Summaries of Jurisprudence Gender-Based Violence 2Nd Edition Updated

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Gender-based Violence

2nd Edition Updated

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. 2nd Edition Updated Compiled by Liliana Tojo Center for Justice and International Law - CEJIL, 2012. 436 p.; 24 x 17 cm.

The commercialization of this publication is prohibited. Reproduction of the contents is authorized, provided that the source is quoted

Editorial Team for the 2nd Edition: Liliana Tojo Pilar Elizalde Federico Taboada

Translation Team (1st Spanish Edition) Carla Goretti (intern) Nancy V. Piñeiro (intern) Guillermo A. Tóffolo (intern)

Colaboration in the translation and edition of the 2nd Edition: María Cecilia Lipovsek (intern) Consuelo Montesinos (volunteer)

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

CEJIL´s Board of Directors: José Miguel Vivanco (President) Alejandro Garro (Vice-president) Helen Mack (Secretary) Mariclaire Acosta Urquidi Gastón Chillier Benjamín Cuellar Gustavo Gallón Sofía Macher Julieta Montaño Summaries of Jurisprudence

Gender-based Violence

2nd Edition Updated CEJIL´S work is possible thanks to the generous contribution of the following supporters:

Dan Church Aid Diakonia/European Union EED Embassy of Canada in Argentina Foundation to Promote Open Society (FOSI) HIVOS Loyola University MISEREOR National Endowment for Democracy Norwegian Ministry of Foreign Affairs Royal Embassy of Norway in Argentina The Ford Foundation The John D. and Catherine MacArthur Foundation The Netherlands Embassy in Costa Rica The Oak Foundation The Sigrid Rausing Trust UNHCR United Nations Voluntary Fund for Victims of Torture (UNVFVT)

And individual and private donors who wish to remain anonymous. Presentation

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 human 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 silenced human rights violations.

Viviana Krsticevic Executive Director Introduction to the Second Edition

In 2010, the volume Gender-based Violence was published by the Centre for Justice and International Law (CEJIL) as part of the collection Summaries of Jurisprudence. This publication reflects the first selection of texts published in Spanish to include rulings emana- ting from international bodies of human rights protection, which relate to the protection of female victims of violence. As with all of CEJIL’s publications, this text is available in digital format on the organization’s website (http://cejil.org/en/publicaciones). These defining characteristics have earned this publication significant recognition from the international community of human rights defenders. Indeed, it has been presented in various different nations in the Americas, it has been included as a compulsory text on reading lists for postgraduate studies relating to gender, and has given rise to numerous seminars and training sessions.

CEJIL consistently strives to maintain the quality and utility of the material that it presents. As such, this edition of the publication has been updated in order to offer an exhaustive overview of some of the most demonstrative rulings issued by international justice institutions. Consequently, this volume includes sentences, reports and rulings of the Inter-American Court and 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 for the Elimination of Discrimination against Women.

We would like to recognize the contribution of Pilar Elizalde and Federico Taboada to this edition of the publication.

We hope that the reception of the second edition is equal to that of the first. Similarly, we hope that it continues to contribute to the defense of human rights and to the eradication of violence against women, a human rights violation that continues to be one of the most tolerated and silenced.

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

Rosendo Cantú et Al. v. Mexico - Preliminary Ojections, Merits, Reparations, and Costs - August 31, 2010 71

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

Raquel Martín de Mejía v. Peru Case Nº 10.970 - Report Nº 5/96 – March 1, 1996 93

X and Y v. Argentina Case Nº 10.506 – Report Nº 38/96 – October 15, 1996 103

María Eugenia Morales de Sierra v. Guatemala Case Nº 11.625 - Report Nº 4/01 – January 19, 2001 115

Ana, Beatriz and Celia González Pérez v. Mexico Case Nº 11.565 - Report Nº 53/01 – April 4, 2001 129

Maria da Penha Maia Fernandes v. Brazil Case Nº 12.051 - Report Nº 54/01 – April 16, 2001 149 Jessica Lenahan (Gonzalez) et Al v. United Estates 159 Case 12.626 - Report Nº. 80/11 - July 21, 2011

Iii) Judgments of the European Court of Human Rights

Aydin v. Turkey Application Nº 23178/94 - Judgment September 25, 1997 195

Jabari v. Turkey Application Nº 40035/98 - Judgment July 11, 2000 205

Y. F. v. Turkey Application Nº 24209/94 - Judgment July 22, 2003 211

M. C. v. Bulgaria Application Nº 39272/98 - Judgment December 4, 2003 215

Siliadin v. France Application Nº 73316/01 - Judgment July 26, 2005 225

Bevacqua and S. v. Bulgaria Application Nº 71127/01 - Judgment June 12, 2008 241

Opuz v. Turkey Application Nº 33401/02 – Judgment June 9, 2009 249

IV) Judgments of the International Criminal Tribunal for Rwanda

Prosecutor v. Jean-Paul Akayesu Case Nº ICTR-96-4-T - Judgment September 2, 1998 273

Prosecutor v. Laurent Semanza Case Nº ICTR-97-20-T - Judgment May 15, 2003 289

Prosecutor v. Mikaeli Muhimana Case Nº ICTR-95-1B-T - Judgment April 28, 2005 299 V) Judgments of the International Criminal Tribunal for the former Yugoslavia

Prosecutor v. Delalić et al. - Čelebići Case Nº IT-96-21-T - Judgment November 16, 1998 307

Prosecutor v. Anto Furundžija Case Nº IT-95-17/1-T – Judgment December 10, 1998 323

Prosecutor v. Kunarac et al. - Foča Case Nº IT-96-23-T & IT-96-23/1-T - Judgment February 22, 339 2001

VI) Judgments of the Special Court for Sierra Leone

Prosecutor v. Sesay et al. Case Nº SCSL-04-15-T - Judgment March 2, 2009 363

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

A. T. v. Hungary Communication Nº 2/2003 – Views adopted on January 26, 2005 381

Şahide Goekce (deceased) v. Austria Communication Nº 5/2005 - Views adopted on August 6, 2007 389

Fatma Yildirim (deceased) v. Austria Communication Nº 6/2005 - Views adopted on August 6, 2007 397

Karen Tayag Vertido v. The Philippines Communication Nº 18/2008 - Views adopted on July 16, 2010 405

Index of Topics

Summaries of Jurisprudence on Gender-based Violence

Index of Topics

Deportation: Risk of Torture in Cases of Adultery Charges Jabari p. 205

Discrimination and Gender-based Violence Cotton Field p. 23 Opuz p. 249

“Domestic” Slavery and Forced Labor Siliadin p. 225

Domestic Violence Maria da Penha p. 149 Jessica Lenahan p. 159 Bevacqua and S. p. 241 Opuz p. 249 A.T. p. 381 Şahide Goekce p. 389 Fatma Yildirim p. 397

Domestic Violence: Court Appointed Investigation and Interference in Private Life Opuz p. 249

Domestic Violence: Provisional Custody of Children Bevacqua and S. p. 241

Due Diligence in the Investigation of Gender-based Violence Cotton Field p. 23 “Las Dos Erres” Massacre p. 63 Rosendo Cantú p. 71 Ana, Beatriz and Celia González Pérez p. 129 Jessica Lenahan p. 159 Aydin p. 195 M.C. p. 215 Bevacqua and S. p. 241 Opuz p. 249

Equality María Eugenia Morales de Sierra p. 115

Femicide Cotton Field p. 23

Forced Nakedness Castro-Castro Prison p. 1 Aydin p. 195

Gender Stereotypes Cotton Field p. 23 María Eugenia Morales de Sierra p. 115 Karen Tayag Vertido p. 405

