Y v. Argentina 91 Miskito Case, pp. 31-2; Cuba Case, p. 62 (1983); and Cuba Case, p. pp. 31-2; Case, Miskito Uruguay Case (1983-84), p. 130, paragraph 10. At the request of petitioners, their identities have not been disclosed because of the minority of one victim identities have not been disclosed because of the minority of petitioners, their At the request of the violations denounced. and the nature IV. para. 1989, 25, April Aires, Buenos amparo-17/151-Int.IIda., of writ s/ otra; y 35972-X Appeals, of Court Ibid. de Sentencias, Buenos Aires, 207 del Libro Tomo de Justicia, Ruling on the writ of amparo, Corte Suprema November 21, 1989, pp. 105, para. 3. Permanent Court of Internationalpp. 31 and Justice, Lotus case, Judgment No. 9, 1927, Series A No. 10, para. 24, No. A Series 1976, December 7 of Judgment Case, Handyside Rights, Human of Court European 41. the Court has stated that: In this respect “laws” would not make sense without Within of human rights, the word the framework of the protection governmentalof authori- discretion sole the at restricted be cannot rights such that concept the to reference recognize in those who govern be to virtually absolute power over their affirm otherwise would ties. To subjects. OC-6, Series A No. 6, para. 27. the parallel such a connection regarding Court made Netherlands, the European the Y v. case of X & In the 1985, Series A of 26 March Convention on Human Rights, Judgment Article 8, in the European provision, 91, para. 22. Vol. states: of Prisoners Minimum Rules on the Treatment Article 37 of the United Nations Standard to communicate with their family and reputable Prisoners shall be allowed under necessary supervision visits. and by receiving intervals, both by correspondence friends at regular on Nations Congress of Prisoners, adopted by the First United Minimum Rules on the Treatment Standard the Eco- by held at Geneva 1955 and approved of Offenders, of Crime and the Treatment the Prevention July 1957 and 2076(LXII) of 13 May 1977. 663 C (XXIV) of 31 nomic and Social Council by its resolutions reports: Commission see the following topic, this On In the case of Y, the Commission concludes that the State of Argentina also violated violated also Argentina of State the that concludes Commission the Y, of the case In

ndnotes

E 2 3 4 5 9 17 20 21 22 tina violated the rights of Ms. X and her daughter Y guaranteed in Articles 5, 11 and 17 5, 11 and Articles in guaranteed daughter Y and her of Ms. X rights the violated tina to respect the Argentine State which requires 1.1 to Article in relation of the Convention, - in the Conven recognized provisions of all the exercise the full and free and guarantee tion. Article 19 of the Convention. […] 92 Gender-based Violence Inter-American Commission on Human Rights

María Eugenia Morales de Sierra v. Guatemala

Case Nº 11.625

Report Nº 4/01

January 19, 2001 94 Gender-based Violence […] the AmericanConvention. incompatible inabstractowiththeguaranteessetforthArticles 1(1),2,17and24of ers requested thattheCommissionfindforegoing provisions oftheCivilCode they provided juridicalcertaintyintheallocationofroles withinmarriage.Thepetition- response, theCourthadruledthatdistinctionswere constitutional,as,interalia, been challengedbefore theGuatemalanCourtofConstitutionalityinCase84-92.In 3. sex, awomanmaybeexcusedfrom exercising certainformsofguardianship. the unionandtoadministertheirproperty. Article317provides that,byvirtueofher Article 255confersprimaryresponsibility onthehusbandtorepresent thechildren of reasons. Inthecaseofacontroversy withrespect totheforegoing, ajudgeshalldecide. his wife’s activitiesoutsidethehome,aslongheprovides forherandhasjustified and homemaker. Theystatedthat,according toArticle114,ahusbandmayoppose a profession or maintain employment where this does not prejudice her role as mother children andthehome.Article 113provides thatamarriedwomanmayonlyexercise riage, conferringuponthewifespecial“rightandobligation”tocare forminor limited exceptionstothatrule.Article110addresses responsibilities withinthemar empowers thehusbandtoadministermaritalproperty, whileArticle133provides for exceptional instanceswhenthisauthoritymaybeexercised bythewife.Article131 to represent themaritalunionuponhusband,whileArticle115setsforth nia MoralesdeSierra,indicatedthatArticle109oftheCivilCodeconferspower 2. Human Rights(hereinafter “AmericanConvention”). discriminatory andviolateArticles1(1),2,1724oftheAmericanConventionon the institutionofmarriage,create distinctionsbetweenmenandwomenwhichare of Guatemala(hereinafter “CivilCode”),whichdefinethe role ofeachspousewithin 109, 110, 113, 114, 115, 131, 133, 255, and 317 of the CivilCode of the Republic after “Commission”)received apetitiondatedFebruary8,1995,allegingthatArticles 1. I. The petitionersreported thattheconstitutionalityoftheselegalprovisions had LawandMaríaEuge- The petitioners,theCenterforJusticeandInternational On February 22, 1995, the Inter-American Commission on Human Rights (herein- C laims P resented

- Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 95 11 Article 131 states 16 7 It may, in fact, be It may, 14

Article 113 sets forth that the wife Article 113 sets forth 4 Article 133 establishes exceptions to Article 115 states that representation Article 115 states that representation 8 6 Article 114 establishes that the hus- Article 110 stipulates that the husband Article 110 stipulates 5 3 Article 255 states that, where husband where 255 states that, Article 9 merits

the

Article 317 establishes that specific classes of persons may Article 317 establishes that specific classes 10 ng regardi

A distinction which is based on “reasonable and objective criteria” may serve a A distinction which is based on “reasonable ions onsiderat A distinction based on reasonable and objective criteria (1) pursues a legitimate A distinction based on reasonable 13 15 C The right to equal protection of the law set forth in Article 24 of the American Con- The right to equal protection At the outset, it is pertinent to note that, notwithstanding the presentation of vari- presentation to note that, notwithstanding the At the outset, it is pertinent IV. owes certain duties of protection and assistance to the wife, while the latter has the special and assistance to the wife, while the latter protection owes certain duties of and the home. children for minor right and duty to care this rule on the same basis set forth in Article 115. Article in set forth basis same on the rule this may exercise a profession or pursue other responsibilities outside the home only insofar as outside the home only insofar responsibilities or pursue other a profession may exercise within it. her responsibilities this does not prejudice required to achieve justice or to protect persons requiring the application of special mea- persons requiring justice or to protect to achieve required sures. band may oppose the pursuit of his wife’s activities outside the home where he provides he provides activities outside the home where band may oppose the pursuit of his wife’s reasons.” Where and has “sufficiently justified adequately for maintenance of the home disputes in this regard. a judge shall resolve necessary, legitimate state interest in conformity with the terms of Article 24. legitimate state interest aim and (2) employs means which are proportional to the end sought. proportional aim and (2) employs means which are be excused from exercising certain forms of custody, including, inter alia, women. certain forms of custody, exercising be excused from that the husband shall administer the marital property. that the husband shall administer the marital […] of and before Sierra to equal protection The right of María Eugenia Morales de the law 31. without discrimination. its protections national legislation accord that vention requires not necessarily discrimi- are in otherwise similar circumstances in treatment Differences natory. and wife exercise parental authority over minor children, the husband shall represent the lat- the husband shall represent authority over minor children, parental and wife exercise ter and administer their goods. Initial considerations Initial considerations 28. commissions charged with congressional the Guatemalan before projects ous draft reform ofarticles relevant the report, present the of of the date as initiatives, such on pronouncing In brief, Article as the law of the Republic of Guatemala. in force the Civil Code continue to the husband, although corresponds of the marital union that representation 109 provides authority within the home. both spouses have equal of the marital union may be exercised by the wife where the husband fails to do so, particu- the by the wife where of the marital union may be exercised he abandons the home, is imprisoned, or is otherwise absent. larly where 96 Gender-based Violence dignity andworthofallhumanbeings.” American Courthasstated,theseprinciples“are inherent intheideaofoneness Duties ofManreflect essential basesfor theveryconcept ofhumanrights. AstheInter- underpinning theAmericanConventionandDeclaration oftheRightsand 36. […] the ConventiononEliminationofAllFormsDiscriminationagainstWomen. ity andnon-discriminationprovisions oftheConstitution,AmericanConventionand acknowledged thataspectsofthechallengedprovisions are inconsistentwiththeequal- tions betweenmarriedwomenandmenwhichare basedonsex.Infact,ithas Articles 109,110,113,114,115,131,133,255and317oftheCivilCodecreate distinc- 33. dards maynothavecontemplated. discrimination, coversformsofsystemicdisadvantageaffecting womenthatpriorstan- This definition, responding asitdoestothespecificcausesandconsequencesofgender women asdefinedinthisConventionis: property, andthesameopportunitiestoexercise thatcapacity. Discriminationagainst men incivilmatters,particularlywithrespect toconcludingcontractsandadministering law. Article15(2)specifiesthatwomenmustbeaccorded thesamelegalcapacityas that StatesPartiesshallensure thatwomenare accorded equalitywithmenbefore the the ground ofsex. weighty reasons wouldhavetobeputforward” tojustifyadistinctionbasedsolely on that as“theadvancementofthe equalityofthesexesistodayamajorgoal,”…“very What theEuropean Court and Commission have statedis also true for theAmericas, such as,forexample,raceorsex,therefore necessarilygiverisetoheightenedscrutiny. Elimination ofAllFormsDiscriminationagainstWomen, 32. of theAmericanConvention, The Commissionobservesthattheguaranteesofequalityand non-discrimination In theproceedings before theCommission,Statehasnotcontroverted that social, cultural,civiloranyotherfield. women, of human rights and fundamental freedoms in the political,economic, by women,irrespective of theirmaritalstatus,onabasisofequalitymenand fect orpurposeofimpairingnullifyingtherecognition, enjoymentorexercise any distinction, exclusion or restriction made on the basis of sex which has the ef- Pursuant tothestatusofGuatemalaasaStatePartyConventionon 20 18 itmustbenotedthatArticle15.1oftheformerrequires 19 Statutorydistinctionsbasedonstatuscriteria, 17 andthetermsofArticle29 Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 97 The fact that the Civil 21 22 In the instant case the Commission finds that the gender-based distinctions estab- distinctions gender-based that the finds Commission the case instant the In - as a matter of domes study have been upheld distinctions under The gender-based union–in the represent to husbands their on depend women to married requiring By Code deprives María Eugenia Morales de Sierra, as a married woman, of legal capacities Code deprives María Eugenia Morales de without violation to vulnerable rights her leaves entitled are Guatemalans other which to recourse. 39. justified, and contravene the rights of María lished in the challenged articles cannot be of immediate ef- are 24. These restrictions Eugenia Morales de Sierra set forth in Article married a As force. in are provisions cited the that fact the of virtue by simply arising fect, and other men married which her sex of on the basis denied protections she is woman, - inter alia, her legal ca she challenges restrict, The provisions accorded. Guatemalans are her ability to enter into certain kinds of contracts (relating, her access to resources, pacity, and held jointly with her husband), to administer such property, for example, to property of reinforcing They have the further effect to invoke administrative or judicial recourse. a host of other systemic disadvantages which impede the ability of the victim to exercise rights and freedoms. The case of María Eugenia Morales de Sierra and rights of the family: equality in marriage of rights and balancing of responsibilities 37. the need and juridical security, of the need for certainty on the basis tic law essentially values, Guatemalan traditional for respect and children, home marital the to protect as wives and mothers. women in their capacity to protect cases, the need and in certain these of validity the probe to no effort made of Constitutionality the Court However, alternativeassertions or to weigh Commission is not persuaded that positions, and the example, the fact consistent with the aims articulated. For even are the distinctions cited the marital union, except representing a married woman from that Article 109 excludes administration of justice, nor to the orderly neither contributes circumstances, in extreme it deprives the contrary, To that of the home or children. or does it favor her protection which protection judicial to invoke the necessary capacity woman of the legal a married - be made avail and the American Convention require administration of justice the orderly able to every person. 38. a system Code mandate the Civil of terms de Sierra–the Morales Eugenia case María this half the married population to act on a range of es- in which the ability of approximately of the effect to the will of the other half. The overarching sential matters is subordinated is to deny married women legal autonomy. challenged provisions 98 Gender-based Violence 255). TheCourtofConstitutionality characterizedtheState’s regulation ofmatrimonyas erty (Article131),represents theminorchildren, andadministerstheirproperty (Article 114). Thehusbandrepresents themaritalunion(Article109),controls jointlyheldprop- it (Article113),inwhich case her husband hastheright to opposesuchactivities (Article outside thehomeonlytoextentthisdoesnotprejudice herlegallydefined role within wife is responsible for caring for the home and children (Article 110). The wife may work for eachspouse.Thehusbandisresponsible forsustainingthehomefinancially, andthe 43. the lawstripsheroflegalcapacitysherequires todothat. victim, asaparent, hastherightanddutytoprotect thebestinterests ofherminorchild, imbalance whichmaybeperceived withinthefamily, communityandsociety. Whilethe rium in the weight of the authority exercised by each spouse within their marriage--an in herhusbandtorepresent themaritalunionandtheirminorchildcreates adisequilib - based ontheprincipleofreciprocal respect, thefactthatlawvestsexclusive authority ties inmarriage.MaríaEugeniaMoralesdeSierraallegesthat,althoughherfamilylifeis ability ofwifeandhusbandtoequallyexercise theirrightsandfulfill responsibili- 42. to theownership,administrationanddispositionofproperty. choose afamilyname,profession andanoccupation;”thesamerightswithrespect of custodyorothertypesguardianship ofchildren; the“samepersonalrights…to ity between men and women,” the same rights and duties with respect to the exercise that Convention,StatesPartiesare required toensure, interalia,“onthebasisofequal- ensure substantiveequality infamilylawandrelations. PursuanttoArticle16of tion of AllForms of Discrimination against Women specifies stepsthatmust be takento 41. paired.” thereby introduced mustnotbesorestrictive “thattheveryessenceofrightisim- found afamilyissubjecttocertainconditionsofnationallaw, althoughthelimitations the family“isentitledtoprotection bysocietyandthestate.”Therighttomarry pursuant tothedispositionthat,as“thenaturalandfundamentalgroup unitofsociety,” 40. principle ofequalprotection andnon-discriminationofArticle24tomarriage. its dissolution. In thisregard, Article 17(4) is the “concrete application” of thegeneral the equalityofrightsandadequatebalancingresponsibilities” inmarriageand of Human Rights, specifies that “States Parties shall take appropriate stepsto ensure As discussed above, the challenged articles of theCivil Code establish distinctroles The petitionershaveindicatedthatthecitedarticlesofCivilCodeimpede In the case of Guatemala and other States Parties, the Convention on the Elimina- Article 17(1) of the American Convention establishes rights pertaining to family life 23 Article17(4),which derives from Article 16(1) of theUniversal Declaration 24 Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 99

In the case of Ms. Morales de Sierra, the Commission concludes that the challenged In the case of Ms. Morales de Sierra, the Commission The Commission finds that, far from ensuring the “equality of rights and adequate ensuring the “equality of rights that, far from The Commission finds 25 45. by mandating a regime the family the State to protect the duty of controvert articles marriage within her rights and responsibilities exercising the victim from which prevents the State has failed to take steps to ensure on an equal footing with her spouse. The in this within marriage. Accordingly, equality of rights and balancing of responsibilities of the with the terms of Article 17(4) is incompatible in effect case, the marital regime of Article 16(1) of the to the requirements with reference American Convention, read of Discrimination Against Women. Convention on the Elimination of All Forms case The right to privacy and the present right 46. Article 11(1) of the American Convention sets forth that every person has the Pursuant to Article 11(2): “No one may to have his or her honor and dignity recognized. his home, with his private life, his family, be the object of arbitrary or abusive interference Article 11(3) or of unlawful attacks on his honor or reputation.” or his correspondence, of Article 11 encom- The requirements by law. that this right is to be protected provides providing certainty and juridical security to each spouse, and defended the disposition of defended the disposition to each spouse, and and juridical security certainty providing but not discriminatory, are which preferences the norms set forth on the basis that roles protective. 44. imbal- institutionalize within marriage, the cited provisions balancing of responsibilities” suggests a division of la- duties of the spouses. While Article 110 ances in the rights and responsibilities, domestic responsibilities and the wife’s financial bor between a husband’s of income separate source pursuant to Article 111, a wife with a it must be noted that, it if of the household, or to fully support to contribute to the maintenance is required a series of legal capacities to do so. The fact that the law vests her husband is unable and wife the for dependency jure de of situation a establishes husband the in exclusively the marriage. in the spousal authority within an insurmountable disequilibrium creates of notions of the roles the dispositions of the Civil Code apply stereotyped Moreover, women in the family against discrimination women and men which perpetuate de facto ability of men to fully develop of impeding the which have the further effect and sphere, imbalances in family at issue create The articles within the marriage and family. their roles sense that in and children, and home to the respect with men of role the inhibiting life, “A stable family is one of the full and equal attention of both parents. depriving children - justice and individual fulfillment for each mem which is based on principles of equity, ber.” 100 Gender-based Violence benefit from theincreased self-determinationthisaffords. on theconsentofherhusband, denieswomentheequalrighttoseekemploymentand This legislation,mostspecifically inthewayitmakesawoman’s rightto workdependent their autonomytoselectandpursueoptionsforpersonal developmentandsupport. and other forms of subordination of a wife’s role, the State deprives married women of of her husband and the effective protection of the family or children. In mandating these spousal approval, orthesubordination ofawife’s control ofjointlyheldproperty tothat has beenshownbetweentheconditioningofrightmarried womentoworkon basis that they serve to protect the family, in particular the children. However, no link 49. not recognize themashavinglegalstatusequivalenttothatenjoyedbyothercitizens. married womensuchasherselfare continuouslyimpededbythefactthatlawdoes more fullyincorporatethemselves intotheprocesses ofnationallifeanddevelopment, moment. Shenotesthat,althoughthere are increasing opportunitiesforwomen to has neveropposedherpursuitofprofession, thelawauthorizeshimtodosoatany mutual sacrifice,thelawprevents herfrom administeringit.Further, whileherhusband union andtheirminorchild.Whilejointlyheldproperty hasbeenobtainedthrough is conditionedbytheattributionofauthoritytoherhusbandrepresent themarital home on the basis of mutual respect, her status in the family, community and society her marriage,home,children andproperty. Whilesheandherhusband organizetheir prevent herfrom exercising authorityoverbasicaspectsofherday-to-daylifeconcerning respected. Intheproceedings generally, thevictimhasindicatedthat thecitedprovisions of herproperty, constituteanarbitraryinterference withherright to haveherprivatelife restrict MaríaEugeniaMorales deSierra’s abilitytoexercise herprofession anddispose State authoritieswhichinfringesintheprivatesphere. 48. 47. Convention, andisreasonable underthecircumstances. that anysuchregulation (or otheraction)comportswiththenormsandobjectivesof only bejustified,but required. Theguaranteeagainstarbitrarinessisintendedtoensure tion ofmatterswithinthatsphere isnecessarytoprotect therightsofothers,itmaynot one’s identity, anddefineone’s personal relationships. the abilitytopursuedevelopmentofone’s personalityandaspirations,determine pass arangeoffactorspertainingtothedignityindividual,including,forexample, The provisions inquestionhavebeenupheldasamatterofdomesticlawonthe The petitionersclaimthatthecitedarticlesofCivilCode,particularlyasthey A principalobjectiveofArticle11istoprotect individualsfrom arbitraryactionby 26 27 Ofcourse,where Stateregula- 28 Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 101 - - is not decisive in this regard. The analysis in this regard. is not decisive 29 The inter-American system has recognized, for system has recognized, The inter-American 32 Article 1 imposes both negative and positive obligations positive and negative both imposes 1 Article 31 - recog her the same rights or the law does not accord As a married woman, 30 Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 have a continuous and di- Articles 109, 110, 113, 114, 115, 131, 133, As is demonstrated in the foregoing analysis, the State of Guatemala has failed to As is demonstrated in the foregoing Whether or not the husband of the victim–in this case María Eugenia Morales de case María Eugenia the victim–in this not the husband of Whether or - rela example, that gender violence is “a manifestation of the historically unequal power on the State in pursuing the objective of guaranteeing rights which are practical and ef- and practical are which rights guaranteeing of objective the pursuing in State the on fective. 52. and to to equal protection on the victim in this case, in contravening her right effect rect that her rights and to ensure protections discrimination, in failing to provide from be free equal to and balanced with those of her spouse, and in in marriage are responsibilities for her dignity and private life. A person who enjoys failing to uphold her right to respect to act to ensure the law is empowered before of and recognition the equal protection oper gender-discrimination other rights in the face of public or private acts. Conversely, ates to impair or nullify the ability of women to freely and fully exercise their rights, and and fully exercise ates to impair or nullify the ability of women to freely gives rise to an array of consequences. turns on the fact that the legislation infringes on the victim’s personal sphere in a manner in a manner personal sphere turns on the victim’s the legislation infringes on the fact that de of María Eugenia Morales that the husband fact mere be justified. The which cannot the right to oppose this in she works, while she does not have Sierra may oppose that the point from This discrimination has consequences his case, implies a discrimination. cultural habits with respect and reinforces in Guatemalan society, of view of her position in the Status of Women has commented in its Report on the to which the Commission Americas. ity constitutes an act imputable to the State, which assumes responsibility in the terms assumes responsibility to the State, which act imputable constitutes an ity Convention.” the by provided nition as other citizens, and she cannot exercise the same freedoms they do in pursuing same freedoms the she cannot exercise other citizens, and nition as in Guatemala, and on public opinion situation has a harmful effect their aspirations. This community within her family, position and status de Sierra’s on María Eugenia Morales and society. and guarantee the rights of María Eugenia The obligation of the State to respect measures legal domestic adopt to and discrimination, without Sierra de Morales 51. the rights the American Convention to “respect fulfill its obligations under Article 1(1) of jurisdiction [its] to subject persons to all ensure to and [t]herein recognized freedoms and for any discrimination without freedoms, and those rights of exercise full and the free which can be attrib … [inter alia] sex….” “Any impairment of those rights- of reasons uted under the rules of international public author law to the action or omission of any 50. of her profession her exercise Sierra--opposes 102 Gender-based Violence economic subordination, “forces in turn, many women to stay inviolentrelationships.” volving violenceorcoercion, suchasfamilyviolenceandabuse….” as subordinate tomenor as havingstereotyped roles perpetuate widespread practicesin- edy, withtheessentialobjectiveofproviding fullrestitution fortheinjurysuffered. sustained. Measures ofreparation are meanttoprovide avictimwithaneffective rem- Sierra tothefullextentpossible,andprovide ajustindemnityfortheharmshehas lished, includingthrough measures torestore therightsofMaríaEugeniaMoralesde the StateofGuatemalaisobligedtorepair theconsequencesofviolationsestab - American Conventionandotherapplicabletreaties. Pursuanttothosesameprinciples, discrimination effectuated againstthevictiminviolationofrightsrecognized inthe responsibility,of international forallacts,publicandprivate,committedpursuanttothe forth inArticles 1 and2oftheConvention generates liability, pursuanttotheprinciples ment of rights which are effective. The failure of the State to honor the obligations set adoption ofallthemeansnecessarytoassure MaríaEugeniaMoralesdeSierratheenjoy- 54. the recommendations issuedinReport86/98havebeen compliedwithinimportant respond inconformitywith thenormsofAmericanConvention. as unconstitutional,theState,actingthrough itsCourtofConstitutionality, failedto 24, 17and11oftheAmericanConvention.Whenarticlesatissuewere challenged which discriminateagainstthevictimandothermarriedwomeninviolationofArticles finitively leavewithout effect Articles 109,110,113,114,115,131,133,255and317 case, theStatehasfailedtotakelegislativeactionnecessarymodify, repeal orde- or freedom notalready ensured asamatterofdomesticlawandpractice.Inthe instant Parties shalladoptthelegislativeandothermeasures necessarytogiveeffect toanyright and foremost withthedomesticsystem,Article2ofConventionprovides thatStates 53. 83. tions betweenwomenandmen.” land. the State’s law, obligationsundernationalandinternational theyremain thelawof authoritieshaveidentifiedthesearticlesasincompatiblewith national andinternational […] VI. 37 The obligationtorespect and ensure therightsofConventionrequires the On thebasisofforegoing analysisandconclusions,the Commissionfindsthat Recognizing thatthedefenseandprotection ofhumanrightsnecessarilyrests first C

onclusions

33 “Traditional attitudesbywhichwomenare regarded 34 36 Dejure ordefacto Althoughrelevant 38

35 Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 103 Article 110 of the Civil Code establishes: “(Protection of the wife). The husband must provide protection protection of the wife). The husband must provide Article 110 of the Civil Code establishes: “(Protection accordance home in the needed to sustain everything supply to is obliged wife and to his and assistance and duty to attend to and look after her children with his economic means. The wife has the special right minors and to manage the household chores.” while they are Article 113 of the Civil Code establishes: “(Wife employed outside the home). The wife may perform work, does not prejudice that her activity occupation, or trade, (39) provided business, a profession, (38) exercise to 38 and 39 refer in the home.” [Notes or other responsibilities of the children and care the interests Code]. articles of the Constitution and Commercial Article 131 of the Civil Code establishes: “Under the system of absolute joint ownership [comunidad during marriage [comunidad de ganan- acquired absoluta] by husband and wife or community of property powers that shall not exceed the limits exercising ciales], the husband shall administer the marital property, under of goods registered of normal administration. Each spouse or common-law spouse shall dispose freely to the obligation to account to the other for any without prejudice his or her name in the public registries, - of the marital union). The husband shall repre Article 109 of the Civil Code establishes: “(Representation equal authority and considerations in the home; they sent the marital union, but both spouses shall enjoy arrange everything concerning and shall by common agreement the shall establish their place of residence as well as the family budget.” education and establishment of their children, activities outside the wife pursuing to his Code establishes: “The husband may object Article 114 of the Civil grounds adequately for maintenance of the home and has sufficiently justified home, so long as he provides for objection. The judge shall rule outright on the issue.” union marital the of Representation wife). the by “(Representation establishes: Code Civil the of 115 Article and particularly when : 1) If by the wife should the husband fail to do so for any reason shall be exercised will, or free home of his own the husband abandons the right; 2) If of that legally deprived the husband is to imprisonment and for the duration of such to be absent; and 3) If the husband is sentenced is declared imprisonment.” ndnotes

E 3 4 5 6 7 8 measure. It reiterates its conclusion that the State of Guatemala has not discharged its of Guatemala has that the State its conclusion It reiterates measure. to equal Morales de Sierra of María Eugenia violated the rights for having responsibility 24, Articles in established life private for respect and life, family for respect protection, and to the heading Rights in relation on Human of the American Convention 17, and 11 ac- Commission The 317. Article of four paragraph and 110 Article of one paragraph to having failed to uphold its Article 1 obligation responsible for finds the State cordingly obligation the Convention, as well as its Article 2 those rights under and ensure respect of the to those rights necessary to give effect and other measures to adopt the legislative victim. […] 104 Gender-based Violence 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 11 10 9

See U.N.H.R. Committee, Toonan v. Australia, Comm. No. 488/1992, para. 8.3, citing, General Comment See generally, Eur. Ct. H.R.,Kroon v. TheNetherlands, Ser. ANo.297-C,para.31 (1994). and professional.) 29 (notingthatrespect forprivatelifeincludesrightto“establish and developrelationships,” bothpersonal cessing records childhoodandearlydevelopment);Niemetzv. concerning Germany, Ser. ANo.251-B,para. See, CEDAW, GeneralRecom.21,supra,para.24. See OC-4/84,para.66. See generally, U.N.H.R.Committee,AtodelAvellanal v. Peru,Comm.No.202/1986,para.10.2. 21, “Equalityinmarriageandfamilyrelations,” U.N.Doc.HRI\GEN\1\Rev.1 at90(1994),para.7. See generally, Committee on the Elimination of Discrimination against Women (CEDAW), GeneralRecom. 22 Feb.1994,para.27. Zgraggen v. Switzerland, Ser. A No. 263, 24 June 1993, para. 67, Burghartz v. Switzerland, Ser. A No. 280-B, See e.g.,Eur. Ct.H.R.,KarlheinzSchmidtv. Germany, Ser. ANo.291-B,18July1994,para24, citing,Schuler- Advisory OpinionOC-4,supra,para.55. Convention onHumanRights),AdvisoryOpinionOC-1/82ofSeptember24,1982.SeriesANo.1. See I/ACourtH.R.,“OtherTreaties” SubjecttotheAdvisory JurisdictionoftheCourt(Art.64American See e.g.BelgianLinguisticsCase,supra. of theConstitutionCostaRica,”January19,1984,para.56. See e.g.,I/ACourtH.R.,AdvisoryOpinionOC-4/84,“Proposed AmendmentstotheNaturalizationProvisions See e.g.,Eur. Ct.H.R.,BelgianLinguisticsCase,Ser. ANo.6,p.34,para.10. the countryforoveroneyear.” prevented from exercising thisresponsibility duetochronic illness;and7)Thosewhohavetobeabsentfrom Persons oflow-incomeforwhomthisresponsibility wouldthreaten theirmeansofsubsistence;6)Persons sixty yearsofage;3)Thosewhohavethree ormore children undertheirparental authority;4)Women; 5) custody andguardianship: 1)Thosealready exercising anothercustodyorguardianship; 2)Personsover Article 317oftheCivilCodeestablishes:“(Exemption).Thefollowingmaybeexcusedfrom exercising and administertheirgoods.” cise parental authorityoverminorchildren, thehusband shallrepresent theminororincompetentchildren Article 255oftheCivilCodeestablishes:“Where husbandandwife,orcommon-lawspouses,jointlyexer restrictions, andresponsibilities asthoseestablished in theforegoing articles.” property shall be transferred to the wife in the instances set forth in Article 115, with the same powers, Article 133oftheCivilCodeestablishes:“(Administrationbywife).Administrationmarital disposal ofcommonproperty.” Eur. Ct.H.R.,Reesv. UnitedKingdom,Ser. ANo.106,17Oct.1986,para.50. Guatemala ratifiedtheConventiononAugust12,1982. de Vries v. TheNetherlands,Comm.No.182/1984,para.13. Seegenerally, id.;U.N.H.R.Committee,Broeks v. TheNetherlands,Comm.No.172/1984,para.13,Zwaan inter alia,Eur. Ct.H.R.,Gaskin v. UnitedKingdom, Ser. ANo.160(addressing interest of applicantinac- - Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 105 Velásquez Rodríguez Case, para. 164; Godínez Cruz Case, para. 173. para. 164; Godínez Cruz Rodríguez Case, Velásquez not itself that articles in question were position of State See Report 28/98, supra, paras. 6, 7 23 (recording Sessional/An- Thirteenth Sess., A/49/38, and internationalin conformity with national obligations); CEDAW, concern Committee’s on Guatemala], paras. 44, 48, 70-71, 78-79, 81 (expressing nual Rpt [consid. of report or violating fundamental rights.) of Code restricting to “highly discriminatory provisions” with respect of August of the Compensatory Damages Judgment, Judgment Rodríguez Case, Interpretation Velásquez 17, 1990, Series C No. 9, para. 27. 16[32] on Article 17 [of the ICCPR], Doc. CCPR/C/21/Rev.1 (19 May 1989). (19 May CCPR/C/21/Rev.1 17 [of the ICCPR], Doc. 16[32] on Article of her profession. exercise has not opposed the husband case the victim’s in the present As noted above, 13 April 1998. doc. 7 rev., OEA/Ser.L/V/II.98 Report of the IACHR 1997, Published in, supra, at p. 1018-1020. Women, Report on the Status of See generally, of Violence Punishment and Eradication against Women Convention on the Prevention, See, Inter-American Art. 7.e [ratified by Guatemala April 4, 1995]. preamble, (Convention of Belém do Pará), 84, at para. 11 p. General Recom. 19, “Violence against women,” U.N. Doc. HRI\GEN\1\Rev.1, CEDAW, Belém do Pará, Art. 6(b). Convention of (1994); see generally, , para. 23. General Recom. 19, supra 14, 1997, para. 102. Mar. Doc. 7 rev., 11.430, Mexico, OEA/Ser.L/V/II.95, See, Report Nº 43/96, Case

29 30 31 32 33 34 35 36 37 38

Inter-American Commission on Human Rights

Ana, Beatriz y Celia González Pérez v. Mexico

Case Nº 11.565

Report Nº 53/01

April 4, 2001 108 Gender-based Violence 13. A. […] redress fortheviolations. in its duty to investigate the facts denounced, punish those responsible, and provide undergo anexpertgynecologicalexamination.Thepetitioners assertthattheStatefailed finally toclosethe record forfailure ofthesisterstocomeforward totestifyagainand the Public Prosecutor for Military Justice in September 1994; and that the latter decided Ana andBeatriz,thetwooldersisters;thatrecord wastransferred tothe Officeof that sameexamination was corroborated before thesaidinstitution by thetestimonyof GeneraloftheRepublicor“PGR”)basedonagynecologicalexamination; the Attorney June 30,1994apetitionwasfiledwiththeFederalPublicProsecutor’s Office(Officeof from theirmother, beaten,andrapedseveraltimesbythemilitarypersonnel;thaton for approximately twohours. Thepetitionersallegethatthethree sisterswere separated mother DeliaPérez deGonzález, inorder tointerrogate them;thefourwomen were held the stateofChiapas,Mexico,sistersAna,Beatriz,andCeliaGonzálezPérez andtheir 2. protection (Article25). (Article 8);righttoprivacy11);rightsofthechild19);andjudicial to humane treatment (Article 5); right to personal liberty (Article 7); right to a fair trial American Convention on Human Rights (hereinafter the “American Convention”): right redress for those acts. The petitioners allege violation of several rights enshrined in the riz, andCeliaGonzálezPérez, aswellthesubsequentfailure toinvestigateandprovide State”) fortheillegaldetention,rape,andtorture oftheTzeltalnativesistersAna,Beat- responsibilityalleges theinternational ofUnitedMexicanStates(hereinafter “the Law(CEJIL,hereinafterter forJusticeandInternational “thepetitioners”).Thepetition “the Inter-American Commission”or“theIACHR”)received apetitionfiledbytheCen- 1. triz, andCeliaGonzálezPérez, andtheirmotherDeliaPérez deGonzálezwere “illegally sonal libertyandsecurity. ThepetitionallegesthatonJune 4,1994,thesistersAna,Bea- IV. A I. S Article 7(1)oftheAmericanConvention guaranteeseverypersontherighttoper Right topersonalliberty(Article7oftheAmericanConvention According tothepetition,on June4,1994agroup ofmilitarypersonneldetainedin On January16,1996,theInter-American CommissiononHumanRights(hereinafter ummary nalysis

- Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 109 - According to According 6 5

7 They add that at the time of their detention, “the military personnel started to time of their detention, “the military They add that at the Right to humane treatment and privacy (Articles 5 and 11 of the American Right to humane treatment pertaining to what was said to An analysis must now be done of the information by the petitioners and borne The Commission will now discuss the events related - with the partici continued in that room, that the threats The petitioners maintain 14. the EZLN … since them confess their membership in them to make harass and torture limited, owing is very of Spanish their knowledge ethnic group they belong to the Tzeltal put to them.” to the questions that were not respond to which they could detained by members of the Mexican Federal Army” at the military checkpoint located at the military checkpoint Federal Army” members of the Mexican detained by at in Chiapas State, Altamirano municipality Jalisco communal lands, to the on the road which they town to a neighboring from returning p.m., as they were 2:30 approximately produce. to sell their agricultural had gone [...] B. Convention) 28. the Tzeltal sisters were near the checkpoint where have taken place in the closed room of the American Convention. provisions detained in Chiapas, based on the applicable [...] 32. not disputed by the Mexican State. The IACHR has ascer out in documents that were practitioner, medical certified a Millán, Peña Guadalupe Dr. 1994, 29, June on that tained sisters and noted that signs of rape did a gynecological examination of each of the three This medical evidence reported. than 20 days after the facts were evident, more were office in San was included with the complaint filed on June 30, 1994 with the PGR’s Cristóbal de las Casas, Chiapas. On August 30, 1994, Ana and Beatriz González Pérez the report, the military officers separated the sisters from their mother at that time and their mother at that separated the sisters from the military officers the report, allegedly continued. when the interrogation room led them to a wooden 15. the hold and enter to soldiers other ordered had who officer, high-ranking a of pation raped by the then repeatedly sisters were women. The petition states that the three the until 4:30 p.m. After this, the mother was allowed to enter military officers there, the victims and “threatened the official, with the assistance of an interpreter, and room the incident, they would be detained again and imprisoned stated that if they reported Hueco or even killed.” at Cerro 110 Gender-based Violence include, ataminimum,thefollowing information: officials.” medical practices,and“neverinthepresence ofsecurityagentsorothergovernment to beexaminedshouldobtained.Examinationsshalltake placeinaccordance with times, beinkeepingwith“thestrictestethicalguidelines”and theconsentofperson related totorture. ciples thatmustbetakenintoaccountbymedicalprofessionals ininvestigatingreports 39. on June29,1994inSanCristóbaldelasCasas,Chiapas. lends completecredence to themedicalcertificateissuedbyDr. GuadalupePeñaMillán made inaseriousandwell-foundedmanner. TheInter-American Commissiontherefore Commission, theMexicanStatefailedtomeetitsobligationdisprove theallegations with theMexicanStateintermsofprocessing ofthiscasebytheInter-American the frameworkoflegallyvalidproceedings inMexico.Althoughtheburden ofproof lay and inthemannerrequired. Despitethis,itwasnotchallengedorevenconsidered within three victims involved in this case. The medical evidence was presented in a timelyfashion tailed information,andshowsthatanin-depthprofessional examinationwasdoneofthe 38. […] what thecheckwouldentail,andtheyconfirmedthatdidwantit.” and asked whether they wanted it done. and, withtheassistanceofatranslator, theywere toldthereasons forthemedicalcheck received emotionalsupport firstandthree hourslaterwere senttothemedical clinic, ing thecase. Inthatregard, Dr. PeñaMillánexplainsthatthewomen:“simultaneously medical examinationdoneofthethree sisters,aswellofthecircumstances surround - to provide anyclarification.” Themedicalreport provides adetaileddescription of the cation numberis1182409,andhasbeendulyregistered. Shestatesthatshe“isavailable 1994, andbearsthesignature ofDr. GuadalupePeñaMillán,whoseprofessional identifi- 33. vestigation 64/94thathadbeenopenedonthebasisofcomplaint. confirmed andexplainedtheircomplaintbefore thisauthorityaspartofPreliminary In- address oftheinstitution(including,where appropriate, theroom) where theex- those present attheexamination;exacttimeanddate; thelocation,nature and i) The UnitedNationsCommissiononHumanRightsrecently defined aseriesofprin- In the view of the IACHR, the document summarized above contains clear and de- The medicalreport, whichwasnotdisputedbytheMexicanState,isdatedJune29, The“reliable report” tobeprepared immediately by medicalexperts should Circumstances of the interview: name of the subject and name affiliation of 18 According totheseprinciples,theconductofdoctorsshould,atall They were also given a detailed description of Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 111 History: a detailed record of the subject’s story as given during the interview, story as given during the interview, of the subject’s History: a detailed record psycho- and physical all of records examination: psychological and Physical of the physical and relationship to the probable as Opinion: an interpretation should clearly identify those carrying out the examina- Authorship: the report - circum house, etc.); the clinic, detention center, is being conducted (e.g. amination of any restraints (e.g. nature of the examination the subject at the time stances of the exami- during of security forces presence during the examination, on arrival or statements to threatening the prisoner, of those accompanying nation, demeanor factor; any other relevant etc.); and the examiner, ii) or ill- the times when torture or ill-treatment, of torture including alleged methods - all complaints of physical and psychologi and is alleged to have occurred treatment cal symptoms; iii) diagnostic tests and, appropriate clinical examination including logical findings on of all injuries; possible, color photographs where iv) recommendation for A or ill treatment. psychological findings to possible torture and/or further examination treatment any necessary medical and psychological should be given; v) tion and should be signed. by the United Nations, defined the parameters of which are The medical reports, sisters falls within the param- Pérez The medical examination done of the González and other evidence The IACHR establishes, on the basis of the unchallenged report 40. ap- representative to the alleged victim or must be confidential and must be delivered in writing, where should also be provided pointed by that person. It adds “the report or the allegation of torture for investigating to the authority responsible appropriate, ill-treatment.” 41. under which the circumstances eters established by the United Nations. Indeed, it relates with data that is sufficiently detail necessary, the interview took place with the level of the possible regarding interpretation consistent; it includes the professional and precise - treat appropriate regarding the injuries noted, contains a recommendation for reasons any clarifi- who indicates that she is available to provide ment, and identifies the doctor, cation necessary. 42. - subjected to illegal interroga were available, that Ana, Beatriz, and Celia González Pérez sisters. These acts tion, accompanied by physical abuse that included the rape of the three of military officers perpetrated on June 4, 1994 in Altamirano, Chiapas, by a group were which The context in of their liberty. illegally deprived were sisters that the the time during 112 Gender-based Violence women victims.” quences of sexual violence are physically, emotionally and psychologicallydevastatingfor and inducecivilianstofleetheirhomesvillages.” Shealsoaddsthat“theconse - women explainsthat“rapeduringwarfare hasalsobeenusedtoterrorize populations antees allwomentherighttoa lifefree ofviolence. againstWomenishment andEradicationofViolence (BelémdoParáConvention)guar 46. under international law.”under international can benodoubtthatrapeandotherformsofsexualassault are expressly prohibited CriminalTribunalternational fortheformerYugoslavia (ICTY)expressly statedthat“there humanitarianlaw.of international Infact,initsfinalverdict intheČelebićicase,In - protected underArticles5and11oftheAmericanConvention,aswellguidelines civilian populationconstitutes,inanysituation,aseriousviolationofthehumanrights 45. or hiscorrespondence, orof unlawfulattacksonhishonororreputation.” be theobjectofarbitraryorabusiveinterference withhisprivatelife,family, hishome, right torespect ofthisprivacy andrecognition ofhisdignity, andstates that“noonemay 44. and PunishtheCrimeofTorture definesthisaberrantpractice: of personswhohavebeendeprivedtheirliberty. TheAmericanConventiontoPrevent tional instrumentclearlyprohibits torture andguaranteesrespect forthehuman dignity have his physical, mental, and moral integrity respected.” 43. Pérez sistersandtheirmotherhadtofleehabitual residence andtheircommunity. IACHR establishesthat, as a result of the humiliation created by this abuse, the González intimidate thethree womenbecauseoftheirallegedtieswiththeEZLN. Furthermore, the these eventstookplacealsoleadsustoconcludethattheactswere committedinabidto The IACHRpointsoutthatthe Inter-American Convention onthePrevention, Pun- Sexual violencecommittedbymembersofthesecurityforces ofaStateagainstthe Furthermore, Article11ofthe AmericanConventionguaranteeseveryindividualthe pain ormentalanguish. or todiminishhisphysicalmentalcapacities,eveniftheydonotcause use ofmethodsuponapersonintendedtoobliteratethepersonalityvictim as apenalty, or foranyotherpurpose.Torture shallalsobeunderstoodtothe tion, asameansofintimidation,personalpunishment,preventive measure, or mentalpainsuffering isinflictedonapersonforpurposesofcriminalinvestiga- Torture shall be understoodto be anyactintentionally performed whereby physical Article 5(1)oftheAmericanConventionstatesthat“everypersonhasrightto 20

19 TheUnitedNationsSpecialRapporteuronviolenceagainst 21

- Article 5(2) of that interna - Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 113 The

22 24

25 Using similar language, the European Court of Human Rights stated: Using similar language, the European 23 The concept has been developed in recent years, particularly in cases referred to years, particularly in cases referred The concept has been developed in recent of the United Nations Human the reports As evidenced by international case law, those of Committee against Torture, Rights Committee and the United Nations for Committee European the of public statements the and Rapporteur Special the this vicious and ignominious practice can take on vari- of Torture, the Prevention United Nations Special of the and the reports ous forms. International case law, the legal process, through addressing, momentum towards Rapporteur evince a as a means of torture use of rape in the course of detention and interrogation to either by Rape is resorted a violation of international as law. and, therefore, himself or by other persons associated with the interrogation the interrogator or humiliating of a detainee, as a means of punishing, intimidating, coercing, the victim or a third the victim, or obtaining information or a confession from person. Rape of a detainee by an official of the State must be considered to be an especially must be considered Rape of a detainee by an official of the State with which the offender given the ease form of ill treatment grave and abhorrent of his victim. Furthermore, resistance can exploit the vulnerability and weakened to the pas- victim which do not respond rape leaves deep psychological scars on the physical and mental violence. sage of time as quickly as other forms of In addition to the vio- the victim. In addition for and mental suffering physical Rape produces and victims usually sustain injuries at the time that it is perpetrated, lence suffered this kind of abuse also Being the object of pregnant. in some instances become their humiliation on the one hand from resulting psychological trauma produces of members of their the condemnation and from on the other, and victimization subjected. to which they were mistreatment the community if they report and to intimi- to inflict personal punishment on her in order Raquel Mejía was raped her person who sexually abused her told that the Her testimony reveals date her. wanted for subversive activities… husband were that both she and her circumstances. certain under torture of form a is rape internationalIn law, The United Nations Special Rapporteur against torture has indicated that rape is against torture The United Nations Special Rapporteur 49. In the Furundzija case, this the former Yugoslavia. for the International Criminal Tribunal tribunal stated: IACHR confirmed this in the case of a woman who was abused and harassed for her al- was abused and harassed of a woman who this in the case IACHR confirmed dissident group: in an armed leged participation 47. 48. that is used in some instances to punish, intimidate, and a method of physical torture humiliate. 114 Gender-based Violence violations alsoconstituteaviolationoftherightthesepersons tohumanetreatment. guish andsuffering imposedonthecloserelatives ofthevictimsserioushumanrights 53. ation. privacy, which ledthemtofleetheircommunityinasituationoffear, shame,andhumili- of the private lives of the four women and their families and an illegal attack on their State constitutetorture. tal, and moral integrity of the three Tzeltal sisters committed by agents of the Mexican 52. humiliate andpunishthewomenfortheirallegedlinkswithrebels. and theseriousthreats, it isreasonable tobelievethatthemilitaryofficerswanted co. Giventhemannerinwhichtheywere assaulted,theaccusationsmadeagainstthem, these actswere reported andneverinvestigatedinaccordance withdueprocess inMexi- and additionalactsoftorture reported bytheaggressors whentheyreleased them,since this caseandthepertinentanalysis,alsolendscredence tothereports ofdeaththreats of collaboratingwiththeEZLN. TheInter-American Commission,withinthecontextof interrogation conductedby militaryofficersinazoneofarmedconflictandwere accused 51. exerted influence. of personsconsidered tobe“zapatistas,”inanarea where thisarmeddissidentgroup a few months after the armed rebellion of the EZLN, against a backdrop of harassment tion. Furthermore, therapetookplacewhilethree women were illegallydetained, was aminor, andassuchwasentitledtospecialprotection undertheAmericanConven- 50. […] C. […] violation oftherighttohumanetreatment guaranteedbytheAmericanConvention. ostracism byhercommunity, constitutesaformofhumiliationanddegradation thatisa by membersoftheMexicanArmedForces andthentoexperience,alongwiththem, González, whohadtostandbyhelplesslyandwitnesstheabuse ofherthree daughters In this case, the IACHR holds the view that the treatment extended to Delia Pérez de Based on international humanrightscaselaw,Based oninternational undercertaincircumstances, thean- In the view of the Inter-American Commission, abuses targeting the physical, men- Ana, Beatriz, and Celia González Pérez were sexually assaulted as part of an illegal The facts established here are particularly serious, since one of the women raped Rights ofthechild(Article19 oftheAmericanConvention) 27 Furthermore, theeventsdescribed herein represent aviolation 26

28

Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 115

- 31 Article 2 of this instrument states: Article 2 of this instrument 30

29 States Parties shall respect and ensure the rights set forth in the present Con- the rights set forth in the present ensure and States Parties shall respect - that the child is pro to ensure measures States Parties shall take all appropriate The Committee on the Rights of the Child recommended that the Mexican State The Committee on the Rights of the Child recommended 1. any kind, of without discrimination jurisdiction their within each child to vention sex, race, color, or legal guardian’s or his or her parent’s of the child’s irrespective - political or other opinion, national, ethnic or social origin, prop language, religion, birth or other status. disability, erty, 2. or punishment on the basis of the status, tected against all forms of discrimination or legal guardians, parents, opinions, or beliefs of the child’s activities, expressed family members. instrument also states that “no child shall be subjected to ar The aforementioned The Convention on the Rights of the Child was in effect in Mexico on the date on in Mexico on Rights of the Child was in effect The Convention on the Article 19 of the American Convention guarantees that every child has “the right that every child has guarantees of the American Convention Article 19 bitrary or unlawful interference with his or her privacy, family, home or correspondence, home or correspondence, family, with his or her privacy, bitrary or unlawful interference and that “ the child has the and reputation,” nor to unlawful attacks on his or her honor or attacks” (Article 16). The of the law against such interference right to the protection that no of the Child undertake to ensure States parties to the Convention on the Rights or punish- or other cruel, inhuman, or degrading treatment child is submitted to torture with times, “is treated liberty and, at all deprived of his or arbitrarily ment or is illegally person and in a manner dignity of the human for the inherent humanity and respect of his or her age;” and that in accordance which takes into account the needs of persons Parties “the States with the obligations assumed under international humanitarian law, affected who are of children and care protection to ensure shall take all feasible measures by an armed conflict” (Article 37). 59. of chil- in cases of ill-treatment “should intensify its action against all violence resulting and security services in particular when committed by members of the police forces dren, that cases of crimes committed against The State party should ensure and the military. civilian courts.” tried before or the police are by members of the armed forces children 58. 57. case occurred. to this which the events related 56. his of part the on minor a as condition his by required protection of measures the to that “both the Court has determined the state.” The Inter-American and society, family, part of a very of the Child form Convention on the Rights Convention and the American “to that serves of children” international corpus juris on the protection comprehensive the 19 of in Article contained provisions the general of scope and content the determine American Convention.” 116 Gender-based Violence to takelegalactionagainstpersons orinstitutionswhoslanderourinstitution.” “vigorously deniedthefalsechargesmadeagainstmilitary personnel,andreserved the right issued onJuly3bytheDepartment ofNationalDefense(SEDENA),inwhichthisauthority To demonstrate thepartialityofmilitarycourtsinthisinstance,they citeBulletinNº38 to amilitarylegalsystemafterbeingsexuallyassaultedbyelements ofthesamegroup.” onymous withprivilege,impunity, andpartiality, andtheywouldhavetosubjectthemselves to theuseofmilitarycourtsince,intheirview, “inthiscase,themilitarycourt issyn- over thematter.” Therepresentative oftheGonzálezPérez sistersinMexicowere opposed to theOfficeofPublicProsecutor forMilitaryJustice“becauseitdidnothavejurisdiction 65. that theyhadengagedinactsofviolenceagainstthesistersand theirfamily.” roborated theaccountprovided bythevictims,sincetheyexplicitlyortacitlyadmitted out by “the statement of at least seven soldiers, which cor commotion.” This is borne had takenplaceatthetimeofreport, andthattherapetookplaceamidstgreat 64. PGR byAnaandBeatrizGonzálezPérez. by acertificateissuedgynecologist,wasconfirmedandexpandeduponbefore the human rightsguaranteedintheAmericanConvention.Thereport, whichisaccompanied GeneraloftheRepublic,anddescribedviolation the OfficeofAttorney curred whiletheywere illegallydetained,andwhichare seriousoffenses inMexico,to 63. […] of theAmericanConventiontoPrevent andPunishTorture) American Convention)intheinvestigationofactstorture (Articles6and8 D. […] instruments. and otherapplicableinternational State toaccord herthespecialprotection guaranteed undertheAmericanConvention continuing impunityoftheperpetrators,isaclearviolationdutyMexican followed bythephysicalabuseandrapeofadolescent,aswellsubsequent report tookplace.IntheviewofInter-American Commission,theillegaldetention, 60. On September 2, 1994, the PGR decided to turn overPreliminary On September2,1994,thePGRdecidedtoturn Investigation64/94 The petitionersaddthatthismedicalexamination“indicatessexualintercourse The victimsinthiscasereported theactsoftorture andrape,whichallegedlyoc- The righttoafairtrialandjudicialprotection (Articles8and25ofthe Celia GonzálezPérez was16yearsoldatthetimethatactsdescribedinthis 33

35 34

- Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 117 the PGJM closed the PGJM closed 38 - on the part of the representa allegation of lack of interest the State’s With regard whether the actions undertaken Commission must determine The Inter-American This guideline is compatible with Article 25 of the American Convention, which The State has not disputed the filing of the complaint in Mexico or the medical medical the or Mexico in complaint the of filing the disputed not has State The the case on September 25, 1995, based on the evidence provided by persons living by persons living on the evidence provided the case on September 25, 1995, based a legal standpoint, of the victims and their from and the “lack of interest, in the area nor is the credible, any way because “ the criminal evidence is not in representatives,” liability of the military officers.” probable 70. the medical examination was done immedi- tives of the victims, CEJIL maintains that submitted to the Office of were the results ately after the events took place, and that by the a statement provided the Attorney General and subsequently confirmed through that evidence exists of the infractions that victims. Based on this, the petitioners allege was due to the difficulty in finding the to respond and that the failure committed, were to leave their communities and fami- forced of the events, were women, who, as a result with its customs. in accordance by the indigenous culture, rejected lies, and were […] 72. the human rights guidelines that guarantee the by the Mexican courts in this case meet the right to a fair trial. Article 8(1) of the American Convention guarantees each person time, by a competent, right “to a hearing, with due guarantees and within a reasonable tribunal” in the determination of his rights and obligations of independent, and impartial fiscal, or any other nature. a civil, labor, 73. states: […] 69. Commission notes The Inter-American therewith. the victims enclosed evidence that the Mexican State serious evidence submitted to the authorities, that, in light of the in investigation, effective and impartial, prompt, an undertake to obligation an had the in- and legislation own domestic in its stipulated guidelines with the accordance available in this assumed by this State. The information ternationalobligations freely in the Office of the Attorneyreveals that the authorities General of Mexico case file Justice, for Military to the Office of the Public Prosecutor their competence transferred the victims and proceeded the evidence submitted by which in turn completely ignored victims refused when the examination for them. Finally, another gynecological to order examination as part of the military investigation, to undergo another 118 Gender-based Violence complaint claimingthathe/she hasbeentortured byState agents,theconceptofeffec- 77. able tovictimsandtheirrepresentatives inrapecases,forthereasons explainedabove. as solidevidence,andiscertainlymore convincingthanthedocumentationusuallyavail - the Mexicanauthorities,itwasnotconsidered. Thedocumentquotedinthisreport serves tion was duly conducted; however, because of an unreasonable and arbitrary decision of 76. and forconsideringthatindividual’s mental andpsychologicalcondition. examination must provide all the guarantees for fully respecting the dignity of the person dence, presumption, andotherlegalelements.Intheabsenceofevidence,medical surrounding thecaseandallavailableelementssuchasstatements,circumstantial evi- IACHR holdstheviewthatinvestigatingauthoritiesshouldanalyzecircumstances person’s bodyintheformofreview proceedings shouldbeavoided. one thatcausespersontorelive theeventsinvolvingmostprivatepartsof different from other crimes. Subjecting the victim to another episode of humiliation or 75. to eachpersonundertheirjurisdiction. antee thefree andfairexercise of rightsrecognized under theConventionwithrespect the rulesofdueprocess. This isincludedinthegeneralobligationoftheseStatestoguar remedies tovictimsofhuman rightsviolationsandtosupporttheminaccordance with American Convention,theStatespartieshaveanobligationtoprovide effective judicial 74. The European CourtofHumanRightshasestablishedthat whenanindividualfilesa In the case oftheGonzález Pérez sisters, it has been noted that the medical examina- Rape isanaberrantact,which,becauseofitsverynature, requires evidencethat is persons actinginthecourseoftheirofficialduties. or by this Convention, even though such violation may have been committedby fundamental rightsrecognized bytheconstitutionorlawsofstateconcerned recourse, toacompetentcourtortribunalforprotection againstactsthatviolatehis 1. The Inter-American CourthasindicatedthatpursuanttoArticles8and25ofthe 2. granted. state; termined bythecompetentauthorityprovided forbythelegalsystemof

c. toensure thatthecompetent authoritiesshallenforce suchremedies when a. toensure thatanypersonclaimingsuchremedy shall havehisrightsde- The StatesPartiesundertake: Everyone hastherighttosimpleandprompt recourse, oranyothereffective b. todevelopthepossibilitiesofjudicialremedy; and 41 42 Consequently, the - Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 119 In 48 43 In that regard, the Inter-American the Inter-American In that regard, 45 49 50 Also, it should be noted that point 5(f) of the Draft Declaration of the Inde- Also, it should be noted that point 5(f) 44 In a democratic State governed by the rule of law, the scope of authority of criminal In a democratic State governed the rule of law, by military courts must apply on a limited and exceptional basis and be aimed at the by law to tied to the function assigned that are of special legal interests protection of civilians cannot fall under mili- the prosecution Consequently, the military forces. for the commission of only tary jurisdiction and military officers must be prosecuted have an adverse effect and infractions that, because of their nature, those offenses on the assets of the military. In the past, the Inter-American Commission has maintained that “when the State maintained that “when the State Commission has In the past, the Inter-American The United Nations Commission on Human Rights has formulated a series of prin- formulated a Human Rights has Nations Commission on The United The requirement related to a complete and effective investigation of a complaint al- complaint a investigation of effective and complete a to related requirement The also calls for an ex- individual while in detention by State agents leging the rape of an medical professionals with due consideration being shown by amination of the victim, by by the instructions issued impartiality is not affected whose specializing in this area scope of the investigation. the regarding Prosecutor the Office of the Public Court ruled: […] 81. the entities with possible involvement, inde- permits investigations to be conducted by of which it is “impos- result as a clearly compromised,” pendence and impartiality are that the remedy the information, and provide sible to conduct the investigation, obtain which “has a corrosive is de facto impunity, is allegedly available,” and what occurs the rule of law and violates the principles of the American Convention.” on effect 78. into acts of torture on the manner in which an investigation ciples, mentioned above, stipulating principle the is analysis this to relevant Particularly conducted. be should shall or ill-treatment of torture complaints and reports that that “States shall ensure independent be shall who investigators, the investigated…. effectively and promptly be they serve, shall be competent and im- of the suspected perpetrators and the agency partial.” pendence of Justice (known as the Singhvi Declaration) states that the competence of pendence of Justice (known as the Singhvi offenses. military courts shall be limited to military tive remedy includes, in addition to the payment of compensation where appropriate, an appropriate, where of compensation to the payment in addition includes, remedy tive In analyzing of the guilty parties. and punishment that permits identification investigation this court added: in this report, to the one described a case similar particular, the IACHR has determined that, as a result of its nature and structure, mili- and structure, of its nature the IACHR has determined that, as a result particular, and impartiality imposed of independence tary courts do not meet the requirements under Article 8(1) of the American Convention. 120 Gender-based Violence is categoricallyprohibitedlaw, by international of themilitarycourts.TheInter-American Conventionstresses thattorture inallitsforms here), there is no link to an activity by the Armed Forces that canjustifythe involvement of commonoffenses that constitutehumanrightsviolations(andthisisnotthecase the arbitrarydetentionoffourwomen.Inotherwords, evenifthere wasnoevidence legislation, since,ashasbeennoted,thiswasachainofactsviolationthatbeganwith military officerswere discharginglegitimatefunctionsentrustedtothemunderMexican the legalassetsofmilitary, nordoesthiscasepertaintooffenses committedwhile was aminoratthetimeofincident,cannotinanywaybeconsidered actsthataffect the fourvictimsoftheirlibertyandrapeGonzálezPérez sisters,oneofwhom 82. the Inter-American Courthasindicated: identify, and sanction the perpetrators of and accessories to human rights violations. As 83. into thefactsrelated tothis casebythemilitarycourtsiscompletelyinappropriate. in alegalcontext.Asresult ofthisobligation,theStates partieshavealegaldutyto such aswaythattheyare capableofensuringthefulland free exercise ofhumanrights ment apparatus,and,ingeneral, allstructures through whichStatepowerisexercised, in - persons under their jurisdiction. This obligation includes the duty to organize the govern the exercise oftherightsandfreedoms recognized inthatinstrumentwithrespect to American Convention,whichestablishestheobligationof Statespartiestoguarantee State has failed to fulfill its obligation related to guaranteesunderArticle 1(1) of the and stripsthevictimsrelatives oftheabilitytodefendthemselves. combat impunity, sincethisencouragesthechronic repetition ofhumanrightsviolations avoid impunity. TheInter-American Courthasindicatedinthisregard thattheStatemust tigate human rightsviolations, prosecute those responsible, compensate victims,and 85. 84. The actsofabusecommittedbythemembersArmedForces thatdeprived the termsofConvention.” of theAmericanConvention,butveryrulelawinademocraticsociety fered. AsthisCourthasruled, Article25“isoneofthefundamentalpillarsnotonly rights violationsmaybeprosecuted andreparations obtained forthedamagessuf- lar, tosimple andprompt recourse, sothat,interalia,thoseresponsible forhuman guarantee toeveryindividualaccesstheadministrationofjusticeand,inparticu- Article 25inrelation toArticle 1(1)oftheAmericanConventionobligesStateto The American Convention imposes on States the obligation to prevent, investigate, In thecaseunderanalysis,Inter-American Commissionholdstheviewthat Because oftheobligationsmentionedabove,Statehasanobligationtoinves- 52 51 and,forthisreason, the investigation 53 Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 121 - 55 The Inter-American Court has maintained that: Court has maintained The Inter-American 54 56 onclusions C In this report, the Inter-American Commission has assessed all the information avail- the Inter-American In this report, This case is characterized by complete impunity, since, more than six years after the since, more This case is characterized by complete impunity, Impunity has been defined as “the failure by States to fulfill their obligation to their to fulfill by States has been defined as “the failure Impunity If the State apparatus allows this violation to go unpunished and fails to re-establish, re-establish, and fails to violation to go unpunished apparatus allows this If the State then it can be said the victim of his rights, by possible, the full exercise insofar as of rights by persons and full exercise to guarantee the free to have failed in its duty under its jurisdiction. VI. 94. system of the inter-American rights provisions able in the case file based on the human to make a deci- and legal doctrine, in order and other applicable instruments, case-law, ratifies its conclusions in that the therefore The IACHR sion on the merits of the matter. de González and her daughters Mexican State violated the following rights of Delia Pérez enshrined in the American Conven- which are Ana, Beatriz, and Celia González Pérez, and to privacy tion: the right to personal liberty (Article 7); the right to humane treatment (Articles 8 and 25); (Articles 5 and 11); the right to a fair trial and to judicial protection the rights of the child (Article 19); all in keeping and, in the case of Celia González Pérez, […] 88. committed and reported, were herein date of the human rights violations established responsible for and sanction those prosecute the State has failed to fulfill its duty to and has not family to humane treatment, violation of the right of the González Pérez of these violations. On compensation for the injuries or loss caused as a result provided military courts, which clearly has no to the the investigation was transferred the contrary, necessary to establish matter and lacks the impartiality to the competence with respect with due process. the facts in accordance […] 86. the per on measures of rights and to impose the appropriate investigate the violation - and re legal standpoint, so that they can be prosecuted a from petrators, in particular for and remedy resources effective to guarantee victims penalties; ceive the appropriate of these to avoid the repetition necessary and to take the measures suffered; prejudice violations.” prevent, investigate, and sanction the violation of all rights protected under the American under the American of all rights protected and sanction the violation investigate, prevent, Convention. 122 Gender-based Violence […] consequence oftheviolationsestablishedherein. other authorities; and also because they were repudiated by their own community as a all, becauseoftheirlackknowledgethelanguageaggressors andofthe women wasaggravatedbytheirconditionofmembersanindigenousgroup. Firstof the Inter-American Commissionhighlightsthatthepainandhumiliationsuffered bythe 21 20 19 18 7 6 5 the impactsuffered bythosecommunitiesinthestateofChiapas. Mexican Stateofitsobligationtorespect indigenouscultures anditspecificallyalludedto addressing thegeneralsituationofhumanrightsinthatcountry, theIACHRreminded the 95. to Prevent andPunishTorture. Mexican Stateisresponsible forviolationofArticle8theInter-American Convention respect andguaranteerights.TheInter-American Commissionalsoestablishesthatthe instrument to with the general obligation set forth in Article 1(1) of that international E ndnotes case were confirmed)anddepositeditsinstrumentofratification onNovember12,1998. Article4ofthis Mexico signedtheBelémdoParáConvention onJune10,1994(sixdaysaftertheeventsrelated tothis of Law, Fall1999,page447. LawReview, Crimes,PaceInternational Evolution ofSexualAssaultsasInternational PaceUniversity School From CriminalCourt: The thefuriesofNankingtoEumenides International Samantha I.Ryan, conflicts, where womenare targetedbecauseoftheiraffiliationwiththeopposition…. ate theenemy, theseassaultshaveoccurred withincreasing frequency inrecent years,especiallyininternal assault in times of peace and in times of war, since time immemorial. Rape isnotanovelconceptparticulartoourtime. Women havebeensubjectedtovariousformsofsexual CN.4/1998/54, January26,1998,paras13and14. Anarticlerecently publishedbyPaceUniversitystates: women, includingitscausesandconsequences,inaccordancewithResolution1997/44 oftheCommission,E/ Nations, United Foundation Press, NewYork, 1999,pages380and381. Case NºIT-96-21 T, Ruling,para.476,November16,1998. Taken from LouisHenkinetal,HumanRights. Annex, E/CN.4/RES/2000/43,April20,2000. tigation anddocumentationoftorture andothercruel,inhumanordegradingtreatment orpunishment. United Nations,Torture andothercruel,inhumanordegradingtreatment. Principlesontheeffective inves- Idem, page2. Idem Correspondence from thepetitionersdatedJanuary16,1996,page1. The four victims in this case are members of the Tzeltal community in Mexico.When Report submittedbyMrs.RadhikaCoomarasway, SpecialRapporteuronviolenceagainst In efforts to demoralize and humili- 62 Intheinstantcase,

Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 123 This judicial decision was 1998, para. 163. This judicial decision was Anto Furudzija, ruling of December 10, Prosecutor v. confirmed in the ICTY Court of Appeals by a ruling of July 21, 2000. confirmed in the ICTY Court states the following: of the Special Rapporteur the report In that regard, of the enemy that is targeted in the honour than the honour of the victim, it is the perceived Perhaps more seen and often experienced as a means of humiliating perpetration of sexual violence against women; it is victory over the men of the other the opposition. Sexual violence against women is meant to demonstrate It is a battle their women. It is a message of castration and emasculation. have failed to protect who group Nations, E/CN.4/1998/54 cited above, para. 13. among men fought over the bodies of women. United Court explains: decision, the Inter-American In a recent the can be perpetrated not only through torture protection, to related international to standards According for mental, or moral suffering acts that cause acute physical, physical violence, but also through of exercise the victim. or Punishment and and Other Cruel, Inhuman or Degrading Treatment Both the Convention against Torture the right to humane to address In order topic cover that possibility. Convention on that the Inter-American to the physical and reference in clear terms, the latter of those two instruments makes express treatment moral integrity of individuals. Case, Judgment of August 18, 2000, paras. 100 and 101. Court, Cantoral Benavides Inter-American Court established that the victims had of Guatemala, the Inter-American children In the case of the “street and assassinated by State agents, who, in addition, abandoned their abused been kidnapped, tortured, of the the remains the Court determined that “the manner in which bodies to the elements. Consequently, and to their mothers, constituted a form of cruel to their relatives sacred which were treated, victims were Court, Case of Villagrán Morales et al., cited above, for them.” Inter-American and inhuman treatment in the case of Blake (Judgment Court cites its own precedent para. 174. In the decision, the Inter-American Court of Human Rights and the United of January 24, 1998, para. 115) and other decisions of the European Nations Committee on Human Rights. Court, Villágran case cited above, paras. 194-196. Morales Inter-American Mexico deposited the instrument of ratification for the Convention on the Rights of the Child on September 21, 1990. Convention states that “every woman has the right to the recognition, enjoyment, exercise and protection and protection exercise enjoyment, the right to the recognition, that “every woman has Convention states international and These rights instruments.” human embodied in regional and freedoms of all human rights among others: rights include, secu- to personal liberty and the right moral integrity respected; her physical, mental and The right to have respected dignity of her person the right to have the inherent to torture; rity; the right not to be subjected to a competent court for protection recourse to simple and prompt and the right and her family protected; rights. against acts that violate her pages 199 and 200. IACHR, Report 5/96 cited above, paras. 119 and 431. United Nations, E/CN/4/1986/15, of September 25, 1997, para. 83. (57/1996/676/866), Ruling Turkey, v. Court of Human Rights, Aydin European ICTY,

26 27 28 29 30 22 23 24 25 124 Gender-based Violence 38 35 34 33 31

Public Prosecutor’s Office.Thisisallthemore truesincetheyhavealready obtainedthetestimonyoftheir not beconsidered valid,sincethiswouldmeanignoringtheinvestigation already conducted bytheFederal on June4,1994.Forthisreason, therecommendation ofmilitarythattheinvestigationbe reopened can- The foregoing implies a violationandformofaggression that is the sameorworsethanthatexperienced illegal detention,andrapeofthevictims. examination wouldentail,particularlybefore theentityrepresenting thepersonsresponsible forthetorture, themselves oncemore tothepsychologicaltorture thatanotherround ofquestioningandgynecological The victims, who had already provided a statement to the appropriate court, had no obligation to subject ones responsible forconductingtheinvestigation. appear before amilitary institution. Furthermore, theentities involved, in this case the Army, would be the It shouldbenotedthat,duetothe nature ofthecase, it waslogical that thevictimswouldbeterrifiedto authorities. pass through themilitarycheckpoint.Consequently, itwasimpossibleforthemtoappearbefore themilitary victims, whichmadeitdifficultforthemtoappearinacivilcourt,sincethiswouldhave required themto attorney’sseveral occasions,informedthegovernment officeforcivilaffairs ofthefearandtrauma tion, couldfeelcomfortableproviding astatement(forthethird time)tothatentity. Thepetitionershad,on It isinconceivablethatthesewomen,whohadendured torture atthehandsofmembersthatinstitu- In thatregard, thepetitionersstate: alone thepossibleresponsibility ofanymemberthemilitary.” (sic) the events,andtheyhavenotbeenproven. Therefore, todate,thecriminalacts havenotbeenproven, let state: “thePreliminary Investigation conductedintotheeventsthatwere publicizedcontainednoreport of completely different. Surprisingly, heallegesthatnocomplaintwhatsoeverhadbeenfiledbutgoesonto complete lackoffamiliaritywiththecase,confusingnamesvictimsotherthatare the civilauthorities,toappearbefore themilitaryauthorities.Inthatcorrespondence, hedemonstratesa 1, 1994,inproviding her with informationonthiscase,thatthevictimshavebeensummoned,through stated, incorrespondence addressed toMs.Mercedes Barquet oftheCollegeMexicoA.C.onAugust Brigadier GeneralMarioGuillermoFromow, responsible forcriminalproceedings inthemilitarycourt, Correspondence from thepetitionersofJanuary16,1996.Inthatcorrespondence, theystate: Correspondence from thepetitionersofMay27,1999,page8. Human rightsviolationsagainstwomeninMexico,AMR41/009/1996ofMarch 3,1996. soldiers before being released free of charge on that same day.” Overcoming Amnesty International, Fear: with theirweaponsandkickedthemtoextractinformation…theywere thenreportedly rapedbyabout10 sisters rapedbyMexicansoldiersinChiapas.”Thisreport statesthat“thesoldiersreportedly hitthewomen inareportThe casewasalsodocumentedbyAmnestyInternational onMexicoentitled“Three Tzeltal to minoritygroups orindigenouscommunitiesandothervulnerablechildren.” (para.16) allocate resources tochildren, “particularlychildren livingand/orworkinginthestreets, children belonging Add. 13,February7,1994,para.17.TheCommitteealsorecommended totheauthoritiesthatState United Nations, Concluding observations of the Committee on the Rights of the Child: Mexico. CRC/C/15/ Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 125 own soldiers who “interrogated” the victims and they admitted that they were at the location and had the at the were they admitted that they the victims and who “interrogated” own soldiers not admit to in their testimony only thing that they do The commit the acts of aggression. opportunity to among other things. them, detained and interrogated they admitted that they However, is raping them. lying. truth and the soldiers are telling the that the deponents are statements suggest Their contradictory none of them was ever prosecuted. and all this information was ignored However, May 27, 1999, pages 5 and 6. the petitioners dated from Correspondence Exceptions, Judgment of June 26, 1987, para. Preliminary Rodríguez Case, Court, Velásquez Inter-American 91. equality and combating several strategic objectives and actions for ensuring The Beijing Platform establishes in this case: relevant rights, one of which is particularly of women’s discrimination in the area labour civil, penal, of family, customary laws and legal practices in the areas Review national laws, including of all relevant of the principles and procedures the implementation to ensure law in order and commercial laws that any remaining international revoke rights instruments by means of national legislation, human gender bias in the administration of justice; discriminate on the basis of sex and remove Beijing Declaration and Platform for Action, para. on Women, Conference United Nations, Fourth World 232(d). above, para. 107. cited Turkey, v. Court, Aydin European Nº 2. United Nations, E/CN.4/2000/L.54 cited above, Principle - Nations Commission on Human Rights recommend United Nations, E/CN.4/Sub.2/1998/Add.1. The United of the principles listed in that document. ed in Resolution 1989/32 that member States be mindful 10.580, Manuel Stalin Bolaños Quiñonez), Ecuador, IACHR, 1995 Annual Report, Report Nº 10/95 (Case para. 48. and impose sanctions in cases of human rights The unsuitability of military courts to investigate, prosecute, Commission: violations has been the subject of rulings of the Inter-American impartialand effective to access bar that characteristics unique several has justice of system penal military The a true judicial system. within this institution. First, military courts cannot even be considered judicial remedy and, for is run by the public security forces This court Military justice is not part of the Colombian Judiciary. system do not hand down rulings and judges of the judicial is included in the Executive. Career that reason, role in the military system of justice. the Office of the Attorney General does not play a prosecutorial Report on the Situation of Human Rights in Colombia (1999), pages 175-186. In that regard, IACHR, Third the Constitutional Court of Colombia has indicated: the outset, between must be a clear link, from is to fall under military criminal jurisdiction, there If an offense an abuse the punishable act must represent and the military service activities. In other words, the offense the within functions person’s that to linked directly activity an of scope the within occurred that power of when to military service is broken related The link between the criminal act and the activity Armed Forces. In such cases, the case must be trans- against humanity. serious, such as offenses is extremely the offense to the civil courts. ferred Constitutional Court of Colombia, Decision C-358, August 5, 1997.