Genocide Akayesu p. 273

Girls Cotton Field p. 23 Rosendo Cantú p. 71 X and Y p. 103 Ana, Beatriz and Celia González Pérez p. 129

Gynecological Examination Aydin p. 195 Y.F. p. 211

Indigenous Women Rosendo Cantú p. 71 Ana, Beatriz and Celia González Pérez p. 129

Mothers Castro-Castro Prison p. 1 Pregnant Women Castro-Castro Prison p. 1

Rape as a Crime Against Humanity Akayesu p. 273 Semanza p. 289 Muhimana p. 299

Rape as Torture Castro-Castro Prison p. 1 Rosendo Cnatú p. 71 Raquel Martín de Mejía p. 93 Ana, Beatriz and Celia González Pérez p. 129 Aydin p. 195 Semanza p. 289 Delalić et al. (Ĉelebići) p. 307

Rape: Criminal Offence M.C. p. 215 Anto Furundžija p. 323 Kunarac et al. (Foĉa) p. 339 Sesay et al. p. 363 Karen Tayag Vertido p. 405

Rape: Criminal Responsibility for Aiding and Abbetting Anto Furundžija p. 323

Rape: Standards of Proof Rosendo Cantú p. 71 M.C. p. 215 Karen Tayag Vertido p. 405

Refugee Women Jabari p. 205

Right to Privacy Y.F. p. 211 Sexual Slavery and Forced Marriage Sesay et al. p. 363

Sexual Violence Castro-Castro Prison p. 1 “Las Dos Erres” Massacre p. 63 M.C. p. 215 Akayesu p. 273

Sexual Violence as a Terrorist Act Sesay et al. p. 363

State Responsibility for Acts of Non-State Actors Cotton Field p. 23 Karen Tayag Vertido p. 405

State’s Tolerance of Gender-based Violence Maria da Penha p. 149

The States’ Duty to Protect Women from Gender-based Violence Maria da Penha p. 149 Jessica Lenahan p. 159 M.C. p. 215 Bevacqua and S. p. 241 Opuz p. 249 A.T. p. 381 Şahide Goekce p. 389 Fatma Yildirim p. 397

Vaginal Inspection Castro-Castro Prison p. 1 X and Y p. 103

Women Deprived of Liberty Castro-Castro Prison p. 1 Aydin p. 195 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. […] 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 […] 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 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, I.

On September9,2004,pursuanttothatstatedinArticles50and61oftheAmer I The The CommissionsubmittedthepetitionforCourttodecideifStateisr ntroduction facts presented by the Commission in the application occurred as of May 6, the Inter-American Commission on HumanRights(hereinafter “the O f T he C ase espon- - 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 o Castro is a prison for men and it is is a prison for men and o Castro . The inmates of pavilions 1A and 4B 37 ed, pavilion 1A of the Miguel Castro ed, pavilion 1A of the Miguel Castro . 36 . Many of them had been accused and were and were accused been them had of . Many 39 acts F eal objective of the “operative” was not the mentioned transfer of the in- 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 maximum security prison Miguel Castr The maximum security In the time in which the events occurr The r P

VIII. edly members of the Sendero Luminoso members of the Sendero edly were accused or convicted for the crimes of terrorism or treason or convicted for the crimes of terrorism accused were prisoners, their next of kin or attorneys of the mentioned transfer […] 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 known as “No man’s yard administrative office, known as “Admissions” […] 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 Castro Prison was occupied by around 135 female inmates and 50 male, and pavilion 4B and 50 male, and pavilion female inmates 135 around by was occupied Prison Castro 400 male inmates was occupied by approximately 197.13. 197.16. mates, but instead it was a premeditated 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 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 thewomenwer 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

When analyzingthefactsandtheirconsequencesCourt will takeintoaccount Another importantpieceofinformationthatthisT C The events,carriedoutdir he ontext S tate

of ’ s

I the 125 nternational . e affected bytheactsofviolencedifferently thanthemen,that P resent ectly bystateagentswhoseactionswere protected by C ase R esponsiblty 126 ribunal willtakeintoaccount ”

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the 45 .

Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 5 -

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ight ” It has already been proven in this case that the been proven ” It has already 148 onvention ferent acts that occurred in the present case in detri- in the present that occurred acts ferent 5 (R C onnection C onvention icle rt in

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-A , merican egard, in its Final Report the Commission for Truth and Reconciliation of Peru and Reconciliation of Peru for Truth in its Final Report the Commission egard, nter same A I ion iolat orture V Likewise, it is important to point out that, in one of its r The Court has verified that dif In this r the the the T

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 ing the mentioned conflict the acts of sexual violence against the women were intended the women were the acts of sexual violence against ing the mentioned conflict and degrade the population. humiliate, pressure, to punish, intimidate, 226. stated that in the armed conflict there was “a practice […] of rapes 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 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. 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. […] their prisonmatesandsawinjur 290. […] emotional suffering.” with thefearthattheywere goingtodie[,which]caused anintensepsychologicaland ness Deitschconcludedthatduringthefourdaysofattack “[t]heinmatesremained in suchawaythattheyfeltwere goingtodie.Inthesamesense,expertwit - was describedbythewitnessGabyBalcázar, “aclimateofdespairamong thewomen,” 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

A) Regardingtheinmates Similarly These characteristicsoftheattacklivedbyinmates,whowitnessed thedeathof The attackstartedagainstthewomen’ “Operative T 1) V , withregard tothementionedaspectsspecificviolence againstwomen, iolations totherighthumanetreatmentofinmatesasaconsequence ransfer 1” 155 . ed pregnant womencrawlingonthefloor, generated,as s pavilion1AoftheMiguelCastro Castro Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 7 - ovided to the Court and from the the Court and from ovided to ementioned, this Tribunal considers that the State is responsible considers that the State is responsible ementioned, this Tribunal 2) Treatments received by the inmates after May 9, 1992 and during their transfer received by the inmates after May 2) Treatments to other criminal centers and to hospitals Based on the afor It is important to clarify that the evidence pr to clarify that It is important

ing, constituted a psychological torture carried out in offense 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- […] […] for the violation of the right to humane treatment of the inmates that were injured 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 292. statements given by the inmates one can conclude that the pregnant inmates were 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. 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 waspr W The Courtconsidersthatthetr Among theinmatesthatwer during theattackoronceithadconcluded 3) Treatments receivedinthehealthcenterstowhichinmatesweretransferred ith regard tothe treatment thatmustbeoffered towomenwhoare de- oven thatatthePoliceHospitalinjured inmates,whowere indeplor 160 ” e intheconditionsdescribedthere were pregnant eatments describedintheprevious paragraphscon- 159 -

Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 9 - e carried out, since the e submitted to the mentioned nudity to the mentioned e submitted . 161 elation to the aforementioned, it is necessary to make emphasis on the fact that it is necessary to make emphasis on the elation to the aforementioned, Having forced the females inmates to remain nude in the hospital, watched over by nude in the hospital, the females inmates to remain Having forced The Court points out the context in which said acts wer The Court points out the context in which In r The Court considers that all inmates that wer considers that all inmates The Court

armed men, in the precarious health conditions in which they were, 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, the American 5.2 of 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 women who suffered them were subject to the complete control and power 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. 308. 307. 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 during the entire Likewise, 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 State police force, members of the 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, 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. the abuseofpowerdisplayedbyagent especially gr 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 experiences situation difficulttoovercome withtime,contrarytowhathappensothertraumatic psychological damagethatleavesthevictim“physicallyandemotionallyhumiliated”, en whoare imprisoned 312. 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

The CourtacknowledgesthatthesexualrapeofadetaineebyStateagentisan Following thejurisprudentialandlegalcriterionthatpr On theotherhand,inpr The SpecialRapporteuroftheUNforV Based ontheafor 164 oss andreprehensible act,takingintoaccountthevictim’s vulnerabilityand . ementioned andtakingintoconsiderationthatstatedinArticle2 167 . esent caseithasbeenproven thatonefemaleinmate 166 162 , whichare exacerbatedinthecasesofwom- . Similarly, sexual rapeisanextremely trau- iolence againstWomen hasestablished, 163 anditcausesgreat physical and evails bothintherealm of 165 This Tribunal - Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 11 - 174 ementioned criteria, and based on the body of evidence of ementioned criteria, efer to some parameters and pronouncements with regard with regard efer to some parameters and pronouncements the analysis of the seriousness of the acts that may constitute cruel, inhuman, or constitute that may the acts of the seriousness of the analysis ithin gross imprisonment conditions we can mention (supra para. 197.51. and ithin gross Below the Court will r W At the light of the afor 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 In

to said detention conditions and treatment 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 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. 197.52.): location in overcrowded cells that do not allow 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 […] 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. degrading treatments or torture it is necessary to weigh in all the circumstances of the 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 […] 316. 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 aspectthataf The sever In whatr efers tothesolitaryconfinement,Courthasalready referred, inother e solitaryconfinementhadspecific effects ontheinmatesthatwere moth- fected womenwasthelackofattentiontotheirphysiological 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 - es of solitary confinement cause special fectively investigate the violating facts to the right , the evidence has led to the conclusion that 25 of the inmates’ next of kin to the conclusion that 25 of the inmates’ , the evidence has led ribunal considers that the totality of detention and treatment conditions to treatment of detention and that the totality ribunal considers The analysis of the obligation to ef The Court considers that this type of measur B) Regarding the inmates’ next of kin B) Regarding the inmates’ Finally This T

ticle 5 of the American Convention, the Court has stated that it implies the duty of the ticle 5 of the American Convention, the Court has stated that it implies the duty to humane treatment is done taking into consideration the parameters referred 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, 333. 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. which the inmates were submitted in the criminal centers where they were transferred 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. 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. 14 Gender-based Violence ments. State toinvestigatepossibleactsoftorture orothercruel,inhuman,degradingtreat- […] 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. 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 thepr 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,theT 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, esent case,theCourtconsidersthatfrom thefactsdeclared asaviolation ribunal haspreviously stated that: 191 . Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 15

iolence udicial J merican merican V same

-A -A merican the

ight A nter nter of I I R radicate orture the

E the the T

and

1(1) of

of and of , 25 rial 7 8 unish icle rt T P and A and unish air 8 to and

icles rt F

, P a

A 1, 6, to to

icles rt and revent revent ion elat , A ight P P R to

in to to

(R ) omen on onnecti W C ion iolat in ding to that stated in the previous paragraph, the Court will analyze if the ding to that stated in the previous ding to the international obligations acquired by Peru, the latter has the duty ding to the international obligations acquired

der to comply with the obligation to investigate the State must observe that der to comply with the obligation to investigate V gainst onvention onvention ion onvent on rotecti C Accor In or Accor A C P and C

XV. State has complied with its obligation to 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. […] stated in paragraph 256 of this Judgment, 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. to guarantee the right to access justice 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. […] Court Considerations of the […] 377. 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. […] 381. its jurisdiction(Article1.1.). free andfullexercise oftherightsacknowledgedbuy theConventiontoallpersonunder (Article 8.1.),allthiswithinthegeneralobligation,ofsameStates,toguarantee (Article 25),thatmustbesubstantiatedpursuanttotherulesofdueprocess oflaw are obligedtooffer thevictimsofhumanrights’violations effective judicialrecourses

Ther Due This Courthasestablishedthat“[a]ccor The Courthasheldthat,accor efore, theCourtconcludes thatthere isevidencetostatethatthedeathsand to all the aforementioned, this Tribunal considers that the domestic proceed- 197 208 ding totheAmericanConvention,StatesParties 201 Therefore, theStatemustadoptallmeasures ding to international lawtheobligations ding tointernational Inter-American Court of Human Rights - Miguel Castro-Castro Prison v. Peru 17 - eatment enshrined in Article 5.1. of the eatment enshrined in Article 5.1. and 5.2. eatment enshrined in Article 5.1. and 5.2. , eclares D ourt C The State violated the right to humane tr The State violated the right to humane tr The State violated the right to life enshrined in Article 4 of the American Conven The State violated the right to life enshrined he

T American Convention on Human Rights, in relation 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. of the American Convention on Human Rights, in relation to Article 1.1. of said treaty, 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. Unanimously, that: Unanimously, […] 3. tion on Human Rights, in relation to Article 1.1. of the same, in detriment of the 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. 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 . FinalReportoftheCommissionforTruth andReconciliation,CVR,issuedonAugust27,2003inthe 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

of June2006. ment oftheStateduringpublichearingheldbefore theInter-American Courtonthe26thand27thdays appendixes andtothepetition,13,14,15,folios167 through 262);andargu - 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 tion, appendix254,folios2781through 2787). folios 2796through 2823); andmapoftheMiguelCastro Castro Prison(dossier ofappendixestothepeti- 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 Cfr Cfr Cfr 769 (dossierofappendixestothepetition,appendix6,corresponding toacompactdisc). city ofLima,Peru,Volume VII,section2(68),ExtrajudicialkillingsinthecriminalcenterCantoGrande,page Cfr This Judgmentis, The Stateviolatedtherighttoafairtrialandjudicialpr . listsoftheinmatesdetainedinpavilions1Aand4BMiguelCastro Castro Prison(dossierof . FinalReportoftheCommissionforTruth andReconciliation,CVR,issuedonAugust27,2003inthe . PhotographsoftheMiguel Castro Castro Prison (dossier ofappendixestothepetition,appendix256, . FinalReportoftheCommissionforTruth andReconciliation,CVR,issuedonAugust27,2003inthecity per se,aformofreparation. otection 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 - General recom meeting. 11º against Women, Discrimination of the Elimination on U.N., Committee . Jean-Paul Akayesu. Judgment of September 2, 1998. Case No. ICTR-96-4-T, v. . ICTR, Case of Prosecutor . U.N., Minimum rules for the treatment of prisoners, Adopted by the First United Nations Congress on of prisoners, Adopted by the First United Nations Congress . U.N., Minimum rules for the treatment note 21, para. 166; Case of the “Juvenile Reeducation supra note 21, para. 166; Case of the “Juvenile Reeducation . Case of the Gómez Paquiyauri Brothers, . U.N., Committee for the Elimination of Discrimination Against Women, 11º meeting period.19 General Women, Against Discrimination for the Elimination of Committee . U.N., . Case of the Penitenciary Center Capital Regional Yare I and II, Provisional Measures. Ruling of the Inter- Measures. I and II, Provisional . Case of the Penitenciary Center Capital Regional Yare . Judgment issued by the National Terrorism Chamber of the Supreme Court of Justice of Peru on Feb- Chamber of the Supreme National Terrorism . Judgment issued by the Febru- on Peru of Justice of Court Supreme the of Chamber Terrorism National the by issued Judgment . . Law decree No. 25421 issued by the President of the Republic of Peru on April 6, 1992, Article 2 (dossier 2 Article 1992, 6, April on Peru of Republic the of President the by issued 25421 No. decree Law . 2003 in the city and Reconciliation, CVR, issued on August 27, for Truth . Final Report of the Commission . Obudsman of the People of Peru. Defense Report No. 80, Political Violence. Obudsman of the People of Peru. Defense Report No. in Peru: 1980- 1996, page 33. mendation 19 “Violence against women”. Doc. HRI/GEN/1/Rev. 1at84 (1994), para. 6. mendation 19 “Violence against women”. Doc. HRI/GEN/1/Rev. Cfr para. 688. 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. Cfr Cfr Cfr Institute”, (Villagrán Morales et al.), supra note 152, para. 194. Children” para. 120; and Case of the “Street 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)”, 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, 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 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 Cfr appendix 7, folio 74). of appendixes to the petition, 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 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