41 42 43 44 45 48 49 126 Gender-based Violence 50 62 56 55 54 53 52 51

regular courts,whetheror not theallegedperpetratorswere militaryofficers(para.118). offenses. Therefore, theinvestigationintotheseactsandsanctioningthereof musttakeplaceinthe result, “the acts that led to this denouement cannot be considered military offenses, but rather common beyond thelimitsoftheirfunctions,resulting inthedeathsofalargenumberinmates,”andthat,as In itsruling,theInter-American Courtstatedthatthemilitaryofficers“usedexcessiveforce thatwentwell context of the recapture of “El Frontón” penitentiary by the military forces of that country in June 1986. tained totheforced disappearanceoftwopersonsaccusedterrorism inPeru,whichoccurred inthe Inter-American Court,CaseofDurandandUgarte,RulingAugust16,2000,para.117.Thecaseper graphs 540to564. IACHR, ReportonthesituationofhumanrightsinMexicosupra,pára.577.See,samereport, para - ILO Convention169,onindigenousandtribalpeoples. is amulti-culturalcountrywhosefoundationsare itsindigenouspeoples”andthatMexicohasalsoratified organizations, havingregard tothefactthatarticle4ofMexicanConstitutionrecognizes that“Mexico the Stateshouldconductastudyofobservancehumanrightsindigenous peoplesandtheir development in accordance with their traditions, interests, and priorities. The Commission considers that recognized principles,torespect indigenouscultures andtheirorganizations toensure theirmaximum It istheobligationofStateMexico,basedonitsconstitutionalprinciplesandinternationally In itsreport onMexico,the IACHRstated: 1997, para.68page23. Inter-American CourtofHumanRightsinthecaseConsueloBenavidesCevallos-Ecuador, December18, standards in this area” Amicus curiae legal brief submitted to the (emphasis added). Amnesty International. an investigation,butfailtodosoinaprompt anddiligentmannerinaccordance withinternational can occurwhentheauthoritiesfailtoinvestigatehumanrightsviolations,oreventheyconduct referred tothescopeofinvestigationsintohumanrightsviolations,statingthat“theimpunityact… hasalso as definedby theUnitedNations,Doc. E/CN.4/Sub.2/1997/20,para.20.Amnesty International United Nations,Expertonthequestionofimpunitypersonswhoviolatecivilandpoliticalrights, Idem, paras.174and176. Inter-American Court,Velásquez RodríguezCase,Judgment ofJuly29,1988,para.166. Inter-American Court,PaniaguaMoralesetal.,JudgmentofMarch 8,1998,para.173. Inter-American Court,LoayzaTamayo Case,JudgmentofNovember27,1998,para.169. In thatregard, seetheInter-American Court,CaseofCantoralBenavidesmentionedabove,paras.95-103. - Inter-American Commission on Human Rights

Maria da Penha Maia Fernandes v. Brazil

Case Nº 12.051

Report Nº 54/01

April 16, 2001 128 Gender-based Violence fective judicialaction.(…) evidenced bythecondoningof domesticviolenceagainstwomeninBrazilthrough inef- ofdiscrimination of BelémdoPará.Italsoconcludes thatthisviolationformsapattern ment andArticlesIIXVIIIof theDeclaration,aswellArticle7ofConvention general obligation to respect and guarantee rights set forth in Article 1(1) of that instru- tection, guaranteedinArticles8and25oftheAmericanConvention, inrelation tothe toafairtrialandjudicialproviolated therightofMrs.MariadaPenhaMaiaFernandes - 3. applied. be presumed tobetrueandthatArticle 42 oftheRegulationsCommissionbe quests of the Commission, the petitioners asked that the eventsrelated in the petition fact thattheStatefailedtoprovide commentsonthepetitiondespiterepeated re- Commission processed the petition in accordance with the regulations. In viewof the 4(a), (b), (c), (d), (e), (f), and (g), and 5 and 7 of the Convention of Belém do Pará. Declaration of the Rights and Duties of Man (“the Declaration”), as well as Articles 3, tection) oftheAmericanConvention,inrelation toArticlesIIandXVIIIoftheAmerican (Obligation toRespectRights),8(aFairTrial), 24(EqualProtection), and25(JudicialPro - the aggressor, despiterepeated complaints. ThepetitionallegesviolationofArticle1(1) 15 years,ithasfailedtotaketheeffective measures required toprosecute andpunish The petitionmaintainsthattheStatehascondonedthissituation,since,formore than Maria daPenhahassuffered from irreversible paraplegiaandotherailmentssince1983. murder andfurtheraggression inMayandJune1983. Asaresult ofthisaggression, culminatinginattempted against hiswifeatthetime,MariadaPenhaMaiaFernandes, perpetrated inthecityofFortaleza,CearáState,byMarco AntônioHeredia Viveiros “the State”)condoned,foryearsduringtheirmaritalcohabitation,domesticviolence 2. against Women (Convention ofBelémdoParáorCMV). Inter-American ConventiononthePrevention, Punishment,andEradicationofViolence (hereinafter “theConvention” or“theAmericanConvention”)andArticle12ofthe as provided forinArticles44and46oftheAmericanConventiononHumanRights Committee fortheDefense of Women’s Rights (CLADEM) (hereinafter “thepetitioners”), Law (CEJIL), and theLatin American andCaribbean Center for Justice and International “the Commission”)receivedthe apetitionfiledbyMrs.MariadaPenhaMaiaFernandes, 1. I. (…) With respect tothemeritsofcase,Commission concludes thattheState (…) With The petitionallegesthattheFederativeRepublicofBrazil(hereinafter “Brazil”or On August20,1998,theInter-American CommissiononHumanRights(hereinafter S ummary The

Inter-American Commission on Human Rights - Maria da Penha Maia Fernandes v. Brazil 129

- 17 ase C the

of

erits M the

of

A study done by the National Movement for Human Rights in Brazil compares compares Brazil in Rights Human for Movement National the by done study A sis naly Moreover, even where these specialized stations exist, it remains frequently the case frequently these specialized stations exist, it remains even where Moreover, In some cases, resource not fully investigated or prosecuted. that complaints are cases, women refrain to these crimes. In other to respond limitations hinder efforts limitations often expose formal charges. In practice, legal and other pressing from women have to they feel constrained to act. By law, women to situations where their complaint at a police station, and explain what happened so the del- register sufficient Delegates who have not received egate can write up an “incident report.” con- reportedly services, and some the required training may be unable to provide to victims in ways that make them feel shame and humiliation. tinue to respond themselves at an Institute of For certain crimes, such as rape, victims must present Medicine (Instituto Médico Legal), which has the exclusive competence Forensic Compared to men, women are the victims of domestic violence in disproportionate in disproportionate the victims of domestic violence to men, women are Compared Equality before the Law (Article 24 of the Convention) and Articles II and and the Convention) 24 of (Article the Law before Equality Convention in the American 24 of violation of Article also allege The petitioners notes that it has followed with spe- Commission the Inter-American In that regard, V. a national rules, including those arising from the case law of the Brazilian Supreme Court. the case law of the Brazilian Supreme national rules, including those arising from Rights, the Commission stated: In its 1997 Report on the Situation of Human 47. numbers. the incidence of domestic violence against women and men and shows that in terms of the incidence of domestic violence against likely to be killed by their husbands than husbands 30 times more women are murders, on Brazil in 1997, the Commission found that there by their wives. In its special report the inef- from attacked, resulting who were was clear discrimination against women inadequate application of national and inter ficiency of the Brazilian judicial system and B. XVIII of the Declaration 45. in the the law and the right to justice enshrined before to the right to equality relation II and XVIII). on the Rights and Duties of Man (Articles American Declaration 46. the rights of women, particularly those for to respect developments related cial interest information on the high domestic violence. The Commission has received to related the in Brazil. In Ceará alone (the place where number of domestic attacks of women to special reported 1,183 death threats were to this case took place), there events related 1993, out of a total of 4,755 complaints. in affairs police stations handling women’s […] 130 Gender-based Violence ment ofsheltersforbattered women;and(3)the1991decision oftheSupreme Court to special police stations to handle reports on violence against women; (2) the establish- tives thatare directly related tothesituationseen inthiscase:(1)theestablishmentof legislative, judicial, and administrative spheres. of violation,theCommissionalsonotesthatpositivemeasures havebeentakeninthe 50. (Report oftheSanPabloCatholicUniversity,1998). complaints fordomesticviolenceagainstwomenleadtoconviction oftheaggressor. violence are putonholdwithoutanyconclusionbeingreached. Only2%ofthecriminal 49. 24,103 ledtopoliceinvestigations,according tothatreport. 1994, of86,815complaintsfiledbywomenwhowere assaultedinthehome,only ContraaMulhereImpunidade:UnaQuestãoPolítica(1995). In Paulo, AViolencia reported tospecializedstations are actuallyinvestigated. (UnidodeMulheres deSao where statisticshavebeen kept, theyhaveshownthatonlyonepercent oftheoffenses 48. contribute totheimpunityinwhichthesecrimestoooftenlanguish. concealed it, but have yet to surmount the social, legal and other barriers which violence againstwomenhavebeguntocombatthesilencewhichcustomarilyhas available toher. Theinitiativestakenbythepublicandprivatesectortoconfront her moralblamelessnessinorder toexercise theremedies legallyrequired tobe the effect ofrequiring thevictimtodemonstratesanctityofherreputation and bysomecourts–have tion, thepracticesofsomedefenselawyers–sustainedinturn Rather thanfocusingontheexistenceoflegalelementscrimeinques- continues tobeafocalpointwithinthejudicialprocess toprosecute asexualcrime. use ofthe“honordefense”persists,andinsomeareas theconductofvictim and punishtheperpetratorsofdomesticviolence.Insomeareas ofthecountry, a justificationforwife-killingin1991,manycourts remain reluctant toprosecute Although theSupreme CourtofBrazilstruckdownthearchaic “honordefense”as lence, there is no guarantee that the crime will be investigated and prosecuted. even whenwomentakethestepsnecessarytodenounceuseofcriminalvio- be locatedinurbanareas, and,where available,are oftenunderstaffed. Moreover, timely mannernecessarytoobtaintherequired evidence. TheseInstitutestendto are not aware of this requirement, or do not have access to such a facility in the to performtheexaminationsrequired bylawtoprocess acharge.Somewomen In this analysis examining the pattern shownbytheStateinrespondingIn thisanalysisexaminingthepattern tothiskind Other reports indicate that 70% ofthecriminal complaints pertainingtodomestic That report also makes reference to various studies that demonstrate thatin cases 18 The Commission points to three initia-

Inter-American Commission on Human Rights - Maria da Penha Maia Fernandes v. Brazil 131 - same res the or has shared whether or not the perpetrator shares relationship, that occurs in the community and is perpetrated by any person, including, Article 7 of the Convention of Belém do Pará Article 7 of the Convention Convention of Belém Brazil deposited its ratification of the On November 27, 1995, the Commission has ratione materiae and ratione temporis As indicated earlier, the great instrument that reflects The Convention of Belém do Pará is an essential Article 2 Violence psy- against women shall be understood to include physical, sexual, and chological violence: a. idence with the woman, including, among others, rape, battery and sexual abuse; b. - prostitu trafficking in persons, forced among others, rape, sexual abuse, torture, tion, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place; and strike down the archaic concept of “honor defense “ as a justification for crimes against against crimes for a justification as “ defense “honor of concept archaic the down strike on a limited been implemented similar initiatives have positive and other wives. These In this case, earlier. as indicated of the problem, scope and urgency to the basis in relation whatsoever. had any effect initiatives have not as a symbol, these which stands C. 51. States acknowledge instrument by means of which American do Pará, the inter-American commitments to guidelines to be followed, make establish the extent of this problem, petitions file to organization or individual any for possibility the establish and it, address Rights Commission on Human the Inter-American a matter before and take action on a finding of violation by the seeking The petitioners are its proceedings. and through Convention on the Prevention, Inter-American State of Articles 3, 4, 5, and 7 of this alleging that this case and are Punishment, and Eradication of Violence against Women, discrimination by Brazilian State organs, must be analyzed in a context of gender-based the systematic pattern of violence against women and impunity which serves to reinforce in Brazil. 52. of the Convention of Belém do the provisions competence to hear the case pursuant to by Brazil, that thereof subsequent to ratification to acts that occurred Pará with respect and, conse- legal procedures, right to effective is, the alleged ongoing violation of the the tolerance that this would imply of violence against women. quently, 53. of the right of women to a life free to protect to identify specific measures made effort the The CVM provides and violence, both outside and within the family circle. aggression women: following definition of violence against 132 Gender-based Violence Duties oftheStates against Women states: Inter-American ConventiononthePrevention, Punishment,andEradicationofViolence the resulting dutyoftheState setforthinArticle7ofthatinstrument. the tection againstactsthatviolateherrights(Articles4(a),(b),(c),(d),(e),(f),and(g), before andofthelaw; tosimpleandprompt recourse toacompetentcourt forpro- moral integrity, herpersonalsafety, andpersonaldignityrespected, toequalprotection to alifefree ofviolence(Article 3), therighttohaveherlife,physical,mental,and following rightsofwomenwhentheyhavebeenviolatedbyactsviolence:theright second, violenceperpetratedorcondonedbytheState. TheCMVprotects, interalia,the by twoconditions:first,violenceagainstwomenasdescribedinsections(a)and(b);and, 54. ing andeffective accesstosuchprocedures; jected toviolencewhichinclude, amongothers,protective measures, atimelyhear f. sustain thepersistenceandtolerance ofviolenceagainstwomen; peal existinglawsandregulations ortomodifylegalcustomarypracticeswhich e. her lifeorintegrity, ordamagesherproperty; timidating orthreatening thewomanorusinganymethodthatharmsendangers d. against womenandtoadoptappropriate administrativemeasures where necessary; type ofprovisions thatmaybeneededtoprevent, punishanderadicateviolence c. against women; b. conformity withthisobligation; to ensure that their authorities, officials, personnel,agents, and institutions act in a. eradicate suchviolenceandundertaketo: sue, byallappropriate means andwithoutdelay, policiestoprevent, punishand The StatesPartiescondemnallformsofviolenceagainstwomenandagree topur Article 7 thescopeofapplicationCMV,Within reference ismadetosituationsdefined it occurs. c.

establish fair and effective legal procedures for women who have been sub- take all appropriate measures, including legislative measures, to amend or re- adopt legal measures to require the perpetrator to refrain from harassing, in- include in their domestic legislation penal, civil, administrative and any other apply due diligence to prevent, investigate and impose penalties for violence refrain from engaginginanyactorpracticeofviolenceagainstwomenand that isperpetratedorcondonedbythestateitsagentsregardless ofwhere - - Inter-American Commission on Human Rights - Maria da Penha Maia Fernandes v. Brazil 133 - ineffective the tip of the iceberg, ineffective in this case, which represents However, 19 establish the necessary legal and administrative mechanisms to ensure that to ensure administrative mechanisms necessary legal and establish the to to give effect as may be necessary measures legislative or other adopt such In light of the foregoing, the Commission holds the view that this case meets the In light of the foregoing, g. or reparations restitution, to access effective have to violence subjected women and remedies; and effective other just h. this Convention. ex-husband of Mrs. FernandesThe impunity that the has enjoyed and continues Given the fact that the violence suffered by Maria da Penha is part of a general pat- by Maria da Penha Given the fact that the violence suffered measures the (h), and 7(c) Articles to relation in consider, must Commission The judicial action, impunity, and the inability of victims to obtain compensation provide an victims to obtain compensation provide and the inability of judicial action, impunity, domestic vio- to address action to take appropriate of commitment of the lack example a list of commit- lence. Article 7 of the Convention of Belém do Pará seems to represent ments that the Brazilian State has failed to meet in such cases. 58. in the conditions for domestic violence and tolerance on the part of the State, defined 55. the internationalto enjoy is at odds with voluntarily assumed by the State commitment and convict to prosecute Convention of Belém do Pará. The failure when it ratified the the condones State the that indication an is circumstances these under perpetrator the by the Brazilian courts to take action this failure by Maria da Penha, and violence suffered Further by her ex-husband. of the aggression consequences is exacerbating the direct more, as has been demonstrated earlier, that tolerance by the State organs is not limited that tolerance by the State organs earlier, as has been demonstrated more, it is a pattern. system The condoning of this situation by the entire to this case; rather, and factors that social, and historical roots only serves to perpetuate the psychological, sustain and encourage violence against women. 56. and convicting by the State in prosecuting tern action of negligence and lack of effective to it is the view of the Commission that this case involves not only failure aggressors, but also the obligation to and convict, respect to prosecute fulfill the obligation with - ineffective degrading practices. That general and discriminatory judicial these prevent no sees society since violence, domestic to conducive is that climate a creates also ness to take effective the society, of representative evidence of willingness by the State, as the action to sanction such acts. 57. of domestic violence. The Commission taken by the State to eliminate the condoning that objective, towards administration taken by the current notes the positive measures women, stations, shelters for battered of special police the establishment in particular and others. 134 Gender-based Violence 18 17 […] own failure toactandtoleranceoftheviolenceinflicted. American Convention;bothinrelation toArticle1(1)oftheConvention,asaresult ofits assumed underArticle7oftheConventionBelémdoParáand Articles8and25ofthe 4. […] this caseofdomesticviolenceinBrazil. 1(1) ofthisinstrument,becausetheunwarranteddelayandnegligentprocessing of cordance withthegeneral obligation torespect andguaranteerightssetforthinArticle judicial protection, guaranteed inArticles8and25oftheAmericanConvention,ac- Federative Republic of Brazil is responsible for violation of the right to afairtrial and 2. […] ing conclusions: 60. […] (Articles 4(a),(b),(c),(d),(e),(f),and(g)). prompt recourse toacompetentcourtforprotection againstactsthatviolateherrights personal dignityrespected, toequalprotection before andofthelaw, andtosimple woman tohaveherlife,physical,mental,andmoralintegrity, herpersonalsafety, and tected therein, amongthem,therighttoalifefree of violence(Article3),therightofa set forthinArticles7(b),(d),(e),(f),and(g)ofthatConventionrelation torightspro- Convention of Belém do Pará, and that the State is liable for failing to perform its duties E VII. ndnotes the 1988BrazilianConstitutionhasbeen amendedinamannerthatreflects significant progress inwomen’s Asaresult andtheCNDM[NationalCouncilforWomen’s ofjointactiontakenbytheGovernment Rights], mation received from policestations. Maria da Penha“Sobrevivi Posso Contar ” Fortaleza 1994, page150; data basedon infor Maia Fernandes, The State has violated the rights of Mrs. Fernandes and failed to carry out its duty The State has violated the rights of Mrs. Fernandes Based onthefacts,whichhavenotbeendisputed,andforegoing analysis,the The Inter-American CommissiononHumanRightsreiterates totheStatefollow- C onclusis - Inter-American Commission on Human Rights - Maria da Penha Maia Fernandes v. Brazil 135 In the context of the National Program on Human Rights, the initiatives proposed by the Governmentthe by proposed initiatives the Rights, Human on Program National the of context the In rights. Rights Council for Women’s support for the National the rights of women include: aimed at strengthening sexual and to support and prevent efforts Violence Women; against to Prevent Program and the National at risk, and to who are to women assistance comprehensive women, to provide against domestic violence - re available; are that and violence against women and safeguards educate the public about discrimination authority; support for efforts in the Penal and Civil Code on parental provisions peal of certain discriminatory curriculum of establishment the in and agents of State training the in approaches gender-specific develop to to the studies related statistical support for and education levels; and secondary at the primary guidelines that the Government implement the also recommends The program sphere. status of women in the labor Punishment, and Eradication of Prevention, Convention on the Inter-American decisions contained in the Violence against Women. Special Report on the Situa- to the rights of Brazilian women in the 1997 IACHR See the chapter pertaining tion of Human Rights in Brazil.

19

European Court of Human Rights

Open Door and Dublin Well Woman v. Ireland

Application Nº 14234/88; 14235/88

Judgment of October 29, 1992 138 Gender-based Violence They invokedArticle10whichprovides: as opposedtothemakingoftravelarrangementsorreferral toclinics(…). theprovisionpart oftheinjunctionwhichconcerned information topregnant women of MrsXandMsGeraghtytoreceive information. They confinedtheircomplainttothat corporate applicants andthe two counsellors to impartinformation,aswell as therights sisting pregnant womentotravelabroad toobtainabortions,infringedtherightsof 53. […] insemination andthecounsellingofpregnant women. of women’s health,rangingfrom smearteststobreast examinations,infertility, artificial and healthmatters.Theservicesoffered byDublinWell Woman relate toeveryaspect broad rangeofservicesrelating tocounsellingandmarriage,familyplanning,procreation to operatein1988(…).DublinWell Woman wasestablishedin1977andprovides a and DublinWell Woman are bothnon-profit- makingorganisations.OpenDoorceased ties outside the jurisdiction of Ireland by way of non-directive counselling (…). Open Door them from providing certaininformationtopregnantabortionfacili- womenconcerning injunction imposedbytheIrishcourtsonOpenDoorandDublinWell Woman torestrain Woman applicationaswomen ofchild-bearingage.Theapplicantscomplainedan in1950andMsMaeveGeraghty,Mrs X,born in1970,whojointheDublinWell born Maher and Ann Downes, who worked as trained counsellors for Dublin Well Woman; (d) porated underIrishlawwhichprovided similarservicesattwoclinicsinDublin;(c)Bonnie Woman CentreLtd(hereinafter referred toasDublinWell Woman), acompanyalsoincor counselling pregnant womeninDublinandotherpartsofIreland; and(b)DublinWell as OpenDoor),acompanyincorporatedunderIrishlaw, whichwasengaged,interalia,in 9. […] III. scribed bylawandare necessaryinademocraticsociety, intheinterests ofnational may besubjecttosuchformalities, conditions,restrictions orpenaltiesasare pre- 2. Theexercise ofthesefreedoms, sinceitcarrieswithdutiesandresponsibilities, interference bypublicauthorityandregardless of frontiers (...). dom to hold opinions and to receive and impart information and ideas without 1. The applicantsallegedthattheSupreme Courtinjunction,restraining themfrom as- The applicantsinthiscaseare (a)OpenDoorCounsellingLtd(hereinafter referred to A lleged Everyone hastherighttofreedom ofexpression. Thisrightshallincludefree- V iola tion

of A rticle 10 - European Court of Human Rights - Open Door and Dublin Well Woman v. Ireland 139 Court’s examination of the issue Court’s This question must be approached by considering not merely the wording of Article the wording by considering not merely This question must be approached of the unborn provided of protection threshold the high into consideration Taking security, territorial integrity or public safety, for the prevention of disorder or crime, or of disorder for the prevention safety, integrity or public territorial security, rights or reputation the of protection the for morals, or health of protection the for or for in confidence, received of information the disclosure for preventing of others, impartiality of the judiciary. the authority and maintaining applicants’ rights? with the an interference there Was with the GovernmentThe Court notes that the injunction interfered accepted that by law”? “prescribed the restriction Was 2. […] 59. given under Irish law to the rights of the un- 40.3.3o in isolation but also the protection born in statute law and in case-law (…). that the and outside Ireland have an abortion to offence not a criminal it is It is true that law criminal the infringe not did women pregnant of counselling non-directive of practice 40.3.3o appears to enjoin only the on its face the language of Article as such. Moreover, the right to life of the unborn legislation will and suggests that regulatory State to protect stage (…). at some future be introduced 60. their law generally and the manner in which the courts have interpreted under Irish as the guarantors of constitutional rights, the possibility that action might be taken role - legal advice, reason against the corporate applicants must have been, with appropriate the United Kingdom judgment of 26 April v. (See the Sunday Times ably foreseeable A. 55. to the regard applicants to impart information. Having of the corporate the freedom of the corporate the “servants or agents” which also restrains scope of the injunction was can be no doubt that there (…), there women” assisting “pregnant applicants from information rights of the applicant counsellors to impart with the also an interference in the event of be- information Mrs X and Ms Geraghty to receive and with the rights of entails a violation of Article 10 , interference determine whether such an ing pregnant.To reason was justified under Article 10 para. 2 by the Court must examine whether or not it in a democratic society on by law” which was necessary “prescribed of being a restriction specified in Article 10 para. 2. one or other of the grounds B. 140 Gender-based Violence 62. morals and,where appropriate, fortheprevention ofcrime. the protectionfor oftherights ofothers-inthisinstancetheunborn-, 61. C. cordingly “prescribed bylaw”. injunction couldbesoughtagainstitscounsellingactivities(…).Therestriction wasac- that was actually given to Dublin Well Woman that, in the light of Article 40.3.3o, an 1979, SeriesAno.30,p.31,para.49).Thisconclusionisreinforced bythelegaladvice […] D. the term“others”underArticle10para.2extendstounborn. isoneaspect.Itnotnecessaryinthelightofthisconclusiontodecidewhether unborn of the protection of morals of which the protection in Ireland of the right to life of the as expressed in the 1983 referendum (…). The restriction thus pursued the legitimate aim life which were reflected in the stance of the majority of the Irish people against abortion isbasedonprofoundthenatureright tolifeoftheunborn moralvaluesconcerning criminal offence. However, it is evident that the protection afforded under Irish law to the mation inquestionnortheobtainingofanabortionoutsidejurisdictioninvolvedany vention of crime since, as noted above (paragraph 59), neither the provision of the infor 63. interpret the“rightsofothers” inArticle10para.2asencompassingtheunborn. “everyone” inArticle10para.1andthroughout theConvention,itwouldbeillogicalto not claimedthattheConvention containsarighttoabortion,assuch,theircomplaint foetus isencompassedbythe right tolifeascontainedinArticle2.Theapplicantshave examine whetherarighttoabortion isguaranteedundertheConventionorwhether 66. […] The applicantsdisagreed, contending submittedthattherelevantThe Government provisions ofIrishlaware intendedfor Did the restriction have aims that were legitimate underArticle10para.2? 1. Was therestriction necessaryinademocraticsociety? The Courtcannotacceptthattherestrictions atissuepursuedtheaimofpre- The Courtobservesattheoutset thatinthepresent case itisnotcalleduponto Article 2 inter aliathat,inviewoftheuseterm - European Court of Human Rights - Open Door and Dublin Well Woman v. Ireland 141 2. Proportionality test, the logical consequence of the application of the “proportionality” As regards being limited to that part of the injunction which restricts their freedom to impart and freedom their restricts which injunction the of part that to limited being (…). concerning information abortion abroad receive to impart freedom on the the restrictions is whether issue to be addressed Thus the only in a necessary are injunction part of the relevant the contained in information and receive explained above of morals as the legitimate aim of the protection democratic society for (see paragraph 63). (…) […] of the protection in the field of discretion that the State’s agree 68. The Court cannot (see, mutatis mutandis, for a similar argument, and unreviewable morals is unfettered no. 142, p. 20, para. 45). Ireland judgment of 26 October 1988, Series A the Norris v. in enjoy a wide margin of appreciation It acknowledges that the national authorities which touches on matters such as the present matters of morals, particularly in an area it is not observed before, As the Court has concerning of human life. of belief the nature - States a uniform Euro of the Contracting orders possible to find in the legal and social in principle, in a better position authorities are, pean conception of morals, and the State the internationalthan requirements the of content exact on the opinion an give judge to or “penalty” intended to meet a “restriction” of morals as well as on the “necessity” of the United Kingdom judgment of 7 December them (see, inter alia, the Handyside v. Switzerland- judg the Müller and Others v. 1976, Series A no. 24, p. 22, para. 48, and p. 22, para. 35). However this power of ap- ment of 24 May 1988, Series A no. 133, is not unlimited. It is for the Court, in this field also, to supervise whether a preciation is compatible with the Convention. restriction 69. to protect taken by the national authorities is that measures argument the Government’s the right to life of the unborn on the subject or to uphold the constitutional guarantee infringement of a right of Convention where would be automatically justified under the was alleged. It is, in principle, open to the national authorities to take a lesser stature to con- the rule of law or to give effect such action as they consider necessary to respect do so in a manner which is compatible with their they must rights. However, stitutional by the Convention institutions. obligations under the Convention and subject to review pleading on this point would amount to an abdication of accept the Government’s To the observance of the engagements under Article 19 “to ensure responsibility the Court’s undertaken by the High Contracting Parties ...”. 142 Gender-based Violence the counselling of pregnant women in the course of which counsellors neither advocated 75. Moreover, thisassessmentisconfirmedbyotherfactors. 74. abroad (…). Supreme Court’s judgmentinthatcase,were nowfree tohaveanabortioninIreland or the injunctionnolongerappliedtowomenwho,incircumstances asdefinedinthe attheoralhearingthat and OthersbytheconcessionmadeGovernment of this restriction has since been highlighted by the case of reasons forseekingcounsellingontheterminationofpregnancy. Thesweepingnature abortionfacilities abroad,women concerning regardless ofageorstatehealththeir which imposeda“perpetual”restraint ontheprovision ofinformationtopregnant 73. of ademocraticsociety. for careful scrutinybythe Convention institutionsastotheirconformitywiththetenets moral implications,havebeenandcontinuetobetoleratedbynationalauthorities,call activitieswhich,notwithstandingtheir well-being. Limitationsoninformationconcerning are lawfulinotherConvention countriesandmaybecrucialtoawoman’s healthand tion limitedthefreedom to receive andimpartinformationwithrespect toservices which pregnant womantotravel abroad inorder tohaveanabortion.Furthermore, theinjunc- provision of information, it is recalled that it is not a criminal offence under Irish law for a 72. Handyside judgment,SeriesAno.24,p.23,para.49). without whichthere isno “democraticsociety”(see,interalia,theabove-mentioned population. Suchare the demands ofthatpluralism,toleranceandbroadmindedness to “information”or“ideas”thatoffend, shockordisturbtheStateanysectorof 71. the legitimateaimpursued”(ibid.). question and,inparticular, whethertherestriction complainedofwas“proportionate to 59). Itmustdeterminewhetherthere existedapressing socialneedforthemeasures in United Kingdomjudgmentof26November1991,SeriesAno.216,pp.29-30,para. andGuardianv.the principlesdevelopedinitscase-law(see,interalia,Observer the 70. In thefirstplace,itistobenoted thatthecorporateapplicantswere engagedin On that ground alone the restriction appears over broad and disproportionate. The Courtisfirststruckbytheabsolutenature oftheSupreme Courtinjunction While therelevant restriction, islimitedtothe asobservedbytheGovernment, In thiscontext,itisappropriate torecall thatfreedom ofexpression isalsoapplicable Accordingly, theCourtmustexaminequestionof“necessity”inlight The Attorney General v. X European Court of Human Rights - Open Door and Dublin Well Woman v. Ireland 143 - Articles 17 and 60 The Government, 17 and 60 of the Convention, have submitted invoking Articles of protection of Without regime the the Convention under into question calling It has not been seriously contested by the GovernmentIt has not been seriously that information concerning has not been disputed by the GovernIn addition, the available evidence, which - 3. 78. or derogate in such a manner as to limit, destroy that Article 10 should not be interpreted the right to life of the unborn under Irish law. from which enjoys special protection 79. that the injunction did not prevent Court recalls the unborn law, life that exists under Irish nor encouraged abortion, but confined themselves to an explanation of the available op- to an explanation of themselves abortion, but confined nor encouraged was provided the information so on not to act or to whether The decision as tions (…). such counselling that following can be little doubt woman concerned.that of the There the link Accordingly, of pregnancy. against a termination women who decided were there and the destruction of unborn of information life is not as definite between the provision the State authorities even counselling had in fact been tolerated by as contended. Such judgment Court’s Supreme Eighth Amendment in 1983 until the after the passing of the ap- by the relevant information that was provided the case. Furthermore, in the present available to the public at was not made plicants concerning abortion facilities abroad large. 76. such as maga- in Ireland other sources be obtained from can abortion facilities abroad - Accord Britain. Great in contacts with persons by or (…) directories telephone and zines available elsewhere was already information that the injunction sought to restrict ingly, thus less qualified personnel and not supervised by a manner which was although in the injunction appears to have been largely health. Furthermore, of women’s protective num- large unbornthe of life to right the prevent not did it since protecting in ineffective Britain (…). continuing to obtain abortions in Great bers of Irish women from 77. a risk to the health of those women created ment, suggests that the injunction has due to lack of proper now seeking abortions at a later stage in their pregnancy, who are after supervision medical customary of themselves availing not are and who counselling, adverse may have had more the injunction the abortion has taken place (…). Moreover, level of or had not the necessary resourceful not sufficiently women who were on effects of information (see paragraph 76 above). education to have access to alternative sources propor the assessing in into consideration take to factors legitimate certainly are These tionality of the restriction. 144 Gender-based Violence […] sued. Accordingly there hasbeenabreach ofArticle10. applicants from receiving or imparting information was disproportionate to the aims pur 80. by Irishwomenabroad. the lawthatmakespossiblecontinuanceofcurrent levelofabortionsobtained interpretation of Article 10 but the position in Ireland as regards the implementation of was availablefrom othersources (seeparagraph 76 above). Accordingly, itisnotthe Irish womenfrom havingabortionsabroad andthat the informationitsoughttorestrain In thelightofabove,Courtconcludesthatrestraint imposedonthe 4. Conclusion - European Court of Human Rights

Aydin v. Turkey

Application Nº 23178/94

Judgment of September 25, 1997 146 Gender-based Violence […] Mrs Ş against theRepublicofTurkey lodgedwiththeCommissionunderArticle 25by damental Freedoms (“the Convention”). Itoriginatedinanapplication(no. 23178/94) ticle 32§1andArticle47oftheConventionforProtection ofHumanRightsandFun- (“the Commission”)on15 April1996,withinthethree-month periodlaiddownbyAr 1. P […] 15. Thefactsinthecaseare disputed. sion. elled outsidehervillagebefore theeventswhichledtoherapplicationCommis- where the district gendarmerie headquarters are located. The applicant had never trav- her parents inthevillageof Tasit, whichisabouttenkilometres from thetownofDerik in1976.Atthetimeofeventsissueshewas17 yearsoldandlivingwith born 13. eastern Turkeyeastern hadsince1987beensubjectedto emergencyrule. At thetimeofCourt’s considerationof thecase,tenofelevenprovinces ofsouth- 4,036 civiliansand3,884membersofthesecurityforces. istan). Thisconfrontation hassofar, accordingclaimedthelivesof totheGovernment, Turkey betweenthesecurityforces andthemembersofPKK(Workers’ PartyofKurd- 14. 1. A rocedure s

to 1. The case was referred to the Court by the European Commission of Human Rights P 2. The applicant,Mrs Ş Since approximately 1985, serious disturbances have ragedin the south-eastof ükran Aydın, aTurkishükran national,on21December1993. articula r

the The applicant The situationinthesouth-eastofTurkey F acts C ircumst ükran Aydın, isaTurkish citizenofKurdish origin.Shewas ances

of

the C ase

- European Court of Human Rights - Aydin v. Turkey 147 - Bekir Özenir, in Derik to lodge complaints about theabout complaints lodge to Derik in Bekir Özenir, The detention of the applicant The detention a gen- and village guards of people comprising a group to the applicant, According family her questioned and home parents’ her to came group the of members Four were Ferahdiba Aydın, and her sister-in-law, Seydo Aydın, The applicant, her father, of the applicant during detention Treatment the gendarmerie headquarters, she was The applicant alleges that, on arrival at complaint The investigation of the applicant’s went to On 8 July 1993 the applicant together with her father and her sister-in-law A. 16. 29 June 1993. in her village on darme arrived 17. by PKK members (see paragraph 14 above). Her family visits to the house about recent where then taken to a village square They were and subjected to insults. threatened were their homes. taken from who had also been forcibly joined by other villagers they were 18. gendar blindfolded and driven away to Derik of the villagers, the rest singled out from merie headquarters. [...] B. 20. to upstairs taken was she stage some At sister-in-law. her and father her from separated she was stripped of her There room”. to as the “torture she later referred which a room beaten and sprayed with She was and round. round and spun tyre a car put into clothes, jets. At a later stage she was taken clothed but blindfolded high-pressure cold water from military in individual an Withlocked, room. room of the door the interrogation an to the time By her. and raped back on her her laid clothes, her removed forcibly clothing to get blood. She was ordered in pain and covered he had finished she was in severe to the applicant, she was According subsequently taken to another room. and dressed she had been raped. She was beaten for about an where back to the room later brought on what they had done to her. hour by several persons who warned her not to report [...] D. 23. Mr prosecutor, public the of office the - The public prosecu while in detention. which they all alleged they had suffered treatment that she had been tortured each of them. The applicant reported tor took statements from 148 Gender-based Violence was submitted,undated,totheCommissionalongwithherapplication. in astatementgiventotheDiyarbakırHumanRightsAssociationon15 July1993,which tortured. According totheapplicant,sheconfirmed her accountofwhathappenedto by being beaten and raped. Her father and sister-in-law both alleged that they had been [...] not beaccuratelydated. but that after seven to ten days defloration could above) that the hymen had been torn report dated 13 August1993confirmedDr establish whethertheapplicanthadlosthervirginityand,ifso, sincewhen.Themedical HospitalrequestingDiyarbakır Maternity thatamedicalexamination becarriedoutto plicant whobythatstagewasmarried.Onthesamedayhe referred theapplicantto 26. He didnotfrequently dealwithrapevictims. inner thighsonaccountofthefactthathewasaspecialistin obstetrics andgynaecology. account were recorded inhisreport. Dr Çetindidnotcommentonthebruisingher happened tohernorwhethertheresults oftheexaminationwere consistentwiththat her examination.Noswabwastakenandneithertheapplicant’s accountofwhathad tor’s report, datedthesameday, deflorationhadoccurred more than a weekpriorto since when.ShewasexaminedbyDr ZiyaÇetin,agynaecologist.According tothedoc- State Hospital with a request to establish whether she had lost her virginity and, if so, 25. bodies oftheapplicant’s fatherandsister-in-law. the reason forthebruising. Inseparatereports henotedthatthere were woundsonthe sincehewasnotqualifiedinthisfield;norcouldexpresshad beentorn anyviewon widespread bruisingaround theinsidesofherthighs.Hecouldnotdatewhenhymen with anyrapecases,statedthattheapplicant’s andthat there hymenwastorn In hisreport ontheapplicant dated8 July1996,DrAkkuş,whohadnotpreviously dealt of anymarksphysicalviolenceorinjury. requested that she be examined to establish whether she was a virgin and the presence cal violence,ifany, inrespect ofSeydoandFerahdiba.Inrespect oftheapplicant,he public prosecutor hadrequested DrAkkuştoestablishtheblowsandmarksofphysi- 24. 1. On 12 August1993thepublicprosecutor tookafurtherstatementfrom theap- On 9 July1993thepublicprosecutor senttheapplicanttobeexaminedatMardin All three were sentthesamedaytoDrDenizAkkuşatDerikStateHospital.The Medical examinationoftheapplicant Çetin’s earlierfindings(seeparagraph 25 European Court of Human Rights - Aydin v. Turkey 149 - - - judgment cited above, above, judgment cited Aksoy 3 of the Convention enshrines one 3 of the Convention The Court’s assessment The Court’s In order to determine whether any particular form of ill-treatment should be should be to determine whether any particular form of ill-treatment In order was raped by a person whose identity While being held in detention the applicant - The applicant was also subjected to a series of particularly terrifying and humiliat The Court recalls that it has accepted the facts as established by the Commission, by the Commission, facts as established it has accepted the that recalls The Court Article many occasions, As it has observed on 2. 15 even having regard to the imperatives of a public emergency threatening the life of a public emergency threatening to the imperatives ticle 15 even having regard a person may be involved suspicion, however well-founded, that of the nation or to any the example, for (see, activities criminal other or terrorist in under which to her sex and youth and the circumstances ie headquarters having regard days during which she must have she was held. She was detained over a period of three in a constant state of blindfolded, and kept being and disoriented by been bewildered dur her to administered beatings the by on brought anguish mental and pain physical of the fundamental values of democratic societies and as such it prohibits in absolute it prohibits values of democratic societies and as such of the fundamental or punishment. Article 3 admits of no degrading treatment or inhuman or terms torture under Ar it is permissible from value and no derogation exceptions to this fundamental p. 2278, § 62). 82. must be had to the distinction drawn in Article 3 between regard qualified as torture, distinction This treatment. degrading or treatment inhuman of that and notion this in the Convention to allow the special stigma would appear to have been embodied causing very serious and to attach only to deliberate inhuman treatment of “torture” the United Kingdom judgment cited above, p. 66, (see the Ireland v. cruel suffering § 167). 83. by an official of the State must be consid- has still to be determined. Rape of a detainee given the ease with form of ill-treatment an especially grave and abhorrent to be ered of his victim. can exploit the vulnerability and weakened resistance which the offender rape leaves deep psychological scars on the victim which do not respond Furthermore, forms of physical and mental violence. The ap- to the passage of time as quickly as other have must which penetration, forced of pain physical acute the experienced also plicant physically and emotionally. left her feeling debased and violated both 84. at Derik gendarmer ing experiences while in custody at the hands of the security forces 80. was and while in custody forces detained by the security the applicant was namely that (...). to various forms of ill-treatment raped and subjected 81. 150 Gender-based Violence State officials(see,forexample, theAksoyjudgmentcitedabove,p. 2285,§92). plies toacivilclaimforcompensation inrespect ofill-treatment allegedlycommitted by 9 constitutes oneaspect(see,for example,theHolyMonasteriesv. Greecejudgmentof right ofaccess,thatis,thetoinstituteproceedings before acourtincivilmatters, 99. TheCourtrecalls thatArticle 6§1embodiesthe“righttoacourt”,ofwhich A. [...] complaint inthecontextofhercomplaintsunderArticles 6and13Convention. tion ofArticle3(...),theCourtconsidersthatitwouldbeappropriate toexaminethis effective investigationinto hertreatment whileincustodyconstitutedaseparateviola- 88. 87. separately. Indeed theCourtwouldhavereached thisconclusiononeitherofthesegrounds taken to whichshewassubjectedamountedtorture inbreach ofArticle 3theConvention. physical andmentalviolenceinflictedontheapplicantespeciallycruelactofrape 86. purposes. the period of her detention must also be seen as calculated to servethe same or related the security forces to elicit information. The suffering inflicted on the applicant during count ofthesecuritysituationinregion (seeparagraph 14above)andtheneedof to Derikgendarmerieheadquartersforapurpose,whichcanonlybeexplainedonac- 85. being spunaround inatyre. vulnerability andononeoccasionshewaspummelledwithhigh-pressure waterwhile also paradednakedinhumiliatingcircumstances thusaddingtoheroverallsenseof ing questioningandbytheapprehension ofwhatwouldhappentohernext.Shewas III. December 1994, Series C Article 6 §1oftheConvention As totheapplicant’s contentionthatthefailure oftheauthoritiestocarryoutan In conclusion,there hasbeen aviolationofArticle3theConvention. Against thisbackground the Courtissatisfiedthattheaccumulationofacts The applicantandherfamilymusthavebeentakenfrom theirvillageandbrought A onvention lleged V iola tions A no. 301-A, pp.

of A rticles 36–37, § 6 §1 80). Furthermore, Article and 13 of

the

6 § 1 ap- European Court of Human Rights - Aydin v. Turkey 151 - The applicant has never instituted proceedings before either the civil or administra - either the civil before proceedings has never instituted The applicant Article 13 of the Convention at the outset that Article 13 guarantees the availability at the na- The Court recalls 100. she was subjected to which of the suffering in respect to seek compensation tive courts in process to invoke the criminal has been prepared the other hand she On in custody. of the criminal in the initial stages to justice and, at least offenders to bring the order has sought to explain She with the investigating authority. investigation, to cooperate that she grounds pursue a claim for compensation on the even to attempt to her failure and that she had been raped in the absence of proof of success would have no prospect adduce was impossible to of the State, and such proof at the hands of agents ill-treated investigation. conducted the in which the public prosecutor on account of the manner [...] B. 103. rights and freedoms the substance of the Convention to enforce tional level of a remedy (...). The in the domestic legal order. be secured in whatever form they might happen to of the applicant’s on the nature under Article 13 varies depending scope of the obligation by Article 13 must required the remedy complaint under the Convention. Nevertheless, must exercise its that sense the in particular in law, in as well as practice in “effective” be respondent by the acts or omissions of the authorities of the not be unjustifiably hindered 2286, § 95). State (see the Aksoy judgment cited above, p. under Article 3 of the Convention has of the right safeguarded the nature Furthermore, of tor the prohibition implications for Article 13. Given the fundamental importance of (see paragraphs 81 and 83 victims the especially vulnerable position of torture and ture under the available to any other remedy above), Article 13 imposes, without prejudice investiga- and effective to carry out a thorough domestic system, an obligation on States tion of incidents of torture. tortured been has she or he that claim arguable an has individual an where Accordingly, entails, in addition to the remedy” “effective by agents of the State, the notion of an investigation effective and a thorough appropriate, where of compensation payment responsible and includ- capable of leading to the identification and punishment of those It is true that access for the complainant to the investigatory procedure. ing effective exists in the Convention such as can be found in Article 12 of the provision no express and Other Cruel, Inhuman or Degrading 1984 United Nations Convention against Torture and impartial” to a “prompt or Punishment, which imposes a duty to proceed Treatment has an act of torture to believe that ground is a reasonable investigation whenever there is implicit in the such a requirement been committed (see paragraph 48 above). However, 152 Gender-based Violence was madeto evaluate, psychologically, whether herattitude and behaviour conformed to of involuntarysexualintercourse (seeparagraphs 24and25above).Further, noattempt doctor volunteered anopiniononwhetherthebruisingwas consistentwithanallegation explain whathadhappenedto herortoaccountforthebruisingonthighs.Neither summary reports drawnupbythesedoctorsastowhethertheapplicantwasasked victims (see paragraphs 24 and 25 above). No reference is made in either of the rather that neitherDr AkkuşnorÇetinhadanyparticularexperienceofdealingwithrape victim, whichwastheveryessenceofhercomplaint.Inthis respect itistobenoted focus oftheexaminationsshouldreally havebeenonwhethertheapplicantwasarape in rapidsuccessionwastoestablishwhethertheapplicant hadlosthervirginity. The 107. [...] to theidentificationandpunishmentofthose responsible. and effective investigation capable ofestablishingthetruthhercomplaintandleading circumstances heshouldhave beenalerttotheneedconductpromptly athorough bers of her family gave aboutthe treatment which theyalleged they suffered. In such seriousness ofherallegationsbearinginmindalsotheaccountswhichothermem- torture, thepublicprosecutor couldreasonably havebeenexpectedtoappreciate the (see paragraph 23above).Althoughshemaynothavedisplayedanyvisiblesignsof referred tothefactthatshewasrapedandtortured atDerikgendarmerieheadquarters tor aboutthetreatment they suffered whileincustody. Inherstatementshespecifically 105. prosecutor ofhisfunctions. ultimate effectiveness ofthose remedies dependedontheproper dischargebythe public to thepursuitbyapplicantofotherremedies toredress theharmshesuffered. The to thepursuitofcriminalproceedings againsttheperpetratorsofoffences butalso other crucialstepsforestablishingthetruthofheraccount.Hisrole wascriticalnotonly summon witnesses,visitthesceneofincident,collectforensic evidenceandtakeall powers tointerviewmembersofthesecurityforces atDerikgendarmerieheadquarters, evidence necessaryforcorroborating hercomplaint.Thepublicprosecutor hadthelegal reliant onthepublicprosecutor andthepoliceacting onhisinstructionstoassemblethe 104. p. 2287,§98). notion of an “effective remedy” under Article It would appear that his primary concern inorderingIt wouldappearthathisprimaryconcern three medicalexaminations The applicant,herfatherandsister-in-law complainedtothepublicprosecu - Having regard totheseprinciples,theCourtnotesthat theapplicantwasentirely 13 (see the Aksoy judgment cited above, European Court of Human Rights - Aydin v. Turkey 153 those of a rape victim. The Court notes that the requirement of a thorough and effective effective and of a thorough notes that the requirement rape victim. The Court those of a official also im- the hands of a State of rape in custody at into an allegation investigation by medical professionals sensitivity, with all appropriate victim be examined, plies that the is not circumscribed and whose independence this area competence in with particular the examination. authority as to the scope of by the prosecuting by instructions given by the public prosecutor that the medical examinations ordered It cannot be concluded requirement. fulfilled this and that the that the investigation is still being conducted It has been contended 108. for a certain pe- the vicinity of Derik impeded the investigation from absence applicant’s psychological to undergo a further examination involving refused riod (...). She has also serious defects and inertia of the Court, this cannot justify the testing (...). In the view of the complaint. receipt the crucial phase immediately following which characterised and gather all had at that stage the legal means to act promptly The public prosecutor psychological and behavioural evidence; necessary evidence including, as appropriate, absence on account of the applicant’s nor can the decision to suspend the investigation under investigation. be justified given the gravity of the offence 109. and must be concluded that no thorough In the light of the above considerations, it allegations and that this failure investigation was conducted into the applicant’s effective may have existed given the which of any other remedies undermined the effectiveness as a whole, including to the system of remedies role centrality of the public prosecutor’s the pursuit of compensation. has been a violation of Article 13 of the Convention. In conclusion, there [...]

European Court of Human Rights

Jabari v. Turkey

Application Nº 40035/98

Judgment of July 11, 2000 156 Gender-based Violence handed overtotheIstanbulSecurity Directorate witha view toherdeportation.When dered herrelease, finding shehadnotentered Turkey ofherfree will.Theapplicantwas a forged passport in contravention of the Passport Act 1950. The public prosecutor or before theBakırköypublicprosecutor ontheground thatshehadentered Turkey using airport totheAliensDepartmentofIstanbulSecurityDirectorate. Shewasbrought 16. for examination. the ground thatshehadentered Turkey usingaforgedpassport.Herpassportwassent arrival atIstanbulAirport1a.m.on5February1998shewas arrested bypolicemenon 15. in possessionofaforgedpassport. 14. Canadian passport. plicant wenttoIstanbul,from where shetriedtoflyCanadaviaFranceusingaforged 13. she wasreleased from detentionwiththehelpofherfamily. 12. married. along astreet. Thepolicemen arrested thecoupleanddetainedthemincustodyasXwas 11. woman. Theapplicantcontinuedtoseehimandhavesexualrelations withhim. 10. married. a secretarial college.Shefell inlovewithhimandaftersometimetheydecidedtoget 9. […] 1. T he On 6February1998theapplicantwastransferred from apolicestationinsidethe On 4February1998theapplicantwasputonaplaneforIstanbul. Followingher When theapplicantarrivedatairportinParis,French policefoundhertobe In November1997theapplicantentered Turkey illegally. InFebruary1998theap- The applicantunderwentavirginityexaminationwhileincustody. Afterafewdays In October1997theapplicantandXwere stoppedbypolicemenwhilewalking However, X’s familywasopposedtotheirmarriage.InJune1997Xmarriedanother In 1995,attheageof22,applicantmetaman(“X”)inIranwhileattending T F he acts C ircumst ances

of

the C ase - European Court of Human Rights - Jabari v. Turkey 157 According to the applicant, she was held in detention at the Aliens Department until was held in detention at the Aliens Department to the applicant, she According of the member of the UNHCR, with the permission a staff On 12 February 1998 1998 the applicant lodged an application with the Ankara Administra- On 8 March peti- Court dismissed the applicant’s On 16 April 1998 the Ankara Administrative was no ac- Court found that there On 4 November 1998 the Ankara Administrative the applicant realised that she was going to be sent to Iran she told the Aliens Depart- she told the Aliens to be sent to Iran that she was going realised the applicant application with lodged an asylum The applicant she was an Iranian national. ment that out it had been submitted her application as rejected Department. The police the Aliens Regulation 1994 4 of the Asylum that under section applicant was informed of time. The Turkey. days of her arrival in her application for asylum within five she should have lodged 17. of the of the Ankara branch office following the intervention 1998. Thereafter, 26 March at a accommodated was she (UNHCR), Refugees for Commissioner High Nations United hotel in Istanbul. 18. the 1951 Geneva under the applicant about her asylum request authorities, interviewed to the Status of Refugees (“the Geneva Convention”). On 16 Febru- Convention relating status by the UNHCR on the basis that she ary 1998 the applicant was granted refugee to Iran as she risked being subjected removed had a well-founded fear of persecution if stoning, or being whipped or flogged. to inhuman punishment, such as death by 19. asked for a stay of execution of her deporta- tive Court against her deportation. She also tion. 20. deportation since it was not was no need to suspend her that there tions on the ground implementation would not cause irreparable tainted with any obvious illegality and its harm to the applicant. 21. the fact that she had been granted a residence tual risk of her being deported in view of on Hu- Convention the European under her application of outcome the pending permit the deportation order to suspend not required man Rights. The court found that it was had yet been made. since no such order […] 158 Gender-based Violence under Article3oftheConvention. Itwasalsosignificantthatshedidnotclaimasylum to theUNHCRwhenshearrived inTurkey in 1997wasatvariancewithherallegations opinion the fact that the applicant failed to make an application to the authorities or 37. to her. requirement under the 1994 Asylum Regulation (…), this facility could not be extended resettlement inathird country. Giventhattheapplicantfailedtocomplywithfive-day seekers liketheapplicantwhoare recognised asrefugees bytheUNHCRpendingtheir ian reasons theauthoritiesissuetemporaryresidence permitstonon-European asylum- give preference toasylum-seekersfrom European countries(…).However, forhumanitar tion”), Turkey had availed itself of the geographic preference option in the Convention to the 1951GenevaConventionrelating totheStatusofRefugees(“theGenevaConven - 36. within themeaningofArticle3Convention. nian lawfortheoffence of adultery, mustbeconsidered formsof prohibited treatment Court, stoningtodeath,floggingandwhipping,whichare penaltiesprescribed byIra- 35. the UNHCRguidelinesongender-based persecution. particular socialgroup, namely womenwhohavetransgressed socialmores according to on theground thatshehad awell-foundedfearofpersecutionasshebelongedto ing committed adultery. She stressed that she was granted refugee status by the UNHCR whichreferInternational tocasesofwomeninIranhavingbeenstoneddeathforhav- support ofherassertiontheapplicantrelied on,interalia,reports prepared byAmnesty probably havebeenprosecuted andsentencedtoaformofinhumanpunishment.In fore criminalproceedings couldbebrought againsther. Shesubmittedthatshewould 34. prohibited byArticle3oftheConvention,whichprovides: 33. a 1. T he The Government furtherquestionedthesubstanceofapplicant’sThe Government fears.Intheir maintainedinreplyThe Government thatwhenbecomingaContractingPartyto The applicantfurtherclaimedthat,bearinginmindtheestablishedcase-lawof The applicantstatedthatshehadcommittedadulteryinIranandtoleavebe- punishment.” “No oneshallbesubjectedtotorture ortoinhumandegradingtreatment or The applicant maintained that her removal to Iran would expose her to treatment L lleged aw V iola tion

of

the A r ticle 3 of

the C onvention

- European Court of Human Rights - Jabari v. Turkey 159 Vilvarajah and Others v. v. Others and Vilvarajah The Court recalls that Contracting States have the right, as a matter of well-estab- States have the right, as a matter of that Contracting The Court recalls The Court further observes that, having regard to the fact that Article 3 enshrines to the fact regard The Court further observes that, having State conducted of the respondent The Court is not persuaded that the authorities judgment of 20 March 1991, Series A no. 201, p. Sweden judgment of 20 March and Others v. Cruz Varas status when she arrived at the airport in Paris (see paragraph 14 above). In the Governparagraph 14 above). airport in Paris (see she arrived at the status when - sought refugee would ever have whether the applicant it must be doubted view, ment’s Canada. had managed to enter status if she 38. to Convention, the including obligations, lished international treaty to their and subject law the right to political asylum aliens. Moreover, and expulsion of residence the entry, control the (see Protocols its or Convention the either in contained not is judgment of 30 October 1991, Series A no. 215, p. 34, § 102).the United Kingdom judgment of 30 October by a Contract- in the case-law of the Court that expulsion it is well established However, of engage the responsibility to an issue under Article 3, and hence ing State may give rise for believ- have been shown substantial grounds Convention, where that State under the being subjected to risk of question, if expelled, would face a real ing that the person in Article 3 In these circumstances, country. contrary to Article 3 in the receiving treatment in question to that country (see the Soering implies the obligation not to expel the person §§ 90-91; 35-36, pp. no. 161, A 1989, Series July 7 of judgment Kingdom United the v. the the United Kingdom judgment of 15 November 1996, 28, §§ 69-70; and the Chahal v. p. 1853, §§ 73-74). Reports of Judgments and Decisions 1996-V, 39. in absolute a democratic society and prohibits one of the most fundamental values of scrutiny a rigorous or punishment, or inhuman or degrading treatment terms torture that his or her deportation to a claim be conducted of an individual’s must necessarily (see, mutatis Article 3 by prohibited to treatment that individual expose will country third p. 1859, § 96). mutandis, the Chahal judgment cited above, p. 1855, § 79, and 40. It would claim, including its arguability. any meaningful assessment of the applicant’s requirement registration with the five-day to comply failure appear that the applicant’s her any scrutiny of the factual basis of her under the Asylum Regulation 1994 denied opinion, the to Iran (see paragraph 16 above). In the Court’s fears about being removed asylum automatic and mechanical application of such a short time-limit for submitting an value fundamental the of the protection with at variance considered be must application to embodied in Article 3 of the Convention. It fell to the branch office of the UNHCR and to evaluate the to her asylum request interview the applicant about the background with which of the offence risk to which she would be exposed in the light of the nature review, she was charged. The Ankara Administrative Court, on her application for judicial 160 Gender-based Violence […] mented, there wouldbeaviolationofArticle3Convention; 1. […] tion ofArticle3. Accordingly, theorder forherdeportationtoIranwould,ifexecuted,giveriseaviola- she were tobereturned Iran. there isareal riskoftheapplicantbeingsubjectedtotreatment contraryto Article 3if 42. authorities (…). of adulterybystoningstillremains onthestatutebookandmayberesorted tobythe judicial noticeofrecent surveys ofthecurrent situationinIranandnotesthatpunishment ous behaviour is no longer considered a reprehensible affront to Islamiclaw. It has taken the situationinapplicant’s countryoforiginhasevolvedtotheextentthatadulter (see theChahaljudgmentcitedabove,p.1856,§86),Courtisnotpersuadedthat sessment oftheriskfacedbyapplicantistimeitsownconsiderationcase paragraph 34above).Havingregard tothefactthatmaterialpointintimeforas- the punishment meted out to women who areconcerning found guilty of adultery (see not sought to dispute the applicant’s reliance on the findings of Amnesty International in Iran by reason of her adultery. have It is further to be observed that the Government her fearsandtheveracityofaccountcriminalproceedings initiatedagainsther the UNHCRinterviewedapplicantandhadopportunitytotestcredibility of if herdeportationwere to beimplemented.Itistoobservedinthisconnectionthat plicant’s claiminmakingitsownassessmentoftheriskwhichapplicantwouldface 41. would beatriskifremoved tohercountryoforigin. the applicantmustbeconsidered tohavehadmore thananarguableclaimthatshe the more compellingquestionofthesubstanceherfears,eventhoughbythatstage limited itselftotheissueofformallegalityapplicant’s deportationratherthan F or Holds thatintheeventofdecisiontodeportapplicant toIranbeingimple- Having regard totheaboveconsiderations,Courtfindsitsubstantiatedthat The CourtforitspartmustgivedueweighttotheUNHCR’s conclusionontheap-

these

reasons , the

cour t

unanimousl y - European Court of Human Rights

Y. F. v. Turkey

Application Nº 24209/94

Judgment of July 22, 2003 162 Gender-based Violence December 1984,DR 40,p.254). p. 155,andAcmanneOthersv. Belgium , no.10435/83,Commissiondecision of10 8278/78, Commissiondecision of13December1979,DecisionsandReports(DR)18, is ofminorimportance,constitutes aninterference with this right(seeXv. Austria,no. most intimateaspectofprivatelife.Thus,acompulsorymedical intervention,evenifit A no.91,p.11,§ 22).Itreiterates inthisconnectionthataperson’s the bodyconcerns integrity ofaperson(seeXandYv. the Netherlands,judgmentof26March 1985,Series amatterof“privatelife”, conceptwhichcoversthephysicalandpsychological concern 33. […] […] not record hercomplaintsandordered herrelease. she complainedaboutherforced gynaecologicalexamination.Thepublicprosecutor did 13. intercourse inthedayspreceding theexamination. F. wasexaminedbehindacurtain.Thedoctorreported thatshehadnotanysexual a gynaecologicalexamination.Thepoliceofficers remained onthepremises whileMrs while incustody. Despiteherrefusal, MrsF. wasforced bythepoliceofficers toundergo quested thatthereport should indicatewhethershehadvaginaloranalintercourse the samedayshewastakentoagynaecologistforfurtherexamination.Thepolicere - ined by a doctor, who reported that there were no signs of ill-treatment on her body. On 12. […] private life. gynaecological examinationofhiswifeconstitutedabreach ofherrighttorespect forher 3. […] a I. T he The CourtobservesthatArticle8isclearlyapplicabletothese complaints,which On thesamedayMrsF. wastakentotheBingölpublicprosecutor’s office,where On 20October1993,followingherdetentioninpolicecustody, Mrs F. wasexam- Relying on Article 8 of the Convention, the applicant complained thatthe forced L lleged aw V iola tion

of A r ticle 8 of

the C onventi European Court of Human Rights - Y. F. v. Turkey 163 judgment of 25 March 1983, Series A no. 1983, Series A no. judgment of 25 March

judgment of 27 August 1992, Series A no. 241-A, pp. 41-42, 1992, Series A no. 241-A, pp. 41-42, France judgment of 27 August v. Tomasi The Court’s assessment The Court’s The Court must first consider whether the interference was “in accordance with with was “in accordance the interference The Court must first consider whether Court notes that the Government the have not argued that the in- In this regard, The Court notes that the applicant’s wife complained to the authorities that she had to the authorities wife complained that the applicant’s notes The Court a public authority” with the right of by been an “interference has accordingly There will violate Article 8 of the Convention unless it is “in ac- Such an interference 2. Silver and Others v. the United Kingdom, Silver and Others v. 41. have should primarily that the impugned measure requires the law”. This expression France, judgments of France and Huvig v. some basis in domestic law (see Kruslin v. p. 52, § 26, 24 April 1990, Series A no. 176‑A, p. 20, § 27, and Series A no. 176-B, respectively). 42. time. They with the law” at the relevant complained of was “in accordance terference issued after the date which were and circulars to regulations in their observations referred with interference any law, Turkish under Furthermore, (…). examination disputed the of in and necessity medical of the event in except prohibited is integrity physical person’s a investiga- in the course of the preliminary defined by law (…). Moreover, circumstances (…). of a public prosecutor tion, a detainee may only be examined at the request 34. 16 her will (see paragraph examination against a gynaecological to undergo been forced their part, the Governmentabove). For not have been possible that it would contended objected have who could F., Mrs of consent the without examination an such perform to considers the Court However, consulting room. to the doctor’s to it when she was taken been expected to resist wife could not have applicant’s the that, in the circumstances, au- the of hands the at vulnerability her of view in examination an such to submitting her detention (see, mutatis over her throughout control complete thorities who exercised mutandis, §§ 113-15). 35. for her private life. wife to respect the applicant’s 36. with the law”, pursues one of the legitimate aims set out in the second cordance society” a democratic in “necessary considered can be that Article, and paragraph of Ukraine, no. 40679/98, § 151, 29 April 2003, in pursuit of that aim (see Dankevich v. and 61, p. 32, § 84). […] 164 Gender-based Violence pursuit thereof (seeM.M.v. theNetherlands , no.39339/98,§46,8April2003). in questionpursueda“legitimateaim”orwas“necessarydemocraticsociety” 8 oftheConvention.Itisnottherefore necessarytoexaminewhethertheinterference 44. the interference inissuewas not“inaccordance withlaw”. legal guarantees against arbitrary acts. In the light of the foregoing, the Court finds that Otherwise, apersoninvulnerablesituation,suchasdetainee,wouldbedeprivedof physical integrity mustbeprescribed bylawandrequires theconsentofthatperson. of sexualmolestationorill-treatment, itconsidersthatanyinterference withaperson’s ees byaforensic doctorcanprove tobeasignificant safeguard againstfalseaccusations the CourtacceptsGovernment’s submissionthatthemedicalexaminationofdetain- quest foramedicalexaminationhadbeenmadebythepublicprosecutor. Finally, while medical necessityorthecircumstances definedbylaw. Nordidtheysuggestthata re- 43. This findingsufficesfortheCourttoholdthatthere hasbeenaviolationofArticle However, failedtodemonstratetheexistenceofa inthiscasetheGovernment European Court of Human Rights

M. C. v. Bulgaria

Application Nº 39272/98

Judgment of December 4, 2003 166 Gender-based Violence […] sion thatthere wasinsufficientproof oftheapplicanthavingbeencompelledtohavesex. when shewas14yearsand10monthsold.Theensuinginvestigation cametotheconclu- 10. 9. […] sexual abuse. dent State of its positive obligation to provide effective legal protection against rape and the rapeofwhichshehadbeenavictimdidnotsecure theobservancebyrespon- Convention inthatdomesticlawandpracticerapecasestheinvestigationinto 3. […] Rules ofCourt). acceded totheapplicant’s request nottohavehernamedisclosed(Rule47§3ofthe 23 December 1997.Intheproceedings before theCourt, thePresident oftheChamber tal Freedoms (“theConvention”)byaBulgariannational,M.C.applicant”),on former Article25oftheConventionforProtection ofHumanRightsandFundamen- garia lodgedwiththeEuropean CommissionofHumanRights(“theCommission”)under 1. 109. a I. T I. T P he he rocedure C The applicantcomplainedthat Bulgarianlawandpracticedidnotprovide effective She allegedthatshehadbeenrapedbytwomenon31July and1 August1995, in1980. The applicantisaBulgariannationalwhowasborn The applicantallegedviolationsofherrightsunderArticles3,8,13and14the The caseoriginatedinanapplication(no.39272/98)againsttheRepublicofBul- T L F he onventi lleged aw acts C ircumst V iola ances tions O O f f T A he r ticles C ase 3,8A nd 13O f T he