161 160 155 159 148 126 45 125 43 44 42 20 Gender-based Violence 181 186 180 179 178 174 167 166 165 164 163 . Eur.C.H.R., CaseofAydin v. Turkey (GC).Judgmentof25September1997,App.No.57/1996/676/866, 162

Conflict on Women, 2001,sec.III, ref. 0798andavailableathttp://www.icrc.org. Inthesamesense,cfr. Cfr Cfr and CaseofBámacaVelásquez, supranote174,para.150. Cfr and CaseofBámacaVelásquez, supranote174,para.150. para. 14. sequences, pursuant to resolution 1997/44 oftheCommission. Doc. E/CN.4/1998/54 ofJanuary26, 1998, and 13. pursuant toresolution 1997/44 oftheCommission.Doc.E/CN.4/1998/54January26,1998,paras.12 wamy, SpecialRapporteuronviolenceagainstwomen,withtheinclusionofitscausesandconsequence, para. 83. 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 cacó Reyes,supranote171,paras.95and96;CaseofLoriBerenson Mejía,supranote168,para.103. Cfr 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 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 Coomaraswamy Cfr Cfr Cfr Cfr para. 83. Cfr . International CommitteeoftheRedCross.. International Women FacingWar: ICRC StudyontheImpactofArmed . Eur.C.H.R., CaseofÖcalanv. Turkey(GC), Judgmentof12May2005,App.No.46221/99,para.191. . Case of De la Cruz Flores, . U.N,HumanRightsCommission,54ºsession.Reportpresented byMrs.Radhika . U.N.,HumanRightsCommission,54ºmeetingperiod.Reportpresented byMrs.RadhikaCoomaras- . Eur.C.H.R., CaseofAydin v. Turkey (GC),Judgmentof25September1997,App.No.57/1996/676/866, . U.N.,HumanRightsCommission.50°meetingsession.Matterofthehumanrightsallpersons . Case of De la Cruz Flores, . CaseofMontero Aranguren etal.(DetentionCenterofCatia),supranote128,para.94;CaseRax- . CaseoftheGómezPaquiyauriBrothers, supranote21,para.113;CaseofBámacaVelásquez. Judg- . Oral presentation before the Human Rights Commission of the Special Rapporteur of the United Na- , SpecialRapporteuronviolenceagainstwomen,withtheinclusionofitscausesandcon- 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 . Case of Goiburú et al., supra note 5, para. 128. note 5, para. 110; Case of Servellón García et al., supra nota 3, para. 147; . Case of Goiburú et al., supra note 5, para. 110; Case of Servellón García Violationin of Laws the Conven- of and Enforcement International. for the Promulgation Responsibility note 3, para. 147; and Case Lopes, supra note 3, para. 147; and Case supra note 3, para. 78; Case of Ximenes Areco, . Case of Vargas supra note 147, para. 54; and Soler, Gutiérrez supra note 3, para. 79; Case of Areco, . Case of Vargas . International Committee of the Red Cross. Women Facing War: ICRC Study on the Impact of Armed on the Impact of Armed ICRC Study Facing War: Women . International Red Cross. Committee of the Cfr Cfr and Case of Ximenes Lopes, supra note 3, para. 175. 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 Cfr of June 15, 2005. Series C No. 124, para. 92. Judgment of the Moiwana Community. 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. 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. 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

201 208 191 197 190 187

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 The applicationr On November4,2007,underArticles51and61oftheConvention,Inter I ntroduction Commission asked that the Court declare the State responsible for theviola- elates totheState’s responsibility allegedinternational for“thedis-

the C ase

and P urpose

the D ispute - - Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 25

that

66 of to

and is an this 7 63

which have egal 70 in

ight L ight 1(1) umane cle i rt H A omen 25 (R ), 8 (R to omestic

cles i rt W and and , The State, as well as various A ) 64 ight iberty 2 (D to

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and the proximity of the international and the proximity border, elém 65 arms smuggling ion iscriminat B ights ight 68 merican ight espect of D

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), 7 (R P of ez is located in the north of the state of Chihuahua, on the border of Chihuahua, on the border ez is located in the north of the state rial ) icles rt T onvention people trafficking, ference of opinion requires the Court to examine the context of the facts of the Court to examine of opinion requires ference A iolence 67 udicial Ciudad Juárez C air V

ion bligat J ase reatment ffects F Ciudad Juár T E C Context 1.1. This dif a to the (O

VII. 113. with El Paso, Texas. It has a population of more 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, the case and the conditions in which the said facts can be attributed to the State, thus 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. […] 112. 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 115. State response tothesecrimes.” situation ofviolenceagainstwomenwhichhasprevailed since1993,andthedeficient communitiesbecauseoftheparticularlycritical both thenationalandinternational cantly. According totheCommission,“CiudadJuárez hasbecomeafocusofattention disappearances andmurders ofwomenandgirlsinCiudadJuárez hasincreased signifi- 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 114. quilas

The In The Courttakesnotethatther The Stateacknowledged“thepr The Commissionandther 1.2. Phenomenonofthemurderwomen,andnumbers 1.3. Victims 100 the first place, theCommission andthe representatives alleged that thevictims –whoare underprivileged, plaintiffs’ allegations were based on different reports prepared by national and 98 includinggirls, 99 epresentatives allegedthat,since1993,thenumberof women workers–especiallythoseworkinginthema- 101 e are noreliable assumptionsaboutthenumberof students oblem itfacesowingtothesituationofviolence 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 osecutor’s Office concluded that most of the murders of Office concluded that most of the murders osecutor’s 111 the Commission and the representatives alleged that there were signs of signs were there that alleged representatives the and Commission the reports establish the following common factors in several of the murders: the murders: of several in factors common following the establish reports and, after days or months, their bodies were found on empty lots their bodies were and, after days or months, ding to the representatives, the issue of gender is the common denominator common the is gender of issue the representatives, the to ding 106 Regar Although the Special Pr Diverse 1.4. Method Second, Accor 1.5. Gender-based violence 1.5. Gender-based

108 126. result of violent sexual the were 26% of the murders for 2004, around ing to the figures acts. - theStateallegedthat,accord ding thesexualcharacteristicsofmurders, 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 ar 130. women’s socialroles hasbeenperpetuated.” tionally patriarchal attitudes andmentalities,thusthestereotyped viewofmen’s and “[t]his socialchangeinwomen’s roles hasnotbeenaccompaniedbyachangeintradi- 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- 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 womeninCiudadJuárez 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 e theabsenceofbasicpublicservicesinunderprivilegedareas; anddrug-trafficking,

The Courtnotesthat,despitetheState’ 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 Stateindicatedthatthemur 112 115 In addition, the State cited the CEDAW report to indicate that Mexico’s observationsinitsreply toCEDAW withregard to ders “havedifferent causes,withdifferent authors, s denialthattherein isanykindofpattern Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 29 - 120 According to Amnesty According 117 116

122 ez Commission pointed out that the emphasis placed by the Special 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 V The Ciudad Juár 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 in murders the for motives different are there although that, agree reports arious systematic discrimination against women. curs in a context of 135. Prosecutor’s 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. lence against women in Mexico can only 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. 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 […] constitute gender-based murders ofwomen. the Tribunal will analyzewhether, basedontheevidenceprovided bytheparties,they Rapporteur inthisregard: conducted overthoseyears.However, theCourtnotesobservations of theIACHR it didnotspecifytheirregularities ithadfoundintheinvestigationsandproceedings investigation andprosecution ofthemurders ofwomenbetween1993and2003(…), 147.