European Court of Human Rights - M. C. v. Bulgaria 167 a. The existence of a positive obligation to punish rape and to investigate rape a. The existence of a positive obligation to cases General approach Having regard to the nature and the substance of the applicant’s complaints in this and the substance of the applicant’s to the nature Having regard that the obligation of the High Contracting Parties under Arti- The Court reiterates The relevant Convention provisions read: Convention provisions The relevant Article 3 or treatment or to inhuman or degrading to torture “No one shall be subjected punishment.” 1 Article 8, paragraph for his private life (...)” “Everyone has the right to respect Article 13 violated as set forth in [the] Convention are “Everyone whose rights and freedoms a national authority notwithstanding that the before remedy shall have an effective acting in an official capacity.” violation has been committed by persons assessment The Court’s 1. 148. fall to be examined primarily under Articles 3 particular case, the Court finds that they and 8 of the Convention. 149. - to everyone within their jurisdiction the rights and free cle 1 of the Convention to secure to take States requires 3, Article together with taken the Convention, defined in doms not subjected that individuals within their jurisdiction are designed to ensure measures the (see A. v. by private individuals administered including ill-treatment to ill-treatment, protection against rape and sexual abuse, as only cases where the victim had resisted resisted had the victim where cases as only abuse, and sexual rape against protection the events of 31 had not investigated that the authorities and prosecuted, actively were a violation of the above amounted to the In her view, August 1995 effectively. July and 1 and private life and physical integrity the individual’s to protect positive obligations State’s in this respect. remedies effective to provide 110. […] B. 168 Gender-based Violence nature, localcircumstances andtraditionalapproaches are tobetakeninto account. doubtedly enjoy a widemargin of appreciation. In particular, perceptions ofacultural 154. rape andtoapplytheminpracticethrough effective investigationandprosecution. Articles 3and8oftheConventiontoenactcriminal‑lawprovisions effectively punishing 153. judgment of28October1998,Reports1998-VIII,p.3164,§128,). lating totheeffectiveness of acriminalinvestigation(seeOsmanv. the, UnitedKingdom under Article8tosafeguard theindividual’s physicalintegritymayextendtoquestionsre - 152. mutatis mutandis,CalvelliandCigliov. Italy[GC],no.32967/96,ECHR2002-I). considered inprincipletobe limitedsolelytocasesofill-treatment byStateagents(see, October 1998,Reports1998-VIII,p. 3290,§102).Suchapositiveobligationcannotbe to conduct an official investigation (see 151. and Augustv. the UnitedKingdom(dec.),no.36505/02,21 January2003). Netherlands, judgmentof26March 1985, SeriesAno.91,pp.11-13,§§ 23-24and27, vulnerable individuals,inparticular, are entitledtoeffective protection (seeXandYv. the of privatelifeare atstake, requires efficientcriminal-lawprovisions. Children andother rence againstgraveactssuch asrape,where fundamentalvaluesandessentialaspects of individualsisinprinciplewithintheState’s marginofappreciation, effective deter the meanstosecure compliance withArticle8inthesphere ofprotection against acts in the sphere of the relations of individuals between themselves. While the choiceof private lifeunderArticle8;theseobligationsmayinvolvetheadoptionofmeasures even 150. 2002). 75, ECHR2001-V; andE.Othersv. theUnitedKingdom,no.33218/96,26November 1998-VI, p.2699,§22;ZandOthersv. theUnitedKingdom[GC],no.29392/95,§§73- United Kingdom,judgmentof23September1998,ReportsJudgmentsandDecisions In respect ofthemeanstoensure adequateprotection againstrape,Statesun- On that basis, the Court considers that States have a positive obligation inherent in Further, theCourt hasnotexcludedthepossibilitythatState’s positiveobligation In anumberofcases, Article 3oftheConventiongives rise toapositiveobligation Positive obligationsontheStateare inherent inthe righttoeffective respect for stance ofmemberStates’positiveobligationtoprovideadequate protection b. The modernconceptionoftheelementsrapeanditsimpact onthesub- Assenov and Others v. Bulgaria, judgment of 28 - European Court of Human Rights - M. C. v. Bulgaria 169 - - countries, in Europe and elsewhere, reference to physical force has force physical to reference elsewhere, and Europe in countries, common-law The Court observes that, historically, proof of physical force and physical resistance and physical resistance of physical force proof historically, The Court observes that, is no lon- physically that the victim must resist it appears that a requirement Firstly, penetration would sexual act of any that state 1989 to amended in law was Belgian number of coun- in a chosen by the legislature, of the specific wording Regardless The limits of the national authorities’ margin of appreciation are nonetheless cir nonetheless are margin of appreciation of the national authorities’ The limits cumscribed by the Convention provisions. In interpreting them, since the Convention them, since In interpreting provisions. by the Convention cumscribed the Court must have of human rights, protection a system for the foremost is first and example, for States and respond, within Contracting the changing conditions to regard to be achieved (see Christine Goodwin as to the standards to any evolving convergence § 74, ECHR 2002-VI). the United Kingdom [GC], no. 28957/95, v. 156. practice in rape cases in a number of countries. under domestic law and was required other some and Europe in trend steady and clear a seen have however, decades, last The interpretations formalistic definitions and narrow abandoning parts of the world towards (…). of the law in this area 157. countries. in the statutes of European ger present 158. In 138- and 100 98, paragraphs (see case-law and/or legislation the from removed been United States of America and the United Kingdom, the to Ireland, 47 above, in relation of lack from be inferred consent cannot that explicitly states law other countries). Irish (…). resistance by the continental legal tradition, the defini- influenced countries 159. In most European of violence by the per threats to the use of violence or tion of rape contains references that in case‑law and legal theory lack of consent, not It is significant, however, petrator. rape (…) of as the constituent element of the offence is seen force, 160. of a person who had not given consent. constitute rape when committed in respect or ruse” as punishable means of imposing to “violence, duress Thus, while the reference not are in the statute, violence and/or physical resistance a non-consensual act remains elements of rape in Belgian law (…). 161. in prac- is sought all circumstances in acts sexual of non-consensual the prosecution tries “violence”, (“coercion”, terms statutory relevant the of interpretation of means by tice assess- a context-sensitive “ruse”, “surprise” or others) and through “threat”, “duress”, ment of the evidence (…). 155. 170 Gender-based Violence by thevictim. ecution ofanynon-consensualsexualact,includingintheabsence ofphysicalresistance 3 and 8 of the Convention must be seen as requiring the penalisation and effective pros- standards andtrends inthatarea, thememberStates’positiveobligationsunderArticles fective protection ofthe individual’s sexualautonomy. Inaccordance withcontemporary cumstances, risksleavingcertaintypesofrapeunpunishedand thusjeopardising theef - prosecution of sexual offences, such as requiring proof of physical resistance in all cir 166. societies towards effective equalityandrespect foreachindividual’s sexualautonomy. 165. of psychologicalfactorsorbecausetheyfearviolenceonthepartperpetrator. girls belowtheageofmajority–oftenprovide nophysicalresistance becauseofavariety rape isexperiencedbythevictimhasshownthatvictims of sexualabuse–inparticular, 164. towards regarding lackofconsentastheessentialelementrapeandsexualabuse. the populationinconditionsofanarmedconflict,italso reflects auniversal trend the abovedefinitionwasformulatedinparticularcontextofrapescommittedagainst person’s free will, assessed in thecontext of thesurrounding circumstances (…).While consent constitutes rape and that consent must be given voluntarily, as a result of the criminallaw,found that,ininternational anysexualpenetrationwithoutthevictim’s CriminalTribunalacts isalsopunishable.TheInternational fortheformerYugoslavia has ment ofrapeandthattakingadvantagecoercive circumstances toproceed with sexual 163. of furtherreforms inthisarea. effective protection ofwomenagainstviolence(…)and haveurgedtheimplementation cluding] incaseswhere thevictimdoesnotshowsignsofresistance”, isnecessaryforthe Committee ofMinisters,haveagreed thatpenalisingnon-consensualsexualacts,“[in- 162. the allegedshortcomingsin investigation,hadsuchsignificantflawsastoamount pugned legislationandpractice andtheirapplicationinthecaseathand,combinedwith 167. c. In thelightofabove,Courtispersuadedthatanyrigidapproach tothe Moreover, thedevelopmentoflawandpracticeinthatarea reflects theevolutionof As submittedbytheintervener, theevolvingunderstandingofmannerinwhich criminal law,In international it has recently been recognised that force is not an ele- The CourtalsonotesthatthememberStatesofCouncilEurope, through the In thelightofabove, Court’s taskistoexaminewhetheror nottheim- The Court’s taskinthepresentcase - European Court of Human Rights - M. C. v. Bulgaria 171 Application of the Court’s approach Application of the Court’s The applicant alleged that the authorities’ attitude in her case was rooted in defec- was rooted that the authorities’ attitude in her case The applicant alleged of the Bulgarian Criminal Code does not The Court observes that Article 152 § 1 or such as “force” is the meaning given to words What is decisive, however, case, in the absence of case-law explicitly dealing with the question In the present copies of Nonetheless, it is noteworthy that the Government unable to provide were The issue before the Court is limited to the above. The Court is not concernedto the above. The Court Court is limited the before The issue 2. 169. rape perpetrators practice of prosecuting a predominant reflected tive legislation and resistance. of significant physical of evidence only in the presence 170. by the victim and defines rape in a man- of physical resistance mention any requirement found in statutes of other mem- the wording significantly from ner which does not differ to the reference continue to define rape by ber States. As seen above, many legal systems submission (…). the victim’s means used by the perpetrator to obtain 171. or other terms used in legal definitions. For example, in some legal systems “threats” very fact that the perpetrator to be established in rape cases by the considered is “force” consent or because he held her body with a sexual act without the victim’s proceeded to perform a sexual act without consent. As noted above, and manipulated it in order number of countries have de- in statutory definitions, the courts in a despite differences so as to try to encompass any non-consensual sexual act (…). veloped their interpretation 172. under consent is punishable the victim’s whether every sexual act carried out without conclusions on this issue on the basis it is difficult to arrive at safe general Bulgarian law, judgments and legal publications (…). Whether or not a sexual Court’s of the Supreme always depends on a judicial act in a particular case is found to have involved coercion - reliable study of prosecu assessment of the facts. A further difficulty is the absence of a the courts. torial practice in cases which never reached 173. approach restrictive a of allegations the disproving clearly commentaries legal or judgments to a breach of the respondent State’s positive obligations under Articles 3 and 8 of the Articles 3 and 8 obligations under positive State’s respondent of the to a breach Convention. 168. the cannot replace omissions in the investigation; it or isolated with allegations of errors nor can it decide on the in the assessment of the facts of the case; domestic authorities criminal responsibility. alleged perpetrators’ 172 Gender-based Violence credibility oftheconflictingstatementsmade. ties forestablishingallthesurrounding circumstances anddidnotassesssufficiently the 178. caressing A.minutesafterhavingsexforthefirsttimeinherlifewithanotherman(…). for caution,suchastheassertionthatapplicant,14years old atthetime,hadstarted the storyproposed byP. andA.wascredible, althoughsomeoftheirstatementscalled In theirdecisions,theprosecutors didnotdevoteanyattentiontothequestionwhether given theopportunitytoputquestionswitnesseswhom sheaccusedofperjury. more precision the timing of the events. The applicant and her representative were not such asMsT. andMrM.,were notconfronted. Noattemptwasmadetoestablishwith called bythem.Inparticular, thewitnesseswhosestatementscontradicted eachother, to testthecredibility oftheversioneventsproposed byP. andA.thewitnesses made andforverificationofall thesurrounding circumstances. Little was done,however, obviously calledforacontext-sensitiveassessmentofthecredibility ofthestatements 177. tors intheirworkonthecase. The Courtdoesnotunderestimate theefforts madebytheinvestigatorandprosecu - were confronted with two conflicting versions of the events and little “direct” evidence. 176. gave reasoned decisions,explaining theirpositioninsomedetail(…). chologist and apsychiatrist was ordered. Thecase was investigatedandtheprosecutors course oftheinvestigation,manywitnesseswere heard andanexpertreport by apsy- 175. able argumentsandhasnotbeendisproved bytheGovernment. case toobservethattheapplicant’s allegationofarestrictive practiceisbasedonreason - garian authoritiesinrapecasesgeneral.Itissufficientforthepurposesofpresent 174. no physicalforce andresistance were establishedwere notprosecuted (…). although notdecisive,maybeseenasanindicationthatmostofthecaseswhere littleor significant violence(exceptthosewhere thevictimwasphysicallyormentallydisabled), of theSupreme Court’s reportedrapescommittedwiththeuseof judgmentsconcerned in Bulgarianlawwere inconsistentandunclear(…).Finally, thefactthatvastmajority in the prosecution of rape. The Government’s own submissions on the elements of rape The Courtthusconsidersthatthe authoritiesfailedtoexplore theavailablepossibili- It notes,nonetheless,thatthepresence oftwoirreconcilable versionsofthefacts The Court recognises that the Bulgarian authorities faced a difficulttask, asthey Turning totheparticularfactsofapplicant’s case,theCourtnotesthat,in The Courtisnotrequired toseekconclusiveanswersaboutthepracticeofBul- European Court of Human Rights - M. C. v. Bulgaria 173 - the investiga was, apparently, that failure reason for significant that the It is highly that did not exclude the possibility the prosecutors it appears that Furthermore, it may sometimes be difficult to prove The Court considers that, while in practice of the au- case. The Court finds that the failure That was not done in the applicant’s the particu- to weight little attached having for be criticised also may authorities The they handled the investigation with significant delays (…). Furthermore, and A., finds an opinion on the guilt of P. In sum, the Court, without expressing 179. was occurred have to alleged was what since that, opinion prosecutors’ the and tor’s of violence and of rape such as traces proof of “direct” in the absence a “date rape”, of and, therefore, of lack of consent infer proof help, they could not or calls for resistance transpires That approach circumstances. the surrounding an assessment of all rape from - prosecu the regional from investigator and, in particular, the position of the clearly from decision of 24 June 1997 of 13 May 1997 and the Chief Public Prosecutor’s decision tor’s (…). 180. that in any event, in the not have consented, but adopted the view the applicant might had un- not be concluded that the perpetrators it could of resistance, absence of proof had not consented (…). derstood that the applicant 181. such as traces of violence or of rape, proof lack of consent in the absence of “direct” all the facts and decide on the the authorities must nevertheless explore witnesses, direct The investigation and its circumstances. basis of an assessment of all the surrounding on the issue of non-consent. conclusions must be centred 182. circumstances case to investigate sufficiently the surrounding thorities in the applicant’s of rape. Their approach proof of their putting undue emphasis on “direct” was the result to the status of practically elevating “resistance” in the particular case was restrictive, defining element of the offence. 183. special psychological factors involved in cases lar vulnerability of young persons and the concerning the rape of minors (…). 184. 185. taken by the approach case and, in particular, that the investigation of the applicant’s inherent in the case fell short of the requirements the investigator and the prosecutors modern standards relevant the of light the in viewed – obligations positive States’ the in in comparative and international a criminal-law law – to establish and apply effectively system punishing all forms of rape and sexual abuse. 174 Gender-based Violence […] also holdsthatnoseparateissuearisesunderArticle13oftheConvention. spondent State’s positiveobligationsunderbothArticles3and8oftheConvention.It 187. tion againstrapeandsexualabuserequires measures ofacriminal-lawnature (…). this assertion has not been substantiated. In any event, as stated above, effective protec- the possibility of a civil action for damages against the perpetrators, the Court notes that 186. The Courtthusfindsthatinthepresent casethere has beenaviolationofthe re- As regards theGovernment’s argumentthatthenationallegalsystemprovided for European Court of Human Rights

Siliadin v. France

Application Nº 73316/01

Judgment of July 26, 2005 176 Gender-based Violence him ifhewokeup. The applicantsleptonamattress onthefloorinbaby’s room; shehadtolookafter same building,whichMrB.had madeintoanoffice. and wenttobedatabout10.30 p.m.Inaddition,shehadtocleanastudioflat,inthe In theeveningsheprepared dinner, lookedaftertheolderchildren, didthewashingup and iron clothes. school ortheirrecreational activities,lookafterthebaby, dothehouseworkandwash when she had to get up and prepare breakfast, dress the children, take them to nursery authorised togooutonSundaysattendmass.Herworking daybeganat7.30a.m., worked sevendaysaweek,withoutdayoff, andwasoccasionallyexceptionally 14. decided tokeepher. 13. given hisconsent. holidays andatweekends.TheapplicantlivedMrMrsB.’s home,herfatherhaving Mrs B.alsohadanotherdaughterfrom afirstmarriagewhostayedwithherduringthe two smallchildren, sothat shecouldassistthepregnant MrsB.withhouseholdwork. 12. and MrsD.herpassportwastakenfrom her. find her a place at school. In reality, the applicant became an unpaid housemaid for Mr ticket had been reimbursed and that Mrs D. would attend to her immigration status and 11. D., aFrench nationalofTogolese origin.Shehadapassportandtouristvisa. 10. 9. […] […] I. T he The applicantsubsequentlybecameageneralhousemaidfor MrandMrsB.She On herreturnfromhospital,MrsB.toldtheapplicantthatshehad thematernity In thesecondhalfof1994,MrsD.“lent”applicanttoMrandB.,whohad It hadbeenagreed thatshe wouldworkatMrsD.’s homeuntilthecostofherair She arrivedinFranceon26January1994,aged15yearsand7months,withMrs in1978andlivesParis. The applicantwasborn T F he acts C ircumst ances

of

the C ase European Court of Human Rights - Siliadin v. France 177 aw L t elevan She was never paid, except by Mrs B.’s mother, who gave her one or two 500 French two 500 French gave her one or who mother, B.’s paid, except by Mrs She was never Haitian na- with the help of a was able to escape 1995 the applicant In December to her paternal in obedience had been in contact with uncle, who Subsequently, recover her passport, which she to On an unspecified date, the applicant managed home. Mrs B.’s On 28 July 1998 the police raided Mr and July 1995 to July from on charges of having obtained prosecuted The couple were II. r […] 15. notes. franc (FRF) 16. two children, the latter’s in for five or six months. She looked after tional who took her FRF 2,500 per month. and food, and received accommodation was given appropriate 17. to put her immigration to the couple, who had undertaken Mr and Mrs B., she returned unchanged: the applicant continued to remained the situation However, status in order. She slept on a mattress children. tasks and look after the couple’s carry out household second-hand wore then on a folding bed, and bedroom, children’s on the floor of the not paid and did she was status had still not been regularised, clothes. Her immigration not attend school. 18. who Mrs B. She also confided in a neighbour, entrusted to an acquaintance of Mr and alerted the Committee against Modern), Slavery (Comité contre l’esclavage moderne concerning office the applicant’s in turnwhich the prosecutor’s with complaint filed a case. 19. 20. payment or in exchange for payment that was 1998 the performance of services without to the work carried out, by taking advantage of that person’s manifestly disproportionate having subjected an individual to working and vulnerability or state of dependence; with incompatible with human dignity by taking advantage of her living conditions that were with having employed and maintained in their vulnerability or state of dependence; and of a work permit. service an alien who was not in possession […] 178 Gender-based Violence vention. Thisprovision states,interalia: 52. B. […] impugned situationortolimitits effects. In addition, the scope oftheState’s positiveob- were criticisedfornothavingtakenadequatemeasures toprevent theexistenceof 68. the actionsofprivateindividuals. tangible andeffective protection oftherightsguaranteedbyArticles3and/or8against vention, tosetupasystemofcriminalprosecution andpunishmentthatwouldensure held to be responsible on account of their failure, in application of Article 1 of the Con- 67. 39272/98, ECHR2003‑XII). Kingdom, judgmentof23 September1998,Reports X andYv. theNetherlands,judgmentof26 March 1985,SeriesAno.91;A.v. theUnited to theCourt’s case-lawonStates’positiveobligationswithregard toArticles3and8(see 66. criminal-law provisions toprevent andeffectively punishtheperpetratorsofthose acts. under Articles1and4oftheConvention,takentogether, toputinplaceadequate while a minor amounted to a failure by the State to comply with its positive obligation 65. the instantcase. 64. a I. T he 2. 1. The applicantcomplainedthatthere hadbeenaviolationofArticle4theCon- 1. The merits She emphasisedthatthisobligation covered situationswhere theStateauthorities She addedthat, in thevarious cases in question, therespondent Stateshadbeen In theabsence of rulingsonthis matter inrespect ofArticle 4, shereferred indetail The applicantconsidered that theexploitationtowhichshehadbeensubjected donotdisputethatArticle4isapplicablein The CourtnotesthattheGovernment L lleged aw No oneshallberequired toperformforced orcompulsorylabour. (...) No oneshallbeheldinslaveryorservitude. Applicability ofArticle4andthepositiveobligations V iola tion

of A r ticle 4 of

1998‑VI; andM.C.v. Bulgaria, the C onvention no. European Court of Human Rights - Siliadin v. France 179 The applicant added that, in the absence of any appropriate criminal-law machinery criminal-law that, in the absence of any appropriate The applicant added 4 § 1 of not to be held in servitude laid down in Article that the right She considered that the States had a positive obligation, in- the applicant considered Accordingly, it office had not considered prosecutor’s She further observed that, as the public to certain been established that, with regard The Court points out that it has already ligation to protect could vary on account of shortcomings in its legal system, depending its legal system, depending of shortcomings in vary on account could protect ligation to committed of the offence law in issue, the seriousness such as the aspect of on factors individual concernedby the private on the part of the victim. vulnerability or particular of a context of protection in the specific of her application, subject the This was precisely under Article 4. rights minor’s 69. it could not be of alleged ill-treatment, perpetrators and punish the direct to prevent suf- were the damage suffered of reparation to afford proceedings maintained that civil her integrity. on assaults against possible protection her with adequate ficient to provide 70. in any circumstances. an absolute right, permitting of no exception the Convention was also the subject of specific were Article 4 under prohibited the practices She noted that and adults. international conventions which applied to both children 71. that Article 4 of the Convention, to adopt tangible criminal-law provisions in herent machinery for the prevention, backed up by law-enforcement would deter such offences, of such provisions. detection and punishment of breaches 72. the acquittal of of public interest, the grounds necessary to appeal on points of law on Criminal the of and 225-14 225-13 Articles in out set offences the B. of Mrs and Mr the court of appeal to which the case had been Code had become final. Consequently, a nor, after the initial judgment was quashed could not return a guilty verdict remitted civil damages. She whether to award fortiori, impose a sentence, but could only decide in out set offence the of elements constituent the that finding mere a that considered fine a of imposition the and established been had Code Criminal the of 225-13 Article or in sub- whether express as an acknowledgment, and damages could not be regarded of Article 4 of the Convention. stance, of a breach […] 77. the guaranteed rights infringing from the fact that a State refrains Convention provisions, 1 of does not suffice to conclude that it has complied with its obligations under Article the Convention. 180 Gender-based Violence that: 80. 79. 78. v. Bulgaria,citedabove,§149) E. andOthersv. theUnitedKingdom,no.33218/96,26November 2002; andM.C. above, p. ment administered byprivateindividuals.”(seeA.v. theUnitedKingdom , cited torture orinhumandegradingtreatment orpunishment,includingsuchill-treat- designed toensure thatindividualswithintheirjurisdictionare notsubjectedto in theConvention,takentogetherwithArticle3,requires Statestotakemeasures tion tosecure toeveryonewithintheirjurisdiction the rightsandfreedoms defined “... theobligationonHighContractingPartiesunderArticle 1oftheConven- As regards Article3oftheConvention,Courthasfoundonnumerous occasions (dec.), no.36505/02,21January2003;andM.C.v. Bulgaria,citedabove,§150) Netherlands, citedabove,pp.11-13,§§23,24and27;Augustv. the UnitedKingdom vulnerable individuals,inparticular, are entitledtoeffective protection.” (XandYv. the of private life are at stake, requires efficient criminal-law provisions. Children and other rence against grave acts such as rape, where fundamental values and essential aspects of individualsisinprinciplewithintheState’s marginofappreciation, effective deter the meanstosecure compliance withArticle8inthesphere ofprotection against acts in thesphere oftherelations ofindividualsbetweenthemselves.Whilethechoice vate lifeunderArticle8;theseobligationsmayinvolvetheadoptionofmeasures even “Positive obligationsontheStateare inherent intherighttoeffective respect forpri- It subsequentlyclarifiedthisconcept: of 13 June1979,SeriesAno.31,pp.14-15,§31) being anycalltoexamineitunderparagraph2....”(Marckxv. Belgium , judgment that failstosatisfythisrequirement violatesparagraph1ofArticle8withoutthere in hisfamily. In thisconnection,theStatehasachoiceofvariousmeans,butlaw safeguards thatrender possibleasfrom themomentofbirthchild’s integration life impliesinparticular, intheCourt’s view, theexistenceindomesticlawoflegal toleadanormalfamilylife.AsenvisagedbyArticle8,respectconcerned forfamily unmarried motherandherchild,itmustactinamannercalculatedtoallowthose legal systemtheregime applicabletocertainfamilytiessuchasthosebetweenan This means,amongstotherthings,thatwhentheStatedeterminesinitsdomestic obligations inherent inaneffective ‘respect’ forfamilylife. ference: inadditiontothisprimarilynegativeundertaking,there maybepositive “... Neverthelessitdoesnotmerely compeltheStatetoabstainfrom suchinter Thus, withregard toArticle8oftheConvention,itheld aslongago1979: 2699, § 22; Z and Others v. the United Kingdom, cited above, §§ 73-75; - -

European Court of Human Rights - Siliadin v. France 181 , cited above, pp. 11- Netherlands , cited above, the X and Y v. , 22 October 1996, , Kingdom the United and Others v. Stubbings It has also found that: It has also - protec entitled to State are in particular, vulnerable individuals, and other “Children of personal breaches serious such against deterrence, effective of form the in tion, mutatis mutandis, (see, integrity.” §§ 21-27; 13, , cited above, as the United Kingdom 62-64; and A. v. p. 1505, §§ Reports 1996-IV, Child, Articles 19 and Convention on the Rights of the well as the United Nations 37) 4 of the Convention that, together with Articles 2 and 3, Article The Court considers to the above-mentioned case, the Government The Court notes that, in referring Labour Convention, 4 § 1 of the Forced In this connection, it notes that Article or or permit the imposition of forced “The competent authority shall not impose individuals, companies or associations.” compulsory labour for the benefit of private of Slav- the Abolition on Convention the Supplementary of 1 Article Furthermore, shall take all practicable and nec- “Each of the States Parties to this Convention and as soon to bring about progressively essary legislative and other measures of the following institutions as possible the complete abolition or abandonment by the covered they still exist and whether or not they are and practices, where at definition of slavery contained in Article 1 of the Slavery Convention signed - Geneva on 25 September 1926: ... [d]ebt bondage, ... [a]ny institution or prac a child or young person under the age of 18 years, is delivered tice whereby to another person, or by his guardian by either or both of his natural parents or not, with a view to the exploitation of the child or young whether for reward person or of his labour.” 81. 82. making up the Council of basic values of the democratic societies enshrines one of the Europe. [...] 84. Article of respect exist in appear to did obligations positive that the hearing at accepted 4. 85. adopted by the International and ratified by Labour Organisation (ILO) on 28 June 1930 France on 24 June 1937, provides: 86. adopted on 30 April Similar to Slavery, and Institutions and Practices the Slave Trade, ery, 1964, states: of France on 26 May in respect 1956, which came into force 182 Gender-based Violence apply theminpractice(seeM.C.v. Bulgaria,citedabove,§153). adopt criminal-lawprovisions whichpenalisethepracticesreferred toinArticle4and that States have positive obligations, in the sameway as underArticle 3forexample,to amount torendering itineffective. Accordingly, itnecessarilyfollowsfrom thisprovision withthisissueandwould instruments specificallyconcerned tent withtheinternational 4 of the Convention only to direct action by the State authorities would be inconsis- 89. holds, startingoutasmigrantdomesticworkers(...)”. (…) that“today’s slavesare predominantly femaleandusuallyworkinprivatehouse- 88. Article 32provides: respect ofFranceon6September1990,provides: Convention ontheRightsofChild20November1989,whichcameintoforce in 87. from the outset that the right not to be held in servitude laid down in this provision was 90. 2. In thosecircumstances, theCourtconsidersthatlimitingcompliancewithArticle Finally, theCourt notesthatitappearsfrom theParliamentaryAssembly’s findings enforcement ofthepresent Article.” (c) (b) (a) shall inparticular: regard totherelevant provisionsinstruments,StatesParties ofotherinternational sures toensure theimplementationofpresent Article.To thisend,andhaving 2. mental, spiritual,moralorsocialdevelopment. terfere withthechild’s education,ortobeharmfulthechild’s healthorphysical, exploitation andfrom performing anyworkthatislikelytobehazardous ortoin- “1. care ofparent(s), legalguardian(s) oranyotherpersonwhohasthecare ofthechild.” injury orabuse,(...),maltreatment orexploitation,includingsexualabuse,whileinthe cational measures to protect the child from all forms of physical or mental violence, “States Partiesshall take allappropriate legislative,administrative,socialand edu- In addition, with particular regard to children, Article 19 § 1 ofthe International With regardWith totheviolationofArticle4 Convention,theapplicantnoted Alleged violationofArticle4 theConvention Provide forappropriate penaltiesorothersanctionstoensure theeffective Provide forappropriate regulation ofthehoursandconditionsemployment; Provide foraminimumage orminimumagesforadmissiontoemployment; States Partiesshalltakelegislative,administrative,socialandeducationalmea- States Partiesrecognise the rightofthechildtobeprotected from economic European Court of Human Rights - Siliadin v. France 183 She said that, although the Convention did not define the terms servitude or “forced or “forced the terms servitude did not define although the Convention She said that, of the four servile to three her situation had corresponded She pointed out that by the Council of Eu- to the documentation published The applicant also referred the facts that her situation was not temporary or She added that it was clear from home, she con- Referring to her working and living conditions at Mr and Mrs B.’s an absolute one, in the same way as the right not to be compelled to perform forced or forced to be compelled to perform as the right not one, in the same way an absolute labour. compulsory 91. international conven- be made to the relevant should reference or compulsory labour”, while importance had to determine the meaning of these concepts, tions in this field to the United Nations and case to the criteria laid down by both be attached in the instant modern for identifying and servitude, which were forms of slavery the Council of Europe recognised neces- in human beings, and to the internationallyclosely linked to trafficking of their age and vulnerability. on account special protection children sity of affording 92. 1 of the Supplementary Geneva Convention to in Article referred institutions or practices the delivery of a child or adolescent to a third of 30 April 1956, namely debt bondage, of his or her labour, or not, with a view to the exploitation person, whether for reward to work as a domestic come to France in order and serfdom. She noted that she had not of the trafficking to which she had been a result servant but had been obliged to do so as false promises. through agreement parents’ subjected by Mrs B., who had obtained her - with a view to the exploita child by her father, She concluded that such “delivery” of a Article in to referred slavery, to analogous practice, the to similar was labour, her of tion Convention of 1956. 1 (d) of the United Nations Supplementary 93. of confiscation included used criteria the that out pointed and slavery domestic on rope - dispro that was or remuneration of remuneration absence the passport, individual’s the deprivation of liberty or self-imposed imprisonment, portionate to the services provided, and cultural, physical and emotional isolation. 94. or compulsory labour”. Her as was normally the case with “forced occasional in nature, her, from away been taken had passport her limited, been go had and come to freedom becoming illegal, and she had also before her immigration status had been precarious and expelled. been kept by Mr and Mrs B. in a state of fear that she would be arrested imprisonment self-imposed of concept the to equivalent was this that considered She described above. 95. her education and social in- cluded that her exploitation at their hands had compromised 184 Gender-based Violence among othercircumstances, certainsignsofconstraint orcontrol oftheindividual. vulnerable orinastateofdependence, thecourtswere entitledtotakeintoaccount, person’s labour bytakingadvantageofhimorher. Inassessingwhetherthevictim was 100. which hadledinpracticetoundulyrestrictive interpretations. lack oflegalcriteriaenablingthecourtstodeterminewhether suchasituationobtained, tional Assembly’s taskforce slaveryhadhighlightedthe onthevariousformsofmodern offences. Inthisconnection,sheemphasisedthatbothlegalcommentatorsandtheNa - of theoffender’s “takingadvantage”,whichwasalsopartofthe definition ofthetwo victim beinastateofvulnerabilityordependence.Thoseconcepts were asvaguethat These were non-specifictextsofamore generalnature, whichboth required thatthe of Articles 225-13 and 225-14 of the Criminal Code as worded at the material time. 99. no legislationthatdirectly made itanoffence totrafficinhumanbeings. took. Inaddition,priortotheenactmentofLaw18March 2003,there hadbeen that wassufficientlyspecificandflexibletobeadaptedtheformsthosepracticesnow servitude orforced orcompulsory labour, stilllessadefinitionofthosethree concepts 98. lawfavouredinternational grantingspecialprotection tochildren. to thecase-lawofCommissionandCourt,emphasisedthatdevelopmentsin 97. Convention ...;inreality, shewasadomesticslavewhohadbeenrecruited inAfrica”. least, thecharacteristicsof‘forced labour’withinthemeaningofArticle4§2 submissions that“theexploitationtowhichMsSiliadinwassubjected...had,atthevery the proceedings before the Versailles Court of Appeal, the civil party had claimed in its She explainedthat,althoughshehadnotdescribedhersituationas“forced labour”in personal effects, righttocome andgoatwillortotakedecisionswassubjected. condition, onaccountofthelevelconstraintorcontrol towhichhisorherperson,life, the characteristicfeatureslaverywasachangeinindividual’s ofmodern stateor 96. of forced orcompulsorylabour. as awholehadbeeninvolved,whichwascharacteristicofservitudebutnot,ingeneral, tegration, aswellthedevelopmentandfree expression ofherpersonality. Heridentity Thus, Article225-13oftheCriminal Codemadeitanoffence toobtainanother Accordingly, theoffences towhichshehadbeensubjectedfellwithin theprovisions She notedthatFrench criminal lawdidnotcontainspecificoffences ofslavery, As tothedefinitionof“forced orcompulsorylabour”,theapplicantdrew attention She added that in addition to the unremunerated exploitation of another’s work, European Court of Human Rights - Siliadin v. France 185 She added that, contrary to Article 225-13, Article 225-14 required, and continued and continued to Article 225-13, Article 225-14 required, She added that, contrary the at force in conclusion that the criminal-law provisions The applicant said in at the age of 15 Togo in France from The Court notes that the applicant arrived being “lent” months before the applicant worked for this person for a few In reality, international The Court also notes that, in addition to the Convention, numerous However, those were relevant only as the prerequisites for a finding of exploitation, not for a finding as the prerequisites only relevant were those However, that was modern slavery. offence particular form of the elements of the as constituent advantage of employers who took distinction between this article made no In addition, who those and France in already were who workers immigrant of position illegal the in human beings. to trafficking in such a position by resorting deliberately placed them 101. to be established. That was dignity for the offence an infringement of human to require, this for was It interpretation. random to subject one and concept, vague particularly a by the court to be nor living conditions had been found that neither her working reason dignity. incompatible with human 102. forced from servitude or from her adequate protection material time had not afforded contrary to Article 4 of were forms, which their contemporary labour in or compulsory in an award had resulted criminal proceedings the Convention. As to the fact that the that this could not suffice to absolve the State of its of compensation, she considered those guilty which penalised effectively obligation to establish a criminal-law machinery others. of such conduct and deterred […] 109. with her father that she would work agreed years and 7 months with a person who had that her immigration status would be regularised until her air ticket had been reimbursed, and that she would be sent to school. 110. without house their in worked she that evidence the from appears B. It and Mrs Mr to years, without for several with no day off, fifteen hours per day, approximately for respite wages or being sent to school, without identity papers and without her ever receiving She was accommodated in their home and slept in immigration status being regularised. bedroom. the children’s 111. servi- slavery, of human beings from conventions have as their objective the protection or compulsory labour (see “Relevant law” above). As the Parliamen- tude and forced has pointed out, although slavery was officially tary Assembly of the Council of Europe 186 Gender-based Violence and forwhichthesaidperson has notoffered himselfvoluntarily”. “all workorservicewhichisexacted from anypersonunder themenaceofanypenalty purposes” of the latter convention, the term “forced or compulsory labour”shall mean Convention No. 29. Paragraph 1 of the last-mentioned Article provides that “for the paragraph 3ofArticle4theEuropean Conventionandparagraph2ofArticle 116. Series Ano. 70,p.16,§32). Labour Convention(seeVan derMusselev. Belgium,judgmentof23November1983, the CouncilofEurope’s memberStates,includingFrance,andespecially the1930Forced case already takenintoaccounttheILOconventions,whichare bindingonalmostallof 115. tion from MrandMrsB.for herwork. against herwill.Ithasalsobeenestablishedthattheapplicantreceived noremunera- 114. Article 4oftheConvention. 113. Bulgaria, citedabove,§166). any actaimedatmaintainingapersoninsuchsituation(see,mutatismutandis, the Conventionmustbeseenasrequiring thepenalisationandeffective prosecution of norms and trends in this field, the member States’ positive obligations under Article 4 of In thosecircumstances, the Courtconsidersthat,inaccordance withcontemporary France [GC],no.25803/94,§79,ECHR1999-V). dom, judgmentof15November1996,Reports1996‑V, p.1855,§79;andSelmouniv. judgment of7July1989,SeriesAno.161,pp.34-35,§88;Chahalv. the UnitedKing- ment of18January1978,SeriesAno.25,p.65,§163;Soeringv. the United the lifeofnation(see,withregard toArticle3,Irelandv. the UnitedKingdom,judg- is permissibleunderArticle15§2evenintheeventofapublicemergencythreatening cols Nos.1and4,Article4makesnoprovision forexceptionsandnoderogation from it ocratic societies.UnlikemostofthesubstantiveclausesConventionandProto- 112. thousands ofpeople,themajoritywhomare women. abolished more than150yearsago,“domesticslavery”persistsinEurope andconcerns It considersthatthere isinfactastrikingsimilarity, whichisnotaccidental,between In interpreting Article4oftheEuropean Convention,theCourthasinaprevious It isnotdisputedthatsheworkedforyearsMrandMrsB.,withoutrespite and Accordingly, theCourtmustdeterminewhetherapplicant’s situationfallswithin The Courtreiterates thatArticle4enshrinesoneofthefundamentalvaluesdem- Kingdom, M.C. v. European Court of Human Rights - Siliadin v. France 187 It remains to be ascertained whether there was “forced or compulsory” labour. This labour. compulsory” or “forced was there whether ascertained be to remains It was not threatened in the instant case, although the applicant The Court notes that, the will, it is clear from of her own free As to whether she performed this work the Court considers that the applicant was, at the least, In these circumstances, for the Court to determine whether the applicant was also held in servi- It remains to the 1927 Slavery Convention, The Court notes at the outset that, that according 117. is work has to be What there mental constraint. or of physical the idea brings to mind the will of the also performed against of any penalty” and under the menace “exacted ... (see himself voluntarily” person concerned, he “has not offered is work for which that § 34). der Mussele, cited above, p. 17, Van 118. in terms of the that she was in an equivalent situation fact remains by a “penalty”, the seriousness of the threat. perceived territory and on French land, unlawfully present girl in a foreign She was an adolescent her to that fear and led Indeed, Mr and Mrs B. nurtured by the police. in fear of arrest (…). would be regularised believe that her status since the ap- that the first criterion was met, especially the Court considers Accordingly, time, a point which the Court emphasises. plicant was a minor at the relevant 119. it is maintained that she did. On the contrary, facts of the case that it cannot seriously be evident that she was not given any choice. 120. a time the Convention at 4 of of Article the meaning within labour to forced subjected when she was a minor. 121. tude or slavery. or of the fact that it is a living special features Sight should not be lost of the Convention’s conditions, and that the in the light of present-day instrument which must be interpreted of human rights of the protection in the area being required high standard increasingly in as- firmness greater and inevitably requires and fundamental liberties correspondingly of the fundamental values of democratic societies (see, among many sessing breaches other authorities, Selmouni, cited above, § 101). 122. attach- “slavery is the status or condition of a person over whom any or all of the powers to It notes that this definition corresponds exercised”. ing to the right of ownership are the “classic” meaning of slavery as it was practised for centuries. Although the applicant the evidence does was, in the instant case, clearly deprived of her personal autonomy, that Mr and sense, in other words not suggest that she was held in slavery in the proper 188 Gender-based Violence immigration statuswouldberegularised, whichhadnever occurred. B.’s mercy, sinceherpapershadbeenconfiscated andshehadbeenpromised thather bedroom asnootheraccommodationhadbeenoffered. Shewasentirely atMrandMrs of livingelsewhere thaninthehomeofMrandMrsB.,where sheshared thechildren’s As aminor, shehadnoresources andwasvulnerableisolated,hadnomeans for MrandMrsB. She hadbeenbrought toFrancebyarelative ofherfather’s, andhadnotchosentowork Court notesthatthislabourlastedalmostfifteenhoursaday, sevendays perweek. 126. practices: to bringaboutthecompleteabolitionorabandonmentoffollowinginstitutionsand to theconventionmusttakeallpracticableandnecessarylegislativeothermeasures Slave Trade, and InstitutionsandPracticesSimilartoSlavery, eachoftheStatesParties 125. v. France(dec.),no. 42400/98, 7March 2000). coercion, andistobelinked withtheconceptof“slavery”describedabove(seeSeguin “servitude” meansanobligationtoprovide one’s servicesthatisimposedbytheuseof 124. no. 7906/77,Commissiondecisionof5 July1979,DR17,p.59). attention totheAbolitionofSlaveryConvention(seealsoVan Droogenbroeck v. Belgium, examining a complaint under this paragraph of Article 4, the Commission paid particular person’s property andtheimpossibilityofalteringhiscondition”.Inthisconnection,in toliveonanother to performcertainservicesforothers...theobligation‘serf’ of 9July1980,SeriesBno.44,p.30,§§ 78‑80).Itincludes,“inadditiontotheobligation ous formofdenialfreedom” (seeVan Droogenbroeckv. Belgium,Commission’s report 123. status ofan“object”. Mrs B.exercised agenuinerightoflegalownershipoverher, thusreducing hertothe In additiontothefactthatapplicantwasrequired toperformforced labour, the child oryoungpersonofhislabour.” another person,whether for reward ornot,with a view totheexploitationof 18 years, is delivered by either or both of his natural parents or by his guardian to “(d) Anyinstitutionorpracticewhereby achildoryoungpersonundertheageof Furthermore, under the Supplementary Convention on the Abolition of Slavery, the It follows in the light of the case-law on this issue that for Convention purposes regardWith tothe conceptof“servitude”,whatisprohibited isa“particularlyseri- European Court of Human Rights - Siliadin v. France 189 X and Y v. the X and Y v. In addition, the applicant, who was afraid of being arrested by the police, was not by the police, was arrested was afraid of being the applicant, who In addition, the father, made to her sent to school, despite the promises As she had not been - at the rel concludes that the applicant, a minor the Court In those circumstances, obligations under Article to the positive to its conclusions with regard Having regard in individuals, vulnerable other and children that stated previously has Court The the Court has held in a case concerning afforded rape that “the protection Further, to The Court observes that, in the instant case, the applicant, who was subjected did not appeal on In this connection, it notes that, as the Principal Public Prosecutor 127. and to their classes take the children the house, except to permitted to leave in any event time. no free of movement and no freedom Thus, she had various activities. 128. completely depen- was and improve would situation that her hope not could applicant B. dent on Mr and Mrs 129. 4 of the Convention. in servitude within the meaning of Article evant time, was held 130. legislation and its applica- Court to examine whether the impugned 4, it now falls to the breach of Article 4 flaws as to amount to a tion in the case in issue had such significant State. by the respondent […] 143. against deterrence, in the form of effective entitled to State protection, are particular, of personal integrity (see, mutatis mutandis, such serious breaches 21‑27; Stubbings and Others, cited above, p. Netherlands, cited above, pp. 11-13, §§ the United Kingdom, cited above, p. 2699, § 22; and also the 1505, §§ 62-64; and A. v. of the Child, Articles 19 and 37). United Nations Convention on the Rights 144. of the kind inflicted on Miss Y is insufficient. by the civil law in the case of wrongdoing at stake. fundamental values and essential aspects of private life are This is a case where and it can be achieved only by criminal- is indispensable in this area deterrence Effective (see is normally regulated” that the matter indeed, it is by such provisions law provisions; the Netherlands, cited above, p. 13, § 27). X and Y v. 145. - contrary to Article 4 and held in servitude, was not able to see those respon treatment convicted under the criminal law. sible for the wrongdoing 146. judgment of 19 October 2000, the appeal to points of law against the Court of Appeal’s 190 Gender-based Violence […] 2. Holds thatthere hasbeenaviolationofArticle4theConvention; […] […] (see paragraph121above). greater firmnessinassessing breaches ofthefundamentalvaluesdemocraticsocieties tion of human rights and fundamental liberties correspondingly and inevitably requires It emphasisesthattheincreasingly highstandard beingrequired inthearea oftheprotec - subsequently, were notapplicabletotheapplicant’s situation. It notes that the legislation has beenchanged but the amendments, which were made tion againsttheactionsofwhichshewasavictim. at thematerialtimedidnotafford theapplicant,aminor, practical andeffective protec- 148. unexpectedly declinedtoapplyArticles225-13and225-14. was referred tobythetaskforce asanexampleofacaseinwhichcourtappeal had interpretations from onecourt to the next, as demonstrated by this case, which,indeed, 225-14 of the Criminal Code, as worded at the material time, were open to very differing Assembly’s jointtaskforceslavery, onthevariousformsofmodern Articles225-13and 147. acquittal thusbecamefinal. onlythecivilaspectofcaseandMrMrsB.’sthe CourtofCassationconcerned F or In thosecircumstances, the Courtconsiders that thecriminal-lawlegislationinforce In addition,according tothereport of12December 2001bytheFrench National

these

reasons , the C our t

unanimously European Court of Human Rights

Tysiąc v. Poland

Application Nº 5410/03

Judgment of March 20, 2007 192 Gender-based Violence pointment withDrR.D.,headof theGynaecologyandObstetricsDepartmentofClinic. with aviewtoobtainingthetermination ofherpregnancy. On26April2000 shehadanap- Obstetrics inWarsaw, inthearea towhichshewasassignedonthebasis ofherresidence, 12. eyes by24dioptres. was examined.Itestablishedthatsheneededglassesto correct hervisioninboth 11. certificate shewouldbeabletoterminateherpregnancy lawfully. raising twosmallchildren onherown.Theapplicantunderstoodthatthebasisofthis cal strainwhichinanycasewouldhardly bepossibleasatthattimetheapplicantwas considerations, according totheGP, alsorequired thattheapplicant shouldavoidphysi- plicant’s short‑sightednessandtosignificantpathologicalchangesinher retina. These given hertwoprevious deliveries bycaesarean section.Shefurtherreferred totheap- constituted athreat tothe applicant’s healthasthere wasariskofrupture oftheuterus, O. R.G.,ageneralpractitioner(GP),issuedcertificatestatingthatthethird pregnancy 10. itself asaresult ofpregnancy, butthatitwasnotcertain. terminated, despitetheapplicant’s requests, ontheground thattheretina mightdetach risk tohereyesight.However, theyrefused toissueacertificateforthepregnancy tobe pathological changesintheapplicant’s retina, thepregnancy anddeliveryconstituteda plicant should considersterilisationafter the birth.All of themconcluded that,dueto have frequent healthchecks andavoidphysicalexertion.DrN.S.-B.statedthattheap- documents submittedbytheapplicantthatDrM.S.recommended thattheapplicant amined bythree ophthalmologists (DrM.S.,DrN.S.-B.,K.W.). Ittranspires from the impact ofthedelivery on herhealth,shedecidedtoconsultdoctors.Shewasex- dren, bycaesarean bothborn section.Astheapplicantwasworriedaboutpossible 9. […] […] I. T he Subsequently, theapplicantcontactedastate hospital,theClinicofGynaecologyand On 14April2000,inthesecondmonthofpregnancy, theapplicant’s eyesight Subsequently, theapplicantsoughtfurthermedicaladvice.On20April2000Dr The applicantbecamepregnant inFebruary2000.Shehadpreviously hadtwochil- T F he acts C ircumst ances

of

the C ase European Court of Human Rights - Tysiąc v. Poland 193 Dr R.D. examined the applicant visually and for a period of less than five minutes, of less than five visually and for a period the applicant Dr R.D. examined door open to the with the examination was carried out in a room The applicant’s was not terminated. The applicant delivered pregnancy the applicant’s As a result, On 2 January 2001, approximately badly. After the delivery her eyesight deteriorated by an ophthalmologist, 2001 to a medical certificate issued on 14 March According significantlybe to applicant the declared panel disability the 2001 September 13 On 2001 the applicant lodged a criminal complaint against Dr R.D., al- On 29 March 13. on the he made a note Afterwards, records. examine her ophthalmological but did not nor her two her short‑sightedness Dr O.R.G. that neither certificate issued by back of the for therapeutic termination grounds section constituted by caesarean deliveries previous the applicant should that, in these circumstances, He was of the view of the pregnancy. consulted an endocri- visit Dr R.D. During the applicant’s section. give birth by caesarean endocrinologist of the applicant. The to her in the presence nologist, Dr B., whispering applicant. by Dr R.D., but did not talk to the co-signed the note written 14. environment a comfortable submission, did not provide which, in the applicant’s corridor, R.D. told the applicant that At the end of the appointment Dr for a medical examination. section. by caesarean delivered if they were eight children she could even have 15. section in November 2000. the child by caesarean 16. - she was taken to the Emergency Unit of the Ophthalmologi six weeks after the delivery, While doing a test of counting fingers, she was only able to see from cal Clinic in Warsaw. with her right eye, whereas with her left eye and five metres metres a distance of three A a distance of six metres. she had been able to see objects from pregnancy the before vascular occlusion was found in her right eye and further degeneration of reabsorbing spot was established in the left eye. the retinal 17. haemorrhages in eyesight had been caused by recent the deterioration of the applicant’s facing a risk of blindness. Dr M.S., the oph- the applicant is currently As a result, the retina. suggested that she should be learningthalmologist who examined the applicant, the Braille verya at were retina her to changes the as that, applicant the informed also She alphabet. intervention. by surgical of having them corrected no prospects were advanced stage, there 18. a disability of medium from as suffering she had been recognised disabled, while previously and assistance in her everyday life. care It further held that she needed constant severity. 19. on medical terminated having her pregnancy her from leging that he had prevented 194 Gender-based Violence […] […] three children alone. unemployed andinreceipt ofamonthlydisabilitypensionPLN gave adecisioncertifyingthatshesuffered from asignificantdisability. Sheisatpresent could not see from a distance ofmore than1.5metres. On 28May 2001 a medicalpanel a certificatetotheeffect thattheapplicantwasunabletotakecare ofherchildren asshe metres and is afraid of going blind. On 11 January 2001 the social welfare centre issued 31. sional negligence. petent authoritiesoftheChamberPhysiciansfindingthatthere hadbeennoprofes- Dr B. However, those proceedings were finally discontinued on 19June 2002, the com- 30. against thedecisionofdistrictprosecutor. did notaddress theprocedural complaintwhichtheapplicanthadmadeinherappeal been likelytooccur, giventhedegree andnature oftheapplicant’s condition.Thecourt thermore, thecourtfound thatthe haemorrhage intheapplicant’s eyeshadinanyevent the pregnancy hadnot abearingonthedeteriorationofapplicant’s vision.Fur regard tothemedicalexpertreport, thecourtconsidered thattherefusal toterminate twenty-three lines,theDistrict Courtupheldthedecisiontodiscontinuecase.Having 29. […] been raisingherchildren. working therequisite numberofyearsbefore thedisability developedbecauseshehad of social-insurancelaw, shewasnotentitledtoadisabilitypensionashadbeen causing grievousbodilyharm,andalsosubmittedthat,undertheapplicableprovisions on Article156§1oftheCriminalCode,whichlaysdownpenaltyforoffence of sustained severe bodilyharmbywayofalmostcompletelosshereyesight.Sherelied eral banonabortion.Shecomplainedthat,followingthepregnancy anddelivery, shehad grounds asrecommended bytheGPandpermissible asoneoftheexceptionstoagen- II. Currently, theapplicantcanseeobjectsonlyfrom adistanceofapproximately 1.5 The applicantalsoattemptedtobringdisciplinaryproceedings againstDrR.D.and In afinaldecisionof2August2002,notsubjecttofurtherappealandnumbering T he M erits

of

the C ase 6. h rie her raises She 560. - European Court of Human Rights - Tysiąc v. Poland 195 - Everyone has the right to respect for his private life (...). to respect Everyone has the right of this authority with the exercise by a public shall be no interference There assessment The Court’s a. The scope of the case 8 of the Convention insofar as relevant, reads as follows: reads insofar as relevant, 8 of the Convention In this context, the Court observes that the applicable Polish law, the 1993 Act, the applicable Polish law, In this context, the Court observes that The Court notes that in its decision on admissibility of 7 February 2006 it declared declared it 2006 February 7 of admissibility on decision its in that notes Court The 8 of the Convention. Her right to due respect for her private life and her physical life and her physical for her private to due respect Her right 8 of the Convention. 1. 2. a democratic with the law and is necessary in is in accordance right except such as well‑being economic the or safety public security, national of interests the in society of health or crime, for the protection of disorder for the prevention of the country, of others. of the rights and freedoms or morals, or for the protection 2. Alleged violation of Article 8 of the Convention of Article Alleged violation Ar of had given rise to a breach the facts of the case complained that The applicant 104. section 4 under particular, In exceptions. certain for provides abortion, prohibits it while to the woman’s poses a threat pregnancy (a) 1 (1) of that Act, abortion is lawful where in reached stage the of irrespective certificates, medical two by certified health, or life case to examine whether the task in the present Hence, it is not the Court’s pregnancy. Convention guarantees a right to have an abortion. 103. together with Article 14 complaints Articles 3, 8, 13 and 8 read admissible the applicant’s the Court is limited to the com- case before of the Convention. Thus, the scope of the many authorities, Sokur v. admissible (see, among declared plaints which it has already Ukraine, no. 29439/02, § 25, 26 April 2005). ticle her with a to provide by failing been violated both substantively, and moral integrity had by the absence positive obligations, the State’s and as regards legal therapeutic abortion, to guarantee her rights. legal framework of a comprehensive Article […] B. 67. 196 Gender-based Violence 108. tions oftheStatetosecure thephysicalintegrityofmothers‑tobe. they must–incaseofatherapeuticabortionbealsoassessed againstthepositiveobliga- regulations onabortionrelate tothetraditionalbalancingofprivacyandpublicinterest, it aparticularcombinationofdifferent WhiletheState aspectsofprivatelifeisconcerned. no. 2005-(...); no. 27677/02,8July2003;PentiacovaandOthersv. Moldova(dec.),no.14462/03,ECHR United Kingdom,no.61827/00,§§74-83,ECHR2004‑II;Sentgesv. theNetherlands(dec.) ligation tosecure toitscitizens theirrighttoeffective respect forthisintegrity(Glass v. the person’s physicalandpsychologicalintegritythattheStateisalsounderapositiveob- any specificlevelofmedicalcare, theCourthaspreviouslya heldthatprivatelifeincludes Kingdom, §61).Furthermore, whiletheConventiondoesnotguaranteeassucharightto man beingsandtheoutsideworld(see,amongmanyotherauthorities,Pretty v. theUnited tonomy, personal developmentandtoestablishdeveloprelationships withotherhu- aspects ofanindividual’s physicalandsocialidentityincludingtherighttopersonalau- 107. Bruggeman andScheutenv. her privatelifebecomescloselyconnectedwiththedevelopingfoetus(Eur. Comm.HR, pregnancy touchesuponthe sphere ofprivatelife,sincewheneverawomanispregnant 106. respect forherprivatelife. applicable to the circumstances of the case and that it relates to the applicant’s right to 105. of therespondent State’s above-mentionedpositiveobligationsalone. ticular thenature ofhercomplaintare more appropriately examinedfrom thestandpoint ever, theCourtisofviewthatcircumstances oftheapplicant’s caseand in par tion had also amounted to an interference with her rights guaranteed by Article 8. How- 109. ence by public authorities. Any interference under thefirst paragraph ofArticle8must

The Courtfinallyobservesthattheapplicantsubmitted the refusal ofanabor 42326/98, ECHR2003‑III;mutatismutandis).TheCourtnotesthatinthecasebefore The Courtalsoreiterates that “privatelife”isabroad term,encompassing,interalia, The Courtagrees. Itfirst reiterates thatlegislation regulating theinterruptionof The CourtfirstobservesthatitisnotdisputedbetweenthepartiesArticle8

The essentialobjectofArticle8 istoprotect theindividual againstarbitraryinterfer b. ApplicabilityofArticle8theConvention c. Generalprinciples Nitecki v. Poland(dec.),no.65653/01,21March 2002;Odièvre v. France[GC], Germany, cited above[July121977Report,DR]). - - - European Court of Human Rights - Tysiąc v. Poland 197 , Sweden (No. ‑cut, especially as far as Carbonara and Ventura v. Italy v. Carbonara and Ventura August 1984, Series A no. 82, , judgment of 26 May Ireland Keegan v. The Court observes that the notion of “respect” is not clear The Court observes that the notion of “respect” In addition, there may also be positive obligations inherent in an effective “respect” “respect” in an effective positive obligations inherent may also be In addition, there positive and negative obligations un- the boundaries between the State’s However, VI; and Capital Bank AD v. Bulgaria, no. 49429/99, § no. 24638/94, § 63, ECHR 2000‑VI; and Capital Bank AD v. - imposed by the rule of law presup 133, ECHR 2005‑...). Compliance with requirements against of legal protection a measure poses that the rules of domestic law must provide the Conven- by rights safeguarded with the authorities by public interferences arbitrary the United Kingdom, judgment of 2 tion (see Malone v. Bulgaria [GC], no. 30985/96, § 84, Hasan and Chaush v. recently, p. 32, § 67 and, more ECHR 2000‑XI). ski v. Poland, no. 55339/00, § 61, 18 May Poland, no. 55339/00, § 61, 18 żański v. 1994, Series A no. 290, p.19, § 49; Ró 2006). 112. the diversity of the practices to concerned: having regard those positive obligations are requirements Contracting States, the notion’s followed and the situations obtaining in the case to case. Nonetheless, for the assessment of positive obli- will vary considerably from one of the fundamental gations of the State it must be borne in mind that the rule of law, Articles of the Convention (see in all the is inherent principles of a democratic society, 58, ECHR 1999‑II; [GC], no. 31107/96, § Greece v. Iatridis be justified in terms of the second paragraph, namely as being “in accordance with the as being “in accordance paragraph, namely in terms of the second be justified aims of the legitimate one or more society” for “necessary in a democratic law” and that the in- of necessity implies the notion settled case-law, to According listed therein. that it is proportionate social need and, in particular pressing to a corresponds terference e.g. Olsson v. aims pursued by the authorities (see to one of the legitimate Series A no 130, § 67). 1988, 1), judgment of 24 March 110. designed to se- measures obligations may involve the adoption of for private life. These including between individuals, of relations sphere for private life even in the respect cure - machin of adjudicatory and enforcement framework of a regulatory both the provision specific of appropriate, where implementation, and the rights individuals’ protecting ery Netherlands, judgment of 26 the authorities, X and Y v. (see, among other measures Series A no. 91, p. 11, § 23). 1985, March 111. The applicable principles definition. do not lend themselves to precise der this provision must be had to contexts regard In both the negative and positive similar. nonetheless are of the individual the competing interests the fair balance that has to be struck between both contexts the State enjoys a certain margin and of the community as a whole; and in other authorities, (see, among of appreciation 198 Gender-based Violence cal orillusorybutrightsthatare practical and effective inmindthattheConventionisintendedtoguaranteenotrightsareborne theoreti- 113. no. 36022/97,§99,ECHR2003‑VIII). of theirinterests (see,mutatismutandis , seen asawhole,todegree sufficienttoprovide herorhimwiththe requisite protection decisions to be taken, an individual has been involved in the decision-making process, having regard totheparticularcircumstances ofthecaseandnotablynature ofthe due respect totheinterests safeguarded byit.Whathastobedeterminediswhether, by thisprovision thattherelevant decision‑makingprocess isfairandsuchastoafford cedural requirements, itisimportantfortheeffective enjoymentoftherightsguaranteed 9 October1979,SeriesAno.32,p.12-13,§24).WhilstArticle8containsnoexplicitpro- of theirincurringcriminalresponsibility underArticle156 §1oftheCriminalCode,can Court furthernotesthatthelegal prohibition onabortion, takentogetherwiththerisk must, firstandforemost, ensure clarityofthepregnant woman’s legalposition.The doctors themselves.IntheCourt’s view, insuchsituationstheapplicablelegalprovisions in agivencase,eitherbetweenthepregnant womanandherdoctors,orbetweenthe disagreement arisesastowhetherthepreconditions foralegalabortionare satisfied 116. Aneedforsuchsafeguards becomesallthemore relevant inasituationwhere a peutic abortionasguaranteedbythe1993Act. in theCourt’s view, theimportanceofprocedural safeguards regarding accesstoathera- manner inwhichthe1993Acthadbeenappliedpractice(…). Thisfurtherhighlights, acknowledged, interalia,thattherePolish Government hadbeendeficienciesinthe 115. TheCourtalsonotesthatinitsfifthperiodical report totheICCPR,Committee met inanindividualcase. procedures determiningwhetherthelegalconditionsforatherapeuticabortionwere authorising anabortion,inparticulartheabsenceoftransparent andclearlydefined ning, thefactthatabortionwasessentiallyacriminaloffence deterred physiciansfrom years’ imprisonment(…).According tothePolishFederationforWomen andFamilyPlan- conditions specifiedinthatActisguiltyofacriminaloffence punishablebyuptothree ing onlyforcertainexceptions.Adoctorwhoterminatesapregnancy inbreach ofthe to itsgeneralcontext.Itnotesthatthe1993Actprohibits abortioninPoland,provid- 114. Whenexaminingthecircumstances ofthe present case,theCourtmusthaveregard Finally, the Court reiterates that in the assessment of the present case it should be

d. CompliancewithArticle8oftheConvention Hatton andOthersv. theUnitedKingdom[GC], (see Airey v. Ireland, judgmentof European Court of Human Rights - Tysiąc v. Poland 199 - 28856/95, § well have a chilling effect on doctors when deciding whether the requirements of legal the requirements deciding whether on doctors when a chilling effect well have of lawful the availability regulating provisions an individual case. The met in abortion are legisla- Once the alleviate this effect. in such a way as to be formulated abortion should in a way which its legal framework not structure abortion, it must decides to allow ture obtain it. possibilities to would limit real the and of lawfulness the concepts that Court reiterates this connection, the 117. In hu- fundamental affecting society command that measures rule of law in a democratic an indepen- before procedure some form of subject to cases, be, in certain man rights evidence and the relevant for the measures the reasons to review dent body competent §§ ECHR 2000‑V, Romania[GC], no. 28341/95, Rotaru v. (see, among other authorities, view a comprehensive this condition has been satisfied, 55‑63). In ascertaining whether Kingdom, judgment of United the v. (AGOSI procedures applicable of the be taken must Finland, no. § 55; and Jokela v. 24 October 1986, Series A no. 108, p. 19, such as those in issue in the in- mutatis mutandis). In circumstances 45, ECHR 2002‑IV, woman at least a possibility should guarantee to a pregnant stant case such a procedure also The competent body should considered. in person and to have her views to be heard for its decision. issue written grounds of the issues involved in that the very nature 118. In this connection the Court observes is such that the time factor is of critical importance. decisions to terminate a pregnancy to as so timely are decisions such that ensure therefore should place in procedures The abor late a by occasioned be might which health woman’s a to damage prevent or limit in which decisions concerning the availability of lawful abortion are tion. Procedures the absence of view, post factum cannot fulfil such a function. In the Court’s reviewed of failure the to amount to said be can law domestic the in procedures preventive such under Article 8 of the Convention. the State to comply with its positive obligations that in dispute not is it that observes Court the background general this Against 119. she her pregnancy 1977. Even before myopia from severe from the applicant suffered of medium severity (…). Hav- from a disability had been officially certified as suffering the applicant sought medical pregnancy condition, during her third to her ing regard between her doctors as to how arose advice. The Court observes that a disagreement by given advice The vision. fragile already her affect might delivery and pregnancy the the two ophthalmologists was inconclusive as to the possible impact of the pregnancy certificate that GP issued a the that notes also The Court condition. the applicant’s on to her health, while a gynaecologist was of a contrary constituted a threat her pregnancy that it is not its function to question the doctors’ clinical judg- The Court stresses view. 200 Gender-based Violence of themedicalprofession. Itonlyspecifiestheconditions inwhichtheycouldobtaina of a colleague. However, the Court notes that this provision is addressed to members diagnostic ortherapeuticdoubts, oruponapatient’s request, toobtainasecondopinion cal Profession Act(…).Thisprovision makesitpossibleforadoctor, intheeventofany referred122. ItisfurthernotedthattheGovernment alsotoArticle37ofthe1996Medi - opinion andthatofthespecialistdiverged. a certificatefrom aspecialist,withoutspecifyinganystepsthatshecouldtakeifher framework toaddress andresolve suchcontroversies. Itonlyobligesawomantoobtain the doctorsthemselves.TheOrdinance doesnotprovide foranyparticularprocedural where adisagreement arisesbetweenthepregnant womanandherdoctors,orbetween nant womanandthedoctors-where suchaprocedure isclearlypracticable-andcases not distinguishbetweensituations in whichthere isafullagreement betweenthepreg- from solutionsadoptedin certainothermemberStates.However, theOrdinance does procedure allowsfortakingrelevant measures promptly anddoesnotdiffer substantially specialists otherthanthedoctorwhowouldperformanabortionare sufficient.Sucha obtaining alawfulabortionbasedonmedicalconsiderations:twoconcurringopinionsof tion”. The Court notes that the Ordinance provides for a relatively simple procedure for certificate from aphysician “specialisinginthefieldofmedicine relevantto[her]condi- It alsomadeitnecessaryforawomanseekinganabortiononhealthgrounds toobtaina stipulated theprofessional qualificationsofdoctorswhocouldperformalegalabortion. Health of22January1997(…).However, theCourtobservesthatthisOrdinance only referred121. TheCourtnotesthattheGovernment totheOrdinance oftheMinister her health. dressed about the possible negative impact of pregnancy her concerns and delivery on therapeutic abortioninPolishlawwasappliedtotheapplicant’s caseandhowitad- 120. TheCourthasexaminedhowthelegalframeworkregulating theavailabilityofa fears cannotbesaidtohavebeenirrational. at that time, taken together with her medical history, the Court is of the view that her cal advicesheobtainedduringthepregnancy and,significantly, theapplicant’s condition the pregnancy anddeliverymightfurtherendangerhereyesight.Inthelightofmedi- eyesight inthefuture were correct. Itissufficienttonotethattheapplicantfeared that conclusions astowhetherherpregnancy couldornotleadtoadeteriorationofher to speculate,onthebasisofmedicalinformationsubmittedit,whethertheir dom, no61827/00,§87,ECHR2004‑II,mutatismutandis).Norwoulditbeappropriate ment asregards theseriousnessofapplicant’s condition(Glassv. theUnitedKing- European Court of Human Rights - Tysiąc v. Poland 201 second opinion of a colleague on a diagnosis or on the treatment to be followed in an to be followed the treatment on a diagnosis or on of a colleague second opinion any procedural not create does that this provision case. The Court emphasises individual event of a dis- or to contest it in the such an opinion for a patient to obtain guarantee seeking woman situation of a pregnant the it specifically address Nor does agreement. a lawful abortion. procedural various Parties State certain in that notes Court the connection, this In 123. - implementa with the in connection place in put have been mechanisms and institutional the conditions governingtion of legislation specifying (…). access to a lawful abortion Polish law as applied to that it has not been demonstrated that 124. The Court concludes of determining whether mechanisms capable case contained any effective the applicant’s for the her case. It created a lawful abortion had been met in the conditions for obtaining severe the applicant suffered As a result, uncertainty. applicant a situation of prolonged anguish when contemplating the possible negative consequences of her and distress and upcoming delivery for her health. pregnancy of the civil law on tort as ap- the provisions 125. The Court is further of the opinion that instrument by which the applicant a procedural plied by the Polish courts did not afford was for her private life. The civil law remedy she could have vindicated her right to respect if the applicant had and It could only, and compensatory character. solely of a retroactive in the courts granting damages to cover the irreparable been successful, have resulted light after the delivery. damage to her health which had come to proceedings criminal that applicant requested that the further notes 126. The Court to grievous bodily harm alleging that he had exposed her against Dr R.D. be instituted, The Court first observes that for the purposes to terminate her pregnancy. by his refusal causal link between the it was necessary to establish a direct of criminal responsibility abortion – and the serious of an case, the refusal acts complained of – in the present the examination of whether there health. Consequently, deterioration of the applicant’s of leave to have an abortion and the subsequent was a causal link between the refusal eyesight did not concern- whether the preg the question deterioration of the applicant’s to her health within the meaning of section 4 of the nancy had constituted a “threat” 1993 Act. of the case in the context of criminal the examination of the circumstances Crucially, aris- health from the damage to the applicant’s investigations could not have prevented the organs of the Chamber of before ing. The same applies to disciplinary proceedings Physicians. 202 Gender-based Violence […] 130. TheCourtconcludesthatthere hasbeenabreach ofArticle applicant theeffective respect forherprivatelife. cludes thattheauthoritiesfailedtocomplywiththeirpositiveobligationssecure tothe 129. TheCourttherefore dismissestheGovernment’s preliminary objectionandcon- to whethershewasentitledatherapeuticabortion. guard theapplicant’s righttorespect forherprivatelifeinthecontextofacontroversy as the partofmedicalstaff, thePolishStatecompliedwithpositiveobligationstosafe- said that,byputtinginplacelegalremedies whichmakeitpossibletoestablishliabilityon 128. Havingregard tothecircumstances ofthecaseasawhole,itcannottherefore be tion astheapplicant(Storck v. Germany, no.61603/00,§150,ECHR2005‑...). appropriate protection for the physical integrity of individuals in such a vulnerable posi- 127. TheCourtfindsthatsuch retrospective measures aloneare notsufficientto provide 8 theConvention. European Court of Human Rights