In theinstantcase,T (…) [I]ntheinstantcaseCourtwilluseexpr 1.6. Regardingtheallegedfemicide The Commission’ Regar report agirlmissingthattheyshouldreturnin48hours, whenitwasclearthere that itwasnotuncommonfor thepolicetotellafamilymemberattempting five yearsthatitwasconfronted withthesekillings.Itacknowledges, forexample, The MexicanState,foritspart, recognizes thatmistakeswere madeduringthefirst Even thoughtheStateacknowledgedthatirr 1.7.1. Irregularitiesintheinvestigationsandproceedings ding thedeathsthatoccurred intheinstantcase,followingsections s report stressed thesexualcharacteristicsofmurders andin- 123 ribunal findsthat,bearinginmindtheevidenceandar

egularities hadbeencommittedinthe ession “gender-based murders - 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 y attitude of the authorities 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 egard,] the State indicated that the culture of discrimination against women of discrimination State indicated that the culture the egard,] 147 ding to the evidence provided, the irregularities in the investigations and the in the investigations the irregularities provided, ding to the evidence 1.7.2. Discriminator 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 r Accor 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 contributed to the fact that “the murders were not perceived at 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.” […] 152. 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 proceedings included delays in starting investigations, proceedings […] 150. 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 A The Courtobservesthatvariousr 154 related aspect included in the reports is that there are fewer judgments, and the Furthermore, according toCEDAW “aculture ofimpunityhastakenroot which 1.7.3. Absenceofclarification , theTribunal observesthatsomereports indicatethatimpunityisrelated to 155 eports agree thatthefailure tosolvethecrimesisa 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 egoing, the Court concludes that, since 1993, there has been an has been since 1993, there Court concludes that, egoing, the She disappeared on Monday, October 29, 2001, after leaving the leaving after 29, 2001, October on Monday, She disappeared era Monreal was 15 years old and had completed “third year of was 15 years old and had completed “third era Monreal González was 20 years old and worked for a maquila plant. Ac- old and worked for a maquila plant. González was 20 years 174 enice Ramos Monárrez was 17 years old and a fifth semester high school enice Ramos Monárrez at work. On October 10, 2001, she arrived at work two minutes late and, conse- at work. On October 10, 2001, she arrived Esmeralda Herr Claudia Ivette Laura Ber Facts of the case 2.1. Disappearances of the victims 1.8. The Court’s conclusions 1.8. The Court’s Based on the for Based on the 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, 165. 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. was that she telephoned a girl friend on Satur student. The last information about her 34 Gender-based Violence boyfriend orwanderingaround withfriends,” pearance, theauthoritiestoldherthatshe“hadnotdisappeared, butwasoutwithher 198. […] 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 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. 201. go off withtheirboyfriend orwanttolivealone.” would havetolookforherdaughter, because“allthegirlswhogetlost,allofthem,[…] 200. ribunal underscores thatthetestimonyofMrs. DelgadilloPérez andthestate - ments bythevictims’mothers and nextofkinconcurwiththecontextdescribedbydif- 203. 199. girls were veryflightyand threw themselvesatmen.” an officialtoldafriendofherdaughterthat“sheissurely withherboyfriend,because 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

Esmeralda Herr 2.4. Stereotypingallegedlymanifestedbyofficialstothevictims’nextofkin The T The Statedidnotcontestthistestimonybythemothersofvictims. The motherofLauraBer Claudia Y In addition, the testimony of Mrs. Delgadillo Pérez the authorities’ ac- concerning 223 vette’s mothersaidthatwhenshewenttopresent themissingreport, era’s mothertestifiedthat,whenshe reported herdaughter’s disap- 229 enice Ramos stated that the police agents told her that she enice Ramosstatedthatthepoliceagentstoldhershe 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 s form on which the next of kin s form on which the o Castro Prison v. Peru, the Court referred to the Peru, the Court referred Prison v. o Castro 248 , which causes death or physical, sexual or psychological harm e examining the possible international responsibility of the State in this case, of the State e examining the possible international responsibility 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 In the case of the Miguel Castr The violence against women in this case Befor The T The Court also observes that the missing person’ The Court also observes

scope of Article 5 of the American Convention in relation 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. 226. conduct, based on gender to women, whether in the public or the private sphere.” or suffering […] 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. 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 made byofficialsthat case, thecomments in theinstant that, considers ribunal 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. 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 ar 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. ribunal hasestablished“thatnotallhumanright violationcommittedagainst Pará.” a womanimpliesnecessarilyviolationoftheprovisions intheConventionofBelémdo 227. State, irrespective ofitshierarchy, that violatetheAmericanConvention. responsibility oftheStateisbasedonactsoromissions ofanybranchorentitythe e obligedtorespect andensure thehumanrightsestablishedtherein. Theinternational

The Courthasestablishedthat, pursuanttoArticle1(1)oftheConvention,States Obligation ofnon-discriminationandr All ofthisleadstheCourttoconcludethatMss.González,RamosandHerr Thir Secondly In theinstantcase,Courttakesnote,firstly This T 250 dly, thethree victims in thiscasewere young,underprivilegedwomen,workers , theCourtnotesthatithasestablishedabove(suprapara.133) espect andguaranteeofrightsem- , oftheState’s acknowledgementof 254 era, 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 ding the obligation to respect, the Court has stated that the first obligation has stated that the the Court to respect, ding the obligation ribunal must now analyze whether the State took adequate steps to prevent the took adequate steps to prevent ribunal must now analyze whether the State 255 The T Accor 4.2. Obligation to guarantee W Regar

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 disappearance, abuses and death suffered by the three victims, and 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 237. and personal liberty of Mss. the rights to life, personal integrity ensure and respect González, Ramos and Herrera. mustverifywhetherMexicofulfilleditsobligationto theTribunal dingly, […] […] 248. 236. guarantee on the specific right that the State must ways, based be fulfilled in different thatitmay toguarantee,theCourthasestablished totheobligation regard ith needs for protection. and on the specific 235. assumed by the States Parties, in the terms of the said Article, is that of “respecting 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 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. […] 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 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

The Courthasestablishedthattheobligationofpr sonal integrityandtolifeofthevictims 4.2.1. Obligation of preventioninrelationtothe right topersonal liberty, toper Since 1992,CEDA The ConventionofBelémdoParádefinesviolenceagainstwomen( In thecaseofMariaDaPenhav W establishedthat“Statesmayalsoberesponsible forprivate . Brazil(2000),presented byavictimofdomesticvio- 270 In2006,theU.N.SpecialRapporteur 269 evention encompassesallthose andsodidthePlatformforAc- 268 The1993Declaration supra para.226) 272 TheCom- 271 273 267 - - Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 39 - 275 ovided e, according to a report of the U.N. Secretary-General: to a report e, according 274 egoing reveals that States should adopt comprehensive measures to comply measures that States should adopt comprehensive egoing reveals The for Furthermor 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 pr 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 Courtobservesthatnationalandinter Nevertheless, accor Even thoughtheStatewasfullyawar The T Accor ribunal hasconsidered proven andtheStatehasacknowledgedthat,in2001, ding to the facts of this case, the victims González, Ramos and Herrera were ding totheCourt’s jurisprudence,itisevident thataStatecannot 291 (…) e ofthedangerfacedbythesewomen national reports agree thatthepreven- Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 41 296 ove that it had adopted reasonable measures, according to the according measures, ove that it had adopted reasonable e are two crucial moments in which the obligation of prevention which the obligation of prevention two crucial moments in e are ding the first moment – before the disappearance of the victims – the Tribunal Tribunal the the victims – disappearance of the before – moment the first ding ith regard to the second moment – before the discovery of the bodies – given the – given the bodies of the discovery before moment – the second to ith regard Mexico did not pr W Regar In this case, ther

circumstances surrounding 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 context of the case, the State was aware that there was a real and imminent risk that 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. 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. 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 period between the reports and the discovery of the victims’