Bevacqua and S. v. Bulgaria

Application Nº 71127/01

Judgment of June 12, 2008 204 Gender-based Violence as relevant: complaints falltobeexaminedunderArticle8oftheConvention whichreads, insofar 55. protect thefirstapplicantagainstviolentbehaviourofherformerhusband. failed to take the necessary measures to secure respect for their family life and failed to 54. […] tered her“withoutanyreason” anddidnotcontributetothehouseholdbudget. interim custodyorder, stating,interalia,thatMrN.oftenusedoffensive language,bat- parents’ apartment.Onthe samedaythefirstapplicantfiledfordivorce andsoughtan 1 March 2000thefirstapplicant leftthefamilyhomewithhersonandmovedinto 7. 6. behalf ofhersonS.(“thesecondapplicant”),aminor, in1997. whowasborn Italy. The application is submitted by thefirst applicant onherown behalfand alsoon in1974andattherelevantwas born timelivedinSofia.In2003or2004shemovedto 5. […] a I. T I. T he he or morals,fortheprotection oftherightsandfreedoms ofothers.” of thecountry, fortheprevention ofdisorder orcrime,fortheprotection ofhealth society in the interests of national security, public safety or the economic well-being right exceptsuchasisinaccordance withthelawandis necessary inademocratic 2. “1. The Court considers that in the particular circumstances of the present case these Relying onArticles3,8,13and14,theapplicantscomplained thattheauthorities Later, therelations betweenthespousessoured, MrN.becameaggressive andon The firstapplicantmarriedMrN.in1995andgavebirthtoS.January1997. The firstapplicant,Mrs Valentina Nikolaeva Bevacqua,isaBulgariannationalwho T L F he lleged aw acts There shallbenointerference byapublicauthoritywiththeexercise ofthis Everyone hastherighttorespect forhisprivateandfamilylife(...) C ircumst V iola ances tion

of of A

the r ticle C ase 8 of

the C onventi European Court of Human Rights - Bevacqua and S. v. Bulgaria 205 (dec.), no. 36505/02, 21 January 36505/02, no. (dec.), no. 39272/98, ECHR 2003‑XII). The Court b. Application to the facts of the case The Court’s assessment The Court’s a. Relevant principles The Court’s task is to examine whether the authorities’ response to the situation for task is to examine whether the authorities’ response The Court’s The right to respect for one’s family life under Article 8 includes a parent’s right under Article 8 includes a parent’s family life for one’s The right to respect While the essential object of Article 8 is to protect the individual against arbitrary the individual against of Article 8 is to protect While the essential object 2. , judgment of 26 March 1985, Series A no. 91, pp. 11-13, 1985, , judgment of 26 March the Netherlands X and Y v. August v. the United Kingdom United the v. and August 27, and 23-24 November 2007, with further references). As regards respect for private life, the Court life, the private for respect As regards references). further with 2007, November 66. second which the first applicant, acting on her own behalf and on behalf of her son, the from applicant, sought their assistance was in line with their positive obligations flowing Article 8. 2003). 65. with his or her child with a view to his or her being reunited to the taking of measures on the national authorities to take such action and an obligation – albeit not absolute – Bosnia and Herzegovina, no. 27966/06, § 51, Šobota‑Gajić v. authority, (see, as a recent 6 held, in various contexts, that the concept of private life includes a person’s has previously positive obligations – in the authorities’ Furthermore, physical and psychological integrity. instances under Article 8 taken alone or in some cases under Articles 2 or 3 and in other a circumstances, certain in include, may – Convention the of 3 Article with combination protection adequate legal framework affording duty to maintain and apply in practice an (see the judgments cited in paragraph 85 against acts of violence by private individuals the United Kingdom, judgment of 28 October 1998, Reports above and, also, Osman v. Bulgaria, 1998‑VIII, §§ 128-130, and M.C. v. that the particular vulnerability of the victims of domestic violence notes in this respect has been emphasised in a in their protection and the need for active State involvement number of international instruments (…). 64. inherent may in addition be positive obligations authorities, there action by the public the family life and these obligations may involve for private and “respect” in effective between themselves. of individuals the relations of sphere in the adoption of measures protection entitled to effective are individuals, in particular, and other vulnerable Children (see §§ […] 206 Gender-based Violence assistance inrelation toherhusband’s aggressive behaviour. first applicant(…).The requestedinterimcustodymeasures andsought including byusingphysicalforce. Inaddition,MrN.,thefather, allegedlyassaultedthe the custodyoftheirthree-year oldsonandseizedtheboyrepeatedly from eachother, applicant and herhusband,whohadseparated and were divorcing, wishedto obtain 67. 69. (see paragraph7above). on allegationsofaggressive behaviourandthusclearlycalledforpriorityexamination applicants’ case. Indeed,theinterim custody measures application was based,inter alia, less there are specific reasons nottodoso.Nosuch reasons appear tohaveexistedinthe interim custodymeasures must normallybetreated withacertaindegree ofpriority, un- 68. Furthermore, MrN.obstructedthepossibilityforcontact betweenthefirstapplicantand apart, toagree ontemporarycustodyarrangementspending thedivorce proceedings. three yearsoldatthetime,wasadverselyaffected bythefailure ofhisparents, wholived must have become obvious for the judge dealing with the case that the second applicant, trict Courtaboutthesceneswhichchildhadtowitness earlierthatsummer, it 72. ing forexpeditionwasunjustified. that its automatic application in the applicants’ case despite concrete circumstances call- While thispracticehadthelegitimateaimtofacilitatereconciliation, theCourtconsiders in divorce proceedings pendingtheexpiryofstatutoryreconciliation period(…). 71. custody arrangementsfirst(…). In June2000itstartedexaminingthedivorce claiminsteadofdealingwiththetemporary degree ofpriorityand,during thefirstsixmonths,ignored theissueofinterimmeasures. 70. a decisionimmediatelyuponsubmissionoftheinterimmeasures application. without thecollectionofevidence.Therefore, theapplicantscouldnotexpecttoobtain cumstances regarding thechild’s situationneededverificationwhichcouldnotbedone The helpoftherelevant authoritieswassolicitedinasituationwhere boththefirst It istruethattheallegationsmadebyfirstapplicant,aswellall relevant cir The Courtobservesthatbecauseofitsverynature andpurpose,anapplicationfor Furthermore, after11September2000,whenthefirstapplicantinformedDis- This delaywastheresult custodyissues ofthedomesticcourts’practicetoadjourn The evidenceis,however, thattheDistrictCourtdidnottreat thematterwithany (i) Examination oftheinterimmeasuresapplication - European Court of Human Rights - Bevacqua and S. v. Bulgaria 207 (ii) The first applicant’s complaints about Mr N.’s aggressive behaviour aggressive complaints about Mr N.’s (ii) The first applicant’s The Court notes that the medical certificate concerningThe Court notes that the medical certificate complained the first incident is no doubt about the evidential value of the second medical certificate, which There The Court considers that in these circumstances, the authorities’ duty under Article duty under Article the authorities’ circumstances, considers that in these The Court continued to adjourn the District Court examination of the interim the However, request decision to withdraw her The Court also considers that the first applicant’s issue for a period of handling of the interim measures In sum, the District Court’s 77. less evidential value (…). about was issued several days after the events and has, therefore, 78. her swollen cheek following the in- eyelid and on the first applicant’s a bruise recorded albeit violent behaviour, cident of 28 June 2000 (…). The Court also notes that Mr N.’s at issue, was established by the Sofia City to the events during a period of time prior 2002 (…). Court in its judgment of 21 March her child, the second applicant (…). It must have been obvious, therefore, that prompt that prompt obvious, therefore, (…). It must have been the second applicant her child, interest. in the child’s needed, in particular, were measures 73. and and family life of both applicants – parent for the right to private respect 8 to secure application with due diligence interim measures the examination of the child – required appli- the enjoyment of both under a duty to secure also were They and without delay. contacts between them. cants’ right to normal 74. the substance from so far removed for reasons sometimes custody application repeatedly, of a non-governmental organisa- example, to verify the registration of the dispute – for one of those adjournmentstion (…) – that at least can fairly be described as arbitrary. in evidence as it could have, to collect all relevant Court made no effort, Also, the District between the hearings (…). one hearing. It also allowed long intervals 75. hav- in the circumstances, in February 2001 was not unreasonable for interim measures to the unjustified delays in its examination (…). ing regard 76. eight months (June 2000 – February 2001) is open to criticism as regards approximately particular expedition during that period. This its insufficient attention to the need for between the first applicant and her husband attitude, during a period of tense relations old child at the time (…), is adversely the second applicant, a three-year that affected respect for the applicants’ private reconcile with the authorities’ duty to secure difficult to and family life. 208 Gender-based Violence or thoseintroduced Act2005(…)–would inBulgarianlawbytheDomesticViolence Recommendation Rec(2002)5 of theCommitteeMinistersCouncilEurope administrative andpolicingmeasures –amongthem,for example,thosementionedin 83. principle amatterthatfallswithinthedomesticauthorities’margin ofappreciation. ance withArticle8inthesphere oftherelations ofindividualsbetweenthemselvesisin thelimits oftheConvention,choicemeanstosecure compli- family life.Within of possible measures that could suffice to secure respect for the applicants’ private and role to replace the national authorities and choose in their stead among the wide range its taskislimitedtotheexaminationofparticularfactsbefore it.ItisnottheCourt’s found, incertaincircumstances, toraiseanissueofcompatibilitywiththeConvention, bers cannotbeprosecuted withouttheactiveinvolvementofvictim(…),maybe Bulgarian law, according to which many acts of serious violence between family mem- victim, inallcasesofdomesticviolence.WhiletheCourtcannotexcludethatrelevant the Conventionrequired State-assistedprosecution, asopposedtoprosecution bythe Convention rightscouldonly be secured ifMr N.wasprosecuted bythe State andthat lence, inthisparticularcasetheCourtcannotacceptapplicants’argumentthather 82. for damagesagainstMrN.(…). pensation –itwasopentoherbringprivateprosecution proceedings andacivilclaim applicant couldseekestablishmentofthefacts,aswellMrN.’s punishment,andcom- 81. with littleeffect inpractice (…). and anattemptwasmadetobroker aninformalagreement betweentheparents, albeit forhelp,didnotremainturned totallypassive–MrN.wasissuedwithapolicewarning 80. materialised, wasadverselyaffected bytheincidentshehadtowitness(…). ercise hisrighttoregular contactswiththefirstapplicant and,wheneversuchcontacts the secondapplicant’s righttorespect for hisprivatelife,ashecould not effectively ex- of theConvention.Moreover, intheconcrete circumstances thisquestionalsoconcerned about theadequacyofauthorities’reaction maygiveraisetoanissueunderArticle8 regard tothenature oftheallegationsandfactscaseasawhole,question about MrN.’s herphysicalintegrityandwell-beingthat,having behaviourconcerned 79. On thebasisofconcrete factsinthiscase,theCourt considersthatcertain overlookingthevulnerabilityofvictimsinmanycasesdomesticvio- Without Furthermore, theBulgarian legalsystemprovided legalmeanswhereby the first The Courtobservesthatthepoliceandprosecutors, towhomthefirstapplicant On thebasisofthesefactsCourtissatisfiedthatfirstapplicant’s complaints European Court of Human Rights - Bevacqua and S. v. Bulgaria 209 t our C the , reasons

(iii) Conclusion these

In the Court’s view, the cumulative effects of the District Court’s failure to adopt failure District Court’s of the the cumulative effects view, In the Court’s Holds by six votes to one that there has been a violation of Article 8 of the Conven- Holds by six votes to one that there

or F 84. adversely the ap- without delay in a situation which affected interim custody measures the second applicant and the lack of sufficient plicants and, above all, the well-being of behaviour to Mr N.’s by the authorities during the same period in reaction measures to assist the applicants contrary to the State positive obligations amounted to a failure private and family life. for their respect under Article 8 of the Convention to secure […] 2. tion; […] have been called for. However, at the relevant time Bulgarian law did not provide for did not provide time Bulgarian law relevant at the However, called for. have been by the police and taken and the measures measures and policing specific administrative The effective. did not prove their general powers on the basis of authorities prosecuting prosecution applicant to bring private for the first considers that the possibility Court also required obviously was not sufficient as such proceedings and seek damages proceedings of the incidents complained of. In the recurrence serve to prevent time and could not Mr N.’s enforce to impose sanctions or otherwise failure the authorities’ view, Court’s of this case, as was critical in the circumstances unlawful acts from obligation to refrain The immediate assistance the applicants needed. the to provide it amounted to a refusal concerned no such assistance was due as the dispute authorities’ view that a “private enjoyment of the the with their positive obligations to secure matter” was incompatible rights. applicants’ Article 8 210 Gender-based Violence European Court of Human Rights

Salmanoğlu and Polattaş v. Turkey

Application Nº 15828/03

Judgment of March 17, 2009 212 Gender-based Violence tody. Inparticular, NazimeCeren Salmano 10. virgin andhadnotrecent sexualrelations. was examinedbyS.S.whosubsequentlyinformedthepolice thattheapplicantwasa Polattaş’s virginitystatus and determinewhethershehadrecent sexualrelations. She 8. and hadnotrecent sexual relations. 7. […] picion ofmembershipthePKK(theWorkers’ PartyofKurdistan, anillegalorganisation). police officersfrom theAnti-Terrorist Branchoftheİ 5. respect andtheinvestigation intotheirallegationsofill‑treatment A. […] headquarters requested theİ 9. against thePKK. an arrest warrantissuedagainstherwithinthecontextofapoliceoperationconducted ficers from theAnti-Terrorist Branchoftheİ tion, noted,onadocumentofthepolice,thatNazimeCeren Salmano kati doktorraporununverilmesi).Themedicalexpert,S.S.,whoconductedtheexamina- (bakire olupolmadığıveyakınzamandacinselilişkidebulunupbulunmadıınıgösterir Salmanoğ headquarters requested the İ […] I. T

he

The applicantsallegethatthey wer On thesameday On 8Mar On thesameday On 6Mar The applicants’detentioninpolicecustodymedicalr T F he acts lu’s virginity statusanddeterminewhethershehadrecent sexualrelations C ircumst ch 1999at2a.m.NazimeCeren Salmanoğ ch 1999at11.30a.m.FatmaDenizPolattaşwasarrested bypoliceof- , theheadofAnti-Terrorist Branch oftheİ , theheadofAnti-Terrorist Branchoftheİ ances skenderun HospitaltoestablishNazimeCeren Maternity skenderun HospitaltoestablishFatma Deniz Maternity

of

the e subjectedtoill-treatment whileinpolicecus- ğ C lu wasblindfolded,forced tostandforalong skenderun policeheadquarters,pursuantto ase skenderun policeheadquartersonsus- lu was taken into custody by lu wastakenintocustodyby eports issuedintheir ğ lu wasstillavirgin skenderun police skenderun police skenderun police European Court of Human Rights - Salmanoğlu and Polattaş v. Turkey 213 January 2008).

onvention C 31, 31

Italy [GC], no. 26772/95, § 121,

the

of 3 ticle r A , no. 26803/02, § Turkey

of

tion s assessment iola eiterates that, in assessing evidence in this field, it applies the standard field, it applies the standard eiterates that, in assessing evidence in this V ch 1999 at 10.15 a.m. the applicants were once again referred to the once again referred the applicants were ch 1999 at 10.15 a.m. was blindfolded, insulted and beaten. The police officers beaten. The police insulted and ş was blindfolded, Deniz Polatta

a. As regards the alleged ill-treatment during the applicants’ detention in po- a. As regards the alleged ill-treatment during lice custody The Court’ aw lleged

L In the instant case, the Court observes that both parties submitted several medical In the instant case, the Court observes that both parties submitted several medical The Court r Merits 2. On 12 Mar

he

eports as evidence in support of their submissions to the Court. The reports relied on by relied eports as evidence in support of their submissions to the Court. The reports skenderun Maternity Hospital for virginity testing. The applicants were not examined as Maternity were testing. The applicants for virginity Hospital skenderun T I. a 77. 76. r of proof “beyond reasonable doubt”. However, such proof may follow from the coex- the from follow may proof such However, doubt”. reasonable “beyond proof of of similar unrebutted or inferences clear and concordant istence of sufficiently strong, of fact (see, among many others, Labita v. presumptions ECHR 2000-IV; Süleyman Erkan v. ECHR 2000-IV; […] B. […] also inserted a truncheon into her anus, which caused bleeding. A female police officer bleeding. A female her anus, which caused a truncheon into also inserted into. The ap- which the applicant changed underwear, clean asked her family to provide A.Y. by this female police officer, both stripped naked plicants were […] 12. İ examination. to undergo a gynaecological they refused […] time, and deprived of food, water and sleep. She was also insulted and threatened with threatened also insulted and and sleep. She was deprived of food, water time, and and sexually harassed She was of her family. of other members the torture death and beaten. Fatma 214 Gender-based Violence 78. indicate nosignofill in policecustody, whereas thereports issuedontheapplicants’release from detention disorders as a result of traumatic experiences which had occurred during their detention the applicants demonstrate that the applicants were suffering at least from psychological issued bytheTurkish MedicalAssociation,theIstanbulUniversityand4 ousness oftheirallegations,agesatthetimeeventsandmedicalreports Osman partial evidence,includingmaking clearintheirreports any evidenceofill-treatment (see professional independencebycontractualorotherconsiderations butshouldprovide im- to thepeopletheyare askedtoexamineortreat. Theyshouldnotcompromise their 1999). TheCourthasheldthatallhealthprofessionals oweafundamentaldutyofcare tocol”, (submittedtotheUnitedNationsHighCommissionerfor HumanRights,9 Torture andOtherCruel,InhumanorDegradingTreatment orPunishment,“Istanbul the guidelinessetoutinManualonEffective InvestigationandDocumentationof Torture’s (“CPT”)standards onthemedicalexaminationofpersonsinpolice custodyand 80. of medicalexaminationpersonsinpolicecustody. the present case,thenationalauthoritiesensured theeffective functioningofthesystem this background, theCourt’s firsttaskistodeterminewhether, inthecircumstances of examination ofpersonsinpolicecustodyisanintegralpartthejudicialsystem.Against ter raiseallegationsofill crucial role duringinvestigations conducted against detainees and incaseswhere the lat- 22 October2002).Moreover, evidenceobtainedduringforensic examinationsplaysa v. Turkey , no.33086/04,§ tention, constitutes one ofthemost essential safeguards against ill gether with the right of access to a lawyer and the right to inform a third partyof the de- 79. those examinationscouldhaveproduced reliable medicalevidence. tions attheendoftheirdetentioninpolicecustodywithaviewtoestablishingwhether ill taken intoconsiderationinorder todeterminethemeritsofapplicants’allegations should ascertainwhichpartofthemedicalevidencesubmittedbypartiesbe cants couldhavebeenthesubjectofill-treatment, asalleged.Consequently, theCourt of theForensic MedicineInstitute togetherraiseareasonable suspicionthattheappli- ‑ treatment. Inthisrespect, theCourtmustconsiderapplicants’forensic examina -

The Courtconsidersthattheconsistencyofapplicants’submissions,seri The Courthasalr The Courtr

Karademir eiterates thatthemedical examination ofpersonsinpolicecustody, to- v. Turkey, no.30009/03,§ ‑ treatment ontheirpersons. eady reaffirmed theEuropean CommitteeforthePrevention of ‑ treatment.

42, 18September2008;Algürv. Turkey , no.

Therefore, intheCourt’s view, thesystemofmedical

54, 22July2008).TheCourt has further ‑ treatment (see Türkan

32574/96, § th Section

August

Pro-

44, - European Court of Human Rights - Salmanoğlu and Polattaş v. Turkey 215 - (99) 3).

Directive, when in force, when in force, Directive,

October 1997, CPT/Inf

40, 14 October 2008). Moreover, Moreover, 40, 14 October 2008).

eason to diverge from the view expressed by the the view expressed eason to diverge from ovisions of Article 10 were repeatedly criticised by repeatedly ovisions of Article 10 were ding to Article 10 of the Directive on Apprehension, ding to Article 10 of 10 (5) stipulated that a copy of the medical report issued in a copy of the medical report 10 (5) stipulated that

, no. 32347/02, § Turkey X; Mehmet Eren v. ‑ this connection, the Court welcomes the revised Directive which came into force into force came which Directive revised the the Court welcomes connection, this Nevertheless, the Court finds no r In The Court observes that these pr The Court notes that, accor The Court notes that,

treatment was found to be a requirement by the Court. by the requirement was found to be a treatment ‑ CPT, since it also considers that Article 10 (5) and (6) of the 1998 CPT, 81. The new Di- observations and recommendations. on 1 June 2005 following the CPT’s in the absence of law en- that medical examinations must take place provides rective also It case. particular a in presence their requests doctor the unless officials forcement to the detention centre to send a copy of the medical report the requirement repealed carried out by the CPT Government on the visit to Turkey (see the Report to the Turkish 7 to 14 December 2005, CPT/Inf (2006) 30, § 25). from 84. respect of a detainee should be kept at the health institute and another copy should be of respect to the detainee when he is copy should be given A third sent to the detention centre. in the investigation file. The custody and a fourth copy should be included from released stipulated that the doctor and the detainee should sixth paragraph of the same provision with regard no restriction is there cases where “in examination, during the left alone be (see, for the text of Article 10 of the to the investigation and to security considerations” Government to in response Annexes to the Interim Report of the Turkish 1998 Directive, 5 to 17 from the Report of the CPT on its visit to Turkey (2000) CPT/Inf following Reports of the CPT: the CPT between 1999 and 2003 (see the (2002) 8 § 42; CPT/Inf (2003) 8 § 41) as 17 § 19; CPT/Inf (2001) 25 §§ 64-66; CPT/Inf examina- of the system of forensic effectiveness they undermined confidence in and the tions. 83. 82. dated 1 October 1998 (“1998 Directive”), in force at force in Directive”), (“1998 1998 October 1 dated Statements of Taking and Arrest custody was compulsory medical examination of persons in police the material time, the Article law. under Turkish referred to the CPT’s standard that all medical examinations should be conducted out of should be that all medical examinations standard to the CPT’s referred detained every Further, officers. police of sight, the of out preferably and hearing, the as of that examination, the results his or her own and be examined on person should should be for conclusions, and the doctor’s by the detainee statements well as relevant § 118, and 22948/93, , nos. 22947/93 Turkey by the doctor (see Akkoç v. mally recorded ECHR 2000 findings and between physical experts on a possible relationship an opinion by medical ill 216 Gender-based Violence paragraphs 6,7(…)above). quarters requesting themedicalexaminationofapplicants andotherarrestees (see recorded theirfindings ontheletterswhichhadbeensenttothembypolicehead - their conclusions.TheCourtis particularlystruckbythefactthatdoctorsmerely her report (…).Moreover, noneofthedoctorsrecorded the detainees’statementsand cal contact,butfailedtonotethisobservationontheapplicant’s psychologicalstatein court that Fatma Deniz Polattaş had been disturbed as she had not wished to have physi- bodies (see paragraphs 6, above). One of the doctors, B.I.K., stated before the assize wrote downthattheydidnotobserveanysignofphysicalviolenceontheapplicants’ despite theaforementioned, clearministerialinstructions.Whatismore, thedoctorsonly aminations duringtheirpolicecustodyfailedtousethestandard forensic medicalforms 87. should complywiththestandard forensic medicalform(…). expressly stipulatedthatforensic reports issuedinrespect ofpersonsinpolicecustody 1997, CPT/Inf(99)2,§39).Moreover, thePrimeMinister’s Circular of3 Turkish onthevisittoTurkey Government carriedoutbytheCPTfrom 5to17October reports tothepolice and thepublicprosecutor insealed envelopes (seetheReportto sic medicalform,CPT/Inf the doctor’s findingsandthedoctor’s conclusions(see,foracopyofthestandard foren- standard medicalformswhich containeddistinctsectionsforthedetainee’s statements, at therelevant timedoctors designatedtoperformforensic taskswere requested touse 86. clear breach oftheaforementioned CPTstandards (seeparagraph80above). between themandthedoctorcouldseeexaminationroom iftheywished(…),in ined atthesametimeinroom whilepoliceofficerscouldheartheconversations tions, itnotesthatonatleastoneoccasion,12March 1999,theapplicantswere exam- rooms. Although the Court is unable to verify these allegations inrespect of all examina- applicants alsodeniedtheallegationthatthere hadbeenpoliceofficersintheexamination amination (…). The Court further observes that four other doctors who had examined the examination room (…). However, this was denied by the doctor who had conducted the ex- April 1999 told the the nursewhohadbeenpresent duringFatmaDenizPolatta 85. Turning totheparticularcircumstances ofthepresent case,theCourtobservesthat tions constitutedagainstill were capableofdiminishingtheveryessencesafeguard thatthemedicalexamina-

The CourtfurthernotesthatpursuanttotheMinistryofHealthCir The Courtobservesthatthedoctorswhoconductedapplicants’ medicalex assize court (penal court] that there had been a prison guard in the

(99) 3,citedabove).Theywere toforward copiesofmedical ‑ treatment. ş’s rectal examinationon6

December culars of1995,

1997 - European Court of Human Rights - Salmanoğlu and Polattaş v. Turkey 217 116).

April 1999, fell short of

Government. In assessing the ş, the Court is persuaded that the appli- , no. 52515/99, § 81, 13 May 2008). Turkey

eceding considerations (paragraphs 94-96 above), the Court egard to the above, the Court finds that the applicants’ medical examinations to the egard , the Court observes that the applicants were subjected to virginity tests at the subjected to virginity were observes that the applicants , the Court efore, taking into consideration the circumstances of the case as a whole, in of the into consideration the circumstances taking efore, In the light of its pr Ther Having r Lastly

[…] 98. 89. of Article 3 of the Convention under its substan- has been a breach concludes that there tive limb. cants were subjected to severe ill-treatment during their detention in police custody when ill-treatment subjected to severe cants were they had only been sixteen and nineteen years of age (see Akkoç, cited above, § particular the virginity tests carried out without any medical or legal necessity at the start ofstart the at necessity or legal medical any without out carried tests virginity the particular 88 above) and the post-traumatic stress the applicants’ detention in custody (see paragraph - depres as well as the serious which both applicants subsequently suffered, from disorders experienced by Fatma Deniz Polattasive disorder the aforementioned CPT standards and the principles enunciated in the Istanbul Protocol. in the Istanbul Protocol. and the principles enunciated CPT standards the aforementioned the effective case the national authorities failed to ensure It concludes that in the present Therefore, of persons in police custody. functioning of the system of medical examinations the Court attaches evidence. Consequently, reliable these examinations could not produce and 6 April 1999. reports of 6, 8, 9 and 12 March no weight to the findings of the […] 96. between 6 and 12 March 1999, as well as the examination of 6 between 6 and 12 March 88. the However, 7 and 9 above). custody (see paragraphs detention in police start of their based that the GovernmentCourt notes examinations were shown that these have not just sub- They requirement. or other legal with any statutory in compliance on and were the applicants’ complaints of carried out following the examinations were mitted that In the latter connection, that the latter had consented to the tests. sexual violence and consent was submitted by the no evidence of any written the fact that the first ap- consent, the Court cannot overlook validity of the purported even assuming that years old at the material time. Nevertheless, plicant was only sixteen be no medical or could was valid, the Court considers that there the applicants’ consent occasion as the applicants such an intrusive examination on that legal necessity justifying The tests in conducted. of sexual assault when the tests were had yet not complained (see, discriminatory and degrading treatment have constituted themselves may therefore mutatis mutandis, Juhnke v. 218 Gender-based Violence European Court of Human Rights

Opuz v. Turkey

Application Nº 33401/02

Judgment of June 9, 2009 220 Gender-based Violence following: gards theStates’obligations,Article2ofCEDAW provides, in so farasrelevant, the freedoms in the political, economic, social, cultural, civil or any other field (…).” As re- tal status,onabasisofequalitymenandwomen,human rightsandfundamental or nullifyingtherecognition, enjoymentorexercise bywomen,irrespective oftheirmari- sion orrestriction madeonthebasisofsexwhichhaseffect orpurposeofimpairing 73. 19 January1986. (CEDAW), wasadoptedin1979bytheUNGeneralAssemblyandratified Turkey on 72. B. […] […] mother andherownill-treatment. her andmother from domestic violence, which had resulted in the deathofher 3. […] Opuz (“the applicant”),on15July2002. Rights andFundamentalFreedoms (“theConvention”)byaTurkish national,MrsNahide lodged withtheCourtunderArticle34ofConventionforProtection ofHuman 1. […] II. R P rocedure “States Parties condemn discrimination against women in all its forms, agree to The CEDAW definesdiscriminationagainstwomenas“(...) The Convention on the Elimination of All Forms of Discrimination against Women tion againstwomen 1. andcomparativelawmaterial Relevant international The applicantalleged,inparticular, thattheStateauthoritieshadfailedtoprotect The caseoriginatedinanapplication(no.33401/02)againsttheRepublicofTurkey elevant The United Nations’ position with regard to domestic violence and discrimina- L aw

and P ractice any distinction,exclu- European Court of Human Rights - Opuz v. Turkey 221 including penal sanc- 3 Consequently, gender-based violence triggers duties gender-based Consequently, 2 In its Concluding Comments on the combined fourth and fifth periodic report fourth and fifth periodic In its Concluding Comments on the combined Gender-based violence, which impairs or nullifies the enjoyment by women of Gender-based To take all appropriate measures to eliminate discrimination against women by discrimination against to eliminate measures all appropriate take To abolish including legislation, to modify or measures, take all appropriate To and “family violence”. 4 1 Furthermore, in its explanations of General Recommendation no. 19, the CEDAW CEDAW 19, the no. Recommendation of General explanations its in Furthermore, discrimination against women. The “(...) 6. The Convention in article 1 defines violence, that is, violence that is definition of discrimination includes gender-based - women dispro or that affects a woman she is a woman because against directed suffering, or harm sexual or mental physical, inflict that acts includes It portionately. vio- Gender-based liberty. deprivations of and other coercion of such acts, threats of whether those regardless of the Convention, specific provisions lence may breach mention violence. expressly provisions 7. under general international human rights and fundamental freedoms law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention. Comments on specific articles of the Convention - of eliminating discrimi delay a policy means and without all appropriate pursue by this end, undertake: women and, to nation against (...) (e) or enterprise; any person, organization (f) discrimination which constitute and practices customs laws, regulations, existing against women;” Against Women Elimination of All Forms of Discrimination The Committee on the of Turkey (hereinafter “Concluding Comments”), the CEDAW Committee reiterated that Committee reiterated CEDAW “Concluding Comments”), the (hereinafter of Turkey violence, is a form of discrimination (see, violence against women, including domestic 15 February 2005, § 28). and Corr.1, CEDAW/C/TUR/4-5 75. the following: Committee considered in States. The General Recommendation no. 19 sets out a catalogue of such duties. They in States. The General Recommendation - necessary to pro that are and other measures include a duty on States to “take all legal violence of women against gender-based protection vide effective 74. violence is a form found that “gender-based Committee”) has “the CEDAW (hereinafter on to enjoy rights and freedoms ability seriously inhibits women’s of discrimination that Within under Article 1 of CEDAW. men” and is thus prohibited a basis of equality with the Committee includes violence by “pri- violence, the general category of gender-based vate act” tions, civil remedies and compensatory provisions to protect women against all kinds of to protect and compensatory provisions tions, civil remedies violence.” 222 Gender-based Violence against women,whetherthose actsare perpetratedbythe Stateorprivatepersons”. vent, investigateand,inaccordance withnationallegislation, punishactsofviolence against Women (1993),initsArticle4(c),urgesStatesto “exercise duediligenceto pre- 78. deceased FatmaYıldırımtolifeandphysicalmentalintegrity. and GeneralRecommendation19oftheCommittee corresponding rightsofthe through (f),andArticle3oftheCEDAW read inconjunctionwithArticle1oftheCEDAW fore concludedthattheStatePartyhadviolateditsobligationsunderArticle2(a)and(c) State Partyhadbreached itsduediligenceobligationtoprotect FatmaYıldırım.Itthere- thekillingofMrsYıldırımby herhusband,theCEDAWcerned Committeefound thatthe 77. resources. fective investigative,legalandjudicialprocesses, andincreasing treatment and support improving theprotection ofwomenagainstdomesticviolence,suchasestablishingef- her rights.TheCommitteealsomadeseveralgeneralrecommendations toHungaryon assistance andcompensationinproportion totheharmsustainedandviolationof place ofresidence tolivewith herchildren, andthatshereceived childsupport, legal the applicantandherfamily”,aswelltoensure thatshewasprovided withasafe directed Hungarytotakemeasures “toguaranteethephysicalandmentalintegrityof physically abusingandthreatening herfrom 1998onwards, theCEDAW Committee had allegedthathercommon-lawhusbandandfatheroftwochildren hadbeen 76. The United Nations General Assembly Declaration on the Elimination of Violence The UnitedNationsGeneralAssembly DeclarationontheEliminationofViolence In the case of In thecaseofA.T. v. (decisionof26 January2005),where Hungary theapplicant their lowerlevelofeducation,skillsandworkopportunities.” subordinate roles andcontribute to thelowlevelofpoliticalparticipationand consequences oftheseformsgender-based violencehelptomaintainwomenin While thiscommentaddresses mainlyactualorthreatened violencetheunderlying enjoyment, exercise andknowledge ofhumanrightsandfundamentalfreedoms. violence onthephysicalandmentalintegrityofwomenistodeprivethemequal based violence as a form of protection or control of women. The effect of such attacks andfemalecircumcision. Suchprejudices and practicesmayjustifygender- coercion, such as family violence and abuse, forced marriage, dowry deaths, acid as having stereotyped roles perpetuate widespread practices involving violence or 11. Articles 2f),5and10c) (...) Traditional attitudesbywhichwomenare regarded assubordinate tomenor Fatma Yıldırım v. Austria (decision of 1 October 2007), which - con European Court of Human Rights - Opuz v. Turkey 223 The Inter-American System The Inter-American The Council of Europe , the Inter-American Court stated: , the Inter-American Velazquez-Rodriguez “An illegal act which violates human rights and which is initially not directly imput- “An illegal act which violates human rights and which is initially not directly able to a State (for example, because it is the act of a private person or because the In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women protection Rec(2002)5 of 30 April 2002 on the In its Recommendation that member States should in particular, The Committee of Ministers recommended, the Committee of Ministers recommended to violence within the family, With regard 3. In his third report, of 20 January 2006, to the Commission on Human Rights of the on Human 2006, to the Commission of 20 January report, In his third 2. 83. In 80. stated, inter alia, of Europe Committee of Ministers of the Council against violence, the necessary national where develop and/or improve should introduce, that member States victims, support of based on maximum safety and protection policies against violence public awareness, raising of of the criminal and civil law, and assistance, adjustment violence against women and prevention. with confronted training for professionals 81. as sexual violence and rape, abuse of the vul- penalise serious violence against women such defenceless, ill, disabled or dependent victims, as well as penalising nerability of pregnant, The Recommendation also stated that member States the perpetrator. abuse of position by make provisions proceedings, able to institute that all victims of violence are should ensure encourage public prosecutor, can be initiated by the that criminal proceedings to ensure against women as an aggravating or decisive factor in decid- violence to regard prosecutors measures necessary that where ensure in the public interest, ing whether or not to prosecute and take revenge possible acts of and threats against victims effectively taken to protect are during proceedings. protected rights are that children’s to ensure specific measures 82. of violence within the family as criminal of- that Member states should classify all forms inter alia, to enable the in order, measures fences and envisage the possibility of taking to ban the perpetrator victims, aimed at protecting judiciary to adopt interim measures enteringor in residing or victim, the approaching or with communicating contacting, from to and perpetrator the on imposed measures the of breaches all penalise to areas, defined for operation by the police, medical and social services. establish a compulsory protocol 79. on violence the Special Rapporteur (E/CN.4/2006/61), and Social Council UN Economic customary international is a rule of “oblig- law that that there considered against women due diligence”. against women with to acts of violence and respond prevent es States to 224 Gender-based Violence and itstoleranceoftheviolenceinflicted.Specifically, theCommission held that: States to condemn all forms of violence against women), as a result of its failure to act carry outitsduty(interalia,underArticle 7oftheConventionBelémdoPará,obliging Convention. Furthermore, Brazil hadviolatedtherightsofapplicantandfailedto a findingofState responsibility undertheAmericanConventionandBelémdoPará cise duediligencetoprevent andinvestigateadomesticviolencecomplaintwarranted out inArticle1(1)oftheAmericanConventiononHumanRights. relies onStatefailure tocomplywiththedutyensure humanrightsprotection, asset 84. case of Maria Da Penhav. Brazil, attribution ofStateresponsibility fortheactsandomissionsofprivateindividuals.In 86. treaty todealsolelywithviolence againstwomen. ing totheeradicationofgenderbasedviolence.Itisonlymultilateralhumanrights Violence AgainstWomenViolence 1994(BelémdoParáConvention) 85. families. to investigateandsanctionperpetratorsorprovide appropriate reparations totheir sponsible onaccountoftheirlackduediligencetoprevent humanrights violations, Court’s case-lawreflects thisprincipleby repeatedly holdingStatesinternationally re- the society, totakeeffective actiontosanctionsuchacts.” since societyseesnoevidence ofwillingnessbytheState,asrepresentative of judicial ineffectiveness alsocreates aclimatethatisconducivetodomesticviolence, the obligationtoprevent thesedegradingpractices.That general anddiscriminatory only failure tofulfiltheobligationwith respect toprosecute andconvict,butalso convicting aggressors, it is the view of the Commission that this case involves not of negligence and lack of effectivepattern action by the State in prosecuting and Given the fact that the violence suffered by Maria da Penha is part of a general violence againstwomen. psychological, social,andhistoricalroots andfactorsthatsustainencourage The condoningofthissituationbytheentire systemonlyservestoperpetuatethe “(...) tolerancebytheStateorgansisnotlimitedtothiscase; rather, itisa pattern. The legalbasisfortheultimateattributionofresponsibility toaStateforprivateacts prevent theviolationortorespond toitasrequired bytheConvention.” of theState,notbecauseanactitself,butlackduediligenceto person responsible hasnotbeenidentified)canleadtointernational responsibility The Inter-American CommissionadoptstheInter-American Court’s approach tothe The Inter-American ConventiononthePrevention, PunishmentandEradicationof 8 the Commission found that the State’s failure to exer 7 setsoutStates’dutiesrelat - 9 6 TheInter-American 5 - European Court of Human Rights - Opuz v. Turkey 225 Comparative-Law material Comparative-Law In 11 member States of the Council of Europe, namely in Albania, Austria, Bosnia Austria, Bosnia namely in Albania, of Europe, States of the Council In 11 member Belgium, Bulgaria, namely in Andorra, Armenia, Azerbaijan, In 27 member States, the legislation and practice of the above-mentioned 27 countries It appears from - pro of criminal the continuance State which bases to be the only Romania seems 4. 87. - Marino, Spain and Swit Portugal, San Poland, Italy, Estonia, Greece, and Herzegovina, despite the victim’s criminal proceedings to continue required are zerland, the authorities in cases of domestic violence. withdrawal of complaint 88. - Yugo Former the Finland, Wales, and England Denmark, Republic, Czech the Cyprus, Luxem- Latvia, Ireland, Hungary, France, Georgia, Germany, slav Republic of Macedonia, Swe- the Netherlands, the Russian Federation, Serbia, Slovakia, bourg, Malta, Moldova, whether in deciding the authorities have a margin of discretion and Ukraine, den, Turkey A significant against perpetrators of domestic violence. to pursue criminal proceedings - privately prosecut between crimes which are number of legal systems make a distinction publicly and those which are complaint is a pre-requisite) able (and for which the victim’s to be in is considered for which prosecution serious offences (usually more prosecutable the public interest). 89. his/her complaint lies the victim withdraws where that the decision on whether to proceed primarily take into account the authorities, which of the prosecuting within the discretion jurisdictions, such as England In some in continuing criminal proceedings. public interest against the perpetrators in deciding whether to pursue criminal proceedings and Wales, authorities (Crown Prosecution Service required ) are of domestic violence the prosecuting whether the victim’s seriousness of the offence; to consider certain factors, including: the physical or psychological; if the defendant used a weapon; if the defendant has injuries are (includ- since the attack; if the defendant planned the attack; the effect made any threats living in the household; the chances of the defendant ing psychological) on any children of the victim or anyone else to the health and safety again; the continuing threat offending with the relationship state of the victim’s current who was, or could become, involved; the against the the prosecution of continuing with on that relationship defendant; the effect was any other violence particularly if there wishes; the history of the relationship, victim’s violence. Direct particularly any previous criminal history, in the past; and the defendant’s and any children’s to the need to strike a balance between the victim’s is made reference Article 2 and Article 8 rights in deciding on a course of action. 90. on the wishes/complaints of the victim. and in all circumstances, ceedings entirely, 226 Gender-based Violence B. […] […] sodes andmusttherefore beconsidered togetherasachainofconnectedevents. were subjectedoveralong periodoftimecannotbeseenasindividualandseparateepi- events, theCourtconsidersthatoverallviolencetowhichapplicantandhermother applicant intense suffering and anguish. While there were intervals between the impugned These actsofviolencehadresulted inthedeathofapplicant’s motherandcausedthe had beenvictimsofmultipleassaultsandthreats byH.O.againsttheirphysicalintegrity. 111. […] […] […] against H.O.despitethewithdrawal ofcomplaintsbythevictims. her mother, in particular by pursuing criminal or other appropriate preventive measures local authorities displayed due diligence to prevent violence against the applicant and pears from the parties’ submissions, a crucial question in the instant case is whether the immediate risktothelifeofapplicant’s motherfrom criminal actsbyH.O.Asitap- the authoritieskneworoughttohaveknownattimeof theexistenceofareal and protect theapplicant’s mother’s righttolife.In thisconnection,itmustestablishwhether thorities havefulfilledtheirpositiveobligationtotakepreventive operationalmeasures to 131. a II. a I. T he 1. The Court’s assessment In thatregard theCourtnotesthatfrom 10April1995theapplicantandhermother

On theaboveunderstanding,Courtwillascertainwhether thenationalau- L lleged dmissblty aw Alleged failuretoprotecttheapplicant’s mother’s life i) Scopeofthecase V iolation O f A rticle 2O f T he C onvention European Court of Human Rights - Opuz v. Turkey 227 Whether the local authorities could have foreseen a lethal attack from H.O. could have foreseen a lethal attack Whether the local authorities In view of the above events, it appears that there was an escalating violence against there In view of the above events, it appears that the authorities and the also known to the victims’ situations were Furthermore, could have the Court finds that the local authorities foregoing, to the Having regard However, before embarking upon these issues, the Court must stress that the issue that Court must stress the upon these issues, embarking before However, ii) Turning to the circumstances of the case, the Court observes that the applicant and of the case, the Court observes that to the circumstances 133. Turning the very beginning. As a result from relationship her husband, H.O., had a problematic applicant and the applicant’s to violence against the H.O. resorted of disagreements, She her daughter. protect to in order relationship in their intervened therefore mother her for being the cause of their problems thus became a target for H.O., who blamed (…). (…) 134. sufficiently crimes committed by H.O. were the applicant and her mother by H.O. The the health to was a continuing threat and there measures serious to warrant preventive it was obvious the history of the relationship, and safety of the victims. When examining a signifi- was therefore there of domestic violence and that the perpetrator had a record cant risk of further violence. 135. Office, stat- Chief Public Prosecutor’s mother had submitted a petition to the Diyarbakır the police to take action against and requesting ing that her life was in immediate danger was limited to request mother’s the applicant’s to authorities’ reaction the However, H.O. two weeks allegations. Approximately H.O. about the mother’s taking statements from mother (…). 2002, he killed the applicant’s on 11 March after this request, 136. a lethal attack by H.O. While the Court cannot conclude with certainty that foreseen if and that the killing would not have occurred matters would have turned out differently measures to take reasonable that a failure the authorities had acted otherwise, it recalls of altering the outcome or mitigating the harm prospect which could have had a real 132. - physical to psychologi ranging from take various forms violence, which can of domestic case. of the present the circumstances be confined to or verbal abuse, cannot cal violence concernswhich always not does which and States member all problem general a is It and it is circuits or closed takes place within personal relationships surface since it often be the Court acknowledges that men may also The affected. are not only women who the often casualties of are too, children, that and, indeed, violence domestic of victims the Court will bear in mind the Accordingly, or indirectly. directly phenomenon, whether case. when examining the present at issue gravity of the problem 228 Gender-based Violence ecution: there are certainfactorsthatcanbetakenintoaccountindecidingtopursuethepros - the practicesinmemberStates(seeparagraph89above),Courtobservesthat Article 8rightsindecidingonacourseofaction.Inthisconnection,havingexamined the part of the authorities to strike a balance between a victim’s Article 2, Article 3 or and 88above).Nevertheless,there appearstobeanacknowledgementofthedutyon of domesticviolencewhenthevictimwithdrawshercomplaints(seeparagraphs87 States Partiesregarding thepursuanceofcriminalprosecution againstperpetrators 138. exerted byH.O. mother hadtowithdrawtheircomplaintsbecauseofdeaththreats andpressure to abreach ofthevictims’ Article8rights.Theapplicantexplainedthatsheandher plaints. In their opinion, any further interference by the authorities would have amounted dance withthedomesticlaw, becausetheapplicantandhermotherwithdrew theircom- criminal proceedings against H.O.,theyhadtoterminatethoseproceedings, inaccor 137. authorities tookmeasures toprevent thekillingof applicant’s mother. Kingdom, no.33218/96,§99).Therefore theCourtwillnextexamine towhatextentthe is sufficienttoengagethe responsibility oftheState(seeE.andOthersv. theUnited ------The Courtnotesattheoutsetthatthere seemstobenogeneralconsensusamong claimedthateachtimetheprosecutingThe Government authoritiescommenced plicant’s mother iii) Whethertheauthoritiesdisplayedduediligencetopreventkillingofap- and thedefendant’s criminalhistory, particularlyanyprevious violence. in thepast; the history of the relationship, particularly if there had beenany other violence that relationship ofcontinuingwiththeprosecution againstthevictim’s wishes; the current stateofthevictim’s relationship withthedefendant;effect on was, orcouldbecome,involved; the continuing threat to the health and safety of the victim or anyone else who chances ofthedefendantoffending again; the effect (includingpsychological)onanychildren livinginthehousehold; if thedefendantplannedattack; if thedefendanthasmadeanythreats sincetheattack; if thedefendantusedaweapon; whether thevictim’s injuriesare physicalorpsychological; the seriousnessofoffence; - European Court of Human Rights - Opuz v. Turkey 229 It can be inferred from this practice that the more serious the offence or the greater or the greater the offence serious that the more this practice from It can be inferred authorities to sepa- argument that any attempt by the the Government’s As regards be- the very to violence from Court notes that H.O. resorted In this connection, the involvement her perceived of result a target as a became mother applicant’s The sufficiently authorities local the that appear not does it opinion, Court’s the In 139. in the should continue the prosecution likely that the more further offences, the risk of their complaints. if victims withdraw even public interest, 140. of their right to a breach her husband would have amounted to rate the applicant and pursue to requirement no is there law Turkish under that mind in bearing and life, family - in suffer withdraws her complaint and did not the victim in cases where the prosecution examine days, the Court will now for work for ten or more her unfit juries which renders Article 2 and balance between the victim’s struck a proper whether the local authorities Article 8 rights. 141. with the applicant. On many instances both the applicant and ginning of his relationship given to psychological pressure, subjected injuries and were physical her mother suffered a as a knife or weapons, such H.O. used lethal some assaults For and fear. the anguish against the applicant and her mother. threats shotgun, and he constantly issued death it may also be mother, of the killing of the applicant’s to the circumstances Having regard since he had been carrying a knife and a gun stated that H.O. had planned the attack, house on occasions prior to the attack (…). the victim’s and had been wandering around 142. as victims considered can also be children and the couple’s relationship, in the couple’s of the ongoing violence in the family home. As on account of the psychological effects - was not only possible but even foresee noted above, in the instant case, further violence to the his continuing threat of H.O., record able, given the violent behaviour and criminal (…). of violence in the relationship health and safety of the victims and the history 143. - discontinue the criminal pro deciding to the above factors when repeatedly considered to have given exclusive weight to the need to ceedings against H.O. Instead, they seem to be a “family matter” (see paragraph in what they perceived interfering from refrain the motives is no indication that the authorities considered there 123 above). Moreover, indica- mother’s behind the withdrawal of the complaints. This is despite the applicant’s withdrawn their her daughter had that she and Prosecutor Public to the Diyarbakır tion on them by H.O. exerted issued and pressure complaints because of the death threats their complaints when H.O. was at liberty (…). It is also striking that the victims withdrew custody (…). from or following his release 230 Gender-based Violence had been harassing her, invading her privacy by wandering around her property and car 147. In this connection, the Court notes that despite the deceased’s complaint that H.O. diligence toprotect therighttolifeofapplicant’s motherinotherrespects. violence aside,theCourt mustalsoconsiderwhetherlocalauthoritiesdisplayeddue 146. 82 above). this respect RecommendationRec(2002)5oftheCommitteeMinisters,§§ 80- a matterofpublicinterest, regardless ofthevictims’withdrawalcomplaints(seein past, theprosecuting authoritiesshouldhavebeenabletopursuetheproceedings as considers that,bearinginmindtheseriousnessofcrimes committedbyH.O.inthe domestic violenceandproviding sufficientsafeguards forthevictims.TheCourtthus positive obligationstoestablishandapplyeffectively asystempunishingallformsof sickness unfitness requirement, fellshortofthe requirements inherent intheState’s words, thelegislativeframework theninforce, particularlytheminimumtendays’ H.O. deprivedtheapplicant’s motheroftheprotection ofherlifeandsafety. Inother cumulative failure ofthedomestic authoritiestopursuecriminalproceedings against more (…).Itobservesthat theapplicationofaforementioned provisions and the acts inquestionhadnotresulted insicknessorunfitnessforworktendays the prosecuting authorities topursuethecriminalinvestigationsbecause Articles 456 §4,457and460ofthenowdefunctCriminalCode,whichprevented mother onaccountofthedomesticlawprovisions inforce attherelevant time; i.e. case were strictlydependent onthepursuanceofcomplaintsbyapplicantandher 145. by theauthoritiesnecessaryinpresent case. 2005). Theseriousness of therisk to theapplicant’s motherrendered suchintervention acts (see,K.A.andA.D.v. Belgium,no. 42758/98and45558/99,§81,17February in order toprotect thehealthandrightsofothersortoprevent commissionof criminal thorities’ interference with theprivateorfamilylifeofindividualsmightbenecessary applicants’ rights.Moreover, theCourtreiterates that,insomeinstances,thenationalau- matter” wasincompatiblewiththeirpositiveobligationstosecure theenjoymentof authorities’ viewthatnoassistancewasrequired a“private as thedisputeconcerned Bevacqua andS.v. Bulgaria,no. 71127/01,§83,12June2008),where itheldthatthe the Convention,Courtrecalls itsrulinginasimilarcaseofdomesticviolence(see authorities wouldhaveamountedtoabreach ofthevictims’rightsunderArticle8 144. The legislativeframeworkpreventing effective protection forvictimsofdomestic However, the Courtregrets tonotethatthecriminalinvestigations intheinstant As regards theGovernment’s argumentthatanyfurtherinterference bythenational - European Court of Human Rights - Opuz v. Turkey 231 Conclusion Furthermore, in the light of the State’s positive obligation to take preventive op- take preventive positive obligation to the State’s in the light of Furthermore, the Court concludes that the national authorities cannot beIn these circumstances, 3) […] rying knives and guns (…), the police and prosecuting authorities failed either to place failed either authorities police and prosecuting and guns (…), the rying knives allegation that he of the action in respect appropriate or to take other H.O. in detention § 53). , cited above, with it (see Kontrová violent threats and had made had a shotgun the applicant’s evidence that was no tangible GovernmentWhile the argued that there in fact apparent observes that it is not the Court was in imminent danger, life mother’s that his detention posed by H.O. and concluded the threat that the authorities assessed address rather the authorities failed to the circumstances; step in was a disproportionate in domestic violence cases event, the Court would underline that the issues at all. In any to life and to physical and supersede victims’ human rights perpetrators’ rights cannot Hungary decisions of the v. Austria and A.T. the Fatma Yıldırım v. mental integrity (see §§ 12.1.5 and 9.3, respectively). Committee, both cited above, CEDAW 148. an individual whose life is at risk, it might have been to protect erational measures of a suspect known to have a criminal record expected that the authorities, faced with consonant with the gravity special measures perpetrating violent attacks, would take that end, the local To mother. the applicant’s of the situation with a view to protecting on his/her Court could have ordered or the judge at the Magistrate’s public prosecutor enumerated under sections 1 and 2 of measures of the protective initiative one or more of banning injunction with the effect Law no. 4320 (…). They could also have issued an mother or the applicant’s contacting, communicating with or approaching H.O. from Rec(2002)5 of the Com- respect Recommendation (see in this entering defined areas to the applicant’s in response the contrary, mittee of the Ministers, § 82 above). On Court merely Magistrate’s the police and the for protection, requests repeated mother’s pas- the authorities remained him (…). While H.O. and released took statements from taking statements, H.O. shot dead the applicant’s sive for almost two weeks apart from mother. 149. failed in their positive obligation to have displayed due diligence. They therefore considered mother within the meaning of Article 2 of the the right to life of the applicant’s to protect Convention. […] 232 Gender-based Violence B. […] caused herpainandfearinviolationofArticle 3theConvention,whichprovides: threats several times but that the authorities were negligent towards her situation, which 154. Theapplicantcomplainedthatshehadbeensubjectedtoviolence,injuryanddeath cited above,§ 116).There hastherefore beenaviolationofArticle2theConvention. his threats against the physical integrity of the victim (see take adequatemeasures which couldprevent thelikelihoodofanaggressor carrying out attention, thenationalauthoritiescannotrely onthevictim’s attitudefortheirfailure to Court reiterates inthisconnectionthat,oncethesituationhasbeenbrought totheir of theapplicant’s mother’s righttolifeasenshrinedinArticle2oftheConvention.The the judicialsysteminplaceandrole itwasrequired toplayinpreventing aviolation legislation andfailure tousethemeansavailableundermineddeterrent effect of prevention oftheunlawfulactscommittedbyH.O.Theobstaclesresulting from the stant case,didnothaveanadequatedeterrent effect capableofensuringtheeffective 153. taken togetherwithArticle3, requires Statestotakemeasures designedtoensure that to everyonewithintheirjurisdiction therightsandfreedoms definedintheConvention, obligation on theHigh Contracting Parties under Article 1 ofthe Convention tosecure 3, fortheill-treatment inflictedonpersonsbynon-state actors, theCourt recalls that the 159. 1993, § 30,SeriesAno.247‑C). and stateofhealththevictim(seeCostello‑Robertsv. theUnitedKingdom , 25March ment, itsduration,physicalandmentaleffects and,insomeinstances,thesex,age depends onallthecircumstances ofthecase,suchasnature andcontextofthetreat- it istofallwithinthescopeofArticle3.Theassessment this minimumisrelative: it 158. III. A 1. The Court’s assessment punishment.” “No oneshallbesubjectedtotorture ortoinhumandegradingtreatment or Moreover, the Court concludes that the criminal ‑law system, as appliedin - the in As regards thequestionwhetherStatecouldbeheldresponsible, underArticle The Court reiterates that ill-treatment must attain a minimum level ofseverity if lleged Applicable principles V iolation

of A rticle 3 of

the Osman v. the United Kingdom, C onvention European Court of Human Rights - Opuz v. Turkey 233 III). Children 1997‑III). Children Turkey v. Baykara and Demir mutatis mutandis, mutatis , 29 April 1997, §Reports , 29 April 1997, 40, France H.L.R. v. Application of the above principles to the case Application of the above , mutatis mutandis The Court considers that the applicant may be considered to fall within the group of the group to fall within that the applicant may be considered The Court considers applicant, in the form of by the suffered The Court observes also that the violence authorities have the Court must next determine whether the national Therefore, final au- and bearing in mind that the Court provides In carrying out this scrutiny, of the Convention and the scope of the the provisions in interpreting Furthermore, 2. 160. , cited the United Kingdom (see, A. v. entitled to State protection “vulnerable individuals” the in applicant the by suffered violence the notes it connection, this In 22). § above, prison and her fear of further from following his release issued by H.O. past, the threats in , namely the vulnerable situation of women violence as well as her social background south-east Turkey. 161. sufficiently serious to amount to ill- were physical injuries and psychological pressure, within the meaning of Article 3 of the Convention. treatment 162. of violent attacks against the the recurrence to prevent measures taken all reasonable physical integrity. applicant’s 163. in Section I of the Conven- defined of the rights and freedoms thoritative interpretation taken have sufficiently authorities national the whether consider will Court the tion, its judgments on similar issues, even when they into account the principles flowing from concern other States. 164. (see, cases specific in obligations State’s [GC], no. 34503/97, §§ 85 and 86, 12 November 2008) the Court will also look for any States and of European practices the from emerging and common values consensus the as well as giving heed to specialised international such as the CEDAW, instruments, of norms and principles in international other developments such evolution through law relating to the as the Belém do Pará Convention, which specifically sets out States’ duties violence. eradication of gender-based individuals within their jurisdiction are not subjected to torture or inhuman or degrading or degrading or inhuman subjected to torture not are within their jurisdiction individuals individuals by private administered ill-treatment such including or punishment, treatment (see, in the form protection, entitled to State are in particular, vulnerable individuals, and other the of personal integrity (see A. v. breaches against such serious deterrence, of effective September 1998, § 22, Reports 1998‑VI). United Kingdom, 23 234 Gender-based Violence jor incident(…),H.O.againbeat theapplicantseverely, causingherinjuries whichwere cited above, §§ 42-44). By way of example, the Court notes that, following the first ma- rights recognised bytheConvention (see, mutatismutandis , husband perpetratedthemwithout hindranceandwithimpunitytothedetrimentof to prevent therecurrence ofviolentattacksagainsttheapplicant,sinceapplicant’s 169. (see paragraphs137-148above). rant prosecution andthatthere wasaconstantthreat totheapplicant’s physicalintegrity plicant onthebasisthatviolencecommittedbyH.O.was sufficientlyserioustowar the criminalinvestigationsagainstH.O.despitewithdrawal ofcomplaintsbytheap- that thelegislativeframeworkshouldhaveenabledprosecuting authoritiestopursue 168. provisions requiring theactiveinvolvementofvictim(…). from continuingthecriminal proceedings againstH.O.,pursuanttothedomesticlaw her complaintsandfailingtocooperatewiththeauthorities,whichprevented thelatter further violence.Inthisrespect,blamedtheapplicantforwithdrawing theGovernment 167. fine (…). sequent tohisconvictionforstabbingtheapplicantseventimes,sentencedhimpaya sions, indictedhim for issuingdeath threats and inflicting actual bodily harmand,sub- questioned H.O.inrelation tohiscriminalacts,placedhimindetentionontwoocca- proceedings were institutedagainstherhusband.Thepoliceandprosecuting authorities cident involvingviolence,theapplicantwastakenformedicalexaminationandcriminal namely thepoliceandpublicprosecutors, didnotremain totallypassive.Aftereachin- 166. December 2007). adequately discharged(seeNikolovaandVelichkova v. Bulgaria,no.7888/03,§61,20 to ensure that a State’s obligation to protect the rights of those under its jurisdiction is to guaranteenottheoretical orillusory, butpracticalandeffective rights,theCourthas Article 19 oftheConventionandunderprinciplethatisintended (see, en tosecure compliancewiththeirpositiveobligationsunderArticle3oftheConvention choose intheirsteadfrom amongthewiderangeofpossiblemeasures thatcouldbetak- 165. However, itcannotbesaidthatthelocalauthoritiesdisplayedrequired diligence The Courtreiterates itsopinioninrespect ofthecomplaintunderArticle2,namely However, none ofthesemeasures were sufficienttostopH.O.from perpetrating Turning toitsexaminationofthefacts,Courtnotesthatlocalauthorities, Nevertheless, itisnottheCourt’s role toreplace thenationalauthoritiesandto mutatis mutandis, Bevacqua andS.v. Bulgaria, citedabove,§82).Moreover, under Maria daPenhav. Brazil, - European Court of Human Rights - Opuz v. Turkey 235

onjunction C in

, no. 42942/02, Turkey Duran v. ead onvention 14 R C Ali and Ayşe the

icle rt of A 3 of

and 2 ion iolat V icles rt A lleged Finally, the Court notes with grave concern that the violence suffered by the appli- the Court notes with grave concern that the violence suffered Finally, The applicant complained under Article 14, in conjunction with Articles 2 and 3 of The applicant complained under Article 14, in conjunction with Articles 2 and 3 set forth in [the] Convention shall be “The enjoyment of the rights and freedoms In the light of the foregoing, the Court considers that the response to the conduct the Court considers that the response In the light of the foregoing, with . A IV 54, 8 April 2008). It therefore observes that the judicial decisions in this case reveal a in this case reveal observes that the judicial decisions § 54, 8 April 2008). It therefore or preventive noticeable no had and tolerance, of degree certain a and efficacy of lack on the conduct of H.O. effect deterrent […] 173. authorities had continued to display inaction. cant had not come to an end and that the prison, from that, immediately after his release In this connection, the Court points out against the physical integrity of the applicant (…). (…). H.O. again issued threats […] 177. of the Convention, that she and her mother had been discriminated against on the basis their gender. Article 14 of the Convention provides: sufficient to endanger her life, but he was released pending trial “considering the nature nature trial “considering the released pending but he was to endanger her life, sufficient The proceedings full health”. had regained the fact that the applicant and of the offence (…). Again, her complaints applicant withdrew because the ultimately discontinued were caused them using a knife and and her mother assaulted the applicant although H.O. - without conduct terminated the proceedings authorities injuries, the prosecuting severe above). Likewise, H.O. ran investigation (see paragraphs 20 and 21 ing any meaningful to the former and this time causing injuries and her mother, his car into the applicant fine a He spent only 25 days in prison and received latter. injuries to the life-threatening the Court was particu- (…). Finally, mother injuries on the applicant’s for inflicting serious a small fine, decision to impose merely Court’s Magistrate’s larly struck by the Diyarbakır for stabbing the applicant by instalments, on H.O. as punishment which could be paid seven times (…). 170. of the of- former husband was manifestly inadequate to the gravity of the applicant’s mutandis, fences in question (see, mutatis 236 Gender-based Violence B. […] issue ofdiscrimination: 13 November2007,§§175-180)theCourtlaiddownfollowingprincipleson 183. tional minority, property, birthorotherstatus.” religion, politicalorotheropinion,nationalsocialorigin,associationwithana- secured withoutdiscriminationonanyground such as sex,race,colour, language, 1. The Court’s assessment ferences or ofsimilarunrebutted presumptions of fact. Moreover, the level of may followfrom thecoexistenceofsufficientlystrong, clearandconcordant in- the factsandparties’submissions. According toitsestablished case-law, proof by thefree evaluationofallevidence,includingsuchinferences asmayflowfrom its assessment.TheCourtadoptstheconclusionsthatare, initsview, supported procedural barrierstotheadmissibilityofevidence or pre-determined formulae for Nachova andOthers(citedabove,§147)thatinproceedings before itthere are no of shiftingtheburden ofproof ontotherespondent State,theCourtstatedin 178. As regards thequestionofwhatconstitutesprimafacieevidencecapable shev, citedabove,§57). [GC], nos.25088/94,28331/95and28443/95,§§91-92,ECHR 1999-III;andTimi- that itwasjustified(see,amongotherauthorities,ChassagnouandOthersv. France the applicanthasshownadifference intreatment,toshow itisfortheGovernment 177. As totheburden ofproof inthissphere, theCourthasestablishedthatonce § 76, ECHR2006-...).(…) vention mayresult from adefactosituation(seeZarbAdamiv. Malta,no. 17209/02, 58461/00, 6January2005),andthatdiscriminationpotentiallycontrarytotheCon- no. 24746/94, §154,4May2001;andHoogendijkv. theNetherlands(dec.),no. it isnotspecificallyaimedatthatgroup (seeHughJordanv. the UnitedKingdom, fects onaparticulargroup maybeconsidered discriminatorynotwithstandingthat accepted thatageneralpolicyormeasure thathasdisproportionately prejudicial ef- IV; andOkpiszv. Germany , no.59140/00,§ 33,25October2005).(...)Ithasalso v.similar situations(Willis theUnitedKingdom,no. 36042/97,§48,ECHR2002- differently, withoutanobjectiveandreasonable justification,personsin relevantly “175. TheCourthasestablishedinitscase-lawthatdiscriminationmeanstreating In itsrecent rulinginthecase D.H.andOthersv. ([GC],no.57325/00, CzechRepublic The relevantprinciples European Court of Human Rights - Opuz v. Turkey 237 affirmanti incumbit affirmanti decision the Court stated: “[W]here an applicant is able to able is applicant an “[W]here stated: Court the Hoogendijk decision V). In certain circumstances, where where ECHR 2003‑V). In certain circumstances, no. 24351/94, § 272, 77-78), the Court relied extensively on statistics Zarb Adami, cited above, §§ 77-78), the Court relied v. Turkey Turkey v. – Aktaş allegation that must prove something who alleges (he probatio (extracts), knowledge of or in large part, within the exclusive wholly, the events in issue lie on the authorities resting as be regarded may proof of the authorities, the burden [GC], Turkey convincing explanation (see Salman v. a satisfactory and to provide Bulgaria, no. 38361/97, § Anguelova v. and 2000-VII; no. 21986/93, § 100, ECHR the of Nachova and Others, cited above, § 157), 111, ECHR 2002-IV). In the case arguable an Government disprove to respondent a requiring out rule not did Court that it would even though it considered allegation of discrimination in certain cases, in which the allegation was that an act be difficult to do so in that particular case, It noted in that connection that prejudice. of violence had been motivated by racial of a policy, of the discriminatory effect in the legal systems of many countries proof of al- intent in respect the need to prove decision or practice would dispense with of services. the provision leged discrimination in employment or in evidence, the Court has in the past 180. As to whether statistics can constitute disclose a practice which could be clas- stated that statistics could not in themselves recent in more sified as discriminatory (Hugh Jordan, cited above, § 154). However, which the applicants alleged a difference cases on the question of discrimination in , cited above; or de facto situation (Hoogendijk of a general measure in the effect and groups between two in treatment by the parties to establish a difference produced (men and women) in similar situations. the in Thus, show, on the basis of undisputed official statistics, the existence of a prima facie on the basis of undisputed official statistics, show, formulated in a neutral manner – in fact indication that a specific rule – although it is for the respondent of women than men, clearly higher percentage a affects to any Government of objective factors unrelated is the result to show that this in that a difference demonstrating the onus of If sex. of grounds on discrimination impact for men and women is not in practice discriminatory does not shift to the Government, difficult for applicants to respondent it will be in practice extremely discrimination.” indirect prove persuasion necessary for reaching a particular conclusion and, in this connection, and, in this connection, conclusion a particular necessary for reaching persuasion of to the specificity intrinsically linked are of proof of the burden the distribution right at stake. made and the Convention of the allegation the nature the facts, in all cas- do not proceedings that Convention has also recognised 179. The Court principle the of application rigorous a to themselves lend es 238 Gender-based Violence tilateral humanrightstreaty todealsolelywithviolence againstwomen,describesthe 189. State.” and are exacerbatedbytheobstacleswomenoftenfaceinseekingremedies from the facto discriminationagainstwomenandthelowerstatusaccorded towomeninsociety that “all forms of violence against women occur within the context of dejure andde between gender-based violence and discrimination by stressing inresolution 2003/45 188. mestic violenceisaformofdiscriminationagainstwomen(…). 187. or anyotherfield.” human rightsandfundamentalfreedoms inthepolitical,economic,social,cultural,civil women, irrespective of their marital status, on a basis of equality of men and women, of effect or purposeofimpairing or nullifying the recognition, enjoyment orexercise by as “(...)anydistinction,exclusionorrestriction madeonthebasisofsexwhichhas 186. In thatcontext,theCEDAW definesdiscrimination againstwomenunderArticle1 bodies onthequestionofviolenceagainstwomen. provisions ofmore legal specialisedlegalinstrumentsandthedecisionsofinternational mined initscase-law(seeparagraph183above),theCourthastohaveregard tothe against women,inadditiontothemore generalmeaningofdiscriminationasdeter 185. Inthisconnection,whenconsideringthedefinitionandscopeofdiscrimination [GC], no.37201/06,§63,ECHR2008‑...,citedinDemirandBaykara,above,76). tion havenotenabledittoestablishwithasufficientdegree ofcertainty(seeSaadiv. Italy clarify thescopeofaConventionprovision thatmore conventionalmeansofinterpreta - European Statesreflect a reality thattheCourtcannotdisregard whenitiscalleduponto ordomesticlawstandardsby thevastmajorityofStates,commoninternational legal questionbefore it.Beingmadeupofasetrulesandprinciplesthatare accepted Convention provisions,background italsotakesintoaccounttheinternational-law to 184.

2. Furthermore, theBelémdoParáConvention,whichisso far theonlyregional mul- The UnitedNationsCommissiononHumanRightsexpressly recognised thenexus The CEDAW Committeehasreiterated thatviolenceagainstwomen,includingdo- The Court notes attheoutsetthat when itconsiders the objectandpurposeof a. Themeaningofdiscriminationinthecontextdomesticviolence Application oftheaboveprinciplestofactspresentcase - European Court of Human Rights - Opuz v. Turkey 239 but rather resulted from the general attitude attitude general the from resulted rather but se per Finally, the Inter-American Commission also characterised violence against women against women characterised violence Commission also the Inter-American Finally, to failure rules and decisions that the State’s the above-mentioned from It transpires violence in Turkey b. The approach to domestic did not make explicit law then in force The Court observes that although the Turkish and statistics reports the Court notes that the applicant produced In that regard, reported the Court finds that the highest number of Having examined these reports, right of every woman to be free from violence as encompassing, among others, the right encompassing, among violence as from woman to be free right of every discrimination. all forms of from to be free 190. - pre due diligence to to exercise failure owing to the State’s as a form of discrimination , cited Brazil a domestic violence complaint (see Maria da Penha v. vent and investigate above, § 80). 191. of the their right to equal protection violence breaches women against domestic protect not need to be intentional. does law and that this failure 192. it needed enjoyment of rights and freedoms, distinction between men and women in the of the status of women into line with international in respect standards to be brought (see the Concluding Committee Like the CEDAW in a democratic and pluralistic society. carried out by the Govern- Comments at §§ 12-21), the Court welcomes the reforms for for specific measures 4320 which provides ment, particularly the adoption of Law no. against domestic violence. It thus appears that the alleged discrimination at protection legislation the on based not was issue at police treated in which the women were of the local authorities, such as the manner - effec in providing passivity and judicial violence domestic reported when they stations Government already have Turkish the that notes Court The to victims. protection tive the CEDAW these difficulties in practice when discussing the issue before recognised Committee (Ibid). 193. and Amnesty Internation by two leading NGOs, the Diyarbakır Bar Association - prepared against women (see paragraphs 91-104 al, with a view to demonstrating discrimination reports have reached in these above). Bearing in mind that the findings and conclusions will not been challenged by the Government the Court at any stage of the proceedings, (see Hoogendijk, cited the instant case its own findings in them together with consider above; and Zarb Adami, cited above, §§ 77-78). 194. the applicant lived at the relevant where victims of domestic violence is in Diyarbakır, 240 Gender-based Violence tic violence. discriminatory judicial passivity in Turkey created a climate that was conducive to domes - indication that the domestic violence affected mainly women and that the general and to show, supportedbyunchallengedstatisticalinformation,theexistenceofaprima facie 198. the ConcludingComments,§28). protection and supportservices to the victims, andpunish and rehabilitate offenders (see the Family,andofrelated policiesinorder toprevent violenceagainstwomen,toprovide fully implementandcarefully monitortheeffectiveness oftheLawonProtection efforts to prevent and combat violence against women. It further underlined the need to ing domesticviolence,inTurkey” andcalledupontherespondent Statetointensifyits CEDAW Committeewhenitnoted“thepersistence ofviolenceagainstwomen,includ- ment donotfunctioneffectively. were Similarfindingsandconcerns expressed bythe violence istoleratedbytheauthoritiesandthatremedies- indicatedbytheGovern 197. sentences onthegrounds of custom,traditionorhonour(…). violence donotseemtoreceive dissuasivepunishments,becausethecourtsmitigate cers (seeparagraphs 91-93,95and101above).Moreover, theperpetratorsofdomestic to servinginjunctionsontheaggressors, giventhenegativeattitudeofpoliceoffi- of divorce action and not as an urgent action. Delays are also frequent when it comes injunctions bythecourts,underLawno.4320,becausecourtstreat themasaform 196. officers considertheproblem asa“familymatterwithwhichtheycannotinterfere” (…). convince thevictimstoreturnhomeanddrop theircomplaint.Inthisconnection,police do notinvestigatetheircomplaintsbutseektoassumetherole ofmediatorbytryingto indicates thatwhenvictimsreport domesticviolencetopolicestations,officers facing domesticviolence.Theresearch conductedby theaforementioned organisations no. 4320,whichwasreliedasoneoftheremedies onbytheGovernment forwomen 195. tion andgenerallywithoutanyindependentsource ofincome(…). great majorityofthesewomenwere ofKurdish origin,illiterateorofalowleveleduca- time, andthatthevictimswere allwomenwhosuffered mostlyphysicalviolence.The In thelightofforegoing, theCourtconsidersthatapplicanthasbeenable As aresult oftheseproblems, theaforementioned reports suggestthatdomestic It alsotranspires from thesereports thatthere are unreasonable delaysinissuing Furthermore, there appeartobeseriousproblems intheimplementationofLaw European Court of Human Rights - Opuz v. Turkey 241 - unanimously

ourt C the , reasons

these

Whether the applicant and her mother have been discriminated against on ac- on against have been discriminated mother her and applicant c. Whether the of law to provide equal protection authorities’ failure count of the instant as operated in the the criminal‑law system, has established that The Court judicial passiv- above that the general and discriminatory Bearing in mind its finding equal in providing domestic remedies of into account the ineffectiveness Taking or F […] of the has been a violation of Article 2 of the Convention in respect 4. Holds that there mother; death of the applicant’s of the has been a violation of Article 3 of the Convention in respect 5. Holds that there the applicant against domestic violence perpetrated by her to protect authorities’ failure former husband; […] 199. - pre capable of ensuring the effective effect adequate deterrent case, did not have an of the applicant and her acts by H.O. against the personal integrity vention of unlawful the Convention. their rights under Articles 2 and 3 of mother and thus violated 200. that the women, the Court considers mainly affected albeit unintentional, ity in Turkey, vio- as gender-based her mother may be regarded by the applicant and violence suffered out carried the reforms women. Despite against of discrimination form is a lence which the judicial system of years, the overall unresponsiveness by the Government in recent as found in the instant case, indicated that there and impunity enjoyed by the aggressors, domestic violence action to address was insufficient commitment to take appropriate cited at paragraph 187 above). (see, in particular section 9 of the CEDAW, 201. of law to the applicant and her mother in the enjoyment of their rights guar protection anteed by Articles 2 and 3 of the Convention, the Court holds that there existed special the Court holds that there anteed by Articles 2 and 3 of the Convention, to exhaust domestic her obligation which absolved the applicant from circumstances objection on non-exhaustion in respect the Government’s dismisses It therefore remedies. Convention. of the complaint under Article 14 of the […] 242 Gender-based Violence 7 6 5 4 3 2 9 8 10 and 3oftheConvention; 7. Holdsthatthere hasbeenaviolationofArticle14read inconjunctionwithArticles2 E ndnotes Signed attheInter-American SpecializedConference onHumanRights,SanJose,CostaRica,22 November Velasquez-Rodriguez v. Honduras,judgmentofJuly 29,1988,Inter-Am. Ct.H.R.(ser. C)No.4,para.172. Ibid, at§ 24(t)(i);seealsoparagraph(r)onmeasures necessaryto overcome familyviolence. Ibid, at§ 24(t). Ibid, at§ 24(b);seealso(r). Case 12.051,ReportNo.54/01,Inter-Am. C>H.R.,AnnualReport2000,OEA/Ser.L/V.II.111 Doc.20rev. which wasadoptedbytheOrganisationofAmericanStates(OAS)andcameintoforce on5 March 1995. Maria daPenhav. Brazil,§§ 55and56. CEDAW/C/1992/L.1/Add.15 at§ 24(a). See the Committee’s General Recommendation No. social condition.2.ForthepurposesofthisConvention,‘person’meanseveryhumanbeing”. language, religion, political orotheropinion,nationalsocialorigin,economicstatus,birth,any and fullexercise ofthose rights andfreedoms, withoutanydiscriminationforreasons ofrace,color, sex, rights andfreedoms recognized herein andtoensure toallpersonssubjecttheirjurisdictionthefree 1969. Article(1)provides as follows:“1.TheStatesPartiestothisConventionundertakerespect the (2000) 19 on “Violence Against Women,”19 on “Violence (1992) UN doc. International Criminal Tribunal for Rwanda

Case Nº ICTR-96-4-T

Prosecutor v. Jean-Paul Akayesu

Judgment of September 2, 1998 244 Gender-based Violence sexual violence,theChamber findsthatthere issufficient credible evidenceto estab- 449. Factual Findings […] Charges SetForthintheIndictment 5.5 […] […] 5. 1. I beatings andmurders, JeanPaulAkayesuencouragedtheseactivities. sexual violence, beatings andmurders andbyfailingtoprevent thesexualviolence, bureau communalpremises. Byvirtueofhispresence duringthecommissionof by allowingthesexualviolenceandbeatingsmurders tooccuronornearthe Akayesu facilitatedthecommissionofsexualviolence, beatings andmurders were beingcommittedandwasattimespresent duringtheircommission.JeanPaul 12B. JeanPaulAkayesuknewthattheactsofsexualviolence,beatingsandmurders and killings. and psychologicalhealthdeterioratedasaresult ofthesexualviolenceandbeatings bodily harm. The female displacedcivilians lived in constant fear and theirphysical acts ofsexualviolencewere generallyaccompaniedbyexplicitthreats ofdeathor of sexualviolencewhichwere attimescommittedbymore thanoneassailant.These the bureau communalpremises. Manywomenwere forced toendure multipleacts communal premises. Displaced civilians were also murdered frequently on or near munal policeandsubjectedtosexualviolence,and/orbeatenonornearthebureau female displaced civilians were regularly taken by armedlocal militia and/orcom- these displacedcivilianswere Tutsi. Whileseekingrefuge atthebureau communal, ter “displacedcivilians”)soughtrefuge atthebureau communal.Themajorityof 12A. BetweenApril7andtheendofJune,1994,hundreds ofcivilians(hereinaf- ntroduction Having carefully reviewed the testimony of the Prosecution witnesses regardin (Paragraphs12A&12BoftheIndictment) Sexual Violence F actual F indngs International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 245 With of the rapes and all of the other acts of sexual a few exceptions, most lish beyond a reasonable doubt that during the events of 1994, Tutsi girls and women girls and women 1994, Tutsi the events of doubt that during a reasonable lish beyond communal near the bureau and killed on or sexual violence, beaten subjected to were Witness Witness H, JJ, Wit- of Taba. in the commune elsewhere as well as premises, and Witnessness OO, raped, and all, with were that they themselves NN all testified the exception of Witness witnessed other girls and women OO, testified that they being raped. Witness J, Witnessand Witness KK that they witnessed PP also testified mostly of Tutsi, Hundreds being raped in the commune of Taba. other girls and women communal during this period and at the bureau refuge sought women and children, communal - Witness of the bureau JJ on or near the premises many rapes took place communal to a nearby site near the bureau the refuge from was taken by Interahamwe this happened often to other young girls She testified that and raped there. area forest Witness site. on two separate and women at the refuge repeatedly JJ was also raped once in a communal, of the bureau center on the premises occasions in the cultural ten girls and women. of fifteen girls and women and once in a group of Witness group and taken by the Interahamwe to the cultural KK saw women and girls being selected center to be raped. Witness H saw women being raped outside the compound of the Witnessand communal, her rape and woman a take Interahamwes two bureau saw NN Witness OO was taken from communal and the cultural center. between the bureau communal and raped in a nearby field. women being the bureau Witness PP saw three communal, and Witness bureau raped at Kinihira, the killing site near the found her NN communal. Many other dying, after she had been raped at the bureau younger sister, road, and in communal - in fields, on the outside the bureau instances of rape in Taba described by Witneor just outside houses – were ss J, WitnessWitness H, OO, Witness Witness KK and Witness PP also described other acts KK, Witness NN and Witness PP. communal - of the bureau near the premises of sexual violence which took place on or women. The Chamber notes and public humiliation of gir ls and undressing the forced of large numbers of people, and in front that much of the sexual violence took place women. against Tutsi that all of it was directed 450. by Interahamwe. It committed witnesses were violence described by the Prosecution has not been established that the perpetrator of the rape of Witness H in a sorghum field and six of the men who raped Interahamwe. In the case of Witness NN were teenage boys and two Witness neighbours, two were NN, two of her rapists were Interahamwe. is no evidence that any of these people were there and herdsmen, were to all evidence of rape and sexual violence which took place Nevertheless, with regard all identified communal, the perpetrators were of the bureau on or near the premises also identified as the perpetrators of many rapes as Interahamwe. Interahamwe are 246 Gender-based Violence other girlswere apprehended byInterahamweinflightfrom thebureau communal, the OOandtwo the Accusedwasone“supervising” theactsofrape.WhenWitness as “talkingifsomeonewere encouragingaplayer.” More generallyshestatedthat Tutsi JJ described the Accused in makingthesestatements woman tastes like.” Witness to theculturalcenter. Onthissecondoccasion,hesaid,“Neveraskmeagain whata he waslookingatthem,andonthesecondoccasion standingattheentrance and womenwithherwere takenpasttheAccused,onway. Onthefirstoccasion to thecultural center of thebureau communaltoberaped,sheandthegroup of girls JJwasbroughtthe rapebutdidnothingtoprevent it.OnthetwooccasionsWitness and theculturalcenter. Thetwocommunepolicemeninfront ofhisofficewitnessed watched twoInterahamwedragawomantoberapedbetween thebureau communal ordered, instigatedandotherwiseaidedabettedsexualviolence.TheAccused punish theperpetratorsofsexualviolence.Infactthere isevidencethattheAccused evidence thattheAccusedtookanymeasures toprevent actsofsexualviolenceorto were beingtakenawayfrom thebureau communalandsexuallyviolated.There isno was takingplaceonornearthepremises ofthebureau communal,andthatwomen able doubtthattheAccusedhadreason toknowandinfactknewthatsexualviolence 452. this testimonyinitsassessmentoftheevidence. that theAccusedwaspresent atKinihira.Forthisreason, theChamberalsodiscounts the statement of theAccuseddoesnot refer to sexual violence and there isnoevidence others havebeenkilled?”Thethree womenwere rapedbefore theywere killed,but her twoniecestoKinihira,saying“Don’t youknowwhere killingstakeplace,where the PPrecalled theAccuseddirectingdence. Witness theInterahamwetotakeAlexiaand were takingplace,theChamber discountsthistestimonyinitsassessmentoftheevi- the bureau communal, but as she could not confirm that he was aware that the rapes that theAccusedwaspresent duringtherapeofTutsi womenoutsidethecompoundof Htestifiedtaken intoaccountonlyevidencewhichisdirect andunequivocal.Witness the extentofhisdirect knowledge ofincidentssexualviolence,theChamberhas 451. one. KKaffirmedthattheyneversawAccusedrapeany- JJandWitness both Witness of theevidencethatAccusedoranycommunalpolicemenperpetratedrape,and KK andawomancalledVestine, PP. seenbyWitness There isnosuggestioninany J’s NN,Witness OO,Witness Witness daughter, awomanneardeathseenbyWitness which took place outside the bureau H, communal, including the rapes of Witness On thebasisofevidencesetforthherein, theChamberfindsbeyonda reason- In consideringtherole ofthe Accusedinthesexualviolencewhichtookplaceand International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 247 law

he Genocide (Article 2 of the Statute) - shall have the power to pros Tribunal Article 2 of the Statute stipulates that the has charged of the Statute, the Prosecutor with the said provisions In accordance Faced with first-hand personal accounts from women who experienced and wit- women who experienced personal accounts from Faced with first-hand 6. t […] 6.3. 6.3.1. Genocide 492. and for genocide, complicity to commit genocide, direct ecute persons responsible in complicity and genocide commit to attempt genocide, to commit incitement public genocide. 493. Akayesu with the crimes legally defined as genocide (count 1), complicity in genocide (count 2) and incitement to commit genocide (count 4). Interahamwe went to the Accused and told him that they were taking the girls away away taking the girls that they were and told him went to the Accused Interahamwe the Interahamwe The Accused told said “take them.” them. The Accused to sleep with watching and happy to be He was laughing her around. and march Chantal to undress first of said “you should to take her away and the Interahamwe told and afterwards this statement as with this girl.” The Chamber considers that you sleep all make sure instigated sexual violence, although insufficient and ordered evidence that the Accused was in doubt that Chantal beyond a reasonable to establish evidence was presented fact raped. […] 460. oath under swore who and communal, bureau the at and Taba in violence sexual nessed and saw what was happening, the Chamber does not that the Accused was present fab- The Accused insists that the charges are accept the statement made by the Accused. assertion. this support to evidence no Chamber the offered has Defence the but ricated, the Chamber does not accept the and evidence to the contrary, is overwhelming There which evidence the on based are the Chamber of findings The Accused. the of testimony of sexual in this trial. As the Accused flatly denies the occurrence has been presented communal, he does not allow for the possibility that the sexual violence at the bureau of it. but that he was unaware violence may have occurred 248 Gender-based Violence 499. destroy, in wholeorpart,anational,ethnical,racialreligious group, assuch”. the act charged. Thus, the special intent in the crime of genocide lies in “the intent to tive elementofthecrime,whichdemandsthatperpetrator clearlyseekstoproduce dolus specialis. Special intent of acrimeisthe specific intention, required asaconstitu- 498. “in wholeorinpart”anational,ethnical,racialreligious group. tioned inArticle2(2)(a)through 2(2)(e)iscommittedwiththespecificintenttodestroy nation ofgroup initsentirety, butisunderstoodassuchonceanyoneoftheactsmen- 497. crime. tor wasliabletobebrought before thecompetentcourtsofRwandatoanswerforthis in Rwanda1994,atthetime of theactsalleged in theIndictment,andperpetra- former Yugoslavia CriminalTribunalGeneral inhisReportontheestablishmentofInternational forthe sions oftheGenocideConvention,andaswasrecalled bytheUnitedNations’Secretary- law, CourtofJusticeontheprovi ascanbeseenintheopinionofInternational - 495. on Genocide12February1975 496. the CrimeofGenocide(the“GenocideConvention”) verbatim from Articles2and3oftheConventiononPreve ntionandPunishmentof 494. Crime ofGenocide,punishableunderArticle2(3)(a)theStatute Thus, foracrimeofgenocide to havebeencommitted,itisnecessarythatoneof Genocide isdistinctfrom othercrimesinasmuchasitembodiesaspecialintentor Contrary topopularbelief,thecrimeofgenocidedoesnotimply theactualextermi- The GenocideConventionisundeniablyconsidered partofcustomaryinternational (e) Forcibly transferringchildren ofthegroup toanothergroup.” (d) Imposingmeasures intended toprevent birthswithinthegroup; physical destructioninwholeorpart; (c) Deliberately inflicting onthegroup conditionsoflife calculatedtobringaboutits (b) Causingseriousbodilyormentalharmtomembersofthegroup; (a) Killingmembersofthegroup; whole orinpart,anational,ethnical,racialreligious group, assuch: “Genocide meansanyofthefollowing acts committedwithintenttodestroy, in The ChambernotesthatRwandaacceded,bylegislativedecree, totheConvention The definitionofgenocide,asgiveninArticle2the Tribunal’s Statute,istaken 92 . 93 . Thus,punishmentofthecrimegenocidedidexist 91 . Itstates: International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 249 - . 95 In the Adolf Eichmann case, who was convicted of crimes against the Jewish peo- In the Adolf Eichmann case, who was convicted de- their by and [...] persecution and deportation starvation, enslavement, the “by camps in conditions which were tention in ghettos, transit camps and concentration of their rights as human beings, designed to cause their degradation, deprivation and torture” them and cause them inhumane suffering and to suppress For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes seri- For purposes of interpreting condi- deliberately inflicting on the group The Chamber holds that the expression Article 2(2)(c) of the Statute, the Chamber is of the For purposes of interpreting Causing serious bodily or mental harm to members of the group does not necessar does or mental harm to members of the group Causing serious bodily ily mean that the harm is permanent and irremediable. ily mean that the harm 503. of Jerusalem stated in its Court definition, the District under another legal ple, genocide bodily or mental harm of members of the judgment of 12 December 1961, that serious be caused can group 504. be to mean acts of torture, itself thereto, ous bodily or mental harm, without limiting persecution. treatment, they bodily or mental, inhumane or degrading of life calculated to bring about its physical Deliberately inflicting on the group conditions c): destruction in whole or in part (paragraph 505. should tions of life calculated to bring about its physical destruction in whole or in part, - be construed as the methods of destruction by which the perpetrator does not immedi destruction. physical their seek ultimately, which, but group, the of members the kill ately 506. conditions of life calculated opinion that the means of deliberate inflicting on the group to bring about its physical destruction, in whole or part, include, inter alia, subjecting a the acts listed under Article 2(2) of the Statute be committed, that the particular act be committed, that the of the Statute be under Article 2(2) the acts listed racial or a national, ethnical, it being targeted group, against a specifically committed of elements of the crime clarify the constitutive to order in Consequently, group. religious Article provided for under on the acts state its findings the Chamber will first genocide, - by the Genocide Con protected of the Statute, the groups Article 2(2)(e) 2(2)(a) through genocide to take place. intent or dolus specialis necessary for vention, and the special […] (paragraph b) or mental harm to members of the group Causing serious bodily 502. 250 Gender-based Violence ments, namely: humanity. Thiscategoryofcrimesmaybebroadly broken downintofouressentialele- risdiction toprosecute personsforvariousinhumaneactswhichconstitutecrimesagainst 578. Crimes againstHumanityinArticle3oftheStatuteTribunal […] 6.4. […] procreate. the samewaythatmembersofagroup canbeled,through threats ortrauma, notto intended toprevent births whenthepersonrapedrefuses subsequentlytoprocreate, in the group maybephysical, but canalsobemental. For instance, rape canbe a measure 508. who willconsequentlynotbelongtoitsmother’s group. impregnated byamanofanother group, withtheintenttohavehergivebirthachild within agroup isthecase where, duringrape,awomanofthesaidgroup isdeliberately mined bytheidentityoffather, anexampleofameasure intendedtoprevent births prohibition of marriages. In patriarchal societies, where membershipofa group is deter mutilation, thepracticeofsterilization,forced birthcontrol, separationofthesexesand the measures intended to prevent births within the group, should be construedas sexual 507. Imposing measuresintendedtopreventbirthswithinthegroup(paragraphd): n ofessentialmedicalservicesbelowminimumrequirement. group of people to a subsistence diet, systematic expulsion from homes and the reductio national, political,ethnic,racial orreligious grounds. (iv) theactmustbecommitted ononeormore discriminatory grounds, namely, (iii) theactmustbecommitted againstmembersofthecivilianpopulation; (ii) theactmustbecommitted as partofawidespread or systematicattack; serious injurytobodyormentalphysicalhealth; (i) the act must be inhumane in nature and character, causing great suffering, or The ChamberconsidersthatArticle3oftheStatuteconferson theChamberju- Crimes againstHumanity(Article3oftheStatute) Furthermore, theChamber notesthatmeasures intendedtoprevent birthswithin For purposesofinterpreting Article2(2)(d)oftheStatute,Chamberholdsthat - International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 251 - Article 3 of the Statute sets out various acts that constitute crimes against human- sets out various acts that constitute crimes Article 3 of the Statute extermination, torture, for murder, The Chamber notes that the accused is indicted pursuant crimes against humanity, Considering the extent to which rape constitute ele- central the that and aggression of form a is rape that considers Chamber The […] acts The enumerated 585. torture; enslavement; deportatio n; imprisonment; extermination; namely: murder; ity, acts. and; other inhumane grounds; political, racial and religious rape; persecution on set out in humanity are of acts that constitute crimes against Although the categories and char in nature is not exhaustive. Any act which is inhumane Article 3, this category met. the other elements are provided crime against humanity, may constitute a acter not stipulated in (a) to (h) caters for all other inhumane acts This is evident in (i) which of Article 3. 586. Article 3 acts. The Chamber in interpreting rape and other acts that constitute inhumane these acts only. of the Statute, shall focus its discussion on […] Rape 596. is no commonly must define rape, as there to Article 3(g) of the Statute, the Chamber been defined in While rape has in international of this term accepted definition law. variations on the act of rape intercourse, certain national jurisdictions as non-consensual of objects and/or the use of bodily orifices may include acts which involve the insertion to be intrinsically sexual. not considered 597. in a mechanical description of objects and ments of the crime of rape cannot be captured Degrading e and Other Cruel, Inhuman and body parts. The Convention against Tortur fo- torture, of definition its in acts specific catalogue not does Punishment or Treatment cusing rather on the conceptual frame work of state sanctioned violence. This approach rape is used for such purposes as intimi- Like torture, useful in internationalis more law. or destruction of dation, degradation, humiliation, discrimination, punishment, control and rape in fact constitutes rape is a violation of personal dignity, a person. Like torture, when inflicted by or at the instigation of or with the consent or acquiescence of torture a public official or other person acting in an official capacity. 252 Gender-based Violence ments ofthecrimerapecannot becaptured inamechanical descriptionofobjects 687. sexual organsofawomanasshe laydying-constitutesrapeintheTribunal’s view. KK in her testimony - the Interahamwes thrusting a piece of wood into the scribed by Witness or theuseofbodilyorificesnotconsidered tobeintrinsicallysexual.Anactsuchasthat de- variations ontheformofrapemayincludeactswhichinvolve the insertionofobjectsand/ has beenhistoricallydefinedinnationaljurisdictionsasnon-consensual sexualintercourse, document what the witnesses mean by the term “rape”. The Tribunal notes that while rape Defence havealsotriedtoelicitanexplicitdescriptionofwhathappened inphysicalterms,to the witnesseshaveusedterm“rape”intheirtestimony. Attimes,theProsecution andthe law.monly accepteddefinitionofthetermininternational The Tribunal notesthatmanyof humanity underArticle3(g)ofitsStatute,theTribunal mustdefinerape,as there isnocom- 686. inhumane acts),punishablebyArticle3(i)oftheStatute. Article 3(g) oftheStatuteTribunal andCount14,crimes against humanity (other responsibility oftheAccused onCount13,crimesagainsthumanity(rape),punishableby forth inparagraphs12Aand12BoftheIndictment,Tribunal considersthecriminal 685. manity 7.7. […] […] circumstances whichare coercive. Thisactmustbecommitted: is considered tobeanyactofasexualnature which iscommittedonapersonunder a person under circumstances which are coercive. Sexual violence which includes rape, 598. l 7. The Tribunal considersthatrapeisaformof aggression andthatthecentral ele- In consideringtheextenttowhichactsofsexualviolenceconstitutecrimesagainst In thelightofitsfactualfindingswith regard totheallegationsofsexualviolenceset Count 13(rape)and14(otherinhumaneacts)-CrimesagainstHu cal, racial,orreligious grounds. (c) oncertainedcatalogueddiscriminatorygrounds, namely:national,ethnic,politi- (b) onacivilianpopulation; (a) aspartofawidespread orsystematicattack; The Chamberdefinesrapeasaphysicalinvasionofsexualnature, committedon egal F indngs International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 253 - The Tribunal defines rape as a physical invasion of a sexual nature, committed on a committed as a physical invasion of a sexual nature, defines rape The Tribunal to know and in fact knew that reason has found that the Accused had The Tribunal and body parts. The Tribunal also notes the cultural sensitivities involved in public discus- involved in the cultural sensitivities also notes The Tribunal and body parts. to witnesses of inability and reluctance painful the recalls and matters intimate of sion Nations The United they endured. of sexual violence anatomical details disclose graphic - or Pun and Degrading Treatment Other Cruel, Inhuman and Against Torture Convention focusing rather on torture, specific acts in its definition of ishment does not catalogue finds this approach of state-sanctioned violence. The Tribunal the conceptual framework pur such for used is rape torture, Like internationalof context the in useful law. more or punishment, control degradation, humiliation, discrimination, poses as intimidation, and rape in of personal dignity, rape is a violation Like torture, destruction of a person. or with the consent it is inflicted by or at the instigation of when fact constitutes torture an official capacity. public official or other person acting in or acquiescence of a 688. sexual violence, considers The Tribunal coercive. which are person under circumstances person a on committed is which nature sexual a of act any as rape, includes which Sexual violence is not limited to physical inva- coercive. which are under circumstances acts which do not involve penetration or even sion of the human body and may include the Witnessphysical contact. The incident described by KK in which the Accused ordered naked in the public her to do gymnastics a student and force Interahamwe to undress The constitutes sexual violence. of acrowd, communal, in front of the bureau courtyard need not be evidenced by a circumstances notes in this context that coercive Tribunal which other forms of duress intimidation, extortion and Threats, show of physical force. in may be inherent coercion and or desperation may constitute coercion, on fear prey Interahamwe of presence military the or conflict armed as such circumstances, certain communal. Sexua l violence falls within the women at the bureau Tutsi among refugee Statute, “outrages Article 3(i) of the Tribunal’s scope of “other inhumane acts”, set forth or set forth in Article 4(e) of the Statute, and “serious bodily upon personal dignity,” of the Statute. mental harm,” set forth in Article 2(2)(b) […] 691. communal of the bureau occurring on or near the premises acts of sexual violence were Thethem. of perpetrators the punish or acts these prevent to measures no he took that and of Counts 13, 14 and 15 that the Accused is notes that it is only in consideration Tribunal under Section 6(3) of its Statute. As set forth charged with individual criminal responsibility as a superior for in the Indictment, under Article 6(3) “an individual is criminally responsible was to know that the subordinate if he or she knew or had reason the acts of a subordinate 254 Gender-based Violence reason toknowthatsexualviolencewasoccurring,aided andabettedthefollowingacts 694. which theseactswouldnothavetakenplace: virtue ofhisauthority, sentaclearsignalofofficialtoleranceforsexualviolence, without acts through hiswords ofencouragementinotheractssexualviolence,which,by and inhispresence inrespect of(ii)and(iii),byfacilitatingthecommissionthese premises ofthebureau communal,whilehewaspresent onthepremises inrespect of(i) ted thefollowingactsofsexualviolence,byallowingthemtotakeplaceonornear 693. violence: words, specificallyordered, instigated,aidedandabettedthefollowingacts of sexual 692. consider thecriminalresponsibility oftheAccusedunderArticle6(3). cused, theTribunal willnotmakethisinference. Therefore, theTribunal findsthatitcannot an allegationofthecommandresponsibility required totheAc- byArticle6(3).Infairness with additionalchargespursuanttoArticle6(3)couldarguablybeinterpreted asimplying element ofthecriminaloffence setforthinArticle6(3).TheamendmentoftheIndictment “armed localmilitia,”were subordinates oftheAccused. Thisrelationship isafundamental that there isnoallegationintheIndictmentthatInterahamwe,whoare referred toas the AccusedandInterahamwewhowere atthebureau communal,theTribunal notes the evidencesupportsafindingthatsuperior/subordinate relationship existedbetween reasonable measures toprevent suchactsorpunishtheperpetratorsthereof.” Although about tocommitsuchactsorhaddonesoandthesuperiorfailedtakenecessary The Tribunal finds,underArticle6(1)ofits Statute,thattheAccused,havinghad KK; outside thebureau communal,aswitnessedbyWitness (iii) theforced undressing ofthewifeTharcisse aftermakinghersitinthemud NN; communal, witnessedbyWitness (ii) therapeofawomanbyInterahamweinbetweentwobuildings ofthebureau numerous Interahamweintheculturalcenterofbureau communal; Witness JJ,by (i) themultipleactsofrapefifteengirlsandwomen,including The Tribunal finds, underArticle6(1)ofitsStatute,thattheAccusedaidedandabet- communal. (iii) theforced undressing andpublicmarching ofChantalnakedatthebureau bureau communal; OObyanInterahamwenamedAntoineinafieldnearthe (ii) therapeofWitness ous Interahamweintheculturalcenterofbureau communal; JJ,bynumer (i) themultipleactsofrapetengirlsandwomen,includingWitness The Tribunal finds, underArticle6(1)ofitsStatute,thattheAccused,byhisown - International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 255 - (i) the rape of Witness JJ by an Interahamwe who took her from outside the bureau (i) the rape of Witness outside the bureau took her from JJ by an Interahamwe who her in a nearby forest; communal and raped sister of Witness(ii) the rape of the younger by an Interahamwe at the bureau NN communal; Louise and and her two nieces of Alexia, wife of Ntereye, (iii) the multiple rapes communal; near the bureau Nishimwe by Interahamwe and her two nieces Louise and of Ntereye, of Alexia, wife undressing (iv) the forced near naked in public the women to perform exercises of Nishimwe, and the forcing communal. the bureau attack against the and systematic has established that a widespread The Tribunal in Genocide Count 1 - Genocide, Count 2 - Complicity 12 (A) and 12 (B) of the Indictment, to the acts alleged in paragraphs With regard of sexual violence, by allowing them to take place on or near the premises of the bureau bureau of the or near the premises them to take place on by allowing of sexual violence, words his sexual violence through commission of such and by facilitating the communal sent authority, which, by virtue of his of sexual violence in other acts of encouragement acts would not without which these for sexual violence, of official tolerance a clear signal have taken place: 695. generally in Rwanda, and more took place in Taba, civilian ethnic population of Tutsis finds that the rape and other The Tribunal between April 7 and the end of June, 1994. were of Taba communal premises the bureau inhumane acts which took place on or near committed as part of this attack. […] 7.8. […] 706. between 7 April and the end doubt that has shown beyond a reasonable the Prosecutor were communal Bureau the Taba at refuge sought who Tutsi 1994, numerous of June Bureau the of premises the near or on Interahamwe the of members by beaten frequently endure to forced women were Tutsi killed. Numerous communal. Some of them were often publicly and often mutilations and rape, often repeatedly, acts of sexual violence, systematically raped, as one female victim women were than one assailant. Tutsi by more Numer testified to by saying that “each time that you met assailants, they raped you”. inside or women occurred ous incidents of such rape and sexual violence against Tutsi that some communal policemen armed communal. It has been proven near the Bureau while some of these rapes and sexual present with guns and the accused himself were 256 Gender-based Violence her twonieces,were forced bytheInterahamwetoundress andordered torunanddo before beingrapedandkilled,Alexia,whowasthewife oftheprofessor, Ntereye, and were presented assexual objects.Indeed,theChamberwastold,foranexample, that propaganda campaigngeared tomobilizingtheHutuagainstTutsi, theTutsi women ber thatshewasnotrapedbecauseherethnicbackground wasunknown.Aspartofthe en andsolelyagainstthem.ATutsi woman,marriedtoaHutu,testifiedbefore theCham- 732. Tutsi group asawhole. women andspecificallycontributingtotheirdestruction tothedestructionof violence wasanintegralpartoftheprocess ofdestruction,specificallytargeting Tutsi psychological destructionofTutsi women,theirfamiliesandcommunities. Sexual public places,andoftenbymore thanoneassailant.Theserapesresulted inphysicaland and rapedseveraltimes,ofteninpublic,theBureau Communalpremises orinother Tutsi women, manyofwhomwere subjectedtotheworstpublichumiliation,mutilated, that theactsofrapeandsexualviolencedescribedabove,were committedsolelyagainst bodily andmentalharm.Inlightofalltheevidence before it,theChamberissatisfied the Chamber, oneoftheworstwaysinflictharmonvictimasheorshesuffers both infliction ofseriousbodilyandmentalharmonthevictims particular group, targeted as such.Indeed,rapeandsexualviolencecertainlyconstitute long astheywere committed withthespecificintenttodestroy, inwholeorpart,a fact thatinitsopinion,theyconstitutegenocidethesamewayasanyotheract the Indictment,thatis,rapeandsexualviolence,Chamberwishestounderscore the 731. […] of seriousbodilyandmentalharmonmemberssaidgroup. preparation orexecutionof thekillingsofmembersTutsi group andtheinfliction charged indeedrender him individuallycriminallyresponsible forhavingabettedinthe 707. ing committed. opinion oftheChamber, thisconstitutestacitencouragementtotherapesthatwere be- the rapesandsaidthat“neveraskmeagainwhataTutsi womantasteslike” lar witnesstestifyingthatAkayesu,addressed theInterahamwewhowere committing his presence, hisattitudeandutterances,Akayesuencouragedsuchacts,oneparticu- violence were beingcommitted. Furthermore, it isproven that onseveraloccasions,by The rapeofTutsi womenwassystematicandperpetratedagainstallTutsi wom- With regard,With particularly, tothe actsdescribedinparagraphs12(A)and12(B)of In theopinionofChamber, theabove-mentionedactswithwhichAkayesuis 181

and are even,according to 177 . Inthe International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 257 The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United the by adopted was Genocide of Crime the of Punishment and Prevention the on Convention The on 9 December 1948. Nations General Assembly, 3 May 808 (1993) of the Security Council, Report pursuant to paragraph 2 of resolution General’s Secretary 1993, S/25704. On the basis of the substantial testimonies brought before it, the Chamber finds it, the Chamber before substantial testimonies brought On the basis of the the Chamber finds firstly that the acts described supra are In light of the foregoing,

ndnotes E 91 92 exercises “in order to display the thighs of Tutsi women”. The Interahamwe who raped The Interahamwe women”. the thighs of Tutsi to display “in order exercises now see what “let us got on top of her, and her on the ground as he threw Alexia said, to speaking himself, Akayesu above, stated As like”. takes woman Tutsi of a vagina the ever ask again them: “don’t the rapes, said to committing who were the Interahamwe - of ethnic identity graphi like”. This sexualized representation woman tastes what a Tutsi they were subjected to sexual violence because tutsi women were cally illustrates that - - destruc of destruction of the tutsi group a step in the process Sexual violence was Tutsi. will to live, and of life itself. tion of the spirit, of the 733. with the intent accompanied were women in Taba, rapes of Tutsi that in most cases, the women the where perpetrated near mass graves Many rapes were to kill those women. be taken away Tutsi women caught could testified that taken to be killed. A victim were executed. be to later collected be would they that promise the with men and peasants by they will be Akayesu say “tomorrow heard Following an act of gang rape, a witness clearly to the Chamber it appears actually killed. In this respect, killed” and they were as other acts of serious bodily and mental harm that the acts of rape and sexual violence, and suffer Tutsi women to make the determination reflected Tutsi, against the committed group the Tutsi killing them, the intent being to destroy to mutilate them even before on its members in the process. while inflicting acute suffering 734. of the Statute, which constitute the factual indeed acts as enumerated in Article 2 (2) or the serious bodily and the killings of Tutsi elements of the crime of genocide, namely reasonable Tutsi. The Chamber is further satisfied beyond mental harm inflicted on the committed be Akayesu with the specific intent to doubt that these various acts were the opinion that the the Chamber is of as such. Consequently, group, Tutsi the destroy 16, 18, 19, 20, 22 and 23 of the Indictment and acts alleged in paragraphs 12, 12A, 12B, constitute the crime of genocide, but not the crime of complicity; hence, above, proven responsible for genocide. criminally the Chamber finds Akayesu individually […] 258 Gender-based Violence 181 177 95 93 genocide, inparticular, thedefinitionofconstituentelementsgenocide. See above,thefindingsof Trial ChamberontheChapter relating tothelawapplicablecrimeof muzambaza.” “Ntihazagire umbazaukoumututsikaziyariameze,ngokandimumenyekoejonibabicantakintu acceded totheGenocideConventionbutstatedthatitshallnotbeboundbyArticle9ofthisConvention. Legislative Decree of12February1975,OfficialGazettetheRepublicRwanda,p.230.Rwanda acceded totheGenocideConventionbutstatedthatitshallnotbeboundbyArticle9ofthisConvention. Legislative Decree of12February1975,OfficialGazettetheRepublicRwanda,p.230.Rwanda International Criminal Tribunal for Rwanda

Case Nº ICTR-97-20-T

Prosecutor v. Laurent Semanza

Judgment of May 15, 2003 260 Gender-based Violence plicity ingenocide(Count3),the Accusedischargedcumulativelywithallformsofper 14. […] col II(partofcount13). against humanity;andwithseriousviolationsofCommonArticle 3andAdditionalProto- with rape(Count10),torture (partofCount11),andmurder (partofCount12)ascrimes of twowomenandthedeathonethem(…).Forthisevent, theAccusedischarged Accused incitedagroup torapeTutsi womenbefore killingthem,resulting intherape 12. direct andpublicincitementtocommitgenocide(Count2). planned, andorganizedthemassacres ofTutsi civilians(…),forwhichheischargedwith meetings duringwhichhemadethreatening remarks againstTutsi, andwhere heincited, 11. […] of April1994.(…) and sexual violence, at four locations in Bicumbi and Gikoro communes during the month personally participatedinattacks,whichincludedkillings,seriousbodilyormentalharm, 9. andtheRwandanPatrioticFrontits Government (“RPF”). armedconflictintheterritoryofRwandabetween conjunction withanon-international on political,ethnic,orracial grounds andthatthese acts were committedduringandin acts formed partof a widespread orsystematic attack against the Tutsi civilian population population inRwandaasanethnicorracialgroup. ItisfurtherstatedthattheAccused’s 8. […] B. […] 1. For all the Counts, except for incitement to commit genocide (Count 2) and com- The Indictmentassertsthatbetween7and30April1994,in Gikoro commune,the The Indictmentfurtherallegesthatbetween1991and1994,theAccusedchaired It isallegedintheIndictmentthatAccusedorganized,executed,directed, and The Indictment alleges that the Accused acted with the intent to destroy the Tutsi The Indictment I ntroduction - International Criminal Tribunal for Rwanda - Prosecutor v. Laurent Semanza 261 An “attack” does not necessarily 546 The Chamber observes that this jurisprudence does The Chamber observes that this jurisprudence does 548 547 The Chamber does not see any reason to depart from the uniform uniform the from depart to reason any see does not Chamber The 549 aw L The attack must be widespread or systematic he This Tribunal has consistently held that, in line with customary international law, has consistently held that, in line with customary international law, This Tribunal Crimes Against Humanity elements the enumerated acts and the general The relationship between or committed as part of a widespread A crime against humanity must have been The attack act, event, or series of events of the An “attack” is generally defined as an unlawful a. V. t 328. in disjunctively and “systematic” should be read of “widespread” the requirements with the English version of the Statute, rather than cumulatively in ac- accordance text. with the French cordance […] B. 1. 326. Although on discriminatory grounds. systematic attack against any civilian population all of time and place as the attack or share the act need not be committed at the same or consequence of the attack, it must, by its characteristics, aims, nature, the features attack. objectively form part of the discriminatory 2. 327. (i) of the Statute. kind listed in Article 3(a) through practice of the two Tribunals. sonal responsibility pursuant to Article 6(1) and with superior responsibility under Article responsibility and with superior pursuant to Article 6(1) sonal responsibility Statute. 6(3) of the […] not fully articulate the basis of such a custom. However, the Chamber notes that a the Chamber notes that a not fully articulate the basis of such a custom. However, - (“ICTY”) re for the Former Yugoslavia Chamber of the International Tribunal Trial Judgment and concluded that viewed the limited practice on this issue in the Tadic customary in humanity against crimes element of an was systematic or widespread internationallaw. - it could also involve other forms of inhumane mistreat the use of armed force, require ment of the civilian population. 262 Gender-based Violence ated actformspartoftheattack. underlying attack,butsuchcharacteristicsmaybeusedtodemonstratethattheenumer other definingfeatures with thecivilianpopulationthatformsprimarytargetof tion is“predominantly civilian”. even ifthemembersofpopulationatonetimebore arms,solongasthepopula- mains civilianinnature even ifthere are individualswithinitwhoare notciviliansand organized nature oftheattack. committed withdiscriminatory intent. attack. There isnorequirement thattheenumeratedactsotherthanpersecutionbe ever, theaccusedneednotnecessarilyshare thepurposeorgoalsbehindbroader area. against humanity be directed against the entire population of a geographic territory or 329. and knowledgethat his actformed part ofthe attack onthecivilianpopulation. 332. 3. 330. element ofthecrime. widespread orsystematic,butthattheexistenceofsuchaplanisnotseparatelegal in establishingthattheattackwasdirected againstacivilianpopulationandthatitwas that theexistenceofapolicyorplanmaybeevidentiallyrelevant, inthatitmaybeuseful grounds. or furthertheattackongroup discriminatedagainstononeoftheenumerated attack where theactagainst theoutsidersupportsorfurthersisintendedtosupport against personsoutsidethediscriminatorycategoriesmayneverthelessformpartof committed “onnational,political,ethnical,racialorreligious grounds”. Actscommitted 331. 555 b. c. “Widespread” refers“Widespread” tothelargescaleofattack. The accusedmusthaveactedwithknowledgeofthebroader contextoftheattack The mentalelementforcrimesagainsthumanity A civilianpopulationmustbetheprimaryobjectofattack. Article 3oftheStatuterequires thattheattackagainstcivilianpopulationbe Thevictim(s)oftheenumeratedactneednotnecessarilyshare geographicor 556 The attackmustbedirectedagainstanycivilianpopulation The attack must be committed on discriminatory grounds The attackmustbecommittedondiscriminatory 552

551 554 TheAppealsChamberoftheICTYrecently clarified Theterm“population”doesnotrequire thatcrimes 558 550 “Systematic”describesthe 553 Apopulationre- 557 How- - International Criminal Tribunal for Rwanda - Prosecutor v. Laurent Semanza 263 - - 577 - Consent for this purpose must be given volun 576 The Appeals Chamber of the ICTY, in contrast, affirmed a nar of the ICTY, The Appeals Chamber 575 indings F 578 egal d. Rape included any definition of rape which enunciated a broad The Akayesu Judgment L Crimes against humanity While this mechanical style of defining rape was originally rejected by this Tribunal, rejected by this was originally While this mechanical style of defining rape against humanity is the intention to effect The mental element for rape as a crime The enumerated acts The enumerated exter murder, of humanity against crimes committing with charged is Accused The VI. mination, torture, rape, and persecution. The Chamber will therefore limit its discussion limit its therefore The Chamber will and persecution. rape, torture, mination, to these offences. […] 344. to and which was not limited circumstance in coercive sexual nature physical invasion of a sexual intercourse. forcible rower interpretation defining the material element of rape as a crime against humanity as element of rape as a crime against defining the material interpretation rower slight, of the vagina or anus of the victim by thethe non-consensual penetration, however of or of the mouth used by the perpetrator, penis of the perpetrator or by any other object the victim by the penis of the perpetrator. […] […] D. 345. in Kunarac to be persuasive and thus will the Chamber finds the comparative analysis In doing so, the by the ICTY Appeals Chamber. adopt the definition of rape approved that other acts of sexual violence that do not satisfy this narrow Chamber recognises as other crimes against humanity within the jurisdiction of definition may be prosecuted or other inhumane acts. persecution, enslavement, such as torture, this Tribunal 346. sexual penetration with the knowledge that it occurs without the consent the prohibited of the victim. tarily and freely and is assessed within the context of the surrounding circumstances. and is assessed within the context of the surrounding tarily and freely 4. 333. 264 Gender-based Violence and 31 July 1994, such allegationsare containedintheIndictment. humanity were committed to advance a war effort armed conflict because in an internal 443. the Chamberneednotconsiderwhetheritwasalsosystematic. and Gikoro communesonethnicgrounds. Havingfoundthattheattackwaswidespread, relevant timesthere wasawidespread attackontheTutsi civilianpopulationofBicumbi sis oftheirTutsi ethnicity. TheChamberthusfindsbeyonda reasonable doubtthatatall out bygroups ofattackers and were directed againstlargenumbersofvictimson theba- tacks againstcivilianTutsis inBicumbiandGikoro communes.Theseattackswere carried atic attackinRwanda: 441. a civilianpopulationontheenumerateddiscriminatorygrounds. crimes againsthumanityare committedaspartofawidespread orsystematicattackon 440. extermination (Count5). 4, 12,and14),rape(Counts810),torture (Count11),persecution6),and 439. 1. […] manity becommittedinconnection withanarmedconflict. argument becausethere isnolegalrequirement intheStatutethatcrimesagainsthu- conflict inRwanda, the judiciallynoticedfacts,factualfindingsmadeinarmed relation totheinternal 442. The DefencearguedthattheProsecutor mustalsoprove thatthecrimesagainst persons ofTutsi ethnicidentity. ceived tobeTutsi. Asaresult oftheattacks,there wasalargenumber ofdeaths Rwandan citizenskilledorcausedseriousbodilymentalharmtopersonsper a civilianpopulationbasedonTutsi ethnicidentification.Duringtheattacks,some 1994 [sic].There were throughout Rwandawidespread orsystematic attacks against The followingstateofaffairs existedinRwandabetween6April1994to17July The Chamber took judicial notice of the fact that there was a widespread or system- As explainedinthelegalsectionabove,Prosecution isrequired toprove thatall The Accusedischargedwiththefollowingcrimesagainsthumanity:murder (Counts General elements The Chamberisnowinapositiontomakemore specificlegalfinding.Inlightof 696 695 the Chamber finds that there were massive, frequent, large scale at- andtheevidenceofmassacres ofcivilians between 6April1994 694

697 TheChamberseesnomeritinthis - International Criminal Tribunal for Rwanda - Prosecutor v. Laurent Semanza 265 - , to the influence of the Accused and to the fact that the that fact the to and Accused the of influence to the alia, inter Count 10: Rape Count 10: charges: Count 10 SE- above, Laurent in paragraph 3.17 to the events described in relation By his acts Victimof RAPE Victimwidespread the a for and A of part as B responsible is MANZA or racial grounds, a civilian population on political, ethnic or systematic attack against 3(g) of AGAINST HUMANITY stipulated in Article committed CRIMES and has thereby of Articles 6(1) and as a crime, attributed to him by virtue the Statute of the Tribunal 22 and 23 of the same Statute. to Articles in reference 6(3), and punishable that the to paragraph 3.17 of the Indictment, in relation The Chamber has found, reasonable doubt that Victim A was raped by one of The Chamber finds beyond a 6. 475. 476. and a crowd and military authorities, addressed of commune Accused, in the presence and then encouraged was progressing work of killing the Tutsis asked them how their one of the men thereafter, killing them. Immediately women before them to rape Tutsi with Victim A, who was hiding in had non-consensual sexual intercourse crowd the from that Victima nearby home. The Chamber has found men from B was killed by two other but has had insufficient evidence to draw any conclusions about whether she this crowd, had also been raped. 477. In women. Tutsi rape to crowd the encouraging Accused the heard who assailants the tar the ethnic group raping and killing Tutsis, light of the generalized instructions about hiding attack, and the fact that the assailant arrived at Victim A’s geted by the widespread place with two others who then killed Victim was part B, the Chamber finds that this rape assailant was population and that the Tutsi attack against the civilian of the widespread finds that the principal perpetrator committed rape as The Chamber therefore so aware. a crime against humanity. 478. Having regards, to rape, the after the Accused instructed the group directly rape of Victim A occurred because it was encouragement constituted instigation Chamber finds that the Accused’s perpe- causally connected and substantially contributed to the actions of the principal Victim statement that he had been given permission to rape A is The assailant’s trator. Chamber The crime. the and statement Accused’s the between link clear a of evidence that he also finds that the Accused made his statement intentionally with the awareness was influencing the perpetrator to commit the crime. 266 Gender-based Violence 480. 7. on Count10. Aasacrimeagainsthumanity.of Victim Therefore, theChamber findstheAccusedguilty 479. 482. to drawanyconclusionsaboutwhethershehadalsobeenrapedortortured. BwaskilledbytwoothermenfromVictim thiscrowd, buthashadinsufficientevidence immediately thereafter by one ofthemenfrom thiscrowd. TheChamberhasfound that rape Tutsi women before killing them. Awas The Chamber raped has found that Victim Accused, inthepresence of communeandmilitaryauthorities,encouragedacrowd to 481. purpose. finds thattheprincipalperpetrator torturedVictim Aby rapingherforadiscriminatory suffering inflictedforthepurposesofdiscriminationconstitutestorture and,therefore, A because she was a Tutsitargeting Victim woman. The Chamber recalls that severe 483. that non-consensualintercourse occurred. physical painorsuffering, forwhichtheProsecutor onlyadducedevidenceofthefact torture. Itistherefore unnecessarytodeterminewhetherthisrapealsoinflictedsevere perpetrator inflictedsevere mentalsuffering sufficienttoformthematerialelementof rounding theeventandnature A,theChamberfindsthat oftherapeVictim a. and 23ofthesameStatute. to himbyvirtueofArticles6(1)and6(3)punishableinreference toArticles22 MANITY stipulated in Article 3(f) of the Statute of theTribunal as a crime,attributed litical, ethnicorracialgrounds, andhasthereby committedCRIMESAGAINSTHU- C aspartofawidespread or systematicattackagainst a civilian population onpo- Laurent SEMANZAisresponsible BandVictim A,Victim ofVictim fortheTORTURE By hisactsinrelation tothe eventsdescribedinparagraphs3.17and3.18above, Count 11charges: Count 11:Torture The Chamberfindsbeyonda reasonable doubtthattheAccusedinstigatedrape Noting, in particular, the extreme level of fear occasioned by the circumstances sur The Chamberhasfound,inrelation toparagraph3.17oftheIndictment,that The Chamberfindsthattherapewascommittedon basis ofdiscrimination, Victims AandB - International Criminal Tribunal for Rwanda - Prosecutor v. Laurent Semanza 267 TC, para. 480; Kordic and Cerkez, Judg- , Judgment, AC, Kunarac, Judgment, AC, para. 93; Tadic Judgment, TC, para. 804; Bagilishema, Judgment, TC, para. 77; Musema, Judgment, TC, Kayishema and Ruzindana, Judg- Musema, Judgment, TC, para. 205; Rutaganda, Judgment, TC, para. 70; ment, TC, para. 122; Akayesu, Judgment, TC, para. 581. Akayesu, Judgment, TC, para. Musema, Judgment, TC, para. 205; Rutaganda, Judgment, TC, para. 70; 581. Ntakirutimana, paras. 202-203; Rutaganda, Judgment, TC, para. 68; Kayishema and Ruzindana, Judgment, TC, para. 123, footnote 26; Akayesu, Judgment, TC, para. 579. , Judgment, TC, paras. 646-648. See also Tadic para. 248; Krnojelac, Judgment, TC, para. 55; Krstic, Judgment, - ment, TC, para. 178; Blaskic, Judgment, TC, para. 202; Kupreskic, Judgment, TC, para. 544; Jelisic, Judg ment, TC, para. 53. The Chamber also finds that the torture formed part of the widespread attack on widespread formed part of the the torture also finds that The Chamber because of their to rape women a crowd finds that by encouraging The Chamber ndnotes E 546 547 548 549 484. the ethnicity she was a Tutsi, victim was raped because population since the the civilian larger the of aware was perpetrator the that finds Chamber The attack. the by targeted the encourage - he was acting on acknowledged that his actions, since he context of and killing Tutsis work of to rape women as part of their broader ment of the Accused for rape and murder. targeting Tutsis similarly were crowd the from he knew that others as a crime principal perpetrator committed torture finds that the The Chamber therefore against humanity. 485. or mental physical to inflict severe encouraging the crowd the Accused was ethnicity, he was instigating not only rape, purposes. Therefore, for discriminatory pain or suffering The Chamber torture. legally constitutes purpose, which a discriminatory but rape for to the connected to and substantially contributed causally were finds that his words to the Victim of the Accused made his remarks A because immediately after torture Victim A by raping her because assailant went to a nearby home and tortured the crowd, general influence in the woman. The Chamber notes that the Accused’s she was a Tutsi of commune and made in the presence were community and the fact that his statements The Chamber finds and legitimacy. force military authorities gave his instigation greater that he was influencing with the awareness that the Accused acted intentionally and attack on the purpose as part of a widespread others to commit rape for a discriminatory the Chamber finds that the Accused is Therefore, civilian population on ethnic grounds. humanity. as a crime against for instigating torture criminally responsible […] 268 Gender-based Violence 697 696 695 694 578 577 576 575 558 557 556 555 554 553 552 551 550 Defence ClosingBriefp.116. See chapterIVhereof. See suprapara.281. 94 and54,AnnexA,para.2.SeeII,Part Semanza, DecisiononProsecutor’s MotionforJudicialNoticeandPresumptions ofFactsPursuanttoRules Kunarac, Judgment,AC,paras.127-128. Kunarac, Judgment,AC,paras.127,128,130. Kunarac, Judgment,AC,paras.127-128. Akayesu, Judgment,TC,para.598.SeealsoMusema226. Akayesu, Judgment,AC,para.467. para. 206;KayishemaandRuzindana,Judgment,TC,134. Ntakirutimana, Musema, Judgment,TC,para.209;Rutaganda74. Bagilishema, Judgment,TC,para.80;KunaracAC,90. ment, TC,para.128;Akayesu,Judgment,582. Bagilishema, Judgment,TC,para.79;Rutaganda72;KayishemaandRuzindanaJudg- 72; KayishemaandRuzindana,Judgment,TC,paras.127,128;Akayesupara.582. Bagilishema, Judgment,TC,para.79;Musema207;Rutaganda Kunarac, Judgment,AC,para.98. para. 69;KayishemaandRuzindana,Judgment,TC,123;Akayesu580. Ntakirutimana, ment, TC,para.77;Musema,Judgment,204;Rutaganda69. Akayesu, Judgment,TC,para.580.Seealso Judgment, TC, para. 804; Judgment, TC,para.803;Bagilishema,94;Musema Musema, Judgment, TC, para. 204; Ntakirutimana, Judgment, TC,para.804;Bagilishema,Judg- Rutaganda, Judgment, TC, International Criminal Tribunal for Rwanda

Case Nº ICTR-95-1B-T

Prosecutor v. Mikaeli Muhimana

Judgment of April 28, 2005 270 Gender-based Violence parts”, of thecrimerapecannotbecaptured inamechanicaldescriptionofobjectsandbody rape is charged as a crime against humanity. Emphasizing that “the central elements in the case crime againsthumanityandaninstrumentofgenocidewasissued on2September1998 357. tional criminallaw. - Chamber deemsitnecessarytoanalysetheevolutionofdefinitionrapeininterna genitals, constitutes rape. In light of the peculiar factual circumstances of this case, the evidence tohavebeeneffected byusingamachetetocutherfrom herbreasts toher casie Mukaremera, asalleged inParagraph6(d)(ii)oftheIndictment,andshownby 536. endorse theAkayesudefinitionofrape. 535. Statute oftheTribunal. der Count3forrapeasacrimeagainsthumanity, punishableunderArticle3(g)ofthe Indictment, the Chamber has considered the criminal responsibility of the Accused, un- 534. 2. […] C. […] III. coercive. of asexualnature whichiscommittedonapersonunder circumstances whichare which are coercive. Sexual violence,whichincludesrape,isconsidered tobeanyact a physicalinvasionofsexualnature, committedonapersonundercircumstances The first judgment in which an international criminaltribunaldefinedrapeasa The firstjudgmentinwhichaninternational The Prosecution invitesthe ChambertoconsiderthatthedisembowelmentofPas- The Chamber notes that both theDefence and theProsecution in thepresent case Applicable Law On thebasisofitsfactualfindingsonallegationsrapeinParagraph6 Rape asaCrimeAgainstHumanity Crime AgainstHumanity–Rape(Count3) L 489 egal theAkayesuJudgmentdefinedrapeandsexualviolenceas: Prosecutor v. Akayesu, by Trial Chamber I of the ICTR. In the present case, F 490 indngs

488 International Criminal Tribunal for Rwanda - Prosecutor v. Mikaeli Muhimana 271 497

492 and by Trial Chamber II of the of Chamber II by Trial and 495 Niyitegeka, and

493 494 Musema No appeal was taken as to this issue in any of these cases. No appeal was taken as to this issue in any 496 Trial Chamber referred to its factual finding that a to its factual finding Chamber referred Trial As an example, the Akayesu proceedings the Trial Chamber had defined rape as “a physical inva- the Trial Akayesu proceedings 491 definition of rape briefly. It to the Akayesu definition of rape briefly. Chamber referred Kunarac, the Trial , this Chamber notes with ap- definition of rape in Akayesu, this Chamber notes Consonant with the and for human dignity is the basic underpinning of respect The general principle of international and human rights d’être humanitarian law indeed the very raison law; indeed in modern paramount importance as to times it has become of such intended to shield is This principle internationalwhole body of permeate the law. whether such outrages outrages upon their personal dignity, human beings from out by unlawfully attacking the body or by humiliating and debasing the carried are a person. It is consonant with or the mental well being of the self-respect honour, oral penetra- serious sexual outrage as forced this principle that such an extremely tion should be classified as rape. definition of rape was endorsed by Trial definition of rape was endorsed by The Chamber observes that the Akayesu Recognizing that rape has been historically defined in national jurisdictions as “non- in national jurisdictions historically defined that rape has been Recognizing sion of a sexual nature, committed under circumstances which are coercive”. It then coercive”. which are committed under circumstances sion of a sexual nature, internationalof possible not was it that and found law sources various the reviewed or custom- internationaldiscernto treaty from of rape crime the of the elements the “general principles of international nor from criminal law or ... general ary law, principles of international law” (…). constitute the actus reus that these elements, if proved, Chamber agrees This Trial The specific elements of the crime of rape, which are neither set out in the Stat- which are The specific elements of the crime of rape, the ute nor in international were humanitarian law or human rights instruments, the Trial Chamber in the Furundžija case. There subject of consideration by the Trial for Rwanda judgment in Chamber noted that in the International Criminal Tribunal the 539. that: conclusion Chamber’s the Furundžija Trial proval piece of wood was thrust into the sexual organs of a woman as she lay dying: a physically into the sexual organs of a woman as piece of wood was thrust rape. which it found to constitute body, invasive act of the victim’s 541. In and tacitly accepted it, but went on to made no adverse comments on the definition Chamber stated: the elements of rape. The Kunarac Trial focus on providing ICTY in Delalić. 540. in Tribunal of this Chamber I 538. too found this description Chamber Trial the Akayesu sexual intercourse”, consensual which involve rape may include acts on the form of insofar as “variations mechanical, intrinsically be to considered not orifices bodily of use the and/or objects of insertion the sexual”. 272 Gender-based Violence ber inKunaracopinedasfollows: acknowledged that coercion provides clear evidence of non-consent. The Appeals Cham- 544. definition. the issuebefore theAppealsChamber. ItwasnotcalledupontoconsidertheAkayesu tion”, itisclearthatwasapproving theelementssetoutbyTrial Chamber. Thatwas the 543. When of rapewasasfollows: with theelementsofrape.TheTrial Chamber’s articulationoftheelementscrime 542. of rape.However, inexplainingitsfocuson theabsenceofconsentascondi- notes thattheTrial Chamberappeared todepartfrom theTribunal’s priordefinitions (…) withregard tothe role offorce inthedefinitionofrape,Appeals Chamber that itoccurswithouttheconsentofvictim. The context ofthesurrounding circumstances. must beconsentgivenvoluntarily, asaresult ofthevictim’s free will,assessedinthe penetration occurswithouttheconsentofvictim.Consentforthispurpose (b) ofthemouthvictimbypenisperpetrator;where suchsexual object usedbytheperpetrator;or (a) of the vagina or anus of the victim by the penis of the perpetrator or any other penetration, howeverslight: The In analyzingtherelationship betweenconsentandcoercion, theAppealsChamber international law.international opinion ofthisTrial Chambertheaccuratescopeofthisaspectdefinitionin victim, which,asforeshadowed inthehearingandasdiscussedbelow, isinthe an act of sexual penetration non-consensual or non-voluntary on the part of the person, theFurundžijadefinitiondoesnot refer to otherfactorswhichwould render if accompaniedbycoercion orforce orthreat offorce againstthevictimorathird law. Instatingthat the relevant act ofsexual penetration will constitute rape only of thatcase,isinonerespect more narrowly statedthanisrequired byinternational considers thattheFurundžijadefinition,althoughappropriate tothecircumstances of theelementinparagraph (ii)Furundžijadefinition.The Trial Chamber ent case the Trial Chamber considers that it is necessary to clarify its understanding law.of thecrimerapeininternational However, inthecircumstances ofthepres- It isclearfrom theabove quotation thattheKunaracTrial Chamber wasdealing of the crime of rape in international lawisconstitutedby:thesexual actus reusofthecrimerapeininternational mens reaistheintentiontoeffect this sexualpenetration,andtheknowledge Kunarac AppealsChamberconcurred withtheTrial Chamber’s “defini- 498 499 International Criminal Tribunal for Rwanda - Prosecutor v. Mikaeli Muhimana 273 -

501 500 502 Kajelijeli and Kamuhanda, for example, described only the of rape, the Trial Chamber did not disavow the Tribunal’s earlier disavow the Tribunal’s Chamber did not Trial of rape, the sine qua non Judgment enunciated a broad definition of rape which included any Akayesu Judgment enunciated a broad The Trial Chamber in Semanza stated: The Trial Accordingly, the Chamber is persuaded by the Appellate Chamber’s analysis that Chamber’s the Chamber is persuaded by the Appellate Accordingly, in Akayesu, has not of rape, as enunciated The Chamber notes that the definition jurisprudence, but instead sought to explain the relationship between force and between force relationship to explain the but instead sought jurisprudence, is but force evidence of non-consent, clear provides of force or threat consent. Force wished to explain that Chamber the Trial particular, per se of rape. In not an element an act of sexual penetra- render which would “factors [other than force] are there focus narrow A victim”. the of part the on non-voluntary or non-consensual tion to evade liability for sexual could permit perpetrators of force or threat on force advantage of coercive other party had not consented by taking activity to which the force. on physical without relying circumstances nei- jurisdictions, domestic in some that example, for notes, Chamber Appeals The a victim is necessary nor the physical overpowering of ther the use of a weapon against the victim or any the future “in to retaliate A threat to demonstrate force. pos- is a reasonable so long as “there indicium of force other person” is a sufficient on focus a that true is it While threat”. the execute will perpetrator the that sibility it is worth observing that the cir shading to the offence, one aspect gives different tion in most cases charged and that prevail cumstances giving rise to the instant appeal will be almost universally coercive. as either war crimes or crimes against humanity true consent will not be possible. That is to say, Chamber acknowledged Trial that the Furundžija the Chamber also recalls Similarly, physical invasion of a sexual nature in coercive circumstance and which was not and circumstance in coercive physical invasion of a sexual nature The 548. 546. as an evidentiary factor of consent is an element that may obviate the relevance coercion this Chamber concurs with the opinion that circumstances in the crime of rape. Further, as either genocide, in most cases charged under international criminal law, prevailing thus vitiating or war crimes, will be almost universally coercive, crimes against humanity, true consent. 547. The ICTR ad hoc Tribunals. been adopted per se in all subsequent jurisprudence of the Chambers in Semanza, Trial physical elements of the act of rape, as set out in Kunarac, and thus seemingly shifted the conceptual definition established in Akayesu. their analyses away from 545. that “any form of captivity vitiates consent”. 274 Gender-based Violence others: 553. […] 549. tion of rape established in 551. ing torape. the parametersofwhatwouldconstituteaphysicalinvasionsexualnature amount- ferred broadly toa“physicalinvasionofsexualnature”, Kunaracwentontoarticulate are notincompatibleorsubstantially different intheirapplication.Whereas Akayesure- 550. constituent elementsofactsconsidered toberape. actually are substantiallyaligned tothisdefinitionandprovide additionaldetailsonthe construed as departing from the Legal Findings inhumane acts. the jurisdictionofthisTribunal suchastorture, persecution,enslavement,orother this narrow definitionmay beprosecuted asothercrimesagainsthumanitywithin so, theChamberrecognises thatotheractsofsexualviolencedonotsatisfy will adoptthedefinitionofrapeapproved bytheICTYAppealsChamber. Indoing the ChamberfindscomparativeanalysisinKunaractobepersuasiveandthus While thismechanicalstyleofdefiningrapewasoriginally rejected bythis Tribunal, the contextofsurrounding circumstances. Consent forthispurposemustbegivenvoluntarilyandfreely andisassessedwithin by theperpetrator, orofthemouthvictimbypenisperpetrator. or anus of the victim by the penis of the perpetrator or by any other object used against humanityasthenon-consensualpenetration,howeverslight,ofvagina affirmed anarrower interpretation definingthematerial elementofrapeasacrime limited to forcible sexual intercourse. The Appeals Chamber of the ICTY, in contrast, his presence, rapedthedaughtersofAmosKarera. Thepresence oftheAccused raped MukasineKajongi in the basement ofMugonero Hospital, two soldiers, in (a) On16April1994,atthesame timeandinthesamearea where theAccused The ChamberfindsthattheAccusedalsoabettedincommission ofrapesby This Chamber considers that On thebasisofforegoing analysis,theChamberendorsesconceptualdefini- The Chamber takes the view that the Akayesu, which encompasses the elements set out in Akayesu definition of rape–aswas doneinSemanza- Furundžija and Akayesu definition and the Kunarac, which sometimes have been Kunarac elements Kunarac. International Criminal Tribunal for Rwanda - Prosecutor v. Mikaeli Muhimana 275 509 510 518 511 The Chamber finds that the Accused bears no criminal responsibility for the rape no criminal The Chamber finds that the Accused bears during the rape of Amos Karera’s daughters coupled with his own action of raping with his own action daughters coupled rape of Amos Karera’s during the This en- daughters. Karera’s soldiers to rape Amos encouraged the two Mukasine, of these rapes; to the commission contributed substantially couragement (c) On 22 April 1994, the Accused permitted an Interahamwe named Mugonero named Mugonero the Accused permitted an Interahamwe (c) On 22 April 1994, woman”. to take Witness the body of a Tutsi BG away so that he could “smell of two over a period residence several times in Mugonero’s The witness was raped to take finds that by allowing Mugonero days. The Chamber Witness BG home, him to rape Witnessthe Accused encouraged This encouragement contributed BG. substantially to the commission of the rape. (b) On 16 April 1994, while the Accused was raping Witness Accused was raping April 1994, while the (b) On 16 of BJ in the basement other two raping also were him, accompanied who men, two Hospital, Mugonero encouraged Mukasine. The Accused, by his actions, and girls named Murekatete encourage- and Mukasine. This the rapes of Murekatete the other men to commit to the commission of these rapes; ment contributed substantially Defence Closing Brief, para. 133; T. 20 January 2005, p.5; Prosecution Closing Brief, Chapter 5, para.1. 20 January 2005, p.5; Prosecution Defence Closing Brief, para. 133; T. Akayesu Judgment (TC) para. 687. Akayesu Judgment (TC) paras. 598 and 688. Akayesu Judgment (TC) para. 686. Akayesu Judgment (TC) para. 686. Furundžija Judgment (TC), para. 183. ndnotes E 488 489 490 491 492 493 […] of RAPE AS the Chamber finds the Accused Mika Muhimana GUILTY 563. Consequently, under Count 3 of the Indictment. A CRIME AGAINST HUMANITY, […] 557. In its factual findings, the Chamber has found that the Ac- of Pascasie Mukaremera. her by cutting her open with a machete from cused disembowelled Pascasie Mukaremera submission the Prosecution’s considered her vagina. The Chamber has carefully to breasts that such conduct cannot be classified as rape. to consider this act as rape, and concludes opinion, it does not with the sexual organs, in the Chamber’s Although the act interferes to return Chamber will the However, nature. a sexual of invasion a physical constitute on murder. consider this incident under its legal findings 276 Gender-based Violence 518 See 511 See 510 See 509 See 502 501 500 499 498 497 496 495 494 Semanza Judgment(TC),paras.344-345. Delalić Judgment(TC),paras.478-479. Furundžija (TC),para.271. Kunarac, Judgment(AC),paras.129-130. manza, Judgment(TC),paras.345-346. Kunarac, Judgment(TC),paras.460,437,approved in:Kunarac,Judgment(AC),para.128;seealso:Se- Kunarac Judgment(TC),paras.437-438. Delalić Judgment(TC),paras.478-479. Niyitegeka Judgment(TC),para.456. Musema Judgment(TC),paras.229,907,933,936. supra: ChapterII,SectionN. supra: ChapterII,SectionN. supra: ChapterII,SectionsLandM. supra: ChapterII,SectionsLandM. International Criminal Tribunal for the f ormer Yugoslavia

Case Nº IT-96-21-T

Prosecutor v. Zejnil Delalić, Zdravko Mucić also known as “Pavo”, Hazim Delić, Esad Landžo also known as “Zenga” (Čelebići)

Judgment of November 16, 1998

278 Gender-based Violence […] “Tribunal”), commencedon10March 1997andcametoacloseon15October1998. in theTerritory oftheFormerYugoslavia since1991(hereafterTribunal” “International or HumanitarianLawCommitted ofInternational Persons ResponsibleforSeriousViolations cused”), before thisTrial Tribunal ChamberoftheInternational fortheProsecution of The trialofZejnilDelalić,ZdravkoMuciHazimDeliandEsadLandžo(hereafter “ac- […] […] Statute, inconnectionwithactsallegedlyperpetratedwithintheČ Article 2oftheStatute,andviolationslawsorcustomswar, underArticle3ofthe charges thefouraccusedwithgravebreaches oftheGenevaConventions1949,under nicipality, in central Bosnia and Herzegovina, during certain months of 1992. The Indictment facility in the village of 3. […] C. […] B. […] 193. III. H I. ereby 3. General Requirements fortheApplicationofArticles2and3Statute solelywitheventsallegedtohaveoccurred The Indictmentisconcerned atadetention The Indictment A I It isaxiomaticthatnoteveryserious crimecommittedduringthearmedconflictin ntroduction pplicable Nexus betweentheactsof accusedandthearmedconflict R enders L Č a I elebići (hereafter “Č w ts J udgment . elebići prison-camp”), located in the Konjic mu- elebići prison-camp. International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 279 - 225 i prison-camp, a detention facility in the Konjic municipality operated prison-camp, a detention facility elebići (b) Torture Offences of Mistreatment

In the present case, all of the alleged acts of the accused took place within the con- In the present The Trial Chamber is, therefore, in no doubt that there is a clear nexus between the is a clear nexus between in no doubt that there Chamber is, therefore, The Trial Elements of the Offences 2. [i]t is sufficient that the alleged crimes were closely related to the hostilities occur closely the alleged crimes were [i]t is sufficient that ring in other parts of the territories controlled by the parties to the conflict. the territories controlled ring in other parts of […] […] 196. fines of the Č by the forces of the governmental of Bosnia and Herzegovina. The prisoners by the forces authorities of military operations a result and detained as arrested housed in the prison-camp were conducted on behalf of the Government in the course of Bosnia and Herzegovina and Each of the accused is alleged to have been of an armed conflict to which it was a party. for which they have the camp and the acts in the operation of in some capacity, involved, alleged to have been committed in the performance of their official been indicted are duties as members of the Bosnian forces. 197. operations in Konjic, and the military including Herzegovina, Bosnia and armed conflict in been committed by the four accused in the the acts alleged in the Indictment to have case. present […] I. […] Bosnia and Herzegovina can be regarded as a violation of international humanitarian law. of international as a violation law. humanitarian regarded Herzegovina can be Bosnia and Clearly, the armed conflict. the criminal act and link between must be an obvious There of a town or the take-over course of fighting was committed in the crime if a relevant a offence render the be sufficient to example, this would armed conflict, for during an to actual hostilities connection Such a direct violation of international humanitarian law. stated Once again, the Appeals Chamber has in every situation. required is not, however, the armed con- between the acts of the accused and of this nexus a view on the nature flict. In its opinion, 280 Gender-based Violence […] this context. define rape.Thus,thetaskof Trial Chamberistodeterminethedefinition ofrapein humanitarian law.assault underinternational However therelevant provisions donot 477. expressed assuchinArticle5oftheStatute. is prohibited Charterand asacrimeagainsthumanityunderarticle6(c)oftheNürnberg Convention (IV)thatprovides fortheprotection offamilyhonourandrights.Finally, rape prohibition onrapeandsexual assaultcanalsobefoundinarticle46ofthe1907Hague tected from rape,forced prostitution andanyotherformofindecentassault.An implicit our. Moreover, article76(1)ofAdditionalProtocol Iexpressly requires thatwomenbepro - article 4(1)whichstatesthatallpersonsare entitledtorespect fortheirpersonandhon- armedconflicts.ThisProtocolinternal alsoimplicitlyprohibits rapeandsexualassaultin of indecentassaultisfurtherfoundinarticle4(2)AdditionalProtocol 11,concerning forced prostitution ofwomen.Aprohibition onrape,enforced prostitution andanyform Geneva Conventionspecificallyprohibit rape,anyformofindecentassaultandtheen- prohibited humanitarianlaw. underinternational Thetermsofarticle27theFourth 476. can beconsidered astorture. its attention to whether rape, a form of sexual assault, definition of rape and finally turns discusses theprohibitionlaw, of rapeandsexualassaultininternational thenprovides a Geneva Conventions.Inorder toproperly considerthisissue,theTrial Chamberfirst issue ofwhetherrapeconstitutestorture, undertheabovementionedprovisions ofthe sification astorture andcrueltreatment. Itisthepurpose ofthissectiontoconsiderthe Conventions relating togravebreaches, norincommon article3,andhenceitsclas- 475. apparent, thereinstrument containingadefini- isno convention orotherinternational 478.