The obligation life, personalintegrityand liberty and 2.1.oftheConvention,derivedfromobligationtoguarantee therightsto 4.2.2. Obligationtoinvestigatethefactseffectively, inaccordancewithArticles 8.1. Based onthefor In addition,theT to investigate cases oftheviolation of theserightsarisesfrom the ribunal findsthattheStatedidnotprove thatithadadoptednorms egoing, theCourtfindsthatStateviolatedrightstolife, - Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 43 - 301 305 303 esults, which must be esults, which must be e aware of the fact, they e aware - 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 egard, within the framework of the obligation to protect the right to life, the framework of the obligation to protect within egard, 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 r The duty to investigate The T In this r Mor In light of this obligation, as soon as State authorities ar 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, Tribunal(supra bythis established ribunal findsthat,followingthestandards 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 should initiate, ex officio and without delay, a serious, impartial and effective 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 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 “whatsoever theagent theCourthasnotedthatthisobligationremains eover, international responsibility.” authorities, which would entail the State’s 290. 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 366. […] […] 306. […] can render theinvestigationsineffective. surroundinganalyze thesystematicpatterns aspecifictypeof violationsofhumanrights, […] inadequate topreserve the chainofcustody. the improper handlingofsome oftheevidencecollected,andiv)methodsusedwere ligible rigorintheinspectionandpreservation ofthecrimescenebyauthorities;iii) to identifywithprecision the circumstances ofthediscoverybodies;ii)neg- […] 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’ investigate themincontext c) Allegedirregularitiesrelatingtothefragmentationofcasesandfailure sponsible andallegedfabricationofguiltyparties 4.2.2.2. Allegedirregularitiesintheactionstakenagainstthoseallegedtobere- The Courtconcludesthat,inthiscase,irr of evidence,autopsies,andidentificationreturnthevictims’remains 4.2.2.1. Allegedirregularitiesincustodyofthecrimescene,collectionandhandling The r epresentatives didnotsubmitclearargumentsorsufficient evidencetoprove s jurisprudencehasindicatedthatcertainlinesofinquiry, whichfailto 306 Thiscriterioniswhollyapplicablewhenexaminingthescopeof 397 egularities occurred asregards: i)thefailure Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 45 - - eviously as re (…) 400 conclusion, the Court accepts the acknowledgement of responsibility for the ir the for responsibility of acknowledgement the accepts Court conclusion, the In What happened in this case is similar to what has been indicated pr 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 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 European Court considered thateven though thegeneraland discriminatory judicialpas - equal protection ofthelawandthatthisfailure doesnotneedtobeintentional.” The “the State’s failure toprotect womenagainstdomesticviolence breaches theirrightto 396.

CEDA Fr 4.3. Obligationnottodiscriminate:violenceagainstwomenasdiscrimination Based onthefor In thecaseofOpuzv om ageneralpointofview, CEDAW hasdefineddiscrimination againstwomen W hasstatedthatthedefinitionofdiscriminationagainst women “includes egoing, theTribunal findsthattheStatefailedtocomplywithits . Turkey, theEuropean CourtofHumanRightsstatedthat 412 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 47 - 414 W that the “cul- 413 ribunal considers that these statements, which the State provided as evidence, the State provided ribunal considers that these statements, which In addition, it has been established that, when investigating this violence, some au The T In the instant case, the Court finds that the State informed CEDA In the instant case, the Court finds that In

thorities mentioned that the victims were “flighty” or that “they had run away with their thorities mentioned that the victims were concur with its acknowledgement of responsibility, in the sense that, in Ciudad Juárez 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. ture of discrimination” against women influenced the fact that “the murders [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. 398. 397. “must not be the object of discrimination, and they must be women detained or arrested that indicated they “must be supervised and all forms of violence or exploitation”; that from Tribunal the Peru, protected v. Prison Castro Castro Miguel the of case the - 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 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 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

The Courtther Similarly 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 influenceexertedbydiscriminatorysocio-culturalpatterns , theTribunal findsthatgenderstereotyping refers toapreconception of efore findsthat,intheinstantcase,violenceagainstwomencon- 415 Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 49 - en together with 416 420 Furthermore, the Furthermore, 419 The prevalence of The prevalence 418 417 otection of children, the Tribunal underscores that the evidence provided by the State that the evidence provided underscores the Tribunal eviously, at the time of the facts, the public authorities were aware aware facts, the public authorities were at the time of the eviously, 421 Despite the existence of legislation for the pr 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 This T The independent expert for the United Nations study on violence against childr for the United Nations study on violence The independent expert As established pr The rights of girls, Article 19 of the American Convention of girls, Article 19 The rights

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 boysandgirlshavespecialrightswhichgiverise ribunal hasestablishedthat 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. of a context of disappearances, violence and murders of young women and girls (supra of young women violence and murders of a context of disappearances, para. 129). 407. […] 406. 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 fileintheinstantcaseincludes informationontheexistenceofapatter 6.2. Threats,intimidationandharassmentsufferedbythenext ofkin The bodyofevidencer cause oftheirsearchforthetruth 6.1. Suffering of thenext of kinbecause what happenedtothe victimsand be- Right tohumanetr Consequently 426 Furthermore, “[t]hemothers insist in thepain and suffering experienced , thisCourtfindsthattheStateviolatedrightembodiedinArticle eatment ofthevictims’nextkin eveals that,followingthedisappearanceofthree victims, n of 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 per se a form of reparation. dance with paragraphs 452 to 455 of this Judgment, con- dance with paragraphs 452 to 455 of this T DECIDES, aragraphs P THE COUR ive perat i) All legal or factual obstacles to the due 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 This judgment constitutes The State shall, in accor Therefore, Therefore,

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 duct the criminal proceeding that is underway effectively and, if applicable, any that are 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 12. 602. […] AND ORDERS, unanimously that, 11. […] 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. […]

The Stateshallcontinueimplementingpermanenteducation and trainingpr The Stateshallcr The Stateshall,withinar ofthefactsthatarelearns theobjectofpresent case. iv) Theresults oftheproceedings shallbepublished sothattheMexicansociety in theinvestigationshallbegivendueguaranteesfortheirsafety, and form their tasks adequately, independently and impartially, 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; eate, withinsixmonthsofnotificationthisJudgment,aweb easonable time,continuestandardizing allitsprotocols, ograms - 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 ez prepared by the Municipal Research and Planning by the Municipal Research ez prepared note 63, folio 8492; IACHR, The Situ- ez 2002, supra note 63, folio 8492; IACHR, note 64, folio 1921; Report of the Special Rapporteur on supra note 64, folio 1921; Report of the Special Rapporteur oduced by CEDAW, oduced by CEDAW, supra note 64, folio 1922, and Report of the Special Rapporteur oduced by CEDAW, CNDH, Informe Especial de la Comisión Nacional de los Derechos Humanos sobre los Casos de Homi- los Casos de Humanos sobre Derechos los de Nacional Comisión la de Especial Informe CNDH, IACHR, The Situation of the Rights of Women in Ciudad Juárez, Juárez, Ciudad in Women of Rights the of Situation The IACHR, Cf. Report on Mexico pr on violence against women, supra note 64, folio 2011. Cf. 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 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. 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, Cf. Report on Mexico pr Institute, 2002 (case file of attachments to the answer to the application, volume XXV, attachment 2, folios XXV, attachments to the answer to the application, volume Institute, 2002 (case file of and 8510). 8488 to 8490, 8493, 8495 Cf. Radiografía Socioeconómica del Municipio de Juár Socioeconómica del Municipio Cf. Radiografía del Municipio de Juár Cf. Radiografía Socioeconómica ation of the Rights of Women in Ciudad Juárez, Mexico: The Right to be Free from 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).