There isonthebasisoftheseprovisions alone,aclearprohibition onrapeandsexual There can be no doubt that rape and other forms of sexual assault are expressly The crimeofrapeisnotitselfexpressly mentionedintheprovisions oftheGeneva Although theprohibition humanitarianlawisreadily onrapeunderinternational Law a. Prohibition of Rape and Sexual Assault under International Humanitarian (iv) RapeasTorture b. DefinitionofRape International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 281 - - 493 (hereafter “Akayesu Judgment”) which has considered the definition of rape the definition has considered Judgment”) which “Akayesu (hereafter c. Decisions of International and Regional Judicial Bodies c. Decisions of International and Regional 492 In order for rape to be included within the offence of torture it must meet each meet must it torture of offence the within included be to rape for order In “Inter-American Commission on Human Rights (hereafter Both the Inter-American that rape is a form of aggression and that the central elements of the crime of rape and that the central elements of the aggression that rape is a form of parts. The description of objects and body in a mechanical cannot be captured Treatment and Other Cruel, Inhuman and Degrading Torture Convention against focusing of torture, not catalogue specific acts in its definition or Punishment does is This approach framework of state sanctioned violence. rather on the conceptual in international useful more law. [...] committed on invasion of a sexual nature, The Chamber defines rape as a physical Sexual violence, which includes coercive. which are a person under circumstances is committed under cir which to be any act of a sexual nature rape, is considered […]. coercitives cumstances which are This Trial Chamber agrees with the above reasoning, and sees no reason to depart to reason no sees and reasoning, above the with agrees Chamber Trial This v.ican Commission handed down a decision in the case of Fernando and Raquel Mejia 480. as discussed above. In considering this issue, the Trial of the elements of this offence, relevant findings of other international judicial Chamber finds it useful to examine the United Nations reports. and quasi -judicial bodies as well as some relevant 481. issued decisions Court of Human Rights have recently Commission”) and the European 1996, the Inter-Amer On 1 March on the question of whether rape constitutes torture. in the context of crimes against humanity. The Trial Chamber deciding this case found deciding this case Chamber The Trial humanity. of crimes against in the context accepted definition of the term in international was no commonly law and that there national jurisdictions as non- while “rape has been defined in certain acknowledged that, of the variations of such an act. It definitions differing are there consensual intercourse”, concluded: 479. conclusion of the ICTR in the Akayesu Judgment on this issue. Thus, the Trial the from committed physical invasion of a sexual nature, Chamber considers rape to constitute a the this conclusion, Having reached coercive. that are on a person under circumstances Chamber turns of the jurisprudence of other international to a brief discussion judi- Trial cial bodies concerning rape as torture. tion of the term itself. The Trial Chamber draws guidance on this question from the from on this question draws guidance Chamber term itself. The Trial tion of the Jean-Paul v. the Prosecutor ICTR, in the case of judgment of the in the recent discussion Akayesu 282 Gender-based Violence person actingattheinstigationofapublicofficial. inflicted forapurpose;and,thirdly, itmustbeinflictedbyapublicofficialorprivate or mental pain andsuffering is inflicted ona person;secondly, suchsuffering mustbe three constituentelements. First,there mustbeanintentionalactthrough which physical this conclusion,theInter-American Commissionfoundthattorture underarticle5has might feelhumiliatediftheyknew whathadhappenedtotheirmother. react; afeelingthatfamilyintegritywasatstakeandan apprehension thatherchildren shock; afearofpublicostracism; feelingsofhumiliation;fearhowherhusbandwould casioning physicalandpsychological painandsuffering that causedthevictim:astateof can Commission’s findingthattherape, intheinstantcase,was“anactofviolence”oc- suffering be severe. However, this level of suffering may be implied from the Inter-Ameri- not refer tothecustomarylawrequirement thatthephysicalandpsychologicalpain in itsdefinitionofthe requisite elementsoftorture, theInter-American Commissiondid sequences, butalsoatthepsychological and social consequences oftherape.Secondly, whether rapegivesrisetopainandsuffering, onemustnotonlylookatthephysicalcon - 486. ture wasmetasthemanwhorapedRaquelMejiaamemberofsecurityforces. and intimidatingher. Finally, itwasheldthatthethird requirement ofthedefinitiontor Commission foundthatRaquelMejiawasrapedwiththeaimofpunishingherpersonally 485. Commission foundthatthefirstoftheseelementswassatisfiedonbasisthat: 484. Peru, torture inbreach ofarticle5theAmericanConvention ofHumanRights. 483. […] the PeruvianArmy. (…) 494 Two important observations may be made about this decision. First, in considering In findingthatthesecond elementof torture hadalso beenmet,theInter-American of thememberstheircommunityiftheyreport whathasbeendonetothem. been humiliatedandvictimised,ontheother, from suffering the condemnation ture alsocausesapsychological traumathatresults, ontheonehand,from having es, are even made pregnant. The fact of being made the subject of abuse of this na- suffered atthetimeitiscommitted,victimsare commonlyhurtor, insomecas- [r]ape causesphysicalandmentalsuffering inthevictim.Inadditiontoviolence In consideringtheapplicationoftheseprinciplestofacts,InterAmerican The Inter-American CommissionfoundthattherapeofRaquelMejiaconstituted

which concerned therape,ontwooccasions,ofaschoolteacherbymembers which concerned 496 499 495 Inreaching 497 498 - International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 283 500 Indeed, two of the dissenting judges explicitly 503 It went on to state that: 502 501 court would have reached this conclusion on either of court would have reached this conclusion By stating that it would have found a breach of article 3 even if each of the grounds of article 3 even if each of the grounds By stating that it would have found a breach The European Court held that the, distinction between torture and inhuman or and inhuman the, distinction between torture Court held that The European The European Court has also recently considered the issue of rape as torture, as of rape as torture, the issue considered has also recently Court The European pressure high with sprayed and tyre a inside placed stripped, beaten, blindfolded, such to subject was applicant the that probable appear would It raped. and water, of her of collaboration by herself or members on the basis of suspicion treatment and/or de- of the PKK, the purpose being to gain information family with members activities. becoming implicated in terrorist villagers from ter her family and other [w]hile being held in detention the applicant was raped by a person whose identity [w]hile being held in detention the applicant by an official of the State must be has still to be determined. Rape of a detainee given the of ill-treatment form to be an especially grave and abhorrent considered and weakened resistance the vulnerability can exploit the offender ease with which rape leaves deep psychological scars on the victim which of his victim. Furthermore, to the passage of time as quickly as other forms of physical and does not respond the acute physical pain of forced mental violence. The applicant also experienced both physically and violated debased feeling have left her must which penetration, [...] and emotionally. the Court is satisfied that the accumulation of acts of Against this background the applicant and the especially cruel act physical and mental violence inflicted on of article 3 of in breach to torture of rape to which she was subjected amounted the Convention. Indeed the these grounds taken separately. 489. it, Court, on the basis of the facts before the European separately, had been considered a requisite suffering at specifically affirmed the view that rape involves the infliction of A majority of the Court (14 votes to level of severity to place it in the category of torture. Convention and, of article 3 of the European had been a breach 7) thus found that there not convinced that the events with this finding were while those judges who disagreed of the with the reasoning alleged actually took place, they did not otherwise disagree majority on the application of article 3. 488. to therein Convention was embodied 3 of the European in article degrading treatment caus- to attach only to deliberate inhuman treatment allow the special stigma of torture ing very serious and cruel suffering. 487. In this Turkey. v. in the case of Aydin Convention, 3 of the European by article prohibited - Commis of the European finding to the previous of the Court referred case, a majority was taken detained, the applicant stated that, after being Rights, when it sion for Human was: she to a police station where 284 Gender-based Violence seriously inhibitstheabilityof women toenjoyhumanrightsandfreedoms. Uponthis flict physical, mental orsexual harm or suffering, represent a form of discrimination that that violencedirected againstawomanbecausesheis woman, includingactsthatin- that theCommitteeonElimination ofDiscriminationagainstWomen hasrecognised ited purposeofdiscrimination.TheUnitedNationsSpecialRapporteur referred tothefact Conflict, hasconsidered theissueofrapeastorture withparticular regard totheprohib- Forms of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed 493. dressed intheReportof CommissionofExpertsthus: 492. on HumanRights,theSpecialRapporteurstatedthat: cial Rapporteur onTorture. In an oralintroduction to his 1992ReporttotheCommission 491. of rapeastorture mostemphatically, inthefollowingterms: 490. serious violationofarticle3. stated that,hadtheyfoundtheactsallegedproven, theywouldconstituteanextremely body. torture, whichincludedrape andtheinsertionofobjectsintoorifices In hisfirst report healso listed variousformsofsexualaggression asmethodsof Finally, inarecent report, theUnitedNationsSpecialRapporteuronContemporary means ofethniccleansing. victim’s humandignityandiswhatmakes rapeandsexualassaultsuchaneffective and personaldecisionsbodilyfunctions.Thislossofcontrol infringesonthe more significantharmisthefeelingoftotallosscontrol overthemostintimate Rape andotherformsofsexualassaultharmnotonlythebodyvictim.The The profound effects of rape and other forms of sexual assaultwere specifically ad- of torture. right tophysicalintegrityofthehumanbeing,theyaccordingly constitutedanact tention were aparticularly ignominiousviolationoftheinherent dignityandthe since itwasclearthatrapeorotherformsofsexualassaultagainstwomeninde- The viewthatrapeconstitutestorture isfurthershared bytheUnitedNationsSpe- official orotherpersonacting. inflicted byorattheinstigationofwithconsentacquiescenceapublic rape is a violationofpersonal dignity, and rapein fact constitutestorture when ation, discrimination,punishmentcontrol ordestructionofaperson.Liketorture Like torture rapeisusedforsuchpurposesasintimidation,degradation,humili- In addition,theAkayesuJudgmentreferred toabove expresses aviewontheissue 507 506 504 508 505 International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 285 - 509 (v) Findings finds that the elements Chamber therefore discussion, the Trial In view of the above whether pain or suffering, that causes severe must be an act or omission (i) There mental or physical, intentionally, (ii) which is inflicted the victim, from as obtaining information or a confession (iii) and for such purposes person has person, punishing the victim for an act he or she or a third or a third the victim intimidating or coercing committed or is suspected of having committed, of any kind, based on discrimination person, or for any reason or a third or at the instigation of, or with the by, (iv) and such act or omission being committed other person acting in an official capacity. consent or acquiescence of, an official or Chamber considers the rape of any person to be a despicable act which The Trial - whenever rape and other forms of sexual violence meet the aforemen Accordingly, basis, the United Nations Special Rapporteur opined that, “in many cases the discrimina- that, “in many cases Rapporteur opined Nations Special basis, the United additional an Convention provides Torture in the of torture of the definition tion prong as torture.” rape and sexual violence basis for prosecuting 494. may be enumer applying Articles 2 and 3 of the Statute, for the purposes of of torture, ated as follows: 495. The condemnation and of human dignity and physical integrity. strikes at the very core or at the it is committed by, urgent where punishment of rape becomes all the more the consent or acquiescence of such an official. instigation of, a public official, or with psychological. The psycho- both physical and pain and suffering, Rape causes severe of persons upon whom rape is inflicted may be exacerbated by social logical suffering acute and long lasting. Furthermore, and cultural conditions and can be particularly a or at the instigation of in which rape, by, it is difficult to envisage circumstances of an official, could be considered public official, or with the consent or acquiescence involve punishment, coercion, in some way, as occurring for a purpose that does not, situ- in inherent is this Chamber Trial this of view the In intimidation. or discrimination ations of armed conflict. 496. in the same manner as any other acts tioned criteria, then they shall constitute torture, that meet this criteria. […] 286 Gender-based Violence […] dictment F. […] […] 925. 937. Ms. by Mr. Delić,andothers,intheČ and Dr. Gruba D Chamber findsthetestimonyofMs.Ćećez,andsupportingWitness Indictment that Ms.Ćećezwas ć andbyotherpersons. raped byHazimDeli The Trial ration ofthetestimonyavictimsexualassaultshallbe required. Itisallegedinthe 936. IV. 9. Factual andLegalFindingsrelating tospecificeventschargedintheIn- F Geneva Conventions. the StatuteofTribunal andrecognised byArticle3(1)(a)(crueltreatment) ofthe oftheLawsorCustomsWarCount 20.AViolation punishableunderArticle3of Conventions; oralternatively the StatuteofTribunal andrecognised byArticle3(1)(a)(torture) oftheGeneva oftheLawsorCustomsWarCount 19.AViolation punishableunderArticle3of the Tribunal; Count 18.AGraveBreach punishableunderArticle2(b)(torture) oftheStatute one night.Byhisactsandomissions,HazimDelićisresponsible for: other persons,andonanotheroccasionshewasrapedbythree different persons in cidents offorcible sexualintercourse. Ononeoccasion,shewasrapedinfront of August 1992,Hazim Delić andotherssubjected Grozdana ĆEEZtorepeated in - Sometime beginningaround 27May1992andcontinuinguntilthebeginningof Paragraph 24oftheIndictmentstatesthat: The Trial Chambernotesthatsub-Rule96(i)oftheRulesprovides thatnocorrobo- actul ez, born on19April1949,wasastoreĆećez, born ownerinKonjicuntilMay1992. Torture andRape ofGrozdanaĆećez-Counts18,19and20 (c) DiscussionandFindings č , credible and compelling, and thus concludes that Ms. Ćećezwas raped

and L egal F elebići prison-camp. indngs International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 287 906 . Ms. 904 i prison-camp. elebići . In addition, she was subjected to a further rape . In addition, she was subjected to a further 905 903 - penetration by the penis under circum Chamber finds that acts of vaginal The Trial was expressed by Ms. Ćećez, when she stated: of this rape by Hazim Delić was expressed The effect ez was subjected to multiple rapes on the third night of her detention in the third Ćećez was subjected to multiple rapes on the […] 940. intentionally quite clearly constitute rape. These acts were coercive, stances that were committed by Hazim Delić who was, an official of the Bosnian authorities running the prison-camp. 938. be able to be the woman that I was” “...he trampled on my pride and I will never She was arrested in Donje Selo on 27 May 1992, and taken to the Č 1992, and taken Donje Selo on 27 May in She was arrested was then taken of her detention and the first two nights in Building B for She was kept 1992. on 31 August until her release she stayed night, where A on the third to Building Džajić, to a room Mr. by a driver, she was taken arrival at the prison-camp Upon her as Hazim was waiting, whom she subsequently identified a man with a crutch where by Mr. Ms. Ćećez was interrogated the room. entered Delić. Another man subsequently She was her. of her husband and slapped the whereabouts Delić, who asked her about Delić. Hazim Delić, who was men, including Mr. with three room then taken to a second He then partially her to take her clothes off. a stick, then ordered in uniform and carrying his penis. on the bed and penetrated her vagina with put her face down her, undressed her clothes of remainder the turnedsubsequently He off back, took her on to her over Džajić was lying time, Mr. her vagina with his penis. During this and again penetrated at the was standing guard and the other man present same room on another bed in the was her husband, she was there Delić told her that the reason Mr. door of the room. if he was. Later that evening Zdravko Mucić came to and that she would not be there of her husband. whereabouts she was being kept and asked about the where the room not did She her. had touched whether anyone her asked and appearance her noticed He Mucić “could Mr. anything as Delić had instructed her not to do so. However to say dare was a big trace of sperm left on notice that I [Ms. Ćećez] had been raped because there the bed”. in July 1992. As a result of her experiences in the prison-camp Ms. Ćećez stated that “[p] in July 1992. As a result wornsychologically and physically I was· completely out. They kill you psychologically.” ez lived in constant fear while she was in the prison-camp and was suicidal. Further, the prison-camp and was suicidal. Further, Ćećez lived in constant fear while she was in Ms. in Building A. Af- small room Building B to a from prison-camp when she was transferred act of rape that evening she stated: “[i]t was difficult for me. I was a woman ter the third all my life, and I think that I was just getting who only lived for one man and I was his my body at this time” separated from 288 Gender-based Violence for count19oftheIndictment. tocount19,itisdismissedinlightoftheguiltyfinding ment ischargedinthealternative 18 andcount19oftheIndictmentforrapeMs.Ćećez.As20Indict- 943. stant fearanddepression, suicidal tendencies,andexhaustion,bothmentalphysical. Delić are readily apparent from her own testimony and included living in a state of con- suffering toMs.Ćećez.Theeffects oftherapes thatshesuffered atthehandsofHazim 942. the offence oftorture. above, thisrepresents aformofdiscriminationwhichconstitutesprohibited purpose for in theformofrape,wasinflicteduponherbyDelićbecausesheisawoman.Asdiscussed an atmosphere offearand powerlessness.Inaddition,theviolencesuffered byMs. Ćećez purpose ofseekingtointimidatenotonlythevictimbutalsootherinmates,bycreating who workedintheprison-campandmostimportantly, theinmates,evidencesMr. Delić’s and were knownofbythecommanderprison-camp,guards, otherpeople husband. Thefactthattheseactswere committedinaprison-camp,byanarmedofficial, and intimidateherintoproviding suchinformation;andtopunishherfortheactsof rebel; topunishherforinabilityprovide information aboutherhusband;tocoerce formation aboutthewhereabouts ofMs.Ćećez’s husbandwhowasconsidered anarmed 941. 944. 10. For thesereasons, theTrial ChamberfindsHazimDelićguiltyoftorture, undercount Finally, there canbenoquestionthattheserapescausedsevere mental painand The purposesoftherapescommittedbyHazimDelićwere, interalia,toobtainin- Count 23. A Violation oftheLawsorCustomsWarCount 23.AViolation punishableunderArticle 3of Conventions; oralternatively the StatuteofTribunal andrecognised byArticle3(1)(a)(torture) oftheGeneva oftheLawsorCustomsWarCount 22.AViolation punishableunderArticle 3of the Tribunal; Count 21.AGraveBreach punishableunderArticle2(b)(torture) oftheStatute responsible for: six weeks,shewasrapedeveryfewdays.Byhisactsandomissions, HazimDelićis intercourse. HazimDelićrapedherduringfirstinterrogation andduringthenext repeated incidentsofforcible sexualintercourse, includingbothvaginalandanal Witness A, to August 1992,HazimDelićsubjectedadetainee,here identifiedas Sometime beginningaround 15June1992andcontinuinguntilthebeginningof Paragraph 25oftheIndictmentstatesthat: Torture A-Counts21,22and23 andRape ofWitness International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 289 - ’s testi- ć’s . The Trial Chamber Trial The ć. 911 . Further, the probative value of these prior statements is con- the probative . Further, 912 , that she was subjected to three rapes by Hazim DeliHazim by rapes three to subjected was she that , ’s testimony as a whole compelling and truthful, particularly in light of her ć’s . She consistently stated under cross examination that, when she made those ć. She consistently stated under cross (c) Discussion and Findings - of reli the testimony of a victim of sexual assault the same presumption to accords crimes, something long been denied to ability as the testimony of victims of other law. victims of sexual assault by the common The Trial Chamber notes that Sub-rule 96(i) of the Rules, provides that no cor Chamber notes that Sub-rule 96(i) of the Rules, provides The Trial Despite the contentions of the Defence, the Trial Chamber accepts Ms. AntiMs. accepts Chamber Trial the Defence, the of contentions the Despite the Statute of the Tribunal and recognised by Article 3(1)(a)(cruel treatment) of the treatment) Article 3(1)(a)(cruel by and recognised of the Tribunal the Statute Geneva Conventions. The Trial Chamber thus finds that Ms. Antić was raped for the first time on the night The Trial i prison-camp. After her arrival, she was detained in Building A along with other After her arrival, she was detained prison-camp. elebići with another woman, together she was immediately interrogated prison-camp, elebići roboration of the victim’s testimony shall be required. It agrees with the view of the Trial with the view of the Trial It agrees required. testimony shall be of the victim’s roboration sub-Rule: Judgment, quoted in the Akayesu Judgment, that this Chamber in the Tadic 955. Ms. is a Bosnian Serb bornAntić the village of Idbar in 1948. In 1992, she lived in taken to the in her village on 15 June 1992 and arrested She was with her mother. Č at the on 31 August 1992. Upon her arrival until her release she was kept women, where Č In answer to a question by Mr. ć and another person. by Hazim Delić, Zdravko Muci Delić, to Mr. said ć Muci Mr. at which point was not married, Mucić, she stated that she “[t]his is just the right type for you”. 956. 957. mony, and finds, on this basis, and the supporting evidence of Ms. Ćećez, Witness P and mony, Grubač Petko Dr. finds Ms. Anti demeanor in the court room of each rape and her of the circumstances detailed recollection alleged inconsistencies between The under cross-examination. in general and, particularly, sufficiently explained immaterial and were are her evidence at trial and prior statements by Ms. Anti the rapes that she had “kept prior statements, she was experiencing the shock of reliving inside for so many years” […] siderably less than that of direct sworn- siderably less than that of direct testimony which has been subjected to cross-exam ination. 958. A and of her arrival in the prison-camp. On this occasion she was called out of Building 290 Gender-based Violence this?” she exclaimed,“Oh,fuckyou,God,incaseyouexist.Whydidnotprotect mefrom 959. and continuedtothreaten andcurseher. by penetratinghervaginawithhispenis,heejaculatedonthelowerpartofstomach while shetookherclothes off andordered hertolieonabed.Mr. Delićthenrapedher ened herandignored hercryingpleasforhimnottotouchher. Hepointedarifleather another camporshewouldbeshot.Mr. Delićordered hertotakeclothesoff, threat- rogate her and told her that if she did not do whatever he asked she would be sent to brought toHazimDelićinBuildingB,whowaswearingauniform.Hebeganinter 960. was alsoreported byMs.Ć ećez andDr. Gruba and thesevere emotional psychological suffering andinjuryexperiencedbyMs.Antić miserably [sic],Iwasconstantlycrying.likecrazy, asifIhadgonecrazy” crying? This will not be your last time”. Ms. Antić stated during her testimony “I felt so sleeping andshebegancryinguponseeinghim.Hethensaidtoher“[w]hyare you etration bythepenis,undercircumstances thatwere undoubtedlycoercive, constitute 962. on herabdomen. to hisbootsandrapedherbypenetratingvaginawith penis.Hethenejaculated on thebed.Shedidsounderpressure andthreat. Mr. Delićthenpulledhistrousers down she wasasickwomanandaskedhimnottotouchher. Heordered hertoundress andget armed withhandgrenades, apistolandrifle.Hethreatened herandsheagainsaidthat 961. from heranus,whichshetreated withacompress, andwasprovided withtranquillisers. abdomen. AftertherapeMs.Antić heraround turned andpenetratedhervaginawithhispenis ejaculatedonherlower from pain. He was unable to penetrate her fully and she started to bleed. Mr. Delić around andkneel.Afterdoing sohepenetratedheranuswithhispeniswhileshescreamed would killhershecompliedwithhisorders. Mr. Delić She kepttellinghimthatshewassickandaskingnottotouchher. Outoffearthathe on adesk.Shestartedcryingonceagainoutoffear. Heordered her totakeherclothesoff. she wasfirstraped,where Delić to goBuildingBwashherself.Afterdoingso,shewasledthesameroom inwhich She wasbrought backto her room inBuildingAtears,where shestated that The secondrapeoccurred when HazimDelić The Trial Chamberfindsthatactsofvaginal penetrationbythepenisandanalpen- The third rapeoccurred inBuildingA.ItwasdaylightwhenHazimDelićcamein, 913 . Thefollowingday, HazimDelićcametothedoorofroom where shewas , who had a pistol and a rifle and was in uniform, was sitting , whohadapistolandriflewasinuniform,sitting continued crying, felt very ill and experienced bleeding continuedcrying,feltveryillandexperiencedbleeding č . cametoBuildingAandordered Ms.Antić told her to get on the bed and to turn toldhertogetonthebedandturn 914 . Therape then then - International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 291 Case No. 10.970, 1 i prison-camp and on each occasion prison-camp and elebići Tadic Jurisdiction Decision, para. 70. Jurisdiction Decision, para. Tadic 1,2 Sept. 1998. Chamber Trial Jean-Paul Akayesu, Case No. ICTR-96-4-T, Prosecutor v. Ibid., p. 241. Commission on Human Rights, Report No. 5/96, Annual Report of the Inter-American 1996. March Ibid., p. 187. Ibid., p. 185. Ibid., p. 186 (footnote omitted). Ibid., p. 187 16 November 1998 Case No.: IT-96-21-T para. 40, sub-para. 4. v.Aydin Turkey, Č inside the committed were The rapes physical mental and caused severe these rapes question that be no can there Finally, under count guilty of torture Chamber finds Hazim Delić the Trial For these reasons,

ndnotes E 225 492 493 494 495 496 497 498 499 500 who was an official of the ć who was an by Hazim Deli intentionally committed rapes were rape. These prison-camp. running the Bosnian authorities 963. ć. The Ms. Anti towards and viciously threatening Hazim Delić was in uniform, armed at least . Further, Antić and punish Ms. coerce intimidate, was to purpose of these rapes Ms. Antić, to obtain information from purpose was Delić’s to the first rape, with respect by suffered In addition, the violence in the context of interrogation. as it was committed As was inflicted upon her by Delić because she is a woman. Ms. Antić in the form of rape, of discrimination which constitutes a prohibited a form represents discussed above, this of torture. purpose for the offence 964. at the hands of the rapes that she suffered to Ms. Antić. The effects pain and suffering pain of anal penetration and subsequent bleeding, of Hazim Delić, including the extreme - being raped under circum evidenced by the victim while psychological distress the severe of her life, and the general depression Delić was armed and threatening Mr. stance where the feeling that she was going crazy and the the victim, evidenced by her constant crying, with tranquilizers, demonstrate most emphatically the severe fact that she was treated that she endured. pain and suffering 965. multiple rapes of Ms. Antić. (…) 21 and count 22 of the Indictment for the […] 292 Gender-based Violence 914 913 912 911 906 905 904 903 509 508 507 506 505 504 503 502 501

T. 1777-T. 1780. T. 1780. T. 1825andT1837. Tadic Judgment,para.536andAkayesu134. T. 551. T. 503 T. 494. Transcription (laterT).496. June 1998,para.55. Conflict”; FinalReportsubmittedbyMs.GayJ.McDougall,SpecialRapporteur, E/CNAISub.2/1998/13, “Contemporary FormsofSlavery:SystematicRape,SexualSlaveryandSlavery-likePracticesduringArmed Commission ofExpertsReport,AnnexesIXtoXIIS/1994/6741Add.2(Vol. V),para.25. Report oftheSpecialRapporteur, para.119. Rights resolution 1992/32, E/CNA/1995/34, para.16. ment” ReportoftheSpecial Rapporteur, Mr. Nigel S. Rodley, submitted pursuant toCommission on Human tention orimprisonment,inparticular:torture andothercruel,inhumanordegradingtreatment orpunish- E/CNA/1992/SR.21, para.35.See“Questionofthehumanrightsallpersonssubjectedtoanyformde- Akayesu Judgment,para.597. Dissenting OpinionofJudgePettiti,p.41. Ibid., czyk andGotchevontheAllegedIll-treatment (Art.3oftheConvention),p.4S. Ibid., Ibid., paras.83and86(emphasisadded). Ibid., para.82. p. 38.JointDissentingOpinionofJudgesGolctiklti,Matscher, Pettiti,DeMeyer, LopesRocha,Makar Partly Concurring,DissentingOpinionofJudgeMatscher, p.40,andPartlyConcurring, 22 - International Criminal Tribunal for the former Yugoslavia

Case Nº IT-95-17/1-T

Prosecutor v. Anto Furundžija

Judgment of December 10, 1998 294 Gender-based Violence doubt thatthefollowingfindingsmaybemade. 120. H. […] […] tion”, andtheDefenseforaccused,Trial Chamber, with thewrittenandoralsubmissionsofOfficeProsecutor, hereafter “Prosecu- Having considered allofthe evidencepresented toitduringthecourseofthistrial,along 1998. Tribunal”,ternational commencedon8June1998andcametoaclose12November ian Law Committed in the Territory of the Former Yugoslavia since 1991, hereafter “In- Humanitar the Prosecution of International of Persons Responsible for Serious Violations on8July1969,beforewho wasborn this Trial Tribunal ChamberoftheInternational for The trial of AntoFurundžija, hereafter “accused”, a citizen of Bosnia and Herzegovina known astheJokers.Shewas drivenbycartotheBungalow, theheadquartersof ment in Vitez byseveral membersofaneliteunitsoldiersattachedtotheHVO ment inVitez 122. coming andgoing. E,andmostofthetimein presencethe presence oftheaccused whowas ofWitness cused Binparticular, beathimwithhisfistsandonthefeettoes abaton,in the accused and Accused B. He was interrogated and assaulted by both of them. Ac- D was arrested121. On or about 16 May and 1993, taken Witness to the Bungalow by t V. H I. I ereby ntroduction N 1. Having considered theevidence, theTrial Chamberissatisfiedbeyond reasonable Factual Findings On or about 18 or 19 May 1993, Witness Awasarrested andtakenfromOn orabout1819May1993, Witness herapart- he adioc The Arrest

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- International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 295 149 In the Pantry In the Large Room The interrogation of Witness A continued in the pantry, once more before an au- before once more of WitnessThe interrogation A continued in the pantry, Witness A was interrogated by the accused. She was forced by Accused B to un- Witness by the accused. She was forced A was interrogated to Witnessproceeded who B, Accused of custody the in accused the by left was A and public humili- Witness physical and mental suffering A was subjected to severe 3. On arrival at the Bungalow, Witness the Holiday to a nearby house, A was taken at the Bungalow, On arrival 2. 127. by a small blanket, she was interrogated dience of soldiers. Whilst naked but covered and by the accused. She was subjected to rape, sexual assaults, and cruel, inhuman by Accused B. Witness by the accused and degrading treatment D was also interrogated and subjected to serious physical assaults by Accused B. He was made to watch rape him to admit to force in order sexual assault perpetrated upon a woman whom he knew, humiliated. both witnesses were In this regard, allegations made against her. 124. a substantial number of soldiers. She was subjected to naked before remain and dress serious physical assault by Ac- of and to threats cruel, inhuman and degrading treatment was abuse this of purpose The accused. the by interrogation her of course the in B cused her connection with the ABiH# Witnessto extract information from A about her family, to degrade and humiliate soldiers, and also with certain Croatian and her relationship parallel to each Accused B were by the accused and the abuse by The interrogation her. other. 125. and degrade her. and to physically abuse sexually assault her, rape her, 126. ation. 123. described a room entered part of the Bungalow complex. She Cottage, which formed and the Jokers lodged. She was told to sit down where which was as the large room, in Jokers uniforms, dressed the soldiers, her, and paté to eat. Around bread was offered with her. to as ‘the Boss’, who was going to deal the man referred awaited the arrival of Witness and the man she has someone announce the arrival of ‘Furundžija, then heard A Furundžija, the accused, Trial Chamber as being Anto of the identified to the satisfaction in his hands. holding some papers the room entered Jokers. Soldiers and several commanders of different units were based at the Bungalow, Bungalow, based at the units were of different and several commanders Jokers. Soldiers B, Vlado Šantić and others. the accused, Accused were among whom 296 Gender-based Violence as aformerRepublicofthatfederal State,continuestoapplyananalogousprovision. as warcrimesbyarticle142ofthe PenalCodeoftheSFRY andthatBosniaHerzegovina, 167. protections afforded therein. to observethemostimportantprovisions oftheGenevaConventionsandtogrant as statedinparagraph135above,on22May1992,theparties totheconflictundertook Geneva ConventionsandbothAdditionalProtocols on31December1992.Furthermore, apply quatreaty lawinthecase hand becauseBosniaandHerzegovinaratifiedthe refers torape,andarticle4ofAdditionalProtocol II,whichexplicitlymentionsrape, 166. same treaties. serious sexualassaultsare expressly orimplicitlyprohibited invariousprovisions ofthe C. […] information from Witness A and Witness D. AandWitness information from Witness question, whileAccusedB’s role wastoassaultandthreaten inorder toelicittherequired process ofinterrogation byperformingdifferent functions.Therole oftheaccusedwasto 130. physical andmentalsuffering andtheywere alsopubliclyhumiliated. 129. the accused’s interrogation. were being committed. In fact, the acts by Accused B were performed in pursuance of ent inthenearvicinity, justoutsideanopendoorandheknewthatcrimesincludingrape ent intheroom ashecarriedonhisinterrogations. When notintheroom, hewaspres- 128. of 1949 165. Rape intimeofwarisspecificallyprohibited bytreaty law:theGenevaConventions VI. T In addition,theTrial Chambernotesthatrape andinhumantreatment were prohibited At leastcommonarticle3totheGenevaConventionsof1949, whichimplicitly 1. Law RapeandOtherSeriousSexualAssaultsinInternational There isnodoubtthatthe accusedandAccusedB,ascommanders,dividedthe It isclearthatinthepantry, Dwere subjectedtosevere AandWitness bothWitness A.Theaccusedwaspres Dandrepeatedly- rapedWitness Accused BbeatWitness he 189 , AdditionalProtocol Iof1977 International HumanitarianLaw L aw 192

190 andAdditionalProtocol II of1977. 191 Other International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 297 or an act 197 The former 194 - along with the ripen 195 and the general provisions contained in article contained in provisions and the general 193 if the requisite elements are met, and may be prosecuted accordingly. met, and may be prosecuted elements are if the requisite 198 International Human Rights Law Rape Under the Statute The right to physical integrity is a fundamental one, and is undeniably part of The right to physical integrity is a fundamental 196 The prosecution of rape is explicitly provided for in Article 5 of the Statute of the of rape is explicitly provided The prosecution The prohibition of rape and serious sexual assault in armed conflict has also evolved has also evolved assault in armed conflict and serious sexual of rape The prohibition It is indisputable that rape and other serious sexual assaults in armed conflict entail It is indisputable that rape and other serious 2. In certain circumstances, however, rape can amount to torture and has been found torture rape can amount to however, In certain circumstances, 3. 170. No international human rights instrument specifically prohibits rape or other serious 170. No international human rights instrument specifically prohibits by the provisions prohibited implicitly are sexual assaults. Nevertheless, these offences international contained in all of the relevant which are physical integrity, safeguarding treaties. 172. Rape may also amount to a grave as a crime against humanity. International Tribunal of the Geneva Conventions, a violation of the laws or customs of war breach of genocide, Foreign Minister of Japan, Hirota, was also convicted for these atrocities. This decision This decision also convicted for these atrocities. was Minister of Japan, Hirota, Foreign States Military Commission in Yamashita, and that of the United 168. prohibition express out of the It has gradually crystallised internationalin customary law. Code article 44 of the Lieber of rape in ing of the fundamental prohibition of “outrages upon personal dignity” laid down in of “outrages upon personal dignity” prohibition ing of the fundamental of evolution the to contributed has internationalcustomary into 3 article common law, rape as well as serious sexual universally accepted norms of international law prohibiting applicable in any armed conflict. assault. These norms are 169. the criminal liability of the perpetrators. customary international law. 171. torture, by international judicial bodies to constitute a violation of the norm prohibiting as stated above in paragraph 163. 46 of the regulations annexed to Hague Convention IV, read in conjunction with the in conjunction read Convention IV, annexed to Hague regulations 46 of the rape and sexual to that Convention. While down in the preamble ‘Martens clause’ laid Tribunal, rape was expressly by the Nuremberg prosecuted not specifically assaults were Council Law No. of Control against humanity under article II(1)(c) classified as a crime of and Matsui Generals Toyoda convicted International Military Tribunal 10. The Tokyo by their of the laws or customs of war committed for violations command responsibility rapes and sexual assaults. which included widespread soldiers in Nanking, 298 Gender-based Violence penis. oral cavity, by thepenisandsexualpenetrationofvulvaoranusisnotlimitedto other object.Inthiscontext,itincludespenetration,howeverslight,ofthevulva,anusor penetration of the vagina, the anus or mouth by the penis, or of the vagina or anus by body parts”. ments ofthecrimerapecannotbecaptured inamechanicaldescriptionofobjectsor lawoneshould startfromrape ininternational theassumption that“thecentralele- 176. forms ofserioussexualassaultthrough Article5(i)as“otherinhumanacts”. explicitly provides fortheprosecution ofrapewhileitimplicitlycoversotherlessgrave This is,interalia,confirmedbyArticle5oftheInternational Tribunal’s Statute,which forms ofsexualabuse,regards rapeasthemostseriousmanifestationofsexualassault. law,that international byspecificallyprohibiting rapeaswellas,ingeneralterms,other ditional Protocol Iandarticle 4(2)(e)ofAdditionalProtocol II.Theinference iswarranted of indecentassault”onwomeninarticle27GenevaConventionIV, article76(1)ofAd- attention mustbedrawntothefactthatthere isprohibition ofbothrapeand“anyform fromindications canbediscerned theprovisionstreaties. ofinternational Inparticular, 175. dignity includingrape. 1998, theTrial ChamberheldthatArticle3oftheStatutecoversoutragesuponpersonal Counts 13and14oftheIndictment(LackSubject-MatterJurisdiction)”29May paragraph 133ofthisJudgment.Inits“DecisionontheDefendant’s MotiontoDismiss 173. Theall-embracingnature ofArticle3theStatutehasalready beendiscussedin state thefollowing: focus “ontheconceptualframeworkofStatesanctionedviolence”. subjected toviolence,detention,duress orpsychologicaloppression”. implied andmustplacethevictiminreasonable fearthathe,sheorathird personwillbe or threats of force against the victim or a third person, such threats being express or trial Briefthatrapeisaforcible act:thismeansthattheactis“accomplishedbyforce 174. Trial ChamberIoftheICTRhasheldinAkayesuthattoformulateadefinition of law.No definitionofrapecanbefoundininternational However, somegeneral 4. rape is a violationofpersonal dignity, and rape in fact constitutestorture when tion, discrimination,punishment, control ordestruction of aperson.Liketorture, Like torture, rape is used for such purposes as intimidation, degradation, humilia- The Trial Chamber notestheunchallengedsubmissionofProsecution initsPre- 200 The DefinitionofRape 202 According tothatTrial Chamber, lawitismore ininternational usefulto 203 Itthenwentonto 199 Thisactisthe 201 International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 299 account must be taken of the specificity of of account must be taken of the specificity 206 204 205 This Trial Chamber notes that no elements other than those emphasised may be that no elements other than those emphasised Chamber notes This Trial reli- internationalWhenever law, criminal of notion a define not do rules criminal inflicted by or at the instigation of or with the consent or acquiescence of a public or acquiescence of or with the consent or at the instigation inflicted by rape as The Chamber defines in an official capacity. others person acting official or under circumstances on a person committed nature, invasion of a sexual a physical coercive. which are The Trial Chamber would emphasise at the outset, that a trend can be discerned that a trend Chamber would emphasise at the outset, The Trial 177. of to general principles nor is resort or customary law, international treaty drawn from international international criminal law or to general principles of The law of any avail. based arrive at an accurate definition of rape considers that, to Chamber therefore Trial to by the referred also (Bestimmtheitgrundsatz, of specificity on the criminal law principle criminal maxim “nullum crimen sine lege stricta”), it is necessary to look for principles of of the world. These principles may be derived, law common to the major legal systems national laws. with all due caution, from 178. subject to the following conditions: (i) unless ance upon national legislation is justified, should not be made to one national legal indicated by an international rule, reference international say that of common-law or that of civil-law States. Rather, system only, and legal institutions common to all the courts must draw upon the general concepts of identification of the a process presupposes major legal systems of the world. This so as to pinpoint the basic notions they common denominators in these legal systems them since “international that differentiate (ii) a number of features share; trials exhibit criminal proceedings”, national from This definition has been upheld by Trial Chamber II quater of the International Tribunal InternationalTrial Chamber II quater of the been upheld by This definition has in Delalić. international criminal proceedings when utilizing national law notions. In this way a utilizing national law notions. In this way a international when criminal proceedings national law into international from criminal mechanical importation or transposition is avoided, as well as the attendant distortions of the unique traits of such proceedings proceedings. 179. so rape of definition the broadening of States of number a of legislation national the in classified as comparatively less serious previously that it now embraces acts that were shows that at the national level that is sexual or indecent assault. This trend offences, serious forms of sexual assault: the stigma States tend to take a stricter attitude towards of course they provided category of sexual offences, of rape now attaches to a growing physical penetration. chiefly that of forced meet certain requirements, 300 Gender-based Violence law jurisdictionsoftenusewording openforinterpretation bythecourts. threat, oractingwithoutthe consentofthevictim: all jurisdictionssurveyedbytheTrial Chamberrequire anelement offorce, coercion, woman, though thelawsofmanycountriesspecifythatrapecanonlybecommittedagainsta 180. outrages upontheirpersonaldignity, whether suchoutragesare carried outbyunlaw- law.whole bodyofinternational Thisprincipleisintendedtoshieldhumanbeingsfrom timesithasbecomeofsuchparamountimportance astopermeatethe indeed inmodern indeed theveryraisond’être humanitarianlawandhumanrightslaw; ofinternational gender. Thegeneralprincipleofrespect forhumandignityisthebasicunderpinningand rights lawliesintheprotection ofthehumandignityeveryperson,whateverhisorher humanitarian law as well as human The essence of the whole corpus of international sexual organconstitutesamosthumiliatinganddegradingattack uponhumandignity. 183. law.international criminallawor,international ifsuchprinciplesare ofnoavail,tothegeneral principlesof whether an appropriate solution can be reached by resorting to the general principles of other States.Facedwiththislackofuniformity, itfallstotheTrial Chambertoestablish oral penetration:someStatestreat itassexualassault,whileiscategorizedrapein 182. of anyotherobjectintoeitherthevaginaoranus. the forcible sexual penetration of the human body by the penis or the forcible insertion crepancies, mostlegalsystems inthecommonandcivillawworldsconsiderrapetobe 181. vary widely. maximum oflifeimprisonment,butthetermsthatare imposedbyvariousjurisdictions her especiallyvulnerablesuchasmentalillness.Rapeisalmostalwayspunishablewitha age ofthevictim,andfactthatvictimsuffers acondition,whichrenders him/ causing thedeathofvictim,factthatthere were multipleperpetrators,theyoung tion, howeverslight,ofthefemalesexualorganbymaleorgan. The lawsofseveraljurisdictionsstatethattheactusreus ofrapeconsiststhepenetra- and includesrendering the victimhelpless. also jurisdictionswhichinterpret theactusreus ofrape broadly. intimidation canbedirected atathird person. In itsexaminationofnationallawsonrape,theTrial Chamberhasfoundthatal- The Trial Chamberholdsthattheforced penetrationofthemouthbymale A majordiscrepancy may, however, inthecriminalizationofforced bediscerned It isapparent from oursurveyofnationallegislationthat,inspiteinevitabledis- 207 othersprovide that rape canbe committed against a victimofeither sex. 213 Somejurisdictionsindicatethattheforce or 214 Aggravatingfactorscommonlyinclude 212 force isgivenabroad interpretation 210 Theprovisions ofcivil 211 Furthermore, 209 There are 208

International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 301 Moreover, the Trial Chamber is of the opinion that it is not contrary to the general it is not contrary is of the opinion that Chamber the Trial Moreover, Chamber finds that the following may be accepted as the objective Thus, the Trial (i) the sexual penetration, however slight: other any or perpetrator the of penis the by victim the of anus or vagina the of (a) object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; person. against the victim or a third of force or threat or force (ii) by coercion fully attacking the body or by humiliating and debasing the honor, the self-respect or the or the self-respect the honor, and debasing the body or by humiliating fully attacking an extremely this principle that such It is consonant with being of a person. mental well classified as rape. should be oral penetration outrage as forced serious sexual 184. oral sex as rape forcible sine lege to charge an accused with principle of nullum crimen only be charged with jurisdictions, including his own, he could when in some national acts which same acts. It is not a question of criminalizing of the sexual assault in respect oral sex is by the accused, since forcible committed were not criminal when they were due to the nature serious crime. Indeed, and indeed an extremely in any event a crime, - the Tri before in prosecutions subject-matter jurisdiction, of the International Tribunal’s committed in time an aggravated sexual assault as it is oral sex is invariably bunal forced sexual assault but sexual defenseless civilians; hence it is not simple of armed conflict on so long as an accused, who Therefore assault as a war crime or crime against humanity. oral penetration, is sentenced on the factual basis is convicted of rape for acts of forcible the sentencing practice in the with oral sex – and sentenced in accordance of coercive pursuant to Article 24 of the Statute and Rule 101 for such crimes, former Yugoslavia sex oral forced of categorisation the by affected adversely not is he then – Rules the of stigma at- only complaint can be that a greater as rape rather than as sexual assault. His one than a convicted sexual assailant. However, taches to being a convicted rapist rather oral sex can be just as forced that above to the effect should bear in mind the remarks or anal penetration. Thus the notion that humiliating and traumatic for a victim as vaginal or anal penetration than to vaginal stigma attaches to a conviction for forcible a greater attitudes. Moreover of questionable oral penetration is a product a conviction for forcible hu- any such concern protecting is amply outweighed by the fundamental principle of definition of rape. the a principle which favors broadening man dignity, 185. elements of rape: 186. As pointed out above, international criminal rules punish not only rape but also any - serious sexual assault falling short of actual penetration. It would seem that the prohibi moral and physical the upon inflicted nature sexual a of abuses serious all embraces tion 302 Gender-based Violence committing thecrimesoftorture andoutragesuponpersonaldignity, includingrape”. further beatingandsexualabuseoccurred, marks(sic)theaccusedasadirect perpetrator another room, bybringing intheotherpersonforconfrontation, andremaining while interrogation A,bytransferringthevictimto underthecircumstances describedbyWitness opening statementthefollowingassertionwasmade:“We saythatbyconductingan bility applicablethereto. function, and it is appropriate to elaborate the principles of individual criminal responsi- torture typicallyinvolvesalargenumberofpeople,each performing hisorherindividual as a perpetrator and who as an aider and abettor, timesthe infliction of since in modern Chamber deemsitusefultoaddress theissueofwhomaybeheldresponsible fortorture apply equallytorapeandtorture, andindeedtoallcrimes.Nevertheless,theTrial 250. E. […] head ofcriminalresponsibility withinthelimitsofAmendedIndictment. committed thecrimesallegedagainsthim,toconvictaccusedunderappropriate it isempowered andobliged, ifsatisfiedbeyond reasonable doubtthattheaccusedhas specification andleftthe Trial Chamberthediscretion toallocatecriminal responsibility, 189. material forthepurposesofsentencing. law,criminalised ininternational thedistinctionbetweenthemisonethatprimarily is degradingandhumiliatingforthevictim’s dignity. Asboththesecategoriesofactsare integrity ofapersonbymeanscoercion, threat of force orintimidationinawaythat be trying the accused forcommittingrapeas the direct perpetrator. Tribunal”International filedon31March 1998,theProsecution claimedthatitwouldnot ity fordirect perpetration. In the“Prosecutor’s ReplyRe:Article7(1)oftheStatute 188. as aidingandabettingintheperpetration,are prohibited. serious sexualassault,butalsotheplanning,ordering orinstigatingofsuchacts,aswell 187. The definitionsandpropositionsaidingabetting enunciatedabove concerning How to Distinguish Perpetration of Torture from Aiding and Abetting Torture The Trial Chamber findsthatastheProsecution has relied onArticle 7(1)without 5. There hasbeensomevariation intheProsecution’s responsibil allegationsconcerning - It followsfrom Article7(1) oftheStatutethatnotonlycommissionrapeor Individual CriminalResponsibility 215 However, in the 216 International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 303 Under current international law, individuals must refrain from perpetrating torture torture perpetrating from must refrain individuals international law, Under current torture of co-perpetrator or perpetrator a is individual an whether determine To of the cus- based on a logical interpretation which are These legal propositions, it to fail to take account of these modern would trends, were International law, 251. participating in torture. or in any way 252. as regarded be to even not or is and abettor, as an aider regarded instead be or must who takes part in the crucial to ascertain whether the individual criminally liable, it is - (that is, acts with the inten behind torture also partakes of the purpose process torture intimidating, humiliating or or a confession, of punishing, tion of obtaining information against the or of discriminating, on any ground, person, the victim or a third coercing support and assistance of sort some gives but not, does he If person). third a or victim be may individual the then practised, being is torture that however knowledge the with if the person Arguably, and abetting in the perpetration of torture. found guilty of aiding nor in any the purpose behind torture in shares neither process attending the torture as criminally liable she should not be regarded way assists in its perpetration, then he or session torture a attend to ordered has superior a whom soldier the of example for (think and thus be determine whether that soldier can stomach the sight of torture to in order trained as a torturer). 253. of these rules. To supported by a teleological construction are tomary rules on torture, taken of some modern in many States demonstrate this point, account must be trends they tend to “compartmentalise” and “dilute” the moral and psy- practicing torture: a partial individuals different by assigning to of perpetrating torture chological burden orders Thus, one person process. in the torture minor) role (and sometimes relatively at the administrative be carried out, another organises the whole process that torture a fourth one provides is being tortured, level, another asks questions while the detainee or causes another physically inflicts torture the tools for executing torture, or prepares another furnishes the detainee from assistance so as to prevent mental suffering, medical the of traces physical showing subsequently from or torture of consequence a as dying known to be of interrogation the results he has undergone, another processes sufferings of the the information gained as a result and another procures obtained under torture, prosecution. immunity from in exchange for granting the torturer torture 254. unable to cope with this despicable practice. The rules of construction emphasizing prove the importance of the object and purpose of international norms lead to the conclusion persons equally accountable, al- that international all the aforementioned law renders - than others, depending upon the circum severely though some may be sentenced more 304 Gender-based Violence 257. videtur (hewhoactsthrough othersisregarded asactinghimself)fullyapplies. in suchinfliction.Here the criminallawmaximquisperaliumfacitseipsumfacere causing thesevere painor suffering, evenifhedoesnotinanywayphysicallyparticipate is inflictingsevere painor suffering, theinterrogator isasguiltyoftorture astheperson follows, 256. It torture butalsoanydeliberate participationinthispractice. 1985, from whichitcanbe inferred thattheyprohibit notonlythephysicalinfliction of contained intheTorture Conventionof1984andtheInter-American Conventionof 255. pursuance ofoneitsunderlyingpurposes,are equallyliable. all thosewhoinsomedegree participateinthecrimeandparticulartakepart condemnationoftorture,the intensityofinternational suggestthatincasetorture stances. Inotherwords, thenature ofthecrimeand theformsthatittakes,aswell Thus tosummarisetheabove: purposes. degree of direct participation as principals may still be a matter to consider for sentencing and thoseco-perpetratorsshouldallbeheldtoprincipals. Nevertheless,thevarying participation intorture shouldberegarded asinstancesofco-perpetrationthecrime By contrast,atleastinthecaseweare nowdiscussing,allothervaryingformsofdirect and abettinginthecommissionoftorture canberegarded asaccessoriestothecrime. knowledge oftheactivitytheyare carryingoutthere. Intheseinstances,thoseaiding there; orbringingfoodand drinktotheperpetratorsatplaceoftorture, againinfull torturers totheplaceoftorture infullknowledgeoftheactstheyare goingto perform sion of torture may only exist in such very limited instances as, forexample,driving the within verynarrow confines. Thus,itwouldseemthataidingandabettinginthecommis- responsible forencouraging orassistinginthecommissionofcrime)mayonlyoccur those who,whilenotpartakingofthepurposebehindtorture, mayneverthelessbeheld acting asco-perpetratorsofthecrime,accompliceliability(thatis,criminal ture describedsupra,thatis,withmore ispracticedunderthethanone pattern person Furthermore, it follows from the above that, at least in those instances where tor This, it deserves to be stressed, is to a large extent consistent with the provisions date, humiliate,coerce ordiscriminateagainstthevictim or athird person. torture, thatistheintenttoobtaininformationoraconfession, topunishorintimi- participate inanintegralpartof thetorture andpartake of thepurposebehind (i) tobeguiltyoftorture asaperpetrator(orco-perpetrator), theaccusedmust inter alia,thatifanofficialinterrogates adetaineewhileanotherperson 268 - International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 305 of 3 Dec. 1992 and in its recommendations to of 3 Dec. 1992 and in its recommendations entencing common Art. 3, which prohibits “outrages upon personal dignity, and in particular, humiliating and humiliating particular, in and dignity, personal upon “outrages prohibits which 3, Art. common Croatian Defense Council siglo. Croatian Bosnia and Herzegovin Army siglo. D14. 527-529; Defence Exhibit T. Art. 27 of Geneva Convention IV. Art. 76(1). Art. 4(2)(e). See I; and Arts. 85(4)(c) of Additional Protocol Art. Art. 147 of Geneva Convention IV; degrading treatment”; II. In an aide-memoire 4(1) and 4(2)(a) of Additional Protocol the Conference on the Establishment of an International Criminal Court in Rome, July the Conference or serious injury to body or suffering causing great 1998, the ICRC has confirmed that the act of “wilfully in each of the four Geneva Conventions, does include the crime of health”, categorised as a grave breach rape. Instructions for the Government in of Armies of the United States (1863)”, reprinted “Francis Lieber, (eds.), The Laws of Armed Conflicts (1988), p. 10. Schindler and Toman for the Far East (1977), Judgment: The International Military Tribunal See Roeling and Ruter (eds.), The Tokyo vol. I, p. 385. for rape, and this was punished as a war crime. was found to be command responsibility In this case, there [. . .] to consider a commander a murderer In its decision of 7 Dec. 1945 the Commission held: “It is absurd The accused, Anto Furundžija, has been found guilty on Count 13, a Violation has been found guilty on Count The accused, Anto Furundžija, of (ii) to be guilty of torture as an aider or abettor, the accused must assist in some way the accused must as an aider or abettor, of torture (ii) to be guilty and with knowledge crime of the on the perpetration effect a substantial which has place. is taking that torture

ndnotes E VIII. s * # 149 189 190 191 192 193 194 195 A. Introduction 276. and Count 14, a Violation of the Laws or Cus- (torture), of War the Laws or Customs 3 of the rape) both under Article upon personal dignity including (outrages toms of War to Trial Chamber will proceed of guilt that the Statute. It is pursuant to these findings sentence him. […] […] 306 Gender-based Violence 204 203 202 201 200 199 198 197 196

(Text reprinted inFriedman(ed.),TheLawofWar (1972),vol.II,p.1597). for thelawless acts ofhistroops, dependingupontheirnature andthecircumstances surrounding them”. discover andcontrol thecriminalacts,suchacommandermaybeheldresponsible, evencriminallyliable, vicious, revengeful actionsare widespread offences, andthere isnoeffective attemptbyacommanderto or rapist because oneofhis soldiers commits a murder orrape.Nevertheless, where murder andrape Ibid., paras.597-598. Ibid. Case No.ICTR-96-4-T, para.597. tion 47/133of18Dec.1992andtheInter-American Conventionon HumanRightsof1969). Secretary-General), or the enforced disappearance of persons (prohibited by the General Assembly resolu- human rights and covered by the provisions of humanitarian law just mentioned as well as the Report of the prostitution instrumentson (indisputablyaseriousattackonhumandignitypursuanttomostinternational Council resolution 808(1993)S/25704,para.48,hereafter “ReportoftheSecretary-General”), enforced Protocol I,andmentionedintheReportofSecretary-General pursuanttoParagraph2ofSecurity of rapeproper (rapeisspecificallycovered byArt.27ofGenevaConventionIVand75Additional humanitarian law. Theexpression atissueundoubtedly embracessuchactsasserioussexualassaultsshort instrumentsonhumanrightsor Covenants onHumanRightsof1966andotherinternational such asthoselaiddownintheUniversalDeclarationonHumanRightsof1948, thetwoUnitedNations standardsThe parametersforthedefinitionofhumandignitycanbefoundininternational onrights Ibid., p.15. Prosecution’s Pre-trial Brief,p.15. Art. 4oftheStatute. Art. 3oftheStatute. one shallbesubjectedtotorture ortocruel,inhumandegradingpunishmenttreatment.” which “[e]verypersonhastherighttohavehisphysical,mentalandmoralintegrityrespected” and“[n]o The Inter-American ConventiononHumanRightsenshrinestherighttohumanetreatment inArt.5,under of theperson,andalsounderArt.5whichprohibits allformsofcruel,inhumananddegradingtreatment. and otherserioussexualassaultsare caughtbyArt.4asviolationsoftherighttorespect fortheintegrity physical and mentalviolence” (para. 83). psychological scarsonthevictimwhichdonotrespond tothepassageoftimeasquicklyotherforms fender canexploitthevulnerabilityandweakenedresistance ofthevictim.Furthermore, rapeleavesdeep considered tobeanespecially graveandabhorrent formofill-treatment given the easewithwhichof- the treatment underArt.3as aresult oftherapescommittedbyTurkish troops againstCypriotwomen.In Human RightsfoundthatTurkey hadviolateditsobligationtoprevent andpunishinhumanordegrading tee underthisprovision. In thecaseofCyprusv. Turkey,the European 4EHRR482(1982), Commission of to prevent orpunishrapeandserioussexualassaultshavebeenbrought totheHumanRightsCommit- Art. 7oftheICCPRprohibits cruel,inhumanordegrading treatment, andcomplaintsallegingStatefailure Aydin case, theEuropean Court found thatrapeofadetaineebyanofficialtheState“mustbe Under theAfrican Charter on HumanandPeoples’Rights,rape International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 307 See the Criminal Code of New South Wales s. 61 H (1). 61 s. Wales South of New Code Criminal the see Section 361 (2) of the Chilean Code; Art. 236 of the Chinese Penal Code (Revised) 1997; Art. 177 of Code (Revised) 1997; Art. 236 of the Chinese Penal of the Chilean Code; Art. Section 361 (2) the U.S. Proposal to the U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an of Establishment the on Plenipotentiaries of Conference Diplomatic U.N. the to Proposal U.S. the Art. 201 of the Austrian Penal Code (StGB); French Code Pénal Arts. 222-23; Art. 519 of the Italian Art. 519 of the Arts. 222-23; Code Pénal French (StGB); of the Austrian Penal Code Art. 201 Section 375 of the Pakistani Penal Code 1995; Art. 375 of the Indian Penal Code; The Law of South Penal Code 1995; Art. 375 of the Indian Penal Code; Section 375 of the Pakistani See also International Criminal Court (19 June 1998 A/CONF.183/C.1/L/10). who by an act of violence or another act or by See e.g. the Dutch Penal Code stating in Art. 242: “A person to acts comprising or including sexual of another act compels a person to submit violence or threat of threat than twelve years more of not of imprisonment to a term and liable of rape is guilty of the body penetration Code Penal Arts. See also Art. 201 of the Austrian Penal Code (StGB); French or a fine of the fifth category.” 222-23. Act 1956 to 1992. the Sexual Offences See e.g. in England and Wales Penal Code. See Art. 180 of the Dutch Penal Code; Art. 180 of the SFRY a female person XI states that “[w]hoever coerces The Penal Code of Bosnia and Herzegovina (1988) Ch. to endanger her life or body or or threat by force with whom he is not married to, into sexual intercourse one to ten years in prison”. that of someone close to her will be sentenced to between 2: “The 1998, p. 31 March Reply Re: Art. 7(1) of the Statute of the International Tribunal, Prosecutor’s will actual perpetrator of the rape. The Prosecution charges against the accused do not portray him as the 7(1) that the accused “committed” the rape”. under Art. not be attempting to show, 70. Opening Statement, T. Prosecution is under our criminal law See also the Eichmann case: “[. . .] even a small cog, even an insignificant operator, in which case he will be dealt with as an accomplice in the commission of an offence, liable to be regarded para. 541. See p. 323, and Akayesu, Case No. ICTR-96-4-T, or destroyer”, the actual murderer as if he were conceded Steyn: “It is apparently 1998, per Lord 25 Nov. also the Pinochet Judgment of the House of Lords, This distinction flies in would be different. victims the position that if [General Pinochet] personally tortured is no distinction by all civilised legal systems, that there shared the face of an elementary principle of law, to strike”. another between the man who strikes, and a man who orders Case No. IT-96-21-T, para. 479. para. Case No. IT-96-21-T, Judgment, Case Drazen Erdemovic of Judge Cassese, Prosecutor v. and Dissenting Opinion Para. 5, Separate 7 Oct. 1997. No. IT-96-22-A, Africa, W.A. Joubert 1996 at p. 257-8: “The actus reus of the crime consists in the penetration of the female of the crime consists in the penetration p. 257-8: “The actus reus Joubert 1996 at Africa, W.A. Curtis slightest penetration is sufficient.”(R. v. M. 1961 2 SA 60 (O) 63). The sexual organ (R. v. by the male’s must be “carnal knowledge.” This 117 of the Ugandan Penal Code: “[t]here 1926 CPD 385 389); Section in turn means penetration of the Sexual intercourse means sexual intercourse. vagina”. penis into the woman’s man’s intercourse, sexual of definition a broad For Penal Code (as of 1978); Art. 119 of the Argentinian Penal Code. Penal Code (as of 1978); Art. See the German Penal Code (StGB); Art. 177 of the Japanese Penal Code; Art. 179 of the SFRY Penal Code; of the SFRY Art. 177 of the Japanese Penal Code; Art. 179 the German Penal Code (StGB); Penal Code. Section 132 of the Zambian See

211 212 213 214 215 216 268 205 206 207 210 209 208 308 Gender-based Violence International Criminal Tribunal for the former Yugoslavia

Case Nº IT-96-23-T & IT-96-23/1-T

Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković

Foča

Judgment of February 22, 2001 310 Gender-based Violence prevented from moving around town,andwere sometimesputunderhouse arrest. Defense witnesssaidthattheworkingrelationship atthehospitalremained cordial. ers were professionally ostracisedorsimplytoldthatthere wasnoworkforthem. Foča on8April1992,Muslimworkersstoppedreceiving theirsalaryandthatsomeoth - 14. to chargesbrought underArticle5oftheTribunal’s Statute. tence of a “widespread or systematic attack against any civilian population” is relevant to movearound theirvillageswere made. nouncements prohibiting gatheringsandinformingtheMuslims thattheywere not free and surrounding municipalities of Gacko and Kalinovik. a widespread orsystematic attackagainstthecivilianpopulationofFočamunicipality 13. charges underbothArticle3and5oftheTribunal’s Statute. lim forces inthearea ofFoča. 12. A. […] Defense fortheaccused,Trial Chamber with thewrittenandoralsubmissionsofProsecutor (also“Prosecution”) andthe Having considered alloftheevidencepresented toit duringthecourseoftrial,along 20 March 2000andcametoacloseon22November2000. Former Yugoslavia Tribunal” since1991(“International or“Tribunal”), commencedon Humanitarian Law Committed in theTerritory of International Serious Violations of the Trial Tribunal ChamberoftheInternational fortheProsecution ofPersonsResponsiblefor The trial of DragoljubKunarac, Radomir Kovač,ZoranVuković (“accused”), before this ingly restricted, theircommunicationlimitedand gatherings banned. 15. III. E H ereby Several Prosecution witnessesstatedthatinthemonthsleadinguptoattackon The three accuseddeniedthat theincidentsallegedinIndictmentwere partof The partieshaveagreed that anarmedconflictexistedbetweentheSerbandMus- General background Other witnessessaidthatthefreedom ofmovementMuslimcitizenswasincreas- vidence R enders

its J udgment 26 (…)Theexistenceofanarmedconflictis relevant to 32 . Roadblockswere setup,Muslimvillagerswere 28 The requirement of the exis- 31 Publican- 33 29 One 30

International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 311 By mid- 47 FWS-50 was taken FWS-50 was taken 82 a where they had been they had been where ča by FWS-50 in relation to the to the ć by FWS-50 in relation (…) 48 a High School, which was situated in the High School, which was situated in the ča who was armed and in uniform, allegedly for question- ć who was armed and in uniform, allegedly ča. FWS-75 was taken away from the group by a man of 40-50 by a man of 40-50 the group FWS-75 was taken away from 81 a and kept in the Fo ča took her to another room in one of the prefabricated barracks and and barracks in one of the prefabricated ć took her to another room Girls, women and some elderly men who were at Buk Bijela were then then at Buk Bijela were Girls, women and some elderly men who were This rape is not charged in Indictment IT-96-23/1. Therefore, the Trial the Trial Therefore, IT-96-23/1. This rape is not charged in Indictment FWS-62 said that detainees were fed only once every three days and in fed only once every three FWS-62 said that detainees were 85 84 86 Zoran Vukovi Women were kept in various houses, apartments, gymnasiums or schools. Even or schools. Even kept in various houses, apartments, gymnasiums were Women a. The Serbs used heavy artillery to shell used heavy artillery Foča. The Serbs out in 1992, fighting broke On 8 April a was typically achieved achieved was typically Foča around towns and villages of take-over military The a High School were described by many witnesses as ex- Living conditions at Foča High School were 83 he raped her. by the accused Zoran Vukovi ing. years who proceeded to rape her. She was subsequently raped in this very same room raped in this very same room She was subsequently to rape her. years who proceeded 10 other men. She fainted after the tenth man. by approximately rape of FWS-50 with which he is charged in the Indictment. Some other women were were other women Some the Indictment. charged in is which he with FWS-50 rape of able to judge for themselves either told about those rapes or were were but spared considering the condition in which those girls and women were what had transpired back. brought Chamber will not take these facts into account for conviction or sentencing purposes, for conviction or sentencing purposes, Chamber will not take these facts into account Vukovi to the identification of Zoran but it is relevant […] 28. to those detention centers, some witnesses who testified prior to their being brought abused or raped by the Chamber said that they had been physically Trial the before them. Thus, FWS-50, FWS-48, FWS-75 and FWS-87 stated soldiers who had captured raped at Buk Bijela, a settlement south of Fo that they were taken after their capture. […] 21. of resistance. pockets clean out the remaining para-militaries to the town and a had been taken over by the Serb forces. Fighting continued until mid-July in Fighting continued until mid-July by the Serb forces. April, Foča had been taken over being taken municipalities. In the course of those villages villages and the surrounding subjected to the systematically taken, Muslim inhabitants were or as soon they had been pattern described next. of abuses 22. witnesses, Mus- to many but did involve futile violence. According without much fighting from points collecting to and brought up methodically rounded were inhabitants lim exact same manner. attacked in the villages were transported by bus to Fo Aladža neighborhood of Fo 29. poor. tremely 312 Gender-based Violence increased intensity. ees squeezed against each other. including sexual violence, continued with Violence, non-existent andonlyafewgymmattresses were availabletosleepon,withdetain- former detainees. of theHerzegovinaCorps,and thathenevertoured those premises oreventalked to and thatshedidnothaveabathcouldbarely washforabouttwomonths. FWS-192 saidthatthere was justonetoiletforallthedetainees,approximately 70people, had tosleeponmattresses infestedwithlice,andthere were almostnohygiene facilities. scarce, of poor quality and provided erratically. hygiene facilitiesandevenlessfood.Severalofthewitnessesconfirmedthatfoodwas was rapedinfullviewoftheotherdetaineesandherten-yearoldsonatside. Sports Hall,where mostwomenfrom FočaHighSchoolwere transferred next. 30. escaping, but they would notprevent soldiers from entering the facilities. there were oneortwoguards workinginshiftswhowouldprevent thedetaineesfrom neighboring villageswere kept, were, according toseveralwitnesses,appalling. 32. 31. insufficient quantity; allowed togotownbuysomefood,assheknewoneoftheguards. sleep on.Oneoldmanwasalsobeaten. described the general climate of extreme fear that had been instilled. cape, FWS-51describedthehelplesssituationinwhichtheyfound themselves. ees feltatthecompletemercy oftheircaptors.Whenaskedwhyshedidnottrytoes - some food,butthisstoppedeventuallyandfoodbecamescarce. initial 10-15daysoftheirdetention,somewomenwere allowedtoleavetheschoolget in particularchildren, were affected bythisregime. premises. is minimalandmainlyconcentrated onkeepingunauthorisedpersonsfrom enteringthe lection centres”, as opposed to “detention centers”, that is, facilities in which supervision General Radinovicgenerallydescribedthosefacilitieswhere womenwere keptas“col- were alsobeaten,whilesome otherswere takenoutandneverbrought back. 75 summarisedtheconditionsatPartizanas“dreadful”. School: ing toFWS-105,theconditionsatPartizanwere “90%worse”thanattheFočaHigh Several Prosecution witnessessaidthattheconditionswere evenworseatPartizan The witnesses said thattheycould not leavethepremises. AtFočaHighSchool, Conditions attheKalinovikHighSchool,where civiliansfrom Gacko,Kalinovikand 90 Theywere more oftenprovoked, rapedandtakenout,there were no 104 Thiswitnessalsosaidthathisconclusions are basedsolely onthedocuments 105 94 FWS-62describedhow, onenight,thewomansleepingnexttoher 87 there were nowashingfacilitiesandblanketsor cushionsto 88 91 One woman, FWS-95, was occasionally 93 Sanitaryconditionswere almost 96 99 Some of the detainees Someofthedetainees 103 Defense expert 101 92 The detain- 100 97 Detainees, 102 Detainees Detainees 89 Accord- FWS-50 98 95 In the Inthe FWS- International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 313 In addition, 111 When they tried 112 The same applied at The same applied at 108 115 The girls and women were were women and girls The 118 FWS-50, FWS-75, FWS-87, FWS- FWS-95, who knew one of the who knew one of FWS-95, 109 117 107 One night in mid-July, as she was trying to One night in mid-July, 114 On the second occasion, FWS-48 personally com- On the second occasion, FWS-48 personally 113 FWS-87 said that at Partizan, they were allowed to go in the allowed to go they were that at Partizan, FWS-87 said 106 a High School, the buses with Buk Bijela to Foča High School, the buses from Likewise, on their way 110 They would sometimes be raped together. Each one of them would be assigned Each They would sometimes be raped together. 116 According to various witnesses, all this was happening in full view and with the all this was happening in full view to various witnesses, According Numerous witnesses stated that soldiers and policemen would come constantly, witnesses stated that soldiers and policemen would come constantly, Numerous as they arrived at Foča High School, women as soon Witnesses described how, The same restrictions on the movement of detainees applied at Partizan and Ka- at Partizan and of detainees applied on the movement restrictions The same to a soldier and raped by him. Thus, in early July, FWS-50, FWS-75, FWS-87 and FWS-95 to a soldier and raped by him. Thus, in early July, another to brought and School High Foča at room main the from together taken were raped by several soldiers. they were where classroom to seek the protection of the police, the women were treated rudely and their complaints treated of the police, the women were to seek the protection FWS-48 and FWS-51 the police with twice to said that she went FWS-95 ignored. were to complain about their treatment. 95, FWS-48, FWS-105 and many other women recounted being raped at least once or at least being raped women recounted and many other FWS-105 95, FWS-48, school. High Foča at time their during occasions several on 34. police and the of chief the that stated FWS-192 authorities. local the of knowledge to the school to Democratic Party”) in Kalinovik came of the SDS (“Serb the president inspect it. 35. point at women and girls or call them by their sometimes several times a day; they would women had no choice but to obey those men names and take them out for rape. The of the other women. beaten in front were and those who tried to resist 36. they were where either taken out of the school, or into the classrooms and girls were raped. 33. School. linovik High Kalinovik High School apart from the first 10-15 days when some detainees were allowed were the first 10-15 days when some detainees apart from Kalinovik High School food for the people held there. to go out to buy some - com the women’s no action was taken to address plained to Dragan Gagovic. However, plaints and the conditions did not improve. guards, mentioned, however, that she was sometimes allowed to go to town to do some go to town to do some allowed to that she was sometimes however, mentioned, guards, other woman was allowed to do the same. shopping but that no several witnesses saw Dragan Gagovic at or in the vicinity of Partizan. several witnesses saw Dragan Gagovic at the Muslim women stopped for several minutes in front of the SUP, the local police sta- the local police of the SUP, stopped for several minutes in front the Muslim women the police station or entered and in the bus got off tion. Some of the soldiers who were buses. of the police, Dragan Gagovic, in front talked to the chief of Foča’s generally taken for a few hours and returned, sometimes overnight, and some of them courtyard in front of the hall but not any further. of the hall in front courtyard escape, FWS-183 tried to seek refuge in the police building but as she was approaching approaching was she as but building police the in refuge seek to tried FWS-183 escape, hit her with the butt of his rifle. it, the policeman standing guard 314 Gender-based Violence point andraped. 75, FWS-87,FWS-48,FWS-95, D.B.andFWS-105were all brought tothishouseat some ing toanend,thewomenandgirlscontinuedbetakenout more andmore often. took themout,rapedandbrought themback.AstheirstayatPartizanwasdraw - at FočaHighSchool:soldiersentered thehall,pointedatwomenorcalledtheirnames, 150 times. both FočaHighSchoolandPartizan,thatis,about40days,shewasrapedapproximately been raped.FWS-95roughly estimatedthatduringtheentire periodofherdetentionat they were consequentlyunable toassesswithprecision thenumberoftimestheyhad testified before the Trial Chamberhadbeentakenoutsooften,bymanysoldiers,that 7, DP8,Jure Radovic,DraganToljic (aka “Tolja”), Bane,MigaandPuko. Dragan orDragutin/DragomirVuković (aka“Gaga”),Miroslav Kontic(aka“Konta”),DP meeting point. Some of the men lived there more or less permanently; among them were intercourse to improve their fighting spirit. to takewomenout;thedocumentallegedlystatedthatsoldiersneededhavesexual had adocumentsignedbyDraganGagovicwhichallowedthemtoenterthehalland without successtostopsoldiersfrom enteringthehall.Thesoldierstoldhimthatthey vent soldiers from entering the hall. FWS-95 stated, however, that one guard once tried 40. 39. and girls were taken out to be raped, most of them many times. A.S., FWS-95,FWS-48,FWS-105andD.B.testifiedthattheymanyotherwomen quency ofrapesandnumbersoldiersevenhigher. FWS-51,FWS-50,FWS-75,FWS-87, 37. to PartizanSportsHall. were takenawayeveryday. Afterabout10-15days,mostofthewomenwere transferred occasions forsimilarabuse. many soldiers,mostlybytwoatthesametime. Partizan, shewastakenouttogetherwithFWS-90,brought toastadiumandrapedby FWS-95 stated that the night before she and the other detainees were released from by somewitnessesatbothlocations. Foča HighSchool. 38. that theywere ordered torapetheirvictims. The houseatUlicaOsmanaÐikicano16servedasthesoldiers’ headquartersand The guards atPartizan,ashad beenthecaseatFočaHighSchool,didnottrytopre- At Partizan, witnesses testified that the pattern ofrapeswassimilarandthefreAt Partizan,witnessestestifiedthatthepattern - Some ofthesoldierswhocametoPartizantakeoutwomenhadalsobeen 120

128 121 Someotherwomenandgirlswere alsotakentothishouse onseveral Forexample,thechiefofFoča’s police,DraganGagovic,wasseen 122 123 124 FWS-48 stated that some soldiers told her Theprocess ofselectionwas similartothat 126 119 Some women who 127 FWS-50,FWS- 125

International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 315 135 FWS-75 and 131 In mid-November, In mid-November, 132 FWS-191 was told that 136 There, they were raped many raped were they There, While in the Lepa-Brena apart- While in the Lepa-Brena 129 134 On or about 25 December 1992, 133 After only three to five days, J.G. was taken to was J.G. days, five to three only After 130 138 139 FWS-186, FWS-191 and J.G. were then transported from that house in the Aladža that house transported from then J.G. were FWS-191 and FWS-186, As a consequence of the concerted effect of the attack upon the civilian population As a consequence of the concerted effect Similarly, FWS-186 and FWS-191 were kept in a house in Trnovace for several in Trnovace kept in a house FWS-186 and FWS-191 were Similarly, Some women were kept in private apartments. Some spent a few days in one place apartments. Some spent a few days kept in private Some women were Some of the women from Partizan and Kalinovik High School were at some point were Kalinovik High School Partizan and women from Some of the 137 times by many different soldiers. On 3 August, FWS-75, FWS-87, D.B. and FWS-190 were were August, FWS-75, FWS-87, D.B. and FWS-190 soldiers. On 3 times by many different handed to DP 3, the man who appeared they were where Aladža to Miljevina taken from house”. to be in charge of “Karaman’s A.B. spent about 20 days in this apartment during which they were constantly raped by during which they were A.B. spent about 20 days in this apartment who visited. men other and by apartment the of two occupants the taken to a house near the Hotel Zelengora. They stayed in this the two women were of raped by a group continually 20 days during which they were house for approximately of soldiers subsequently took them to yet another apartment where soldiers. This group weeks. they continued to rape them for about two - for approxi house house”. The other two women stayed in the Trnovace “Karaman’s whatsoever over their mately six months. During this period, the women had no control lives and choices. […] 47. were in the area municipalities, all traces of Muslim presence of Foča and surrounding 43. taken out of together with five other women, were months. On 2 August 1992, they, to a house in Aladža. the Kalinovik High School and brought 42. soldiers. Thus, for apartment, generally with different being moved to another before FWS-75, FWS-87, on or about 30 October 1992, to their testimony example, according house” “Karaman’s moved from twelve years at the time, were A.S. and A.B., a girl aged in Foča. block Lepa-Brena and taken to an apartment in the so-called ment, the women were locked in and permitted no contact with the outside world. ment, the women were 41. mis- and be raped to continued they where apartments and houses to different moved access to soldiers had easy house” in Miljevina, “Karaman’s at In particular, treated. FWS-190, D.B. A.S., FWS-132, raped. FWS-75, FWS-87, girls whom they women and some time. house for this kept in women were and other the women were “rewards” for the Serbs who had captured the Rogoj pass that very that pass Rogoj the captured had who Serbs the for “rewards” were women the day. they were brought back to the apartment in the Lepa-Brena block. A.B. was sold for 200 for sold was A.B. block. Lepa-Brena the in apartment the to back brought were they to DP 1. DM and never seen again; FWS-75 was handed neighborhood to a house in Trnovace. in house a to neighborhood 316 Gender-based Violence tion, from nationallaws”. the majorlegalsystemsof world. Theseprinciplesmaybederived,withallduecau- crimen sinelegestricta”),itisnecessary tolookforprinciplesofcriminallawcommon principle ofspecificity(“Bestimmtheitsgrundsatz”, also referred tobythemaxim“nullem It concluded that “to arrive at an accurate definition ofrape basedonthecriminallaw law”. criminal lawor[…]generalprinciplesofinternational principles ofinternational of thecrimerapefromtreaty international orcustomarylaw, norfrom the“general the elements sources law and found that it was not possible to discern of international consideration bytheTrial ChamberintheFurundžijacase. humanitarianlaw orhumanrightsinstruments,werenor ininternational thesubjectof 437. ¡t isalsoclearlyestablished. Statute, includinguponthebasisofcommonArticle3to1949GenevaConventions, personal dignity, inviolationofthelawsorcustomswarpursuanttoArticle3 nal’s jurisdictioninArticle5(g).Thetoprosecute rapeasanoutrageagainst Statute. TheStatuterefers explicitly torapeasacrimeagainsthumanitywithintheTribu- customs ofwarunderArticle 3 andasacrimeagainsthumanity under Article5ofthe 436. D. Rape […] the Prosecutor’s evidence,onlyabouttenMuslimsremained attheendofconflict. war populationofabout40,513inhabitantswhom52%were Muslim.According to expelled from the region. According to the 1991 Census, Foča municipality had a pre- effectively wipedout.Muslimcivilians,butforahandful,hadbeenonewayoranother ture, committed under circumstances which are coercive”. proceedings the Trial Chamber haddefinedrape as“aphysical invasion ofasexualna- Criminal Tribunalnoted thatintheInternational forRwandajudgmentintheAkayesu ary DRconcededthatnoneofherMuslimfriendslivedinFočaanymore.164 InJanu- Witness […] inhabited bySerbs. IV 164 . A The specificelementsofthecrimerape,whichare neithersetoutintheStatute Rape hasbeenchargedagainstthethree accusedasaviolationofthelawsor , Fočawasrenamed Srbinjebyreference tothefactthatitisnowalmostexclusively pplicable 165 L ThetownisnowpartofRepublikaSrpska. a w 1117 1114 TheTrial Chamberfoundthat,basedonits review ofthe (…) 1116 1115 It then reviewed the various There theTrial Chamber 163

International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 317 1118 in those legal systems 1222 which, as foreshadowed in the in the foreshadowed which, as 1119 The value of these sources is that they may dis- The value of these sources 1121 and as discussed below, is in the opinion of this Trial Chamber the accurate Trial is in the opinion of this and as discussed below, (a) of the vagina or anus of the victim by the penis of the perpetrator or any other the perpetrator or victim by the penis of or anus of the (a) of the vagina or by the perpetrator; object used victim by the penis of the perpetrator; (b) of the mouth of the 1120 As noted above, the Trial Chamber in the Furundžija case considered a range of case considered Chamber in the Furundžija As noted above, the Trial This Trial Chamber agrees that these elements, if proved, constitute the actus reus constitute the actus reus elements, if proved, that these Chamber agrees This Trial As observed in the Furundžija case, the identification of the relevant internationalidentification of the As observed in the Furundžija case, the (i) the sexual penetration, however slight: penetration, however (i) the sexual person. or a third against the victim of force or threat or force (ii) by coercion which embody the principles which must be adopted in the international context. 440. to the elements of rape. In the view of national legal systems for assistance in relation surveyed, looked at as a whole, indi- the legal systems there Chamber, Trial the present close “general concepts and legal institutions” which, if common to a broad spectrum a broad to common which, if institutions” and legal concepts “general close legal question which a to an internationaldisclose systems, of national legal approach internationalthe of indicator In subject. the on law an appropriate as considered be may of Chamber does not conduct a survey the Trial considering these national legal systems is which provision legal specific a identify to order in world the of systems legal major the an examination of national from to consider, adopted by a majority of legal systems but identify certain basic principles, or in the whether it is possible to systems generally, of the Furundžija judgment, “common denominators”, words 438. of the present in the circumstances However, in internationalof the crime of rape law. the of understanding its clarify to necessary is it that considers Chamber Trial the case that considers Chamber Trial The definition. Furundžija the of (ii) paragraph in element case, is in of that the circumstances to although appropriate the Furundžija definition, In stating that the by international law. stated than is required narrowly more one respect act of sexual penetration will constitute rape only if accompanied by coercion relevant definition person, the Furundžija against the victim or a third of force threat or or force of sexual penetration non- an act to other factors which would render does not refer victim, on the part of the or non-voluntary consensual hearing scope of this aspect of the definition in international law. 439. penetration sexual of acts defined the which in circumstances the of nature the on law of customary or conventional internationalwill constitute rape is assisted, in the absence of law common to the major to the general principles law on the subject, by reference national legal systems of the world. national legislation of a number of states, the actus reus of the crime of rape is: of reus of states, the actus of a number national legislation 318 Gender-based Violence the mostpartcanbeconsidered asfallingwithinthree broad categories: factors whichwillclassifytherelevant sexualactsasthecrimeofrape.Thesefactorsfor jurisdictions atthetimerelevant totheseproceedings identifiesalargerangeofdifferent stances whichwillrender those sexualactscriminal.Therelevant lawinforce in different specify thenature ofthesexual actswhichpotentiallyconstituterape,andthecircum- 442. suggested above,whichfocusesonseriousviolationsofsexualautonomy, iscorrect. of therelevant provisions ofanumberotherjurisdictionsindicatesthattheinterpretation 441. itself where itisobservedthat: of absenceconsentorvoluntaryparticipationissuggestedintheFurundžijajudgment sexual autonomy. Therelevance notonlyofforce, threat offorce, andcoercion butalso the varioussystemsmaybeawiderormore basicprincipleofpenalizingviolations referred tointhatjudgmentsuggestthetruecommon denominatorwhichunifies certainly therelevant considerationsinmanylegalsystemsbutthefullrangeofprovisions matters identifiedintheFurundžijadefinition–force, threat offorce orcoercion – are will constituterapeifitisnottrulyvoluntaryorconsensualonthepartofvictim.The cated thatthebasicunderlyingprinciple common tothemwasthatsexualpenetration include thePenalCodeofBosnia andHerzegovina,whichprovided relevantly: by force orisaccompaniedbyforce orthreat offorce. Typical provisions ofthisnature 443. 1. (iii) thesexualactivityoccurswithoutconsentofvictim. an informedrefusal; or stances which made thevictim particularly vulnerable or negatedher abilitytomake (ii) thesexualactivityisaccompaniedbyforce oravarietyofotherspecifiedcircum- third party; (i) thesexualactivityisaccompaniedbyforce orthreat offorce tothevictim or a In general, domestic statutes and judicial decisions which define the crime of rape A furtherconsiderationofthelegalsystemssurveyedinFurundžijajudgmentand interpretation andincludes rendering thevictimhelpless. coercion, threat, oractingwithouttheconsentofvictim:force isgivenabroad […] alljurisdictionssurveyedbytheTrial Chamberrequire anelement offorce, shall besentencedtoaprison term ofonetotenyears. of imminent attack uponherlife or bodyorthe life orbodyof a personclosetoher, […]whoever coerces afemalenothiswifeintosexualintercourse byforce orthreat The definitionofrapeinanumberjurisdictions requires thatthesexualactoccurs Force orthreatofforce 1124 1123 International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 319

- 1129 Austria, This includes 1228 1132 The provision on The provision 1134 Norway, 1227 1225 1133 The Italian Penal Code contains the crime the contains Code Penal The Italian 1137 1136 . The relevant provision of the French Penal Code of the French provision . The relevant Other jurisdictions with definitions of rape similar Other jurisdictions with 1135 1226 1131 Specific circumstances which go to the vulnerability or deception of the victim Specific circumstances which go to the vulnerability and Brazil. 1130 A number of jurisdictions provide that specified sexual acts will constitute rape not A number of jurisdictions provide - jurisdictions contain provi European The penal codes of a number of continental In Denmark, section 216 of the Criminal Code provides that rape is committed by that rape is committed by In Denmark, section 216 of the Criminal Code provides Certain jurisdictions require proof of force or threat of force (or equivalent concepts) (or equivalent of force or threat of force proof Certain jurisdictions require The Criminal Code of Korea defines rape as sexual intercourse with a female with a female defines rape as sexual intercourse of Korea The Criminal Code Rape (1) Whoever compels a woman to have extramarital intercourse with him, or with him, intercourse to have extramarital compels a woman Rape (1) Whoever or limb, shall be danger to life of present or the threat by force person, with a third years’ imprisonment. not less than two punished by 2. 446. speci- other of presence the but also in force of threat or force by accompanied only where was put in a state of being include that the victim These circumstances fied circumstances. because of physical or was particularly vulnerable or incapable of resisting unable to resist, or was induced into the act by surprise or misrepresentation. mental incapacity, 447. woman to a who compels anyone that provides Penal Code Swiss The type. of this sions - by putting psychological pres or by violence, “notably by threat have sexual intercourse commits rape. her unable to resist” victim or rendering on the sure ly requiring violence, force or a threat of force include China, of force or a threat violence, force ly requiring defines rape as “[a]ny act of sexual penetration of whatever nature, committed through through committed nature, whatever of penetration of sexual act “[a]ny as rape defines […]”. or surprise threat coercion, violence, Spain 448. of violence”, by violence or under threat sexual intercourse any person who “enforces 445. the victim. non-consensual or against the will of and that the act was 444. violence or intimidation”. “through In Germany, the Criminal Code in force at the relevant time provided: relevant at the Criminal Code in force the In Germany, the United States of America. some jurisdictions in of compelling a person to have sexual intercourse by violence or threats but applies the threats or by violence have sexual intercourse a person to of compelling with any person who, inter alia, same punishment to anyone who has intercourse was of a condition of physical or mental inferiority, by reason “mentally ill, or unable to resist because deceived “was or offender” the of act the of independent was this though even impersonated another person”. the offender rape in the Portuguese Penal Code contains a similar reference to the perpetrator making a similar reference rape in the Portuguese Penal Code contains it impossible for the victim to resist 320 Gender-based Violence pines. under twelve. illness orwhateverotherreason, theyare incapableofresisting” orwhere thevictimis force or intimidation, where the victim is “of unsound mind or effect, or when due to 450. to rape. sexual actswastemporarilyor more permanentlynegated. have theeffect thatthevictim’s willwas overcome orthatherability freely torefuse the refusal. Thecommondenominatorunderlyingthesedifferent circumstances isthatthey the victimwassubjectedtoactwithoutopportunityfor aninformedorreasoned sexual acts.Thekeyeffect offactorssuchassurprise,fraudormisrepresentation isthat or otherwiseinastateofinabilitytoresist) wasunabletorefuse tobesubjectedthe of a temporary or circumstantial nature (eg being subjected to psychological pressure enduring orqualitativenature (egmentalorphysicalillness,theageofminority) 452. ability. of givinglegalconsentbecauseamentaldisorder ordevelopmentalphysicaldis- fraudulently induced to believe the perpetratoris the victim’s spouse, or is incapable toforce,an alternative suchasthatthevictimisdruggedorunconscious,hasbeen sexual intercourse constitutes rapeifcommittedinthepresence ofvariousfactorsas 451. of rape[…]”. knowledgeofafemalepersonthirteenyearsorovershallbeguilty obtains carnal 449. helpless situationofthevictim”. as sexual intercourse “by violence or threat of violence or by taking advantage of the to resist theactshallbeequivalenttoviolence.” but specifiesthat“theplacingofapersoninsuchpositionisunable Finland a woman” reason orincapacitytoresist, knowledgeof commitsanindecentactorobtainscarnal taking advantageoflossreason orincapacitytoresist orbycausingsuchlossof which willbeconsidered to amountrapebyproviding thatwhere aperson “by The Criminal Code of Argentina defines rapeas sexual penetration where there is The emphasisofsuchprovisions isthatthevictim,becauseofanincapacity Some StatesoftheUnitedAmericaprovide intheircriminalcodesthat The JapaneseCriminalCodeprovides that“[a]personwhobyviolenceorthreat, 1147 1148 1140 , containsimilarprovisions. InEstonia,rapeisdefinedintheCriminalCode 1143 1144 istobepunishedinthesamewayasprovided forinthearticlerelating 1142 Similarprovisions applyin CostaRica, Article178oftheCodehowever, effectively widenstheconduct 1141 1138 ThePenalCodesofSweden 1145 Uruguay 1146 andthePhilip- 1139 and International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 321

- 1956 1957 1950 1952 New 1953 The English The English 1149 The Zambian Penal Code Penal Zambian The 1161 The provision on rape in the Bangladesh The provision 1159 1160 1958 Force or threat or fear of force need not be proven; be proven; need not of force or fear threat or Force 1951 In these jurisdictions it is also clear that the consent must be In these jurisdictions 1955 and Australia. Absence of consent or voluntaryAbsence of participation 1954 In most common law systems, it is the absence of the victim’s free and genuine and free the victim’s it is the absence of law systems, In most common - Rape is defined in South Africa at common law as a man intentionally having unlaw The Indian Penal Code provides that sexual intercourse with a woman will consti- will a woman with intercourse sexual that provides Code Indian Penal The 3. […] who has unlawful carnal of a woman or girl, without her consent, knowledge or or by means of threats or with her consent, if the consent is obtained by force - intimidation of any kind, or by fear of bodily harm, or by means of false representa 453. characteristic of rape. is the defining which sexual penetration consent to Similar definitions apply in other Commonwealth countries including Canada, in other Commonwealth countries Similar definitions apply in which no consent will be considered The Code also explicitly identifies circumstances or by the words is expressed “the agreement to have been obtained, including that or that the accused “induces the com- conduct of a person other than the complainant” a position of trust, power or authority”. plainant to engage in the activity by abusing and the statute defines agreement” In Victoria, Australia, consent is defined as “free submits a person is not given, including where agreement in which free circumstances the person is in unlawful or harm, or because fear of force because of the use of force, the person is asleep or unconscious or is mistaken as to, or is incapable detention; where of the act. of understanding, the nature genuine and voluntarily given. In Canada, consent is defined in the Criminal Code as “the genuine and voluntarily given. In Canada, of the complainant to engage in the sexual activity in question”. voluntary agreement In 1976 rape was also defined by statute. Under the provision in force at the time relevant relevant at the time in force defined by statute. Under the provision In 1976 rape was also inter “(a) he has unlawful sexual committed rape where a man to these proceedings, to it; and (b) does not consent who at the time of the intercourse course with a woman as to he is reckless or that she does not consent to the intercourse at that time he knows […]”. to it consents whether she Penal Code is materially almost identical. common law defined rape as sexual intercourse with a woman without her consent. with a woman without rape as sexual intercourse common law defined 455. consent. her without woman a with intercourse sexual ful 454. These include that it occurs “[a]gainst her tute rape in any of six defined circumstances. consent if such consent is negated by various will”; “without her consent”, or with her she whom in person any or her putting by “obtained was it that including circumstances in fear of death or being hurt”. is interested Zealand however where apparent consent is induced by such factors it is not real consent. by such factors it is not real consent is induced apparent however where provides that rape is committed by any person provides 322 Gender-based Violence Consent forthispurposemust beconsentgivenvoluntarily, asaresult ofthevictim’s the perpetrator;where suchsexualpenetrationoccurswithout theconsentofvictim. any otherobjectusedbytheperpetrator; or(b)ofthemouthvictimbypenis however slight:(a)ofthevagina oranusofthevictimbypenisperpetrator reus lawisconstituted by: thesexualpenetration, ofthecrimerapeininternational 460. law onthesubjectdoesnotdiffer substantiallyfrom theFurundžijadefinition. encompass most conduct which negatesconsent, this understandingoftheinternational threat offorce were nottobeinterpreted narrowly andthatcoercion inparticularwould 459. infirmity orthementalphysicalincapacityofvictim. act hasbeenimposedthrough violence,coercion orruse,wasmadepossiblebythe consent toit,constitutesthecrimeofrape.”There isnoconsentinparticularwhenthe whatever itsnature, andbywhatevermeans,committedonsomeonewhodoesnot sexual intercourse. TheBelgianPenalCodeprovides: “Anyactofsexualpenetration, 456. to resist ofthevictim,ormisrepresentation bytheperpetrator. defined not to exist where factors such as use of force, the unconsciousness or inability jurisdictions where absence ofconsentisanelementrapeandexplicitly to resist. Acleardemonstration thatsuchfactorsnegatetrueconsentisfoundinthose tions – such as force, threats of force, or taking advantage of a person who is unable tion maybeevidencedbythepresence ofthevariousfactorsspecifiedinotherjurisdic- 458. not freely agreed toitorisotherwisenotavoluntaryparticipant. be penalised.Sexualautonomyisviolatedwherever thepersonsubjectedtoacthas truly commontotheselegal systems isthatseriousviolations of sexualautonomyare to or inthevictim’s submissiontotheactbeingnon-voluntary. Thebasicprinciplewhichis the firsttwoheadingsare matterswhich result inthewillofvictimbeingovercome 457. 4. In lightoftheaboveconsiderations,Trial Chamberunderstandsthatthe actus Given thatitisevidentfrom theFurundžijacasethattermscoercion, force, or Certain non-commonlawjurisdictionsalsodefinerapeintermsofnon-consensual ing herhusband. tion astothenature oftheact,or, inthecaseofamarriedwoman,byimpersonat- In practice,theabsenceofgenuineandfreely givenconsentorvoluntaryparticipa- An examinationoftheaboveprovisions indicatesthatthefactorsreferred tounder The basicprincipleunderlyingthecrimeofrapeinnationaljurisdictions 1162 1963 1964 International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 323 - 1165 The effect of Rule 96: evidence in cases of sexual assault The effect of Rule 96: (a) has been subjected to or threatened with or has reason to fear violence, du- violence, fear to reason has or with threatened or to subjected been has (a) or or psychological oppression, detention ress, believed that if the victim did not submit, another might be so (b) reasonably or put in fear; subjected, threatened The Prosecution submits that The Prosecution sexual as- of rape (or any other an element of the offence [l]ack of consent is not existence of force, Tribunal, and the the law and rules of the sault) as defined by defense. vitiates consent as a or coercion of force, threat Rule 96 provides: In cases of sexual assault: shall be required; testimony of the victim’s (i) no corroboration if the victim (ii) consent shall not be allowed as a defense the satisfy shall admitted, the accused consent is victim’s evidence of the before (iii) and credible; Chamber in camera that the evidence is relevant Trial not be admitted into evidence. (iv) prior sexual conduct of the victim shall consistent with entirely in the Rule to consent as a “defense” is not The reference 5. 461. It refers to Rule 96 of the Rules of Procedure and Evidence in support of its view that the Evidence in support of its view that the and of Procedure to Rule 96 of the Rules It refers a defense in limited circumstances. of consent is only as relevance 462. 463. consent is an of consent in rape. Where traditional legal understandings of the concept jurisdictions, it is generally understood (as aspect of the definition of rape in national to above) to be absence of consent referred demonstrated by many of the provisions techni- its in which “defense”, word the of use The crime. the of element an is which to the accused, is of proof cal sense carries an implication of the shifting of the burden Chamber does not understand the refer inconsistent with this understanding. The Trial ence to consent as a “defense” in Rule 96 to have been used in this technical way. The this technical way. in been used to have Rule 96 “defense” in as a to consent ence 67(A)(ii)(a) to the “defense of alibi” is another example of the use of in Rule reference “defense” in a non-technical sense. An alibi is not a defense in the sense that it the word denying that by the defendant. A defendant who raises an alibi is merely must be proved that he was in a position to commit the crime with which he was charged, and by raising free will, assessed in the context of the surrounding circumstances. The mens rea is the is the rea The mens circumstances. surrounding the context of the will, assessed in free the that it occurs without and the knowledge sexual penetration, this effect intention to the victim. consent of 324 Gender-based Violence 33 32 31 30 29 28 26 […] that consentwillbeconsidered tobeabsentinthosecircumstances unlessfreely given. consent. However, thereference tothemintheRuleservesreinforce therequirement factors referred toinRule96are alsoobviouslynottheonlyfactorswhichmay negate freely givenandthesecond limboftheTrial Chamber’s definitionwouldbesatisfied.The or putinfear”,anyapparent consentwhichmightbeexpressed bythevictimisnot believed thatif[heorshe]didnotsubmit,anothermightbesosubjected,threatened reason tofearviolence,duress, detentionorpsychologicaloppression” or“reasonably ing ofgenuineconsentthatwhere thevictimis“subjectedtoorthreatened withorhas jurisprudence considered above andwithacommonsenseunderstandingofthemean- ters whichwouldbeconsidered tonegateanyapparent consent.Itisconsistentwiththe as anindicationoftheunderstandingjudgeswhoadoptedrulethosemat- in itstechnicalsense.Itunderstandsthereference toconsentasa“defense”inRule96 does notinterpret thereference toconsentasa“defense”reference toadefense law,with itsunderstandingofthedefinitionrapeininternational the Trial Chamber of Procedure andEvidenceinthelightofrelevant law. international 464. ity thatthealibiistrue. issue, thedefendantsimplyrequires theProsecution toeliminatethereasonable possibil- E ndnotes

FWS-183, T 3659-3661; FWS-61, T 3738; Witness RajkoMarkovic,T5078. FWS-183, T3659-3661;FWS-61,3738; Witness T 1888;A.S.,1996;FWS-78,2077-2078, T2080and2096;FWS-96,2500;FWS-175,3567-3571; FWS-33, T462,487-489and521;FWS-52, T851,855-856,913and916-917;FWS-152, FWS-78, T2096;FWS-183,3661and FWS-61,T3738. T 2500;FWS-185,2841and2889;FWS-175,3571;FWS-183,3661; FWS-61,T3738. FWS-33, T487-489;FWS-52,856;A.S.,1989and1996;FWS-78,2096; FWS-132,T2407;FWS-96, DC,T5015and5029. Witness FWS-33, T485-486;FWS-152,1885;A.S.,2057;FWS-96,2498andFWS-48, T2614. by thePartiesandMattersofFactLawWhichRemainContested. sions andContestedMattersRegarding theAccusedZoranVuković, 8Mar2000;seepar1ofAdmissions Remain Contested, 1 Feb 2000,p 10, par 1 andp 11, par1; and Prosecution Submission Regarding Admis- Prosecution Submission Regarding Admissions and ContestedMatters, Matters ofFactsandLawWhich 1 and2ofAdmissionsbythePartiesOtherMattersnotinDispute. Regarding AdmissionsandContestedMatterstheAccusedZoranVukovi ć, 8Mar2000;seepars Prosecution Submission Regarding Admissions and Contested Matters, 1 Feb 2000;ProsecutionSubmission As emphasisedbytheAppealsChamber, theTrial Chambermustinterpret theRules 1166 Consistently International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 325 FWS-65, T 659-661 and T 684-685; FWS-52, T 915; FWS-93, T 1051-1055; FWS-78, T 2088-2093; FWS- 2088-2093; T FWS-78, T 1051-1055; FWS-93, 915; T FWS-52, 684-685; T and 659-661 T FWS-65, concerning See also Ex P6 and 6/1 190, T 3315-3316. used to take Foča and type and use of weapons the actions and is directed the units for further of battle instructing Ex P6 is an order municipalities: surrounding to respect instructing them with battalion command of the Trnovo of basic units and the to commanders which weaponry at the disposal of the Serb forces. of the pictures are weapons. Ex P6/1 the use of artillery buildings or schools and detained there. to different they would then be transported taken in that way on 3 July 1992 were and Mješaja, for example, The villages of Trosanj T 2637-2640. T 1386-1390; FWS-87, T 1670-1671; FWS-48, FWS-50, T 1241-1244; FWS-75, T 1389-1390. T 1242. T 1243. DB, T 3779- 3781; FWS- T 873; FWS-62, T 968 and T 986-987; FWS-95, T 2197; FWS-51, T 1126; FWS-52, 105, T 4217-4218. T 1676; FWS-95, T 2204-2205; FWS-96 T 2522- FWS-51, T 1132-1133; FWS-75, T 1396-1397; FWS-87, T 4219-4220. 2523; FWS-48, T 2648-2649; D.B., T 3784-3785; FWS-105, T 983. 2529. FWS-51, T 1132-1134; FWS-95, T 2213; FWS-96, T T 1407-1408; FWS-87, T 1739-1740; FWS-95,T 2214- FWS-51, T 1142-1143; FWS-62, T 989-990; FWS-75, D.B, T 3790; FWS-105, T 4225-4226. 2216; FWS-96, T 2551; FWS-48, T 2653-2654 and 2818; T 4225. T 1143. See also FWS-62, T 989- a jar of soup and slices of bread, FWS-51 said that they would only receive FWS-48, T 2818. 990; FWS-75, T 1407; FWS-87, T 1740; FWS-95, T 2215-2217; FWS-95, T 2215-2216. FWS-51, T 1143. FWS-96, T 2530; FWS-50, who was once FWS-62, T 991; FWS-75, T 1485-1490; FWS-95, T 2215-2216; beaten up with a rifle butt, T 1255. T 993-995. T 1407. T 3032; FWS-191, T 3130. FWS-185, T 2858; FWS-186, T 2925-2926; FWS-192, T 3032. FWS-190, T 3325-3326. FWS-185, T 2858; FWS-186, T 2994; FWS-191, T 3133; FWS-185, T 2860; FWS-192, T 3034-3035; FWS-191, T 3131-3132; FWS-190, T 3327-3328. FWS-75, T 1397; FWS-87, T 1688; FWS-95, T 2205; FWS-96, T 2523; FWS-48, T 2649-2650. T 1205. T 1258. T 4855 and 4869-4870. T 4862-4864. With T 1689; FWS-95, T 2217; FWS-48, T 2649. With to Partizan, see FWS-75, T 1408; FWS-87, respect

47 48 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 326 Gender-based Violence 128 127 126 125 124 123 122 121 120 119 118 117 116 115 114 113 112 111 110 109 108 107

191, T3134. respect to Kalinovik High School, see FWS-185, T 2857-2858;FWS-186, T 2926; FWS-192, T 3032;FWS- 2664-2668 andT2700-2702;D.B.,3795-3815; FWS-105,T4228-4230. FWS-50, T1272-1278;FWS-75,1411-1431; FWS-87,T1690-1700;FWS-95,2236-2240;FWS-48, 190, T3336-3345;FWS-205,3480;Dragoljub Kunarac,T4517-4520and4667-4669. FWS-75, T1411and1414-1415;FWS-87, T1694and1698-1699;D.B.,37973801-3802;FWS- FWS-95, T2242-2244. FWS-105, T4226. T 2700. T 2217-2219.SeealsoFWS-105,4244. 2250-2252; FWS-96,T2536;FWS-48,2683and2692;FWS-105,4244. FWS-51, T1160-1161and1218;FWS-62,998-999;FWS-50,1280;FWS-87, T1690-1691;FWS-95, 2524 andT2531forexample. the same,specificallynamesomeofthemascomingbothtoFočaHighSchoolandPartizan;seeFWS-96,T FWS-75, T1410;FWS-95,2224.Otherwitnesseswithoutexpressly statingthatsomesoldierswere indeed T 2208. from Partizan:FWS-62,T995-1001; FWS-127,T1870-1872;FWS-96,2530-2534. addition, somewomenwhohadnotthemselvesbeentakenout,testifiedaboutotherbeing FWS-105, T4225-4247.ThesamewomenalsotestifiedaboutotherbeingtakenoutofPartizan.In A.S., T1995-1996;FWS-95,2217-2225and2230-2246;FWS-48,2659-2713;D.B.,3790-3815; FWS-51, T1145-1150and1155-1162;FWS-50,1258;FWS-75,1405-1429;FWS-87,1690-1700; 2652; FWS-105,T4219-4224. FWS-50, T1249-54;FWS-75,1397-1405;FWS-87,1676-1687;FWS-95,2206-2213;FWS-482645- FWS-50, T1250-2;FWS-75,1398;FWS-87,1678;FWS-95,2206-2207. 979; FWS-96,T2524-2529;D.B.,3786-3790. other womenbeingtakenoutandcomingback:FWS-52,T873;FWS-51,1134-1137;FWS-62,975- 2645-2652 andFWS-105,T4221-4224.Someotherwomenwere notrapedbuttestifiedaboutseeing FWS-50, T1249-1254;FWS-75,1397-1405;FWS-87,1676-1687;FWS-95,2206-2211,FWS-48, T 3676. T 2250. T 2243-4and2304-2305.SeealsoFWS-51,1221;FWS-48,2683-2684FWS-105,4244. T 2249;FWS-96,2536;FWS-48,2683and2692;FWS-105,4244. FWS-62, T998-999;FWS-51,1160and1218;FWS-50,1280-1281;FWS-87,1690-1691,FWS-95, FWS-48,T 2641-2642. T 3080. FWS-185, T2857-2858;FWS-186,2994;FWS-191,3133;FWS-190,3325-3326. T 2216-2217. T 1741-1742. International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 327 FWS-75, T 1433-1442; FWS-87, T 1702-1707; FWS-AS, T 1995-2005; FWS-132, T 2414-2425; FWS-190, T FWS-132, T 2414-2425; FWS-AS, T 1995-2005; FWS-87, T 1702-1707; FWS-75, T 1433-1442; D.B., T 3817-3836. 3352-3371 and T 3352-3353. FWS-87, T 1700; FWS-190, D.B., T 3815-3818; FWS-75, T 1433-1435; 3372- See also FWS-190, T and A.S., T 2005-2007. FWS-87, T 1707-1708 FWS-75, T 1443-1445; FWS-75, T 1449-1451. FWS-75, T 1454-1456. FWS-75, T 1494. T 1814-1815; A.S., T 2012 and T 2022. FWS-75, T 1599; FWS-87, FWS-205, T 3470-3477. FWS-186, T 2930-2935; FWS-190, T 3337-3339; FWS-191, T 3142 and 3154; FWS-191, T 3155-3156 FWS-191, T 3160-3166. FWS-186, T 2938-2940 and T 2952 See FWS-191, T 3182; FWS-186, of the 1991 to the results See Ex P18, Ethnic composition of Foča municipality by settlement, according of Statistics, pp 101- 110, Bureau Republic of Croatia and Herzegovina, Population of Bosnia census (from Apr 1995). T 5066-5067. Djurovic, T 6032. See also Witness Velimir T 5066-5067. Djurovic, T 6032. See also Witness Velimir par (1)(c) of com- (pars 400-409). See, in particular, See the section on the common elements to Art 3 above in particular humiliating and upon personal dignity, mon Article 3 to the Geneva Conventions: “outrages Judgment, Case IT-95-17/1-T, v Furundžija, which includes rape. See also Prosecutor degrading treatment” 10 Dec 1998, par 173. Judgment, 10 Dec 1998. v Furundžija, Case IT-95-17/1-T, Prosecutor of elements the of definition This 597. par 1998, Sept 2 Judgment, ICTR-96-4-T, Case v Akayesu, Prosecutor Judgment, v Delalić et al., Case IT-96-21-T, Chamber of the ICTY in Prosecutor rape was adopted by a Trial 16 Nov 1998, pars 478-9. Judgment, 10 Dec 1998, par 177. v Furundžija, Case IT-95-17/1-T, Prosecutor Ibid, par 185 (“Furundžija definition”). Brief (par in the Final Trial or threats” force “coercion, by its emphasis on the need to prove The Prosecution, rape than is indicated by the sources definition of what constitutes favours a narrower 754) also apparently appear to misconceive absence of international law surveyed in this judgment. The submissions, however, en- which matter a than rather factor “additional” or element” “further of sort some being as consent of Brief, pars 755 and 760). Final Trial range of factors which it cites. (see Prosecutor’s compasses the narrower of submission that proof with the Prosecution’s Chamber does not agree the Trial As will become apparent, is an element imposed by international or coercion law. of force threat force, 19 Apr 2000, p 1980-1982. T, v Tadic, Judgment, 10 Dec 1998, par 177. See also Prosecutor v Furundžija, Case IT-95-17/1-T, Prosecutor 31 Jan 2000, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, Case IT-94-1-A-R77,

129 130 131 3375. 132 133 134 135 136 137 138 139 163 164 165 1114 1115 1116 1117 1118 1119 1120 1121 328 Gender-based Violence 1133 1132 1131 1130 1129 1228 1227 1226 1225 1124 1123 1222

systems oftheworld,asdevelopedandrefined (wherejurisprudence.” applicable)ininternational par 15:“Itisotherwiseofassistancetolookthegeneralprincipleslawcommonmajorlegal rape refer toaperpetratorwho“compelspersonsubmitby force andagainsthiswill, orcompelsa Massachusetts GeneralLawsAnn,c265, s22;thedefinitionsofrapeandaggravated 27, 463(a)(1)(“[b]yforce orthreat offorce againstthewillandwithoutconsentofotherperson”). sent byreason ofbeingphysicallyhelpless”orislessthanelevenyears old.MarylandAnnCode(1957),Art consent ofthevictimandwhichoccursbyforcible compulsion,orwithavictimwhois“incapableofcon - New York PenalLaw, s130.05;130.35:rapeinthefirst degree involvessexualintercourse withoutthe Leone (1999),pp68-69. with awomanwithoutherconsentbyforce, fearorfraud”:seeThompson,TheCriminalLawofSierra statutory provisions). RapeisdefinedbycommonlawinSierraLeoneas“havingunlawfulsexualintercourse Eg, SierraLeone,where by rapeisdefinedbycommonlaw(otherthanofminors,whichgoverned Código Penal,Art213(“[…]violenceorseriousthreat […]”). sexual libertyofanotherwithoutconsent,are punishablebylessertermsofimprisonment:Art181. will bepunishableasasexualaggression […]”.“Sexualabuses”,whichare definedasactsofassaultonthe Código Penal,Art178:“Theassault on thesexual liberty ofanotherperson,withviolenceorintimidation, directed againstthevictim orathird person[…]”(asinforce 1989-1997). Strafgesetzbuch, Art201:“[...]byuseofsevere force orthreat ofpresent severe dangeroflifeorlimb […]”. Translation from NorwegianMinistryofJustice,The GeneralCivilPenalCode(1995). or healthcompelsanypersontocommitanactofindecencyisaccessorythereto shallbeguiltyofrape General CivilPenalCode,Ch19,Art192:“Anypersonwhobyforce orbyinducingfearforanyperson’s life Section 236ofthatCodecontainsthesameprohibition). which wasinforce atthetime relevant totheseproceedings, hasbeenreplaced bythe1997CriminalCode. sentenced tonotlessthanthree yearsandnotlessthantenoffixed-termimprisonment”.(Thislaw, Criminal Law(1979),Art139:“Whoeverbyviolence,coercion orothermeansrapesawomanistobe sppo.go.kr/laws/crimco_e.htm (siteaccessed18Mar1999). Criminal CodeofKorea, Ch XXXII,Art297.Translation from Koreanwebsitehttp://www.dci. government broader rangeofcircumstances whichwillclassifysexualactivityasrape. crimes allegedintheindictments,itservesasanindicationoftrend innationallegalsystemstoa this provision isnotrelevant lawatthetimeof tothedeterminationofstateinternational advantage ofthesituationinwhichvictimisdefencelesslyexposedtooffender’s impact”.Although 1998 toprovide thatthecrime ofsexualcoercion orrapeisalsocommittedwhenaperpetrator“tak[es] Strafgesetzbuch, Art177(1).177oftheGermanCriminalCodewasamendedwitheffect from 1April incapacity oranyotherconditionwhichhasrendered herunabletoresist. nalises sexualintercourse coerced bytakingadvantage ofthevictim’s mentalillness,temporaryinsanity, Penal CodeoftheSocialistRepublicBosniaandHerzegovina(1991),ChXI,Art88(1).90alsope- Ibid, par80. Prosecutor vFurundžija,CaseIT-95-17/1-T, Judgment,10Dec1998,par178. International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 329 - person to submit by threat of bodily injury”. by threat person to submit 190. Emphasis added. Code Pénal, Art by means of violence, with a woman, has intercourse in 1992): “Whoever Art 164 (as in force Código Penal, has made it impos- made her unconscious or having to have intercourse, in order after, or, serious threat person, shall be with a third constrain her to have intercourse by the same means or, sible for her to resist, 2 to 8 years.” (unofficial translation). from punished with imprisonment states that to this provision Emphasis added. A commentary translation). Code Pénal, Art 222 (unofficial the use from of will results someone against their will when the absence rape consists of sexually abusing or tricks to bend the will of the victim. measures other coercive or from of physical/psychological violence Code Pénal - Ancien Code Pénal (1996-7). Dalloz, Code Pénal, Nouveau New York from in 1992). Translation particularly subpars (3) and (4) (as in force Codice Penale, Art 519; see The Italian Penal Code (1978). University, The Spencer and Greve, Hoyer, from 24, Art 216(1). Emphasis added. Translation Danish Criminal Code, Ch Danish Criminal Code (1997). which involves “by violence or threat a person that rape is committed where Penal Code, Ch 6, s 1 provides person to have sexual another forces person to involve an imminent danger, or appears to the threatened of state similar a or helplessness “[c]ausing that and act” sexual comparable a in engage to or intercourse Ministry of Justice, The Swedish from as equivalent to violence”. Translation incapacitation shall be regarded Penal Code (1999). by violence or by a woman to sexual intercourse forces Penal Code of Finland, Ch 20, s 1(1) (“A person who an imminent danger shall be sentenced for rape […]. The impairment of the power of the woman of threat Unofficial shall be deemed equivalent to violence or a threat”. resistance her conduct or to offer to control translation on file with ICTY library). Kriminaalkoodeks 1992, s 115(1). II. EHS Law Bulletin Series, The Penal Code of Japan (1996), Vol from Criminal Code, Art 177. Translation Emphasis added. Código Penal, Art 119. Emphasis added. Código Penal, Art 156. being to sexual intercourse expressly refers Code also in the Uruguay The definition Art 272. Código Penal, person by the person having or detained to be violently imposed when imposed on an arrested presumed detention. power over the victim’s carnalrape is that 335 Art by a woman of knowledge provides Philippines the of Penal Code Revised The or otherwise uncon- reason deprived of “when the woman is or intimidation”, committed by “using force scious” or when the victim is under twelve. to California Penal Code, s 261(a)(1), (3), (4) and (5). See also the Model Penal Code, s 213.1 which refers was compelled “to submit by the victim wife where with a person not the perpetrator’s sexual intercourse pain or kidnapping, to be inflicted on extreme of imminent death, serious bodily injury, or by threat force administer by conduct her control to power victim’s] [the impaired “substantially perpetrator the anyone”,

1134 1135 1136 1137 1138 1139 1140 1141 1142 1143 1144 1145 1146 1147 1148 330 Gender-based Violence 1159 1158 1157 1156 1155 1154 1153 1152 1151 1150 1149

resistance” orthatthevictimisunconsciouslessthantenyearsold. ing oremployingwithoutherknowledgedrugs,intoxicantsothermeansforthepurposeofpreventing Section 375,PenalCode.Thesectionprovides:“Rape. -Amanis said tocommit‘rape’who,exceptinthe s36. Crimes Act1958(Vic), Criminal Code,s273.1(2). Criminal Code,s273.1(1). 1900 (ACT),s92D;CriminalCode(WA), s325;CriminalLawConsolidationAct1935(SA),48. penetration withoutconsentisanoffence inthelegislationofotherstatesandterritories.SeeCrimes Act being aware thatthe person isnot consenting or might not be consenting;[…]”. Sexual intercourse or if- (a)heorsheintentionallysexuallypenetratesanotherpersonwithoutthat person’s consentwhile(b) s38(2)whichprovides14 years.”SeealsoCrimesAct,1958(Vic), inpartthat:“Apersoncommits rape who knows that the other person does not consent to the sexual intercourse is liable to penal servitude for “Any personwhohassexualintercourse withanotherpersonwithouttheconsentofotherand passed withinthecrimeofsexualassaultunders61ICrimesAct1900 (NSW)whichprovides that: In NewSouthWales, where the commonlawoffence of rapehasbeenrepealed by statute,rapeisencom- or amistakeastotheidentityofpersonnature andqualityoftheacttowhichconsentwasgiven. threatened applicationofforce tothatpersonorsomeotherperson”,thefearofsuchapplicationforce, to sexualconnection,includingthesubmissionoracquiescenceofvictimbyreason of“theactualor that sheconsentstosexualconnection”.Section128Adefinesmattersdonotconstituteconsent believingon reasonable grounds herconsent;and(b)Without as penetrationofthewoman“(a)Without a femaleorofanypersonhaving“unlawfulsexualconnection”withanother:s128(1).Rapeisdefined The NewZealandCrimes Act, 1961penalises“sexual violation” which is definedastheactofamaleraping of thevictim. any assault of a sexual nature, and assault is defined by s 265 as, in effect, a touching without the consent In Canada,rapefallswithinthestatutorycrimeofsexualassaultunders271CriminalCode.Thisis R vOlugboja,[1982]QB320. intercourse maybevaginal oranal. 1994, s142whichmakesitanoffence foramantorapewomanorandspecifiesthatthesexual in theSexualOffences Act 1956wasagainamendedin1994bytheCriminalJusticeandPublicOrder Act Sexual Offences (Amendment) Act1976,amendings1oftheSexualOffences Act1956.Thedefinition time oftheintercourse does not(b)consenttoit;[…]”. Ordinance, s118:“Aman commitsrapeif-(a)hehasunlawfulsexualintercourse withawomanwhoatthe Olugboja [1982]QB320.TheEnglishcommonlawdefinitionofrapeis reflected intheHongKongCrimes See, eg,ReportoftheAdvisory Group ontheLawofRape(1975),Cmnd6352,pars18-22,citedinRv over acentury.” books continuedtostatethelawinthosetermsuntilveryrecently buttheyhavebeenout-of-dateforwell At onetimeitwasstatedthattheintercourse musthavebeenprocured through force, fearorfraud.Some See Smith,Smith&HoganCriminalLaw(1999),p457:“Theessenceofrapeistheabsenceconsent[…]. International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 331 cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of falling woman under circumstances with a has sexual intercourse excepted, cases hereinafter With her Without her consent. Thirdly.- her will. Secondly.- descriptions:-First.- Against the six following in is interested any person in whom she by putting her or her consent has been obtained consent, when husband, and knows that he is not her her consent, when the man or of hurt. Fourthly.-With fear of death she is or believes herself she believes that he is another man to whom that her consent is given because With of such consent, by reason her consent, when, at the time of giving to be lawfully married. Fifthly.- any of another or through personally by him administration or the intoxication of mind or unsoundness of that to and consequences substance, she is unable to understand the nature stupefying or unwholesome With sixteen years of age.” or without her consent, when she is under which she gives consent. Sixthly.- enu- The fifth circumstance 375. (Abdul Matin, The Penal Code (1994), p 718). Bangladesh Penal Code, s Code contained the Bangladesh Code. The Pakistan Penal Code is absent from merated in the Indian Penal in 1979. repeal until its an almost identical provision 1 1990 F submission: mere by established not is Consent 421F. (A) 429 SA 3 1958 K of decision the eg, See, will exclude by violence or threats factors such as fear induced SACR 238 (A) 249 and a number of different any genuine consent: S 1971 2 SA 591 (A). Zambia. Zambian Penal Code, Cap 87, s 132 of The Laws of Penal, Art 195 Code Pénale, Art 375. See also the Nicaraguan Código 1958 (Vic),See, eg, Canadian Criminal Code, s 273; Crimes Act s 36. Brief I, par 128. Pre-Trial Prosecutor’s Judgment on Allegations of Contempt Against Prior Counsel, Milan Case IT-94-1-A-R77, v Tadic, Prosecutor statements of what was seen by the judges 31 Jan 2000, par 25: “Sub-rule (A) to (D) [of Rule 77] are Vujin, the jurisprudence upon those aspects of the law of contempt to reflect at Plenary meetings of the Tribunal Those statements do not displace the underlying law; both the Tribunal to the Tribunal. applicable as are to by the Appeals bound by that underlying law”. Rule 96 was explicitly referred and the parties remain principle (see fn 26 to par 25). Chamber as another example of the application of that

1160 1161 1162 1163 1164 1165 1166 332 Gender-based Violence Special Court for Sierra Leone

Prosecutor v. Issa Hassan Sesay, Morris Kallon, Augustine Gbao

Case Nº SCSL-04-15-T

Judgment of March 2, 2009

334 Gender-based Violence ity intheAlliedControl Council LawNo.10 ICTR 145. humanitarianlaw.crime ininternational 144. ent timeperiodsrelevant to theIndictment. District, KailahunFreetown andtheWesternArea andPortLokoDistrictindiffer sibility fortherapesofwomenandgirlsinKonoDistrict,KoinaduguBombali manity underArticle2oftheStatute.ThisCountrelates totheAccused’s allegedrespon - 143. 3.3.6. Rape(Count6) […] 3.3. […] 3. […] […] tribunals. law entailingindividualcriminalresponsibility hasbeenreaffirmed before theAdHoc worst sufferings ahumanbeingcaninflictuponanother.” III. 281 abuse ofpoweragainstsuchperson oranotherpersonbytakingadvantageofa as thatcausedbyfearofviolence, duress, detention,psychological oppression or (ii) Theinvasionwascommitted byforce, orbythreat offorce orcoercion, such part ofthebody; organ, oroftheanalgenitalopeningvictimwithany objectoranyother however slight,ofanypartthebodyvictimor Accused withasexual (i) TheAccusedinvadedthebodyofapersonbyconductresulting inpenetration, Thus, theChamberhasheldthatconstitutiveelementsof rapeare asfollows: This Chamberopinesthattheoffence ofrapehaslongbeenprohibited asawar The IndictmentchargestheAccusedinCount6withrapeasacrimeagainsthu- Specific Offences Law ontheCrimesCharged A andtheICC. pplicable 283 Indeed,theICTYTrial ChamberinKunaracdeclared that“[r]apeisoneofthe L 282 a Thestatusofrapeasanoffence undercustomaryinternational w 278 Itisalsoprohibited asacrime againsthuman- 277 279 andintheStatutesofICTY, 284 280 the - Special Court for Sierra Leone - Prosecutor v. Sesay et al. 335 293 286 289 This definition of invasion is broad This definition of invasion is broad 288 The ICTY Appeals Chamber has empha- The use or threat of force provides clear provides of force The use or threat 291 290 294 285 The second part of the provision refers to the penetration of to refers second part of the provision The 287 292 The mens rea requirements for the offence of rape are that the invasion was inten- of rape are for the offence requirements The mens rea The Chamber observes that the very specific circumstances of an armed conflict specific circumstances The Chamber observes that the very The last part of this element refers to those situations where, even in the absence to those situations where, The last part of this element refers The second element of the actus reus of rape refers to the circumstances which circumstances to the of rape refers The second element of the actus reus The first element of the actus reus defines the type of invasion that is required to con- required reus defines the type of invasion that is the actus The first element of coercive environment, or the invasion was committed against a person incapable of incapable person a against committed was invasion the or environment, coercive consent; giving genuine (iii) The Accused intended to effect the sexual penetration or acted in the reasonable acted in the reasonable penetration or the sexual intended to effect (iii) The Accused to occur; and that this was likely knowledge consent. to know that the victim did not or had reason (iv) The Accused knew evidence of nonconsent, but it is not required. evidence of nonconsent, 150. tional and that it was done in the knowledge that the victim was not consenting. 149. coupled with the social stigma to have occurred, alleged rapes on a large scale are where test set out in which is borne the restrictive in certain societies, render by victims of rape be evidence may therefore Circumstantial the elements of the crime difficult to satisfy. of rape. used to demonstrate the actus reus 148. have consented to the act. a person cannot be said to genuinely or coercion, of force of genuinely consenting if he or she is too A person may not, for instance, be capable an illness or disability. from or suffering young, under the influence of some substance, 147. the sexual act in the first element criminal. The essence of this element is would render in which the person could not be said to have vol- that it describes those circumstances act. untarily and genuinely consented to the 146. firstThe slight. however penetration, of types two covers and rape of offence the stitute orvictim the either of the body of part any of penetration the to refers provision the of part in this part includes genital, organ. The “any part of the body” the Accused with a sexual penetration. or oral anal sised that the circumstances “that prevail in most cases charged as either war crimes or in most cases charged “that prevail sised that the circumstances true consent That is to say, coercive. crimes against humanity will be almost universally will not be possible.” the genital or anal opening of the victim with any object or any other part of the body. This the body. of part other any or object any with the victim of opening anal or genital the a sexual organ which could penetration with something other than part is meant to cover object. include either other body parts or any other enough to be gender neutral as both men and women can be victims of rape. enough to be gender neutral as both men 336 Gender-based Violence months andsubjectedthemtorapeothersexualacts. of enslavement,rapeandoutragesonpersonaldignityforhaving detainedwomenfor in thepast.InKunaraccase,forinstance,Accusedwere convictedoftheoffences and actswhichcouldbeclassifiedassexualslaveryhavebeen prosecuted asenslavement the Chamber’s viewthatsexualslaveryis aparticularisedformofslaveryorenslavement 155. Special Court were the first to specifically indict persons with the crime of sexual slavery. crime againsthumanityunderArticle2(g)oftheStatuteandIndictmentsbefore the exploitation, isadistinctoffence from thatofrape.” peals Chamber emphasized that “it finds that enslavement, even if basedon sexual sexual violencethathasbeenused, oftenwithimpunity, asatacticofwartohumiliate, crimes thathave been historically overlooked and torecognise theparticularnature of Chamber considers that the specific offences are designed to drawattention toserious sexual slaveryandviolence criminalisesactionsthatwere already criminal. The 156. and acrimeagainsthumanityintheICCStatute. 154. slavery”. 153. relevant totheIndictment. Loko District.Alloftheallegationsare saidtohaveoccurred indifferent timeperiods violence inKoinaduguDistrict,BombaliFreetown andtheWesternArea andPort leged toberesponsible for thesubjectionofwomenandgirlstootherformssexual District, Freetown andthe Western Area andPortLokoDistrict.TheAccusedare alsoal- slaves ofwomenandgirlsinKonoDistrict,KoinaduguBombaliKailahun Count relates totheAccused’s allegedresponsibility fortheabductionanduseassexual form ofsexualviolenceasacrimeagainsthumanityunderArticle2theStatute.This 152. (Count7) 3.3.7. SexualSlaveryandanyotherFormofViolence Rules (“theRules”). drawn from evidenceadducedincasesofsexualassaultthatare setoutinRule96ofthe 151. By thisassertion,theChamberdoesnotsuggestthatoffence isentirely new. Itis The Chamber opines that the prohibition of the more particular offences suchas The specificoffence ofsexual slaverywasincludedforthefirsttimeasawarcrime (…) theChamberwillhere consideronlytheelementsofoffence of“sexual The Indictment in Count 7 charges the Accused with sexual slavery and any other The Chamberdrawsattentiontotheprinciplesregarding inferences thatcannotbe 296 295 297 299 Theoffence ischaracterised asa 298 Inthatcase,theICTYAp- Special Court for Sierra Leone - Prosecutor v. Sesay et al. 337 306 305 (the slavery element) and second, 304 303 2 0 3 The Chamber is satisfied that this would equally apply to the offence of offence that this would equally apply to the The Chamber is satisfied 301 In determining whether or not the enslavement element of the actus reus has been element of the actus reus In determining whether or not the enslavement To convict an Accused for this offence, the Prosecution must also prove that the must also prove the Prosecution convict an Accused for this offence, To The Chamber also notes that the expression “similar deprivation of liberty” may cover The Chamber also notes that the expression This Chamber considers that the actus reus of the offence of sexual slavery is made of the offence This Chamber considers that the actus reus Consistent with the Rule 98 Decision, the Chamber has held that the relevant con- that the relevant Rule 98 Decision, the Chamber has held Consistent with the of ownership or all the powers attaching to the right any (i) The Accused exercised or bartering such lending selling, by purchasing, as such persons, or more over one a similar deprivation of liberty; a person or persons, or by imposing on them acts of a to engage in one or more (ii) The Accused caused such person or persons and sexual nature; - the act of sexual slavery or acted in the reason (iii) The Accused intended to exercise able knowledge that this was likely to occur. As discussed in more detail below, this Chamber takes the view that the offence of the offence takes the view that this Chamber detail below, in more As discussed 300 that the enslavement involved sexual acts (the sexual element). that the enslavement involved sexual acts 160. of a power the exercise of actions that reflect established, the Chamber notes that the list is not exhaustive. The Chamber adopts theof ownership that is included in the element some- of “control al.: et Kunarac in ICTY the by identified enslavement of indicia following taken to measures psychological control, of physical environment, movement, control one’s duration, assertion of exclusivity, or coercion, of force threat deter escape, force, or prevent labour.” and forced of sexuality and abuse, control subjection to cruel treatment 162. The acts of Accused caused the enslaved person to engage in acts of a sexual nature. 161. otherwise situations in which the victims may not have been physically confined, but were for their lives. else to go and feared unable to leave as they would have nowhere 159. attaching powers the of all or any exercised Accused the that first, elements: two of up or persons to the right of ownership over a person 158. sexual slavery are: stitutive elements of 157. international customary at criminal individual entails and law prohibited is enslavement responsibility. dominate and instil fear in victims, their families and communities during armed con- communities during their families and and instil fear in victims, dominate flict. sexual slavery which is “an internationalsexual slavery which violation of jus cogens norms in the crime and a slavery.” exact same manner as 338 Gender-based Violence of the crime, although it may be relevant in determining the quality of the relationship. such crimes.Nonetheless,we consideritanunfortunatereality inpost-conflictSierra violence, especiallyinSierraLeonean societywhere stigma oftenattachestovictimsof sant thatitisnaturalforsomewitnesses tobereticent to provide explicitdetailsofsexual tion seekingtoclarifytheuseof thetermandconductentailedbyit.We are cogni - the Chambernotesthatnumerous witnessesusedtheterm “rape” withouttheProsecu- 1285. AsanobservationpertinenttotheevidenceonCount 6inrespect ofallDistricts, […] 5.2.2.1. Rape(Count6) (Counts6to9) 5.2.2. SexualViolence […] 5.2. […] 5. […] […] ownership. ing whetherornottheAccusedexercised anyofthepowersattachingtoright or notthere wasconsentmayberelevant from anevidentiaryperspectiveinestablish- or to the sexual acts is not an element to be proved by the Prosecution, although whether 163. constitutes sexualslavery. sexual violenceare theadditional element that,whencombinedwithevidenceofslavery, presume theabsenceofconsent.” that “circumstances which render itimpossibletoexpress consentmaybesufficient to e V. Legal FindingsontheCrimesinKonoDistrict Crimes inKonoDistrict The Chamberemphasisesthatthelackofconsentvictimtoenslavement valua 308 TheChambersubscribestothestatementofICTYAppeals tion

of E 307 vidence 309 Thedurationoftheenslavementisnotanelement 310 Special Court for Sierra Leone - Prosecutor v. Sesay et al. 339 2461 2451 2458 and, 2457 2456 2455 2459 and, 2460 (i) an unknown number of women were taken as “wives” by AFRC/RUF fighters in fighters AFRC/RUF by “wives” as taken were women of number unknown an (i) 1998; Koidu in February and March (i) sexual acts were perpetrated on TF1-195 five times and an unknown number of on TF1-195 five times and an unknown perpetrated (i) sexual acts were rebels in Sawao; women by times on five other (ii) an unknown number of women were forcibly kept as “wives” by RUF fighters in kept as “wives” forcibly (ii) an unknown number of women were the civilian camp at Wendedu; (iii) sexual acts were perpetrated on TF1-218 twice by rebels in Bumpeh; perpetrated on TF1-218 twice by rebels (iii) sexual acts were (ii) sexual acts were perpetrated on TF1-217’s wife eight times and on an unknown and on eight times wife perpetrated on TF1-217’s were sexual acts (ii) in Penduma; number of other women by rebels (iv) rebels inserted a pistol in the vagina of a female civilian in Bomboafuidu. (iv) rebels (iii) TF1-016 and her daughter were forcibly “married” to RUF members in Kissi-Town. forcibly (iii) TF1-016 and her daughter were […] that Wendedu and Koidu to pertaining evidence the from concludes Chamber The 1293. into conjugal forced women who were patterna consistent towards of conduct existed to engage in sexu- forced against their will, “married” were These “wives” relationships. 1290. The Chamber is satisfied from the evidence in respect of each of these incidents respect the evidence in 1290. The Chamber is satisfied from in the context of of rape is established. The perpetrators’ acts occurred that the actus reus killing or physically injuring of civilians, and threatening, capturing groups armed rebels the women did not consent such circumstances them. The Chamber is satisfied that in finds that each in fact incapable of genuine consent. The Chamber accordingly and were in Count 6. of these acts constitute rape as charged Marriage’ (Counts 7 and 8) 5.2.2.2. Sexual Slavery and ‘Forced its findings that: 1291. The Chamber recalls […] and Bumpeh 5.2.2.1.3. Sawao, Penduma findings that: its recalls 1289. The Chamber Leone that “rape” is a commonly understood concept. The Chamber is therefore of the of The Chamber is therefore concept. understood a commonly is “rape” that Leone or forced of acts describes witnesses reliable by “rape” term the of use the that view of rape. of the offence the actus reus consistent with sexual penetration non-consensual or coercion. evidence of violence circumstantial by be reinforced may This approach 340 Gender-based Violence that theiractswouldproduce thiseffect. tion ofthedignityvictims andtheperpetratorskneworoughttohaveknownthat described above,alsoconstitute ineachcaseasevere humiliation, degradationandviola- 1298. TheChamberfindsthat theactsofrape,sexualslaveryand‘forced marriage,’as 5.2.2.3.1. Rape,SexualSlaveryand‘Forced Marriage’ 5.2.2.3. OutragesonPersonalDignity(Count9) 016 inKissi-Town, whichcrimesconstitute inhumaneactsaschargedinCount8. of womenintomarriagesinWendedu; andthatanRUFmemberforcibly marriedTF1- ber ofwomenintomarriagesinKoidu;thatAFRC/RUFrebels forced anunknownnumber 1297. The Chamber is therefore satisfied that AFRC/RUF rebels forced an unknown num- of thegravitytheiractions. to thephysical and mentalhealth of thevictims, and thattheperpetrators were aware petrators’ actionsintaking“wives”Koiduinflictedgravesuffering andseriousinjury commonly inflicted onwomentakenas “wives”.The Chamberthusfindsthattheper society. ried with it a lasting social stigma which hampers their recovery and reintegration into 1296. TheChamberobservesthattheconjugalassociationforced uponthevictimscar “taken aswives”waswell-knownandunderstood. so widespread throughout theSierraLeoneconflictthatconceptofwomenbeing of aforced conjugalassociation. We considerthatthephenomenonof“bushwives”was Koidu andWendedu satisfies theactus reus of‘forced marriage,’ namelytheimposition merous reliable witnessesthatrebels captured womenand“tookthemastheirwives”in 1295. Inrelation toCount 8,theChamberissatisfiedthatconductdescribedbynu- them, includingbyforcing thewomentoengageinactsofasexualnature. (…) the womenoftheirlibertybyexercising powersattachingtotherightofownershipover 1294. TheChamber is accordingly satisfied thattheperpetratorsintendedtodeprive sexual intercourse anddomesticlaboroftheirownfree volition. did notgenuinelyconsenttothe“marriage”orperformconjugal“duties”including of thepowerexercised overtheir“wives”andtherefore were aware thattheir“wives” for fearofviolentretribution. TheChamberissatisfiedthatthe“husbands”were aware al intercourse andperformdomesticchores, andwere unabletoleavetheir“husbands” 2463 This suffering is in addition to the physical injuries that forced intercourse 2464 - - Special Court for Sierra Leone - Prosecutor v. Sesay et al. 341 The 2468 The Prosecution therefore failed to adequately failed therefore The Prosecution 2469 - start of the Prosecu As this statement was disclosed prior to the 2470 2467 plead material facts which it then relied on as evidence of crimes, rendering the Indictment on as evidence of crimes, rendering plead material facts which it then relied this defect in the Indictment determine whether defective. The Chamber must therefore material facts to the Accused. timely and consistent notice of the by clear, was cured disclosed a witness statement of TF1-218 in which it is alleged 1304. The Prosecution in public and abused the couple’s a couple to have sexual intercourse forced that rebels 10 year old daughter. tion case on 5 July 2004, the Chamber finds that this constitutes adequate notice of the tion case on 5 July 2004, the Chamber finds violence alleged. The Chamber finds that the material particulars of the form of sexual consistent notice to the Defense. timely and by clear, defect in the Indictment was cured humiliated the couple and their acts severely 1305. The Chamber is satisfied that these these acts and the public context of Given the nature daughter and violated their dignity. the Chamber further finds that the perpetrators possessed full in which they occurred, personal dignity of the victims. knowledge that their actions degraded the rebels committed two outrages finds that AFRC/RUF 1306. The Chamber accordingly of the Indictment. as charged in Count 9 upon personal dignity, 5.2.2.3.3. Bomboafuidu approximately rebels in forcing 1307. The Chamber finds that the conduct of AFRC/RUF with each other and slitting the genitalia of 20 captive civilians to have sexual intercourse 1303. The Chamber recalls its finding that conduct which constitutes “any other form of finding that conduct which constitutes its recalls 1303. The Chamber personal dignity. form the basis for charges of outrages upon sexual violence” may […] Bumpeh 5.2.2.3.2. a in Bumpeh ordered 1998, rebels in February/March that recalls 1302. The Chamber civilians and their of the other captured in the presence intercourse couple to have sexual her father’s daughter to wash the man’s they forced rape After the enforced daughter. penis. Chamber observes, however, that the Prosecution did not particularise the conduct that did not particularise the that the Prosecution Chamber observes, however, on its pleadings also restricted of sexual violence. The Prosecution constitutes other forms committed against “women and girls,” thereby sexual violence in the Indictment to crimes excluding male victims of sexual violence. 342 Gender-based Violence women ordeal, herrapiststookaknifeandstabbedinfront oftheentire family. the victims’personaldignity. several maleandfemaleciviliansconstitutedasevere degradation,harmandviolationof rapes, methods ofsexualviolenceagainstwomenandmenallages rangingfrom brutalgang perpetrators tousesexualviolenceasaweaponofterror. Thesefightersemployedperverse on the part of the target of the sexual violence portrays a calculated and concerted pattern The Chamberfindsthatthenaturea andmannerinwhichthefemalepopulationwas vilian populationinanatmosphere inwhichviolence,oppression andlawlessnessprevailed. 1347. TheChamberobservesthatsexualviolencewasrampantly committedagainsttheci- duced inrelation tothevarious DistrictsofSierraLeoneaschargedintheIndictment. against thecivilianpopulation,Chamberhasconsidered thebodyofevidencead- 1346. InmakingitsLegalFindingsonsexualviolenceasanactofterrorism committed 5.2.6.2.1. GeneralConsiderations asActsofTerrorism5.2.6.2. SexualViolence […] Count 9. outrages uponthepersonaldignityofanunknownnumbercivilians,aschargedin 1309. TheChambertherefore findsthatAFRC/RUF rebels inBomboafuiducommitted ing nomaterialprejudice to theDefenseinpreparation oftheircase. that thedefectinIndictmentwascured inatimely, clearandconsistentmannercaus- his wife,“hehadnopowernot to”astherapistslaughedandmockedhim. forced towatch.TF1-217wasordered tocount eachrebel astheyconsecutively raped In oneinstance,thewifeofTF1-217 wasrapedbyeightrebels asheandhischildren were such informationinthewitnessstatementofTF1-192. adequately notifiedtheDefenseofmaterialfactthisallegationbydisclosure of lence committedagainstmalevictims.However, theChamberfindsthatProsecution duct that constitutes other forms of sexual violence and didnot plead forms of sexualvio- 1308. Again,theChamberobservesthatProsecution didnotparticularisethecon- actions wouldhavethiseffect andsointended. 2507 2509 theinsertionofvariousobjectsintovictims’genitalia, and forced sexual intercourse between male and female civilian abductees. 2471 TheChamberissatisfiedthattheperpetratorsknewtheir 2472 Therefore, theChamberfinds 2508 therapingofpregnant 2512 2511 After the Afterthe 2510