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

on violenceagainstwomen,supranote64,folio2011. Cf. Ciudad Juárez, InformeFinal,supranote87,folio14525. Cf. OfficeoftheSpecialPr of theSpecialRapporteuronextrajudicial, summaryorarbitraryexecutions,supranote73,folio2053. Cf. IACHR,TheSituationoftheRightsW note 64,folios2257and2271. Intolerable killings,supra violence againstwomen,supranote64,folio2012,andAmnestyInternational, Mexico produced byCEDAW, supranote64,folios1924and1926;ReportoftheSpecialRapporteuron Cf. 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. ReportonMexicopr note 64,folios2257and2271. Intolerablekillings,supra violence againstwomen,supranote64,folio2012,andAmnestyInternational, Mexico produced byCEDAW, supranote64,folios1924and1926;ReportoftheSpecialRapporteuron Cf. public bytheexpertwitnessJusidmanRapoportonApril21,2009(meritscasefile,volumeXIII,folio3806). International, Cf. Crimes related totheMurders ofWomen inCiudadJuárez, InformeFinal,supranote87,folio14605. killings, Intolerable extrajudicial, summary orarbitrary executions, supranote73, folio 2052;Amnesty International, Mexico produced byCEDAW, supranote64,folios1924and1926;ReportoftheSpecialRapporteuron Cf. Mexico produced by CEDAW, Cf. Cf. ReportonMexicopr Gestión, supranote67,folio8666,andReportonMexicoproduced byCEDAW, supranote64,folio195. Cf. ComisiónparaPr de recomendaciones, supra note65,folio6564. folio 2168,andComisiónMexicanadeDefensayPromoción delosDerechos HumanosA.C.,Compendio IACHR, The Situation of the Rights of Women in Ciudad Juárez, IACHR, The Situation of the Rights of Women in Ciudad Juárez, IACHR, The Situation of the Rights of Women in Ciudad Juárez, IACHR, The Situation of the Rights of Women in Ciudad Juárez, Report on Mexico produced by CEDAW, 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 evenir y Erradicar la Violencia contralasMujeresevenir yErradicarlaViolencia enCiudadJuárez, PrimerInformede oduced byCEDAW, supranote64,folio1922,andReportoftheSpecialRapporteur oduced byCEDAW, supranote64,folios1924and1926;ReportoftheSpecial osecutor fortheInvestigationofCrimes related totheMurders ofWomen in 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, omen inCiudadJuárez, supranote64,folio1744,andReport - supra note 64, folios 1924 and 1927, and Amnesty Interna 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 1742; 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 1735; Report on Report 1735; folio 64, note supra note 64, folio 1744; Report on Report 1744; folio 64, note supra ogress report of the Ciudad Juárez Commission, of the Ciudad Juárez report ogress note 64, folio 1744; Report of the supra note 64, folio 1744; Report omen in Ciudad Juárez, osecutor for the Investigation of Crimes related to the Murders of Women in of Women to the Murders of Crimes related osecutor for the Investigation oduced by CEDAW, supra note 64, folio 1957. oduced by CEDAW, supra note 64, folio 1960. oduced by CEDAW, 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 ding to the 2005 CEDAW report, the Chihuahua Women’s Institute referred to 90 cases, the Special Institute referred the Chihuahua Women’s report, ding to the 2005 CEDAW IACHR, The Situation of the Rights of Women in Ciudad Juárez, Juárez, Ciudad in Women of Rights the of Situation The IACHR, IACHR, The Situation of the Rights of Women in Ciudad Juárez, Juárez, Ciudad in Women of Rights the of Situation The IACHR, Report on Mexico pr Report on Mexico pr Cf. These allegations concur with the conclusions of the first pr These allegations concur with the conclusions of the 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. Accor 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). note 87, folio 14608. In this regard, it is worth 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. 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). Cf. Office of the Special Pr Cf. Office of the Special Cf. Ciudadano, report of the Observatorio 1927, and final supra note 64, folio by CEDAW, Mexico produced supra note 81, folio 6640. the Rights of W Cf. IACHR, The Situation of executions, arbitrary or summary extrajudicial, on Rapporteur Special note 64, folio 2271. killings, supra note 64, folio tional, Intolerable 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

116 117 112 110 Comisión para Prevenir y Erradicar la Violencia contra las Mujeres en Ciudad Juárez, Tercer informe de informe de Tercer en Ciudad Juárez, y Erradicar la Violencia las Mujeres contra 110 Comisión para Prevenir 111 115 108 . 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 56 Gender-based Violence 147 146 145 143 142 141 140 139 135 123 122 121 120 119 118 144