Special Court for Sierra Leone - Prosecutor v. Sesay et al. 343 by the 2515 The practice of ‘forced The practice of ‘forced Rebels invaded homes at 2520 2519 2517 The Chamber finds that the pattern 2521 The Chamber considers this statement indicative of the The Chamber considers this statement indicative In this way the AFRC and RUF extended their power and In this way the AFRC and RUF extended Victims of sexual violence were ostracised, husbands left Victims violence were of sexual 2516 2518 2513 The Chamber finds that sexual violence was intentionally employed The Chamber finds that sexual violence 2514 atmosphere of terror and helplessness that the rebel forces created by systematically created forces and helplessness that the rebel of terror atmosphere unable to demonstrate that the communities were engaging in sexual violence in order their own wives, daughters, mothers, and sisters. to protect marriages’ and sexual slavery stigmatised the women, who lived in shame and fear of marriages’ and sexual slavery stigmatised the women, who lived in shame and returning to their communities after the conflict. random and raped women. their wives, and daughters and young girls were unable to marry within their commu- were their wives, and daughters and young girls nity. perpetrators to alienate victims and render apart communities, thus inflicting physical perpetrators to alienate victims and render as a whole. The Chamber finds that and psychological injury on the civilian population calculated they were apparent so common that it is of sexual violence were these effects consequences of the perpetrators’ acts. - percep the general TF1-029 describing of the testimony Chamber recalls 1350. The had a right to rape them civilians that “soldiers who captured tion among the rebels and make them their wives.” 1351. The Chamber has further found that countless women of all ages were routinely routinely countless women of all ages were 1351. The Chamber has further found that - pro into forced and communities and homes families, their from abducted and captured as ‘wives.’ with rebel longed exclusive conjugal relationships of sexual enslavement employed by the RUF was a deliberate system intended to spread spread of sexual enslavement employed by the RUF was a deliberate system intended to existing marital sta- of their age or by the mass abductions of women, regardless terror legitimate husbands and families. tus, from 1348. The Chamber is satisfied that the manner in which the rebels ravaged through vil- rebels ravaged through which the that the manner in Chamber is satisfied 1348. The population and the civilian disempowered effectively the female population lages targeting finds The Chamber moreover communities. fear on entire of instilling effect had a direct a means of sexual satisfaction or for personal not intended merely acts were that these the of such conduct against opine that the savage nature We fighter. gratification for the committed with of the society most vulnerable members that these acts demonstrates were to order in whole, a as population civilian the amongst fear spreading of intent specific the their submission to AFRC/RUF control. and ensure the will of the population break on the women and psychological pain and fear inflicted note that the physical 1349. We but deliberately destroyed and isolated the individual victim, not only abused, debased which and relationships thus undermining the cultural values the existing family nucleus, held the societies together. dominance over the civilian population by perpetuating a constant threat of insecurity by perpetuating a constant threat dominance over the civilian population women and men. that pervaded daily life and afflicted both 344 Gender-based Violence forces intheirencounters withcivilians. and Bomboafuidureflectofconductopenlyexhibitedbythe a consistentpattern rebel Bumpeh andBomboafuidutheoutragesonpersonaldignitycommittedin 1354. We findthattherape byStaff Alhajiin Tombodu, therapesinSawao,Penduma, 5.2.6.2.3. Rapesinotherlocations in KoiduFebruaryandMarch 1998aschargedunderCount1oftheIndictment. cordingly findsthatAFRC/RUF rebels committedanunknownnumberofactsterrorism rape asadeliberatetactictoterrorise thecivilian population ofKoidu.TheChamberac- satisfied on this basis that the perpetrators of these acts of violence against civilians used basis byrebels whoforcibly entered randomcivilianhomesatnight.TheChamber is sometime inFebruaryandMarch 1998. 1353. TheChamberrecalls thatanunknownnumberofcivilianswere rapedinKoidu 5.2.6.2.2. KoiduTown population ofSierraLeone. committed suchactsofsexualviolenceaspartacampaigntoterrorise thecivilian that theevidenceonrecord establishesthatmembers oftheAFRC/RUFregularly with thespecificintenttoterrorise, amounttoanactofterror. TheChamberconsiders riages’ andoutragesonpersonaldignity, whencommittedagainstacivilianpopulation 1352. Inlightoftheforegoing, theChamberfindsthatrape,sexualslavery, ‘forced mar Count 1oftheIndictment. District. We accordingly findthatthesecrimesconstituteactsofterrorism aschargedin and otherformsofsexualviolence tospread terror amongthecivilianpopulationofKono and amputationsinKonoDistrict, theChamberfindsthat rebels regularly used rape the geographicandtemporalproximity ofthesecrimestoeachother, andtothekillings was adeliberatetacticonthepartofperpetratorstoinstil fear intothecivilians.Given 1355. TheChamberissatisfiedfrom thisevidencethatthepublicnature ofthecrimes openly selectedfrom agroup ofciviliansastherebels’ victims. their limbsamputated.InBomboafuidu,ahusbandandwife andtheirdaughterwere the rapesofmultiplewomenwere committedatthesametimeasmenwere killedorhad prior tobeingcompelledhaveintercourse witheachother. InSawao,asinPenduma, rape ofhiswife.InBumpeh,victimswere forced tolaughandtoldtheirliveswere over rebels selectedtheirvictim one byone.Ahusbandwasforced atgunpointtowitnessthe rapes were committedinfront ofothercivilians.InPenduma,womenwere lined upand 2523 2522 TheChambernotesthatineachcasethe Theserapeswere committed onaregular - Special Court for Sierra Leone - Prosecutor v. Sesay et al. 345 - As found above, the Chamber is satisfied that because of the consistent pat- of the consistent is satisfied that because above, the Chamber As found 2524 Crimes in Kailahun District Crimes in Kailahun District Legal Findings on Crimes in Kailahun tern of conduct demonstrated in the exercise of the sexual violence the above findings of the sexual violence tern demonstrated in the exercise of conduct and specific committed with the requisite marriage’ were ‘forced of sexual slavery and population. (…) the civilian intent to terrorise […] 6. […] 6.2. […] 6.2.2. Sexual Violence (Counts 6 to 9) […] marriage” of others civilians 6.2.2.3. Sexual slavery and “forced […] intentionally committed sexual violence were 1466. The Chamber finds that acts of in war environment of a hostile and coercive against women and girls in the context reb- the that when also finds The Chamber possible. was not genuine consent which The took victims as ‘wives’ they intended to deprive them of their liberty. els forcefully rebels was deliberate and strategic, ‘wife’ by the Chamber finds that the use of the term the with the aim of enslaving and psychologically manipulating the women and with them like possessions. purpose of treating to 1467. The Chamber is satisfied that many fighters had ‘bush wives’, who, similarly to have intentionally forced the cases of TF1-314 and TF1-093 discussed above, were exercise to intended perpetrators the that finds also Chamber The rebels. the with sex unable to leave or escape for fear that and ownership over their victims who were control 5.2.6.3. Sexual Slavery, ‘Forced Marriage’ as Acts of Terrorism Marriage’ ‘Forced Slavery, 5.2.6.3. Sexual of ter violence as acts considerations on sexual its general Chamber recalls 1356. The rorism. 346 Gender-based Violence […] Kailahun District,aschargedunder Counts7and8oftheIndictment. unknown numberofwomenwere subjectedtosexual slavery and ‘forced marriages’ in ‘forced marriage’asanotherinhumaneacthavebeenestablished.We concludethatan 1473. TheChamberistherefore satisfiedthatalltheelementsofsexualslaveryand bear children. conjugal sexualrelationships butwere alsoexpectedtoperformdomesticchores andto 1472. TheChamberissatisfiedthat‘bushwives’were notonlyforced intoexclusive consent tohavingsexualrelations orcontractingmarriageswiththesaidRUFfighters. cive circumstances ofthis nature, there shouldbeapresumption ofabsencegenuine 1471. Inthisregard, theChamberisofopinionandsoholds,thatinhostilecoer tion inwhichtheylivedcaptivity. was, incircumstances, not consensualbecauseofthestateuncertaintyandsubjuga- the contrary, and onthebasisofverycredible andcompellingevidence,couldnot, the sexualrelations withthe rebels, notwithstandingthecontentionofDefenseto which thesewomensuddenlyfoundthemselves,theChamberfirstofallconsidersthat 1470. Inlightoftheforegoing andgiventheviolent,hostilecoercive environment in abused womenwasconspicuouslyabsent. parental andfamilyconsent totheso-calledmarriagesofthesesexuallyenslavedand with therequisite consent of thepartiesinvolved.TheChamberobserves,however, that The Defensealsocontendsthatthemarriageswhichwere socontractedwere conducted those offences, willinglyconsented totheallegedmarriagesandsexualrelationships. and girlswho they captured and abducted during attacks, and who were victims of that theAccusedhavecanvasseddefenseofconsentandcontendwomen 1469. In relation to the sexual offences alleged in the Indictment, the Chamber notes tims’ fearandtheirdesperatesituation. intimidation, manipulationandotherformsofduress whichwere predicated onthevic- 1468. We alsofindthatmanywomenwere forced intomarriagebymeansofthreats, with rebels. finds thatyounggirlsandwomenwere intentionallyforced intoconjugal relationships they wouldbekilledorsenttothefront linesascombatants.Accordingly, theChamber - Special Court for Sierra Leone - Prosecutor v. Sesay et al. 347 Appeal Trial Judg- Trial Trial Judgment, paras 165-169; Čelebići Trial Prosecutor v. Gacumbitsi, ICTR-01-64-A, Judgment (AC), 7 July 2006, para. 115 [Gacumbitsi Prosecutor v. Trial Judgment, paras 183-185. Para. 184: “[F]orced oral sex can be just as humiliating and trau- Judgment, paras 183-185. Para. 184: “[F]orced Trial : UN SC Res. 1820 (2008), 19 June 2008, para. 4: “rape and other forms of ment, paras 476-477. See also: UN SC Res. 1820 (2008), 19 June 2008, para. 4: “rape to or a constitutive act with respect against humanity, sexual violence can constitute a war crime, a crime genocide[…]” Judgment, para. 655. Kunarac et al. Trial International 7(1)(g) and Criminal Court, Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2000), Art. Art. 8(2)(b)(xxii) [ICC Elements of Crimes]. 21-22. of 25 October 2006, pp. RUF Oral Rule 98 Decision, Transcript Furundžija matic for a victim as vaginal or anal penetration.” Judgment, para. 185. Furundžija Trial ICC Elements of Crimes, fn 50. Judgment, paras 457-459. Trial Kunarac et al. Appeal Judgment, para. 129; Kunarac et al. Kunarac et al. Appeal Judgment, para. 129. Kunarac et al. Appeal Judgment, para. 130. See, for example, ICC Elements of Crimes, fn 51. [ Muhimana 2007, para. 49 May (AC), 21 Judgment , ICTR-95-1B-A, Muhimana See Prosecutor v. Judgment]; Appeal Judgment]. Indictment, paras 54-60. Infra paras 457-458. Article 7(1)(g) identifies sexual slavery as a crime against humanity and Article 8(2)(b)(xxii) identifies sexual of the Geneva Conventions. slavery as a grave breach Indictment, paras 54-60. Indictment, paras in Articles 44 merited the death penalty a serious war crime that of 1863 listed rape as The Lieber Code , Secretarythe of Order by Field the in States United the of Government the for (Instructions War 47. of and in Code]). Rape was implicitly prohibited No. 100, 24 April 1863 [Lieber D.C., General Orders Washington, and rights. of family honor for the protection Convention (IV) which provided Article 46 of the 1907 Hague Article 76(1) of Additional Protocol Article 27 of Geneva Convention IV, in Rape is also explicitly prohibited II. Protocol I and Article 4(2)(e) of Additional Allied Control Against Peace and Against Humanity, Crimes, Crimes of War Punishment of Persons Guilty No. 3, 31 Germany, Council for 1945, Official Gazette of the Control Council Law No. 10, 20 December Law No. 10]. Council January 1946, Art. II.1(c) [Control Article 5(g) of the ICTY Statute. Article 3(g) of the ICTR Statute. 1, 2002), Art. July into force 90 (entered Rome Statute of the International Criminal Court, 2187 U.N.T.S. 7(1)(g) [ICC Statute]. Kvocka et al. Appeal Judgment, para. 395; Furundžija

ndnotes E 284 285 286 287 288 289 290 291 292 293 294 295 296 297 277 278 279 280 281 282 283 348 Gender-based Violence 301 300 299 298 2458 2457 2456 2455 2451 310 309 308 307 306 305 304 303 302

Kunarac etal.Trial Judgment,paras519-537and539;Krnojelac 6 June2000,para.20 Human Rights,Sub-CommissiononthePromotion andProtection ofHumanRights,E/CN.4/Sub.2/2000/21, practices andslavery-like sexual slavery submitted byMs.GayJ.McDougall,SpecialRapporteur, Systematicrape, FormsofSlavery: Contemporary and Protection of Minorities, E/CN.4/Sub.2/1998/13, 22 June 1998, paras 7-19; Update to Final report conflict, practicesduringarmed andslavery-like Systematicrape,sexualslavery FormsofSlavery: Contemporary UN SCRes.1820(2008),19June2008;Finalreport submittedbyMs.GayJ.McDougall,SpecialRapporteur, Kunarac etal.AppealJudgment,para.186. Kunarac etal.Trial Judgment,paras746-782. narac etal.AppealJudgment,para.124. Supra para.1208. Supra para.1206. Supra paras1193-1195. Supra paras1180-1181,1185. Supra paras147-148. Kunarac etal.AppealsJudgment,para.121. Kunarac etal.AppealsJudgment,para.120 capable ofproviding voluntaryandgenuineconsent. notes omitted]Oncetheelementofenslavementhasbeenproven, thentheenslavedpersonwouldnot be it followsthatpersonaccusedofslaverycannotraiseconsentthevictimas adefense.”[originalfoot- “Likewise, apersoncannot,underanycircumstances, consenttobeenslavedorsubjectedslavery. Thus, Kunarac etal.AppealsJudgment,para.120.See Update ofReportbySpecialRapporteur, paras47and51. Court]. and Evidence(Transnational Publishers,Ardsley, NewYork: 2001),pp.191-192[Lee,InternationalCriminal Eve LaHayeinRoyS.Lee,ed.,TheInternationalCriminalCourt:ElementsofCrimesandRulesProcedure nevertheless “deprivedoftheirliberty”becausetheyhavenowhere elsetogoandfearfortheirlives,see prohibition situationsinwhich sexuallyabusedwomenwere notlockedinaparticularplacebutwere the RomeStatuteWorking Group onElementsofCrimestoensure thattheprovision didnotexcludefrom Kunarac etal.Trial Judgment,para.750.Thisexpression wasalsoinsisted uponbysomedelegationsto Chamber inKunaracetal.AppealJudgment,para.119. Kunarac et al. 04-15-T 532March 2009 Kunarac etal.Trial Judgment,para.540.SeealsoAFRCAppeal102.CaseNo.SCSL- RUF OralRule98Decision,Transcript of25October2006,p.22. Update toFinalReportofSpecialRapporteur, para.51. Economic andSocialCouncil,CommissiononHumanRights,Sub-CommissionthePromotion Trial Judgment, para. 543 [original footnotes omitted], cited with approval by the Appeals during armedconflict,EconomicandSocialCouncil,Commissionon also UpdateofReportbySpecialRapporteur, para.51: Trial Judgment,para.355.See also Ku- Special Court for Sierra Leone - Prosecutor v. Sesay et al. 349 Exhibit 381, Fourth Report of the UN Secretary-General on the UN Mission in Sierra Leone, dated 19 in Sierra Leone, dated on the UN Mission Report of the UN Secretary-General Exhibit 381, Fourth TF1-217 who describes the rape of five women in front of children and other civilians: Transcript of 22 other civilians: and of children TF1-217 who describes the rape of five women in front Supra paras 1154-1155. Supra paras 1178-1179 Supra paras 1209-1214 See May 2000, p. 3578. Supra paras 1283-1297. Supra para. 1205. Supra para. 468. See Indictment, paras 54-60. Witnessof Statement The - Decem on 10 Kallon to 2003, November 14 on Sesay to disclosed was TF1-218 17 December 2003. ber 2003, and to Gbao on Supra para. 1207. Statement of Witness 2003, to Kallon on 10 December 2003 TF1-192, Disclosed to Sesay on 14 November and to Gbao on 17 December 2003. See by guarded were while her parents by eight rebels July 2004, TF1-217, pp. 23-24. TF1-305 was gang raped armed feeling “as she lay on the ground and she stated that the rape she felt dizzy and bled profusely after rebels, TF1-305, pp. 54-57. of 27 July of 2004, if I was in the hands of death itself”: Transcript along with 20 other civilians by armed fighters and the men inserted a pistol into the TF1-192 was captured TF1-192, 2005, February 1 of overnight,her inside it leaving captives, female the of one of vagina Transcript p. 68. by an RUF fighter in Daru in eight months pregnant DIS-157 testified of the rape of a woman who was Jalloh to be shot after the rape and DIS-157 and other MP Commanders ordered 1998. The victim reported pp. 124-126. of 24 January 2008, DIS-157, he admitted to the rape: Transcript the civilian man to have sex with her while her and forced her legs, cut her spread man. The rebels Temne Transcript of 19 July 2004, TF1-064. p. flogged the child and mother: child stood by crying and the rebels 49. of 22 July 2004, TF1-217, pp. 17-19, 30. Transcript of 22 July 2004, TF1-217, pp. 17-19, 30. Transcript Cry”, p. 4. if You Kill You “We’ll Exhibit 146, Human Rights Watch, - an enormous barrier to the effec remains to TF1-369, fear of discrimination and stigmatisation According returning to their commu- the victims from of victims and their families, which prevented tive reintegration trauma and most live in denial along struggle with psychological nities, those who have been reintegrated p. 12088. Marriage, with their families, Exhibit 138, Expert Report Forced her taking or her killing between choice a make to mother her ordered and TF1-305 captured rebels RUF TF1-305, pp. 54-57 of 27 July 2004, eight of their gang raped her; Transcript away before

2459 2460 2461 2463 2464 2467 2468 2469 2470 2471 2472 2507 2508 2509 with another abductee, a to engage in sexual intercourse 2510 TF1-064 was a nursing mother who was forced 2511 2512 2513 2514 2515 350 Gender-based Violence 2524 2523 2522 2521 2520 2519 2518 2517 2516

Supra paras1346-1352. Supra paras1171,1180-1183,1191-1195,1205-1208. Supra paras1152-1155. communities thushadtoreturntheirabusers,Exhibit138,ExpertReportForced Marriage,p.12089. communities whofledfrom their rebel captorstotheircommunitieswerereturn notwelcomedbytheir Exhibit 138,ExpertReportForced Marriage,p.12097-98;Anumberofthese‘wives’haverelocated toother Infra paras1406-1408 against women:seeparas54-60. The ChambernotesthattheProsecution restricted itspleadingofsexualviolenceintheIndictmenttocrimes Transcript of22July2004,TF1-217,p.10. of 21October2004,TF1-016,pp.18-19. her daughtertobepatientastheywere powerlessand“itwaswar”sonothingcouldbedone:Transcript TF1-016’s daughtercomplainedofhavingbeenrapedbyanRUFrebel calledAlpha,howeverTF1-016told because shewasrapedinpublic:Transcript of13July2004,TF1-196,pp.26-28. to rapevirginsandanRUFrebel threatened tokillTF1-196 ifsherefused sexualintercourse. Shefeltshame Transcript of28November2005,TF1-029,pp.12-13;TF1-196alsoheard rebels say thattheywere going Committee on the Elimination of Discrimination against Women

A. T. v. Hungary

Communication Nº 2/2003

Views adopted January 26, 2005 352 Gender-based Violence 1.2 March 2001,respectively. its OptionalProtocol entered intoforce intheStatepartyon3September1981 and22 Discrimination against Women. Theauthorisrepresenting herself.TheConvention and 2 (a),(b)and(e),5(a)16oftheConventiononEliminationAllForms 10 October1968.SheclaimstobeavictimofviolationbyHungaryarticles tary informationdated2January2004,isMs.A.T., on aHungariannationalborn 1.1 […] the authorrefused toallowhimentertheapartment. Theauthorfurtherstatesthat, F. filledthelockwithglueandon28 March 2000,hekickedin apartofthedoorwhen on thedooroffamily’s apartmenton11March 2000.On14and26March 2000,L. Hoping toprotect herselfandthechildren, theauthorstatesthatshechanged lock financial abuseasaviolenttacticinadditiontocontinuing tothreaten herphysically. the supportbygoingtocourtandpolice,that hehasusedthisformof author claims that he did not pay child support for three years, which forced her to claim left thefamily home, takingmost of thefurnitureandhousehold itemswithhim.The drunken state.InMarch 2000,L.F. reportedly movedinwithanewfemalepartnerand legedly typicallyincludedbatteringand/orloudshouting,aggravated byhisbeingina 2.2 protection orders orrestraining orders available underHungarianlaw. child togetherwithhismotherandsister. Theauthoralsostatesthatthere are currently no a shelter, reportedly becausenoshelterinthecountryisequippedtotakeafullydisabled arm and has threatened to kill the author and rape the children, the author has not gone to children, oneofwhomisseverely brain-damaged.AlthoughL.F. allegedlypossessesafire - domestic violence and serious threats by her commonlawhusband,L. F., father ofher two 2.1 The factsaspresented submitted hercommunication,becauseshefeared forherlife. dance witharticle5,paragraph1,oftheOptionalProtocol, atthesametimethatshe V iews P The author urgently requested effective interim measures of protection in accor The authorofthecommunicationdated10October2003,withsupplemen- In March 1999, L. F. moved out of the family apartment. His subsequent visits al- The authorstatesthatforthepastfouryearsshehasbeensubjectedtoregular severe rotocol

under A rticle 7, p argrph 3, of

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- Committee on the Elimination of Discrimination against Women - A. T. v. Hungary 353 - ) issued a final decision authorizing L. F. to return and F. to ărosi Bíróság) issued a final decision authorizing L. The author states that there have been civil proceedings regarding L. F.’s access L. F.’s regarding have been civil proceedings there The author states that against have been two ongoing criminal procedures The author states that there The author states that she also initiated civil proceedings regarding division of the regarding civil proceedings The author states that she also initiated L.F. is said to have battered the author severely on several occasions, beginning in occasions, beginning on several the author severely have battered is said to L.F. on 27 July 2001, L. F. broke into the apartment using violence. using violence. into the apartment broke 2001, L. F. on 27 July 2.3 with issued in connection have been then, 10 medical certificates 1998. Since March left the family residence, physical violence, even after L. F. severe separate incidents of incident The most recent constitute a continuum of violence. which, the author submits, the author into the apartment and subjected broke 2001 when L. F. took place on 27 July her hospitalization. beating, which necessitated to a severe 2.4 metres) square apartment (of 54 by 56 room a 2 and a half residence, to the family’s Pest the instance, first the of court the by Decisions author. the and F. L. by owned jointly 2001 on 9 March rendered Bíróság (Pesti Központi Kerületi), were Central District Court decision). On 4 September 2003, the Budapest and 13 September 2002 (supplementary Regional Court (Főrv to be com- her offer refused L. F. which have been suspended. She claims that property, these In turnand apartment of the value the of for half pensated her. to ownership over (for her exclu- injunctive relief submitted a motion for the author reportedly proceedings on 25 July 2000. rejected sive right to use the apartment), which was 2.6 Kerületi Központi (Pesti Court District Central Pest the 1999 at in began that one F., L. Bíróság) concerning and assault causing her bodily harm and two incidents of battery the second that began in July 2001 concerning an incident of battery and assault that In her submis- in her being hospitalized for a week with a serious kidney injury. resulted 2004. 9 January on trial be a would there that states author 2004, the January of 2 sion was initiated by the hospital ex officio. The author fur the latter procedure Reportedly, use the apartment. The judges reportedly based their decision on the following grounds: based their decision on the following grounds: use the apartment. The judges reportedly the author; and b) that battered regularly L. F. a) lack of substantiation of the claim that Since that date, including possession, could not be restricted. right to the property, L. F.’s the au- by her former partner, verbal threats and on the basis of the earlier attacks and at physical and mental health and life have been thor claims that her physical integrity, the submitted to reportedly The author fear. constant in lives she that and risk serious decision, which was pend- of the 4 September 2003 Court a petition for review Supreme information to the Committee on 2 ing at the time of her submission of supplementary January 2004. 2.5 354 Gender-based Violence violence. and c)provision offree legalaidtovictimsofgender-based violence,includingdomestic the OptionalProtocol, includingforjudges,prosecutors, policeandpractisinglawyers, the ConventiononEliminationofAllFormsDiscrimination againstWomen and violence intothelegalsystem,b)provision oftrainingprogrammes ongender-sensitivity, calls forthea)introduction ofeffective andimmediateprotection forvictimsofdomestic tion, whichaffects manywomenfrom allsegmentsofHungariansociety. Inparticular, she 3.4 State party. tion, forsuffering andfortheviolationofletterspiritConventionby 3.3 protection. tains thatthesecriminalprocedures canhardly beconsidered effective and/orimmediate tion aswellviolationsofgeneralrecommendation 19oftheCommittee.Shemain- F. hasnotspentanytimeincustodyconstituteviolationsofherrightsundertheConven- protection orders orrestraining orders undercurrent HungarianlawandthefactthatL. 3.2 mestic violenceagainsther. obligations undertheConventionandsupportedcontinuationofasituationdo- common lawhusband.SheclaimsthattheStatepartypassivelyneglectedits“positive” crimination againstWomen foritsfailure toprovide effective protection from herformer 2 a),b)ande),5a)16oftheConventiononEliminationAllFormsDis- 3.1 The Claim no availsincetheauthoritiesallegedlyfeelunabletodoanythinginsuchsituations. by phone,from thelocalchildprotection authorities, butthatherrequests havebeento 2.7 therefore, shecannotsubmitthemtotheCommittee. author claims that, as a victim, she has not been privy to the court documents and, that, action hasbeentakenbytheHungarianauthoritiestoprotect theauthorfrom him.The ther statesthatL.F. hasnotbeendetainedatanytimeinthisconnectionandthatno The authorisalsoseekingtheCommittee’s interventionintotheintolerablesitua- The authorisseekingjusticeforherselfandherchildren, includingfaircompensa- She claimsthattheirrationallylengthycriminalprocedures againstL.F., thelackof The authorallegesthatsheisavictimofviolationsbyHungaryarticles The authoralsosubmitsthatshehasrequested assistanceinwriting,personand Committee on the Elimination of Discrimination against Women - A. T. v. Hungary 355 - ommittee C the

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The Committee has considered the present communication in the light of all the in- the light of all in communication present the considered Committee has The No. 19 on violence against recommendation its general The Committee recalls notes that the State party has to article 2 a), b), and e), the Committee With regard ssues I […] merits Consideration of the 9.1 in article as provided party, to it by the author and by the State formation made available Optional Protocol. 7, paragraph 1, of the 9.2 of discrimination includes gender-based women, which states that “(…) [T]he definition of the Con- specific provisions breach violence may violence” and that “[G]ender-based Further mention violence”. expressly of whether those provisions vention, regardless the question of whether States parties can addresses general recommendation the more, actors in stating that “(…) discrimina- be held accountable for the conduct of non-State to action by or on behalf of Governments tion under the Convention is not restricted (…)” and “[U]nder general international human rights covenants, States law and specific prevent to diligence due with act to fail they if acts private for responsible be also may com- punish acts of violence, and for providing violations of rights or to investigate and the immediate issue facing the Committee is whether pensation”. Against this backdrop, 5 a) of articles 2 a), b) and e), is the victim of a violation the author of the communication alleges, for the past four years the State party and 16 of the Convention because, as she risk to her the serious from protection her with effective has failed in its duty to provide law common former her from life her and health mental and physical integrity, physical husband. 9.3 imme- capable of providing not pursued by the author were admitted that the remedies that by her former partner and, furthermore, to her against ill-treatment diate protection in- the to ensure ready yet not are party State in the arrangements and institutional legal and support protection and effective ternationally comprehensive expected, coordinated, at insti- efforts the State party’s for the victims of domestic violence. While appreciating and legal the and violence domestic against programme action comprehensive a tuting benefit the these have yet to that believes Committee the envisioned, measures other notes The Committee further of insecurity. situation her persistent and address author […] 356 Gender-based Violence to reside. Theauthorcouldnothaveaskedforarestraining orprotection order since permanently barL.F. from theapartmentwhere sheandherchildren havecontinued has been unsuccessful, either through civil or criminal proceedings, totemporarilyor The authorhasbeenbattered bythissameman,herformer commonlawhusband.She has feltthreatened byherformercommonlawhusband,thefatheroftwochildren. vis thecountryasawhole.Forfouryearsandcontinuingto the present day, theauthor between the sexes and attitudes towards women that the Committee recognized vis-à- before theCommittee,factsofcommunicationreveal aspectsoftherelationships and responsibilities ofwomenandmeninthefamily(…)”.Inrespect ofthecasenow aboutthe“persistenceof entrenchedcerned traditionalstereotypes regarding therole combined fourthandfifthperiodic report ofHungaryin2002.Atthattimeitwascon - against them.TheCommitteerecognized thoseveryattitudeswhenitconsidered the attitudes bywhichwomenare regarded assubordinate tomencontributeviolence freedoms onanequalbasis withmen”.Ithasstatedonmanyoccasionsthattraditional violence againstwomenhavegreat significanceforwomen’s abilitiestoenjoyrightsand Committee stressed that“the provisions ofgeneralrecommendation 19(...)concerning tion No.19indealingwithfamilyviolence.Initsgeneralrecommendation No.21,the 9.4 human rightsandfundamentalfreedoms, particularlyherrighttosecurityofperson. tions inthepresent case, remain unfulfilledandconstituteaviolationoftheauthor’s extend totheprevention of andprotection from violenceagainstwomen,which obliga- that theobligations of theState party setout in article2 a), b)ande)oftheConvention of womenvictimsdomesticviolence”.Bearingthisinmind,theCommitteeconcludes and thatnoprotection or exclusion orders orsheltersexistfortheimmediateprotection specific legislation has been enacted tocombat domestic violence and sexual harassment thatno against womenandgirls,includingdomesticviolence.Itisparticularlyconcerned report, abouttheprevalence whichstate“(…)[T]he Committee is concerned ofviolence comments from August2002 ontheStateparty’s combinedfourthandfifthperiodic danger ofcontinuedviolence.Inthisconnection,theCommitteerecalls itsconcluding might have pursued thatwouldhave provided sufficient protection orsecurityfrom the does notofferavenuesthattheauthor informationastotheexistenceofalternative to property andtherighttoprivacy. TheCommitteealsotakesnotethattheStateparty to physicalandmentalintegritycannotbesupersededbyotherrights,includingtheright proceedings, coincideswiththisgeneralassessment.Women’s humanrightstolifeand provided oftheproceedings resorted tointhepresent case,boththecivilandcriminal high priorityincourtproceedings. TheCommitteeisoftheopinionthatdescription the Stateparty’s generalassessmentthatdomesticviolencecasesassuchdonotenjoy The Committeeaddressed articles5and16togetherinitsgeneralrecommenda- Committee on the Elimination of Discrimination against Women - A. T. v. Hungary 357 - pre legal and other measures notes that the lack of effective The Committee also on to the Convention 7, paragraph 3, of the Optional Protocol Acting under article neither option currently exists in the State party. She has been unable to flee to a shelter to flee to a shelter She has been unable party. exists in the State currently neither option one of whom is children, her together with her to accept equipped are because none and, considered by the State party have been disputed None of these facts disabled. fully 16 of the under articles 5 a) and of the author indicate that the rights they together, violated. Convention have been 9.5 - re Committee’s dealing in a satisfactory manner with the from vented the State party quest for interim measures. 9.6 is of the the Committee Forms of Discrimination against Women, the Elimination of All the violated thereby has and obligations its fulfil to failed has party State the that view article conjunction with a), b) and e) and article 5 a) in the author under article 2 rights of of All Forms of Discrimination against Women, 16 of the Convention on the Elimination (…). […]

Committee on the Elimination of Discrimination against Women

A. S. v. Hungary

Communication Nº 4/2004

Views adopted August 14, 2006 360 Gender-based Violence 1.1 […] 2.3 Hospitalrecords show thatwithin17minutesoftheambulancearrivingathospital, statements ofconsentforablood transfusionandforanaesthesia. The attending physician and the midwife signed the same form. The author also signed hand-written bythedoctorandaddedtobottomofform, whichread: to thecaesarean section.Shesignedthisaswellabarely legiblenotethathadbeen foetus. Whileontheoperatingtable,authorwasasked tosignaformconsenting a caesarean sectionneededtobeperformedimmediatelyinorder toremove thedead that the foetus (the term “embryo” is used) had died in her womb and informed her that hour’s drive by ambulance. While examining the author, the attending physician found This wasaccompaniedbyheavybleeding.ShetakentoFehérgyarmatHospital,one 2.2 to be3637weekspregnant andwasaskedtoreturnwhenshewentintolabour. reported ward tothematernity ofFehérgyarmatHospital.Shewasexaminedandfound pointments withthedistrictnurseandgynecologist.On20December2000,author during thattime,shefollowedantenataltreatment andattendedallthescheduledap- a doctorandfoundtobepregnant, thedeliverydateestimatedtobe20December2000, 2.1 The factsaspresented by theauthor into force fortheStateparty on3September1981and22March 2001,respectively. Minorities, an organization in Hungary. The Convention and its Optional Protocol entered the EconomicandSocialCouncil,LegalDefenseBureau forNationalandEthnic by theEuropean RomaRights Center, anorganization in specialconsultativestatuswith coerced sterilization by medical staff at a Hungarian hospital. The author is represented on5September1973.Sheclaimstohavebeensubjected ian Romawoman,born V iews P The authorofthecommunicationdated12February2004,isMs.A.S.,aHungar birth again;neitherdoIwishtobecomepregnant.” sterilization [aLatintermunknowntotheauthorwasused]. I donotintendtogive “Having knowledgeofthedeathembryoinsidemywomb Ifirmly request my On 2January2001,theauthorwentintolabourpainandheramnioticfluidbroke. The authoristhemotherofthree children. On30May2000,shewasexaminedby rotocol

under

article 7, paragraph 3, of

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- Committee on the Elimination of Discrimination against Women - A. S. v. Hungary 361 The author states that the sterilization has had a profound impact on her life for impact on the sterilization has had a profound The author states that for National and Eth- Defense Bureau On 15 October 2001, a lawyer with the Legal claim, the author’s Court rejected Town On 22 November 2002, the Fehérgyarmat theOn 5 December 2002, the lawyer filed an appeal on behalf of the author before The appellate court found that appeal was rejected. On 12 May 2003, the author’s the caesarean section was performed, the dead foetus and placenta were removed and the removed were dead foetus and placenta was performed, the section the caesarean doctorthe author asked the leaving the hospital Before tied. were fallopian tubes author’s It was baby. could try to have another health and when she on her state of for information medical records “sterilization”. The that she learnedonly then the word the meaning of She hospital. she arrived at the when of the author condition poor health the revealed also in a state of shock. heavily than average and was was bleeding more felt dizzy upon arrival, 2.4 never She would medically for depression. have been treated which she and her partner prohibit beliefs that as she has strict Catholic religious to the sterilization have agreed her partner live she and kind, including sterilization. Furthermore, contraception of any a is said to be having children Roma customs — where with traditional in accordance value system of Roma families. central element of the 2.5 of the author against Fehérgyarmat Hospital, nic Minorities, filed a civil claim on behalf Court find the hospital in violation that the Fehérgyarmat Town inter alia, requesting that the hospital had acted negligently by civil rights. She also claimed of the author’s her full and informed consent. Pecuniary and sterilizing the author without obtaining sought. non-pecuniary damages were 2.6 the part of the doctors, who had failed to com- despite a finding of some negligence on of the partner the author’s to inform failure the namely, provisions, legal with certain ply as well as to obtain the birth certificates of the operation and its possible consequences that the medical conditions for sterilization The Court reasoned live children. author’s and sterilization her about informed been had she and that case author’s in the prevailed information in a way in which she could understand it. The Court also given all relevant as viewed further Court The accordingly. consent her given had author the that found negligence the fact that, the defendant’s towards a “partial extenuating circumstance dispatch consent, the doctors performed the sterilization with special with the author’s section”. simultaneously with the Caesarean 2.7 Court. County Court against the decision of the Fehérgyarmat Town Szabolcs-Szatmár-Bereg 2.8 allowed for the Act on Health Care although article 187, paragraph 4 (a), of Hungary’s 362 Gender-based Violence 11.1 Consideration ofthemerits […] […] the appeal. and itscausalrelationship to theconductofdoctors,appellatecourtdismissed Based on her failure to prove that she had lost her reproductive capacity permanently likelihood ofherbecomingpregnant byartificialinseminationcouldnotbeexcluded. the tyingoffallopiantubescanbeterminatedbyplasticsurgeryonand that theperformedsterilizationwasnotalastingandirreversible operationinasmuchas and itscausalrelationship with theconductofhospital.Theappellatecourtreasoned down the appeal on the ground that the author had failed to prove a lasting handicap not inandofitselfexcludethehospital’s liability. Theappellatecourt,however, turned including other options of birth control) and that the written consent of the author could procedureseration, oftherisksitsperformanceandalternative andmethods, gently infailingtoprovide herwithdetailedinformation(aboutthemethodofop- consent oftheauthor. Theappellatecourtfurtherfoundthatthedoctorsactednegli- acter, andtherefore, thesterilizationprocedure shouldhavebeensubjecttotheinformed exceptional performance of the sterilization, the operation was not of a life-saving char by failingtoprovide informationandadviceonfamilyplanning, theCommitteerecalls respect totheclaim thattheStatepartyviolatedarticle10(h)ofConvention With 11.2 paragraph 1,oftheOptionalProtocol. mation made available to it by the author and by the State party, as provided in article 7, I ssues The Committeehasconsidered thepresent communicationinlightofalltheinfor being offamilies,includinginformation andadviceonfamilyplanning. h) Accesstospecificeducationalinformationhelpensure thehealthandwell (…) and inparticulartoensure, onabasisofequalitymenandwomen: women inorder toensure tothemequalrightswithmeninthefieldofeducation States Partiesshalltakeallappropriate measures toeliminatediscriminationagainst According toArticle10(h)oftheConvention:

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the C ommittee - - Committee on the Elimination of Discrimination against Women - A. S. v. Hungary 363 - Article 12 of the Convention reads: eliminate discrimination to measures 1. States Parties shall take all appropriate on a basis of equality to ensure, in order against women in the field of health care to family services, including those related of men and women, access to healthcare planning. of paragraph 1 of this article, States Parties shall 2. Notwithstanding the provisions confinement pregnancy, services in connexion with women appropriate to ensure as ad- as well necessary, where services and the post-natal period, granting free and lactation. equate nutrition during pregnancy its general recommendation No. 21 on equality in marriage and family relations, which and family relations, equality in marriage No. 21 on recommendation its general for consequences serious have which practices “coercive of context the in recognizes and about safe that informed decision-making … sterilization” as forced women, such about con- woman having “information depends upon a measures contraceptive reliable and family use, and guaranteed access to sex education and their traceptive measures arguments that the author Committee notes the State party’s planning services”. The - pre at the time of the operation, during information and appropriate was given correct - as its argument that, accord as well pregnancies previous and during her three natal care in a condition in which she the lower court, the author had been ing to the decision of the Committee On the other hand, the information provided. was able to understand which found that the judgment of the appellate court, to reference notes the author’s sterilization, in- with detailed information about the been provided the author had not or alternative procedures and the consequences of the surgery, cluding the risks involved considers that the author has a right protected contraceptive methods. The Committee information on sterilization and alternativeby article 10 (h) of the Convention to specific being car against such an intervention to guard for family planning in order procedures the Committee informed choice. Furthermore, ried out without her having made a fully hospital and state of health on arrival at the notes the description given of the author’s and must have been given under stressful observes that any counselling that she received fail- a finds Committee the factors, these all Considering conditions. inappropriate most information appropriate the hospital personnel, to provide through State party, of the ure right under a violation of the author’s and advice on family planning, which constitutes article 10 (h) of the Convention. 11.3 rights under to the question of whether the State party violated the author’s With regard herarticle 12 of the Convention by performing the sterilization surgery without obtaining description of the 17 minute informed consent, the Committee takes note of the author’s - her admission to the hospital up to the completion of two medical proce timespan from 364 Gender-based Violence graph 1e)oftheConvention, the Committeerecalls itsgeneral recommendation No. 19 As towhethertheStateparty violatedtherightsofauthorunderarticle16,para- 11.4 and thatconsequentlytherightsofauthorunderarticle12 were violated. State partyhasnotensured thattheauthorgaveherfullyinformedconsenttobesterilized to informedconsentanddignity”.TheCommitteeconsidersinthepresent casethatthe mit formsofcoercion, such asnon-consensualsterilization…thatviolatewomen’s rights respects herdignity(…)”The Committeefurtherstatedthat“Statespartiesshouldnotper that are delivered inawaythatensures thatawomangivesherfullyinformed consent, eral recommendation No. 24 onwomenandhealththat“[A]cceptableservicesare those pregnancy, confinement,andthepost-natalperiod”.TheCommitteeexplainedinitsgen- Convention, Statespartiesshall“ensure towomenappropriate servicesinconnexionwith that shewasunaware ofthe consequencesofsterilization.According toarticle12ofthe author enquired of the doctor when it would be safe to conceiveagain, clearly indicating decision tobesterilized.TheCommitteealsotakesnoteoftheunchallengedfactthat risks and benefits, to ensure that the author could make a well-considered and voluntary thorough enoughcounseling andinformationaboutsterilization,aswellalternatives, is notplausiblethatduringperiodoftimehospitalpersonnelprovided theauthorwith information inawaywhichshewasabletounderstandit.TheCommitteefindsthatit State partytotheeffect that, duringthose17minutes,theauthorwasgivenallappropriate tending to her, which she signed. The Committee also takes note of the averment of the was usedonthebarely legible consentnotethathadbeenhandwrittenbythedoctorat- note oftheauthor’s claimthatshedidnotunderstandtheLatintermforsterilization remove theremains ofthedeadfoetusandsterilization. TheCommitteefurthertakes and anaesthesiaunderwenttwomedicalprocedures, namely, thecaesarean sectionto the statementsofconsentforcaesarean section,thesterilization,abloodtransfusion was inastateofshock.Duringthose17minutes,sheprepared forsurgery, signed arrival atthehospital;shewasfeelingdizzy, wasbleedingmore heavilythanaverageand dures. Medicalrecords revealed thattheauthorwasinaverypoorstateofhealthupon them toexercise theserights; their children andtohaveaccesstheinformation,educationmeansenable e) The same rights to decide freely and responsibly on the numberand spacing of (…) ensure, onabasisofequalitymenandwomen: women inallmattersrelating tomarriageandfamilyrelations andinparticularshall States Partiesshalltakeallappropriate measures toeliminatediscriminationagainst Article 16,paragraph1e)oftheConventionstates: - Committee on the Elimination of Discrimination against Women - A. S. v. Hungary 365 - of clinics, cases in and Convention the of consent hospitals provisions informed including of relevant centres, the principle that the health on ensure to private legislation and measures public domestic further - compensa appropriate Concerning the author of the communication: provide which perform sterilization procedures so as to ensure that fully informed consent so as to ensure which perform sterilization procedures is carried out, with any sterilization procedure is being given by the patient before sanctions in place in the event of a breach. appropriate sterilization and ensure its conformity with international human rights and medical sterilization and ensure on Human Rights and including the Convention of the Council of Europe standards, Health Organization guidelines. and World Biomedicine (“the Oviedo Convention”) - in the Public Health Act where provision In that connection, consider amending the - without the information proce by a physician is allowed “to deliver the sterilization in given circumstances”. specified when it seems to be appropriate generally dure • Monitor Acting under article 7, paragraph 3 of the Optional Protocol to the Convention on to the Convention 7, paragraph 3 of the Optional Protocol Acting under article I. gravity of the violations of her rights. tion to Ms. A. S. commensurate with the II. General: • Take and the pertinent paragraphs of the Committee’s general recommendations Nos. recommendations general Committee’s the of paragraphs pertinent the and known and rights are health and reproductive to women’s 19, 21 and 24 in relation including personnel in public and private health centres, to by all relevant adhered hospitals and clinics. • Review on violence against women in which it states that“[C]ompulsory sterilization ... adversely sterilization it states that“[C]ompulsory against women in which on violence to decide the right of women health, and infringes physical and mental women’s affects on surgery was performed The sterilization their children”. and spacing of on the number per to have and must be considered informed consent without her full and the author the Committee Accordingly, capacity. of her natural reproductive manently deprived her 1 e) to have been violated. rights under article 16, paragraph finds the author’s 11.5 on the the Committee Forms of Discrimination against Women, the Elimination of All reveal it before that the facts of the view is Women against of Discrimination Elimination Convention and makes the 10 h), 12 and 16, paragraph 1 e) of the a violation of articles the State party: to following recommendations 366 Gender-based Violence Committee on the Elimination of Discrimination against Women

Şahide Goekce (deceased) v. Austria

Communication Nº 5/2005

Views adopted August 6, 2007 368 Gender-based Violence 1. Goekce’s injuries were toominortoconstitute bodilyharm. charged onlywiththeoffence ofcausingbodilyharm.He wasacquittedbecauseSahide to prosecute MustafaGoekceforthreatening herlife.MustafaGoekcewas,therefore, ing acriminaldangerous threat. SahideGoekcedidnotauthorizetheAustrianauthorities the accusedmustgiveauthorizationinorder toprosecute theallegedoffender formak- spouse, direct descendant,brother orsisterrelative wholivesinthesamehouseholdof 2.3 under SahideGoekce’s rightearthat,according toher, were from thechoking. order, thepoliceofficerinchargeofcasestatedthattwolight red bruiseswere visible […] the Security Police Act (Sicherheitspolizeigesetz) against MustafaGoekcecoveringtheapartment,pursuant toSection38aof 2.2 thefollowingday.Vienna the incidenttopolicewithhelpofYouth Welfare Office ofthe15thdistrict threatened tokillher. SahideGoekcespentthenightwithafriendofhersandreported in thevictim’s apartmentatwhichtimeMustafaGoekcechokedSahideand that the authors are aware of took place on 2 December 1999 at approximately 4 p.m. 2.1 Author’s submissions: 2000, respectively. tional Protocol entered intoforce fortheStatepartyon30April1982and22December Elimination ofAllFormsDiscriminationagainstWomen. TheConventionanditsOp- victim of aviolation by theStatepartyofarticles1,2,3and5Conventionon InterventionCentregin andformerclientoftheVienna isa againstDomesticViolence, violence. TheyclaimthatSahideGoekce(deceased),anAustriannationalofTurkish ori- Austria, thatprotectganizations in Vienna, and supportwomenvictimsofgender-based andtheAssociationforWomen’sagainst DomesticViolence AccesstoJustice,twoor mation dated22Novemberand10December2004,are InterventionCentre theVienna V iews P The authorsofthecommunicationdated21July2004withsupplementaryinfor Under section107,paragraph4,ofthePenalCode(Strafgesetzbuch), athreatened On 3December1999,thepoliceissuedanexpulsionandprohibition toreturnorder The firstviolentattackagainstSahideGoekcebyherhusband,MustafaGoekce, rotocol

under

article 7, paragraph 3, 1 . In the documentation supporting the of

the O ptional

- - Committee on the Elimination of Discrimination against Women-Şahide Goekce (deceased) v. Austria 369 The next violent incidents of which the authors have knowledge occurred on 21 21 on knowledge occurred authors have the of which incidents violent The next 2002 and 16 Sep- 30 June 2002, 6 July 2002, 25 August On 17 December 2001, On 23 October 2002, the Vienna District Court of Hernals issued an interim in- Office (which had been in constant Welfare On 18 November 2002, the Youth that Mustafa Goekce other sources The authors indicate that the police knew from 2.4 on 22 August apartment Goekce’s police arrived at the 2000. When the and 22 August her was pressing by her hair and Sahide Goekce Goekce was grabbing 2000, Mustafa her kill to threatened Goekce had Mustafa that police told the She later floor. the face to and police. The police issued a second expulsion him to the if she reported the day before and apartment Goekce’s the covering Goekce Mustafa against order return to prohibition They informed the building, which was valid for 10 days. of the apartment the staircase of (because Goekce had committed aggravated coercion that Mustafa Public Prosecutor was denied. he be detained. The request and asked that the death threat) 2.5 of because of reports apartment called to the Goekce’s were tember 2002 the police and/or battering. disturbances and disputes against Mus- to return order expulsion and prohibition issued the third 2.6 The police Sahide 2002 that October on 8 incident of an result as a 10 days) for Goekce (valid tafa Mustafa Goekce called her names, tugged her Goekce had called in; she claimed that - the apartment, hit her in the face, choked her and again threat by her clothes through her Her cheek was bruised and she had haematoma on the right side of ened to kill her. and harm bodily causing for her husband charges against Goekce pressed Sahide neck. Mustafa Goekce and again The police interrogated threat. making a criminal dangerous denied the request. that he be detained. Again, the Public Prosecutor requested 2.7 months against Mustafa Goekce, which forbade Mustafa junction for a period of three from and environs immediate its and apartment family the to returning from Goekce immediately and be effective was to The order contacting Sahide Goekce or the children. (two daughters and one all minors are children entrusted to the police for execution. The son) born between 1989 and 1996. 2.8 front contact with the Goekce family because of the violent assaults that took place in informed the police that Mustafa Goekce had not obeyed the interim of the children) when injunction and was living in the family apartment. The police did not find him there they checked. 2.9 and owned a handgun. At the end of November 2002, Remzi Birkent, the was dangerous 370 Gender-based Violence to address domesticviolencethatincludeslegislation,criminal andcivil-lawremedies, 12.1.2 TheCommitteenotesthat theStatepartyhasestablishedacomprehensive model violence, andforproviding compensation”. act withduediligencetoprevent violationsofrightsortoinvestigateandpunishacts human rightscovenants,Statesmayalsoberesponsible forprivateactsiftheyfailto lawandspecific (...)“and that“[U]ndergeneralinternational behalf ofGovernments stating that “(...) discrimination under the Convention is not restricted to action by or on whether Statespartiescanbeheldaccountablefortheconduct ofnon-Stateactorsin 19 onviolenceagainstwomen.Thisgeneralrecommendation addresses thequestionof f), andarticle3oftheConvention,Committeerecalls itsgeneralrecommendation against womeninallitsformsrelation toSahideGoekceinarticles2a)andc)through 12.1.1 AstotheallegedviolationofStateparty’s obligationtoeliminateviolence Consideration ofthemerits […] an institutionformentallydisturbedoffenders. dered tothepolice.Heisreportedly currently servingasentenceoflifeimprisonment in 2.12 to theshooting. the apartmenttosettledisputebetweenMustafaGoekceandSahideprior apartment infront oftheir two daughters.Thepolicereport reads thatnoofficer wentto 2.11 grounds thatthere wasinsufficient reason toprosecute him. Mustafa Goekceforcausingbodilyharmandmakingacriminaldangerous threat on 2.10 a handguneventhoughweaponsprohibition wasineffect againsthim. seriously bythepoliceorrecorded. Thepolicedidnot checkwhetherMustafaGoekcehad that MustafaGoekcehadthreatened tokillherseveraltimes.Hisstatementwasnottaken also informed the police about the tension between Sahide Goekce and her husband and filed bythepoliceofficertakingstatementof Mr. Birkent.MustafaGoekce’s brother him andthreatened tokillSahideGoekceoranotherfamilymember;nopolicereport was father ofSahideGoekce,informedthepolicethatMustafaGoekcehadfrequently phoned Two-and-a-half hoursafterthecommissionofcrime,MustafaGoekcesurren- On 7 December 2002, Mustafa Goekce shot Sahide Goekce with a handgun in their PublicProsecutorOn 5December2002,theVienna stoppedtheprosecution of 2 Committee on the Elimination of Discrimination against Women-Şahide Goekce (deceased) v. Austria 371 . In 4 the present case, the Committee considers that the behaviour (threats, intimidation and case, the Committee considers that the behaviour (threats, the present awareness-raising, education and training, shelters, counselling for victims of violence for victims of shelters, counselling education and training, awareness-raising, do- woman victim of for the individual in order with perpetrators. However, and work and of equality of men of the principle realization to enjoy the practical mestic violence that is the political will freedoms, and fundamental of her human rights women and system of Austria must be supported by comprehensive in the aforementioned expressed due diligence obligations. State party’s to the State actors, who adhere period start- the three-year case, the Committee notes that during 12.1.3 In the instant 1999 and to the police on 3 December episode that was reported ing with the violent of calls the frequency of Sahide Goekce on 7 December 2002, ending with the shooting the police is- increased; disturbances and disputes and/or battering to the police about the occasions and twice requested separate on three to return orders sued prohibition interim three-month a and detained; be Goekce Mustafa that order to Prosecutor Public Mustafa Goekce from at the time of her death that prohibited injunction was in effect Sahide contacting and from apartment and its immediate environs returning to the family Goekce Sahide shot Goekce Mustafa notes that The Committee the children. or Goekce despite a valid weapons weeks earlier, three dead with a handgun that he had purchased the that authors the by contention uncontested the as well as him against prohibition of Mustafa Goekce. brother the information about the weapon from police had received fact that Sahide Goekce called the In addition, the Committee notes the unchallenged to sent was car patrol no yet killed, was she before hours few a service call emergency the scene of the crime. this combination of factors, the police knew 12.1.4 The Committee considers that given was in serious danger; they should have or should have known that Sahide Goekce in particular because Mustafa Goekce had her as an emergency, last call from the treated and violent criminal. The Com- very dangerous shown that he had the potential to be a and battering, by of earlier disturbances record mittee considers that in light of the long accountable for failing to exercise the police are to the call immediately, not responding Sahide Goekce. due diligence to protect to de- 12.1.5 Although, the State party rightly maintains that, it is necessary in each case in the basic interference termine whether detention would amount to a disproportionate of a perpetrator of domestic violence, such as the right rights and fundamental freedoms in as expressed of movement and to a fair trial, the Committee is of the view, to freedom rights its views on another communication on domestic violence, that the perpetrator’s human rights to life and to physical and mental integrity cannot supersede women’s 372 Gender-based Violence Committee andmakesthefollowingrecommendations totheStateparty: in conjunction with article 1 of the Convention and general recommendation 19 of the mental integrityunderarticle2a)andc)through f),andarticle3oftheConventionread reveal aviolationoftherights ofthedeceasedSahideGoekcetolifeandphysical the Elimination of Discrimination against Women isof the viewthat facts before it on theEliminationofAllFormsDiscriminationagainstWomen, theCommitteeon 12.3 Actingunderarticle7,paragraph3,oftheOptionalProtocol totheConvention authors ofthecommunicationandStatepartydonotwarrantfurtherfindings. violence. Atthesametime,Committeeisofviewthatsubmissions traditional attitudesbywhichwomenare regarded assubordinate tomenanddomestic includes gender-based violence.Ithasalsorecognized thatthere are linkagesbetween recommendation 19thatthe definitionofdiscriminationinarticle1theConvention Convention were violated by theStateparty. TheCommitteehasstatedinitsgeneral 12.2 The Committee notes that the authors also made claims that articles 1 and 5 of the physical andmentalintegrity. Committee andthecorresponding rightsofthedeceasedSahideGoekcetolifeand conjunction witharticle1oftheConventionandgeneralrecommendation 19ofthe obligations under article 2 a) and c)through f),andarticle 3 of theConventionread in for killingSahideGoekce,theCommitteestillconcludesthatStatepartyviolatedits 12.1.6 WhilenotingthatMustafaGoekcewasprosecuted tothefullextentoflaw incidents ofAugust2000andOctober2002. requests of the police to arrest Mustafa Goekce and detain him in connection with the Prosecutor was aware and as such the Public Prosecutor should not have denied the battering) ofMustafaGoekcecrossed ahighthreshold ofviolencewhichthePublic sede women’s humanrightstolifeandphysicalmentalintegrity; given tothesafetyofwomen,emphasizing thattheperpetrator’s rightscannot super ensure thatinallactiontakentoprotect womenfrom violence,dueconsiderationis trator inadomesticviolencesituation posesadangerous threat tothevictim;andalso as wellensure thatcriminalandcivilremedies are utilizedincaseswhere theperpe- order toconveyoffenders andthepublicthatsocietycondemnsdomesticviolence andinaspeedymannerprosecuteb) Vigilantly perpetratorsofdomesticviolence in providing forsanctionsthefailure todoso; diligence toprevent andrespond tosuchviolenceagainstwomenandadequately withintheFamilyandrelatedagainst Violence criminallaw, byactingwithdue a) Strengthen implementationandmonitoringoftheFederalActforProtection - Committee on the Elimination of Discrimination against Women-Şahide Goekce (deceased) v. Austria 373 - c) Ensure enhanced coordination among law enforcement and judicial officers and and judicial officers among law enforcement coordination enhanced c) Ensure public prosecutors, justice system (police, levels of the criminal that all also ensure - with non-governmental cooperate to pro organizations that work judges) routinely violence; of gender-based women victims tect and support judges, for violence domestic on education and programmes training Strengthen d) the Elimina- officials, including on the Convention on lawyers and law enforcement of 19 general recommendation against Women, Forms of Discrimination tion of All thereto. the Optional Protocol the Committee, and This act has been translated as both the Security Police Act and the maintenance of Law and Order Act. Act and the maintenance of Law and Order This act has been translated as both the Security Police but was diagnosed to be mentally of sound mind (compos mentis) vis-à-vis the murder He is reportedly generally disturbed to a higher degree Hungary. v. views on communication No. 2/2003, A.T. See paragraph 9.3 of the Committee’s ndnotes E 1 2 4 12.4 In accordance with article 7, paragraph 4, the State party shall give due consider 7, paragraph 4, the State party shall with article 12.4 In accordance ation to the views of the Committee, together with its recommendations, and shall sub- shall and recommendations, its with together Committee, the of views the to ation any information including within six months, a written response, mit to the Committee, the Committee. of in the light of the views and recommendations on any action taken views and recommendations to publish the Committee’s The State party is also requested language and widely distributed in order and to have them translated into the German sectors of society. all relevant to reach […] 374 Gender-based Violence Committee on the Elimination of Discrimination against Women

Fatma Yildirim (deceased) v. Austria

Communication Nº 6/2005

Views adopted August 6, 2007 376 Gender-based Violence 1. […] lice Act(Sichersheitspolizeigesetz) against Irfan Yildirim covering the apartment pursuant tosection 38a oftheSecurityPo- 2.4 for assaultandmakingacriminaldangerous threat. FederalPolice,DistrictDepartment Ottakring,toreportwent totheVienna Irfan Yildirim Subsequently, hecalledheroncellphoneandthreatened tokillheragainandshe she was still there. He grabbed her wrists and held her — but she managed to escape. to pickupsomeofherpersonalbelongings.IrfanYildirim entered theapartmentwhile August 2003,believingthatIrfanYildirim wasatwork,shereturnedtotheirapartment ter, Melissa,movedinwithhereldestdaughter, Gülen,at18/29-30Haymerlegasse.On 6 2.3 would notagree andthreatened tokillherandchildren shouldshedivorce him. Austria, they constantly argued.Fatma Yildirim wanted to divorce IrfanYildirim, buthe an argumentwhilethecouplewasonatriptoTurkey inJuly2003.Ontheirreturnto 2.2 ter, on30July1998. Melissa, was born had three children from herfirstmarriage 2.1 The factsaspresented by theauthors tered intoforce fortheStatepartyon30April1982and22December2000,respectively. All FormsofDiscriminationagainstWomen. TheConventionanditsOptionalProtocol en- violation bytheStatepartyofarticles1,2,3and5ConventiononElimination InterventionCentre former clientoftheVienna isavictimof againstDomesticViolence, lence. TheyclaimthatFatmaYildirim (deceased),anAustriannationalof Turkish originand Austria,thatprotectnizations inVienna, andsupportwomenvictimsofgender-based vio- andtheAssociationforWomen’sagainst DomesticViolence AccesstoJustice,twoorga- mation dated22Novemberand10December2004,are InterventionCentre theVienna V iews P The authorsofthecommunicationdated21July2004withsupplementaryinfor On 6August2003thepolice issued anexpulsionandprohibition toreturnorder On 4August2003,fearingforherlife,FatmaYildirim andherfive-year-old daugh- Irfan Yildirim reportedly threatened to kill Fatma Yildirim for the first time during The authorsstatethatFatmaYildirim marriedIrfanYildirim on 24July2001.She rotocol

under

article 7, paragraph 2 and informed the Vienna InterventionCentre andinformedtheVienna against 1 twoofwhomare adults.Her youngestdaugh- 3, of

the O ptional

- Committee on the Elimination of Discrimination against Women - Fatma Yildirim (deceased) v. Austria 377 - On 8 August 2003, with the assistance of the Vienna Intervention Centre against with the assistance of the ViennaOn 8 August 2003, Centre Intervention workplace and harassed at Fatma Yildirim’s appeared Irfan Yildirim That same day, at her workplace. She to kill Fatma Yildirim threatened On 9 August, Irfan Yildirim workplace at 7:00 pm. came to Fatma Yildirim’s On 11 August 2003, Irfan Yildirim member (name is given) of the Vienna Intervention Centre On 12 August 2003, a staff about the threats gave a formal statement On 14 August 2003, Fatma Yildirim Domestic Violence and the Youth Welfare Office of the issuance of the order and the the order of of the issuance Office Welfare ViolenceDomestic Youth and the on duty that Viennathe to Prosecutor Public reported also The police therefore. grounds requested and against Fatma Yildirim threat dangerous made a criminal had Irfan Yildirim that request. rejected Public Prosecutor be detained. The that Irfan Yildirim 2.5 of her on her own behalf and on behalf applied Domestic Violence, Fatma Yildirim Vienna to the District Court of Hernals for an interim injunction youngest daughter, The Vienna Court of Hernals District against Irfan Yildirim. Vienna informed the Federal Ottakring, about the application. Police, District Department 2.6 to the incident the dispute, but they did not report called in to settle The police were her. son, 26-year-old Fatma Yildirim’s threatened Later on, Irfan Yildirim the Public Prosecutor. the incident to the police. who reported 2.7 her cell phone. By the time that the police arrived at Fatma Yildir called the police from and the police to return there had left — but was ordered workplace Irfan Yildirim im’s - police again after he threat to the Irfan Yildirim reported spoke to him. Fatma Yildirim by speaking to him on his the police responded ened her and her son later that night and cell phone. 2.8 - that he would kill her and that her homicide would ap He stated that his life was over, The police away. ran When she called the police, Irfan Yildirim pear in the newspaper. 17. passed on the complaint to police inspectorate 2.9 against Domestic Violence informed the police at the Vienna Federal Police, District Depart- made on 9 and 11 August 2003, of threats, ment Ottakring, by fax message of the death workplace, and of her application for an interim injunc- the harassment at Fatma Yildirim’s new cell phone number so that the police would given Fatma Yildirim’s tion. The police were attention to her case. also asked to pay more The police were her. always be able to reach 2.10 on made to her life to the police, who in turn to the Vienna Public Prosecutor reported was refused. be detained. Again, this request that Irfan Yildirim requesting duty, 378 Gender-based Violence mestic violence to enjoythepractical realization oftheprinciple ofequalitymenand and workwithperpetrators.However, inorder fortheindividualwoman victimofdo- awareness raising, education and training, shelters, counselling for victimsof violence to address domesticviolencethatincludeslegislation,criminal andcivil-lawremedies, 12.1.2 TheCommitteenotesthattheStatepartyhasestablished acomprehensive model violence, andforproviding compensation”. act withduediligencetoprevent violationsofrightsortoinvestigateandpunishacts human rightscovenants,Statesmayalsoberesponsible forprivateactsiftheyfailto lawandspecific …”and that“[U]ndergeneralinternational on behalfofGovernments stating that“…discriminationundertheConventionisnot restricted toactionbyor whether Statespartiescanbeheldaccountablefortheconduct ofnon-Stateactorsin 19 onviolenceagainstwomen.Thisgeneralrecommendation addresses thequestionof f), andarticle3oftheConvention,Committeerecalls itsgeneralrecommendation against womeninallitsformsrelation toFatmaYildirim inarticles2a)andc)through 12.1.1 AstotheallegedviolationofStateparty’s obligationtoeliminateviolence Consideration ofthemerits […] ment. He hasbeenconvictedofkillingFatmaYildirim andisservingasentence oflifeimprison- 2.14 family’s apartment. Yildirim homefrom workandfatallystabbedheronRoggendorfgasse,whichisnearthe 2.13 Fatma Yildirim’s workplaceandfrom meetingorcontactingFatmaYildirim orMelissa. from returningtothefamily’s apartmentanditsimmediatesurroundings, from goingto and aninteriminjunctionforMelissavalidthre months.Theorder forbadeIrfanYildirim nung) againstIrfanYildirim forFatmaYildirim validuntiltheendofdivorce proceedings tion pursuanttosection382boftheActonEnforcement ofJudgments(Exekutionsord- 2.12 Court ofHernals. 2.11 Irfan Yildirim was arrested while trying to enter Bulgaria on 19 September 2003. On 11September2003,atapproximately 10:50pm,IrfanYildirim followedFatma issuedaninteriminjunc- DistrictCourtofHernals On 1September2003,theVienna On 26August2003,FatmaYildirim filedapetitionfordivorceVienna District atthe Committee on the Elimination of Discrimination against Women - Fatma Yildirim (deceased) v. Austria 379 6 The Committee notes that the authors also made claims that articles 1 and 5 of the The Committee notes that the authors also made claims that articles 1 and 5 of the 12.1.6 While noting that that Irfan Yildirim was prosecuted to the full extent of the law of extent full to the prosecuted was Yildirim that Irfan that 12.1.6 While noting the Committee still concludes that the State party violated its for killing Fatma Yildirim, in read convention the of 3 article and f), through c) a) and 2 article under obligations 19 of the conjunction with article 1 of the Convention and general recommendation to and life to Yildirim Fatma deceased the of rights corresponding the and Committee physical and mental integrity. 12.2 The Committee has stated in its general violated by the State party. Convention were women and of her human rights and fundamental freedoms, the political will that is the political will freedoms, and fundamental of her human rights women and by Austria must be supported system of comprehensive in the aforementioned expressed obligations. due diligence to the State party’s who adhere State actors, sequence of events lead- case, the Committee notes the undisputed 12.1.3 In the instant made continu- particular that Irfan Yildirim in of Fatma Yildirim, ing to the fatal stabbing an despite by phone and in person to kill her, threatened to contact her and ous efforts the immedi- apartment, returning to the couple’s him from interim injunction prohibiting police in- and regular contacting her, as well as from and her workplace ate surroundings made positive and determined also notes that Fatma Yildirim terventions. The Committee out moving by — life own her save and spouse her with ties sever to attempt to efforts with the police, establishing ongoing contact her minor daughter, of the apartment with of Irfan Yildirim. and giving her authorization for the prosecution seeking an injunction that was extremely considers that the facts disclose a situation 12.1.4 The Committee authorities knew or should have which the Austrian of Yildirim to Fatma dangerous of the should not have denied the requests known, and as such the Public Prosecutor in this notes Committee The detention. in him place and Yildirim Irfan arrest to Police (i.e. his divorce marriage end in lose should his had a lot to that Irfan Yildirim connection this fact had that and married) staying his on dependent was Austria in permit residence he would become. the potential to influence how dangerous as having to have detained Irfan Yildirim 12.1.5 The Committee considers the failure Yildirim. Fatma protect to obligation diligence due party’s the State of in breach been dis- seemed warrant arrest an — time that at that, maintains party State the Although, in its views on anoth- as expressed invasive, the Committee is of the view, proportionately supersede cannot rights perpetrator’s the that violence domestic on communication er human rights to life and to physical and mental integrity. women’s 380 Gender-based Violence […] the followingrecommendations totheStateparty: conjunction witharticle1andgeneralrecommendation 19oftheCommitteeandmakes integrity underarticle2(a)and(c)through (f)andarticle3oftheConventionread in a violationoftherightsdeceasedFatmaYildirim tolifeandphysical andmental Elimination ofDiscriminationagainstWomen isoftheviewthatfactbefore itreveal the EliminationofAllFormsDiscriminationagainstWomen, theCommitteeon 12.3 Actingunderarticle7,paragraph3,oftheOptionalProtocol totheConventionon authors ofthecommunicationandStatepartydonotwarrantfurtherfindings. violence. Atthesametime,Committeeisofviewthatsubmissions traditional attitudesbywhichwomenare regarded assubordinate tomenanddomestic includes gender-based violence.Ithasalsorecognized thatthere are linkagesbetween recommendation 19thatthedefinitionofdiscriminationinarticle1Convention the Committee,andOptionalProtocol thereto. tion ofAll Forms ofDiscrimination against Women, generalrecommendation 19of lawyers andlawenforcement officials,includingontheConventionElimina- d) protect andsupportwomenvictimsofgender-based violence; tors, judges)routinelyorganizations thatworkto cooperatewithnon-governmental and alsoensure thatalllevelsofthecriminaljusticesystem(police,publicprosecu- c) integrity; rights cannotsupersedewomen’s humanrightstolifeandphysicalmental consideration isgiventothesafetyofwomen,emphasizingthatperpetrator’s victim and alsoensure that inallaction taken toprotect women from violence,due the perpetratorinadomesticviolencesituationposesdangerous threat tothe violence aswellensure that criminalandcivilremedies are utilizedincaseswhere in order toconveyoffenders andthepublicthatsocietycondemnsdomestic b) providing forsanctions thefailure todoso; diligence toprevent andrespond tosuchviolenceagainstwomenandadequately withintheFamilyandrelatedtion againstViolence criminallaw, byactingwithdue a) Strengthen trainingprograms andeducationondomesticviolenceforjudges, Ensure enhancedcoordination amonglawenforcement andjudicialofficers, andinaspeedymannerprosecuteVigilantly perpetratorsofdomesticviolence Strengthen implementation andmonitoringoftheFederalActforProtec- Committee on the Elimination of Discrimination against Women - Fatma Yildirim (deceased) v. Austria 381 Signed consent forms from two adult children and one minor represented by her father have been received. by represented and one minor two adult children forms from Signed consent Act. Order Maintenance of Law and Security Police Act and the translated as both the This act has been Hungary. v. 2/2003, A.T. on communication No. views 9.3 of the Committee’s See paragraph ndnotes E 1 2 6

Index of Topics

Summaries of Jurisprudence on Gender-based Violence

Index of Topics

Abortion: Access to Information Open Door and Dublin Well Woman pág. 137

Deportation: Risk of Torture in Cases of Adultery Charges Jabari pág. 155

Discrimination and Gender-based Violence Cotton Field pág. 23 Opuz pág. 219

“Domestic” Slavery and Forced Labor Siliadin pág. 175

Domestic Violence Maria da Penha pág. 127 Bevacqua and S. pág. 203 Opuz pág. 219 A.T. pág. 351 Şahide Goekce pág. 367 Fatma Yildirim pág. 375

Domestic Violence: Court Appointed Investigation and Interference in Private Life Opuz pág. 219

Domestic Violence: Provisional Custody of Children Bevacqua and S. pág. 203

Due Diligence in the Investigation of Gender-based Violence Cotton Field pág. 23 “Las Dos Erres” Massacre pág. 63 Ana, Beatriz and Celia González Pérez pág. 107 Aydin pág. 145 M.C. pág. 165 Bevacqua and S. pág. 203 Opuz pág. 219

Equality María Eugenia Morales de Sierra pág. 93

Femicide Cotton Field pág. 23

Forced Nakedness Castro-Castro Prison pág. 1 Aydin pág. 145

Forced Sterilization A.S. pág. 359

Gender Stereotypes in Family Relationships María Eugenia Morales de Sierra pág. 93

Genocide Akayesu pág. 243

Girls Cotton Field pág. 23 X and Y pág. 81 Ana, Beatriz and Celia González Pérez pág. 107

Gynecological Examination Aydin pág. 145 Y.F. pág. 161 Salmanoğlu and Polattaş pág. 211

Indigenous Women Ana, Beatriz and Celia González Pérez pág. 107 Mothers Castro-Castro Prison pág. 1

Pregnant Women Castro-Castro Prison pág. 1

Rape as a Crime Against Humanity Akayesu pág. 243 Semanza pág. 259 Muhimana pág. 269

Rape as Torture Castro-Castro Prison pág. 1 Raquel Martín de Mejía pág. 71 Ana, Beatriz and Celia González Pérez pág. 107 Aydin pág. 145 Semanza pág. 259 Delalić et al. (Ĉelebići) pág. 277

Rape: Criminal Offence M.C. pág. 165 Anto Furundžija pág. 293 Kunarac et al. (Foĉa) pág. 309 Sesay et al. pág. 333

Rape: Criminal Responsibility for Aiding and Abbetting Anto Furundžija pág. 293

Rape: Standards of Proof M.C. pág. 165

Refugee Women Jabari pág. 155

Right to Privacy Y.F. pág. 161 Tysiąc pág. 191 Sexual Slavery and Forced Marriage Sesay et al. pág. 333

Sexual Violence Castro-Castro Prison pág. 1 “Las Dos Erres” Massacre pág. 63 M.C. pág. 165 Akayesu pág. 243

Sexual Violence as a Terrorist Act Sesay et al. pág. 333

State Responsibility for Acts of Non-State Actors Cotton Field pág. 23

State’s Tolerance of Gender-based Violence Maria da Penha pág. 127

The States’ Duty to Protect Women from gender-based Violence Maria da Penha pág. 127 M.C. pág. 165 Bevacqua and S. pág. 203 Opuz pág. 219 A.T. pág. 351 Şahide Goekce pág. 367 Fatma Yildirim pág. 375

Therapeutic Abortion Tysiąc pág. 191

Vaginal Inspection Castro-Castro Prison pág. 1 X and Y pág. 81

Women Deprived of Liberty Castro-Castro Prison pág. 1 Aydin pág. 145 Salmanoğlu and Polattaş pág. 211 Summaries of Jurisprudence Gender-based Violence