Gestión, supranote67,folio9074. Report onMexicopr Juárez, InformeFinal,supranote87,folios14575and14609. Office oftheSpecialPr 2100. Report oftheU.N.SpecialRapporteuronindependencejudgesandlawyers, Intolerablekillings,supra note64,folio2279. and AmnestyInternational, Recomendación 44/1998,supranote72,folio2154;CNDH,InformeEspecial, supra note66,folio2227, Cf. ReportoftheUnitedNationsCommitteeInter Cf. testimonyofwitnessDor witness Doretti, supranote141,folio2332. Experts, the United Nations Committee of International Cf. IACHR,TheSituationoftheRightsW 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,TheSituationoftheRightsW 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,TheSituationoftheRightsW supra note64,folio2274. Mexico produced by CEDAW, Intolerablekillings, supranote64, folio 1924, and AmnestyInternational, Cf. of theSecretaryChihuahuatoSpecialRapporteurFebruary11,2002). ofGovernment IACHR, the letterofSecretaryChihuahuatoSpecialRapporteurFebruary11,2002). of Government IACHR, TheSituationoftheRightsW ComisiónparaPr Report oftheSpecialRapporteuronviolenceagainstwomen, Cf. ReportonMexicopr of theSecretaryChihuahuatoSpecialRapporteurFebruary11,2002). ofGovernment IACHR, Amnesty Inter IACHR, The Situation of the Rights of Women in Ciudad Juárez, The Situation of the Rights of Women in Ciudad Juárez, The Situation of the Rights of Women in Ciudad Juárez, supra note76,folio1929,OfficeoftheSpecialProsecutor fortheInvestigationofCrimes related national, Intolerablekillings,supranote64,folio2269. evenir y Erradicar la Violencia contralasMujeresevenir yErradicarlaViolencia enCiudadJuárez, PrimerInformede oduced byCEDAW, supranote64,folio1957 osecutor fortheInvestigationofCrimes related totheMurders ofWomen inCiudad oduced byCEDAW, supranote64,folios1937and1949. etti, supranote141,folios2371and2372. omen inCiudadJuárez, supra note64,folios1748and1750(citing omen inCiudadJuárez, supra note64,folio1750;CNDH,Re- omen inCiudadJuárez, supra note64,folio1767;CNDH,Re- omen inCiudadJuárez, supranote64,folio1750;Reportof national Experts,supranote76,folio1897;CNDH, supra note 76, folios 1898 and 1899; testimony of supra note64,folios2001and2002. supra note 64, folio 1750 (citing the letter supra note 64, folio 1766 (citing the letter supra note 64, folio 1746, Report on supra note74,folio Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 57 supra note 73, folio national Experts, supra note 76, folio 1869 note 64, folio 1964. In this regard, it should be noted it should this regard, 1964. In folio note 64, supra note 64, folio 1734. supra note 64, folio Juárez, omen in Ciudad ocessed on September 25, 2001, with regard to Laura Berenice to Laura Berenice ocessed on September 25, 2001, with regard omen in Ciudad Juárez, supra note 64, folio 1766. omen in Ciudad Juárez, nment to the CEDAW report under Article 8 of the Optional Protocol to to 8 of the Optional Protocol under Article report CEDAW nment to the e are inconsistencies between the global figures, because according to the final because according figures, inconsistencies between the global e are Ivonne Ramos Monárrez before a deputy official of the Public Prosecutor’s Office official of the Public Prosecutor’s a deputy before Ivonne Ramos Monárrez egarding the cases that the State refers to as “concluded”, CEDAW indicated in its 2005 report indicated in its 2005 report to as “concluded”, CEDAW the cases that the State refers egarding Report on Mexico produced by CEDAW, by CEDAW, produced Mexico Report on Attorney General’s Office of the state of Chihuahua, Special Prosecutor’s Office for the Investigation of Investigation the for Office Prosecutor’s Special Chihuahua, of state the of Office AttorneyGeneral’s 2053. 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 IACHR, The Situation of the Rights of W or arbitrary executions, Report of the Special Rapporteur on extrajudicial, summary Cf. In general, r 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 report of the Special Prosecutor’s Office, up until 2003 there had been 328 cases of murders 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, Cf. 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 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). Cf. IACHR, The Situation of the Rights of W Situation of the Rights of Cf. IACHR, The Commission of Inter Report of the United Nations It should be noted that ther Cf. Response of the Mexican Gover Cf. Response the Convention, January 27, 2005 (case file of attachments to the answer to the application, volume XXV, volume XXV, answer to the application, file of attachments to the January 27, 2005 (case the Convention, folios 8612 to 8653). attachment 6, Ramos Monárrez (case file of attachments to the application, volume VIII, attachment 11, folio 2609), and (case file of attachments to the application, Ramos Monárrez Cf. Missing Person Report No. 225/2001, pr 2001 (case file of attachments to the application, volume VIII, attachment 19, folio 2625).

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

Cf.testimonyofMrs.Monárr Cf. testimonyofMrs.Monárr Cf. testimonyofMrs.González, Cf. Cf. testimonyofMrs.Monr 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. T before theInter-American CourtonApril28,2009. volume VIII,attachment13,folio2613),andtestimonygivenbyMrs.Monreal atthepublichearingheld October 30,2001,withregard toEsmeraldaHerrera Monreal (casefileofattachmentstotheapplication, Cf. appearanceofIrmaMonr 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, 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,byJuanAntonioMartínezJacobobefor ments totheanswerapplication,volumeXXXV, attachment50,docketII,volumeIV, folio12974). Investigate andProsecute theMurders ofWomen ofChihuahuaonSeptember28,2007(casefileattach- Informationtakenfr 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 2006 (casefileofattachmentstotheapplication,volumeII,appendix5 I,folio141). 2001 (casefileofattachmentstotheapplication,volumeVIII,attachment29,folio2653). of theSpecialProsecutor to InvestigateMurders ofWomen andDisappearances ofPersonsonOctober30, communication presented by Josefina González before the Inter-American Commission in September estimony givenbyMrs.Monreal, supranote183.SeealsothestatementbyIrmaMonreal Jaimein om thereport issuedbytwoJudicialPoliceagentsattachedtotheJointAgency eal Jaime,supranote183. eal Jaime,supranote174;MissingPersonReportNo.241/2001,processed on ez, supranote183. ez, supranote183,andfilecard issuedbytheHeadofFederalInvestiga - supra note183. supra note172;appearanceofMayelaBandaGonzálezbefore a e theOfficeofSpecial Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 59 - nandes v. Brazil, Annual Report, 2000, nandes v. supra note 64. iolence against Women. General Assembly resolution General Assembly resolution iolence against Women. orld Conference on Women, Beijing, September 4 to 15, 1995, Bei- on Women, orld Conference note 187, folio 3481. ez, supra note 187, folio 3494 and 3495. ez, supra note 187, folios note 170, folio 2609; Missing Person Report No. 2609; Missing Person Report supra note 170, folio note 252, paras. 111 and 113; Case of Perozo v. v. 113; Case of Perozo Colombia, supra note 252, paras. 111 and e” v. note 272, para. 56. CEDAW has ruled similarly. has ruled similarly. Brazil, supra note 272, para. 56. CEDAW nandes v. o Castro Prison v. Peru, supra note 248, para. 276. Prison v. o Castro o Castro Prison v. Peru. Merits, Reparations and Costs. Judgment of November Judgment of November Merits, Reparations and Costs. Peru. Prison v. o Castro note 257, para. 166; Case of Perozo et al. v. et al. v. Honduras. Merits, supra note 257, para. 166; Case of Perozo elásquez Rodríguez v. ozo et al. v. Venezuela, supra note 22, para. 295. Venezuela, ozo et al. v. ord “Laws” in Article 30 of the American Convention on Human Rights, Advisory Opinion OC- Convention on Human Rights, Advisory Opinion “Laws” in Article 30 of the American ord W, General recommendation 19: Violence against women, 11° session, 1992, U.N. Doc. HRI\ General recommendation W, note 257, para. 174, and Case of Anzualdo Castro Honduras. Merits, supra note 257, para. 174, and Case of Anzualdo Castro elásquez Rodríguez v. note 257, para. 173; Case of Godínez Cruz v. Hon- Honduras. Merits, supra note 257, para. 173; Case of Godínez Cruz v. elásquez Rodríguez v. of Velásquez Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4, para. 166; July 29, 1988. Series C No. 4, para. Merits. Judgment of Honduras. Rodríguez v. of Velásquez Case of Cantoral Huamaní and García Santa Cruz v. Peru. Preliminary Objection, Merits, Reparations and Objection, Merits, Reparations Preliminary Peru. v. Santa Cruz García and Cantoral Huamaní Case of jing Declaration and Platform for Action approved 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, OEA/Ser.L/V.II.111 Doc.20 rev. (2000). Doc.20 rev. OEA/Ser.L/V.II.111 IACHR, Maria Da Penha Maia Fer United Nations, Report of the Fourth W Report of the Special Rapporteur on violence against women, IACHR, Case 12,051, Report No. 54/01, Maria Da Penha Maia Fer (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 Cf. CEDA V Cf. United Nations, Declaration on the Elimination of 23, 1994, Article 4.c. 48/104 of 20 December 1993. A/RES/48/104, February Case of V 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 Cf. Case of the Miguel Castr Cf. Case of V supra note 30, para. 63. Peru, v. supra note 22, para. 149, and Case of Anzualdo Castro Venezuela, at 84 (1994), para. 9. GEN\1\Rev.1 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 Case of V Peru, supra note 30, para. 62 v. Cf. The W A No. 6, para. 21. 6/86 of May 9, 1986. Series Massacr Cf. Case of the “Mapiripán Missing Person Report No. 225/2001, Missing Person Miguel Castr Cf. Case of the para. 276. 25, 2006. Series C No. 160, of Belém do Pará. Article 1 of the Convention Case of Per 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. supra note 30, para. 62 Peru, v. supra note 22, para. 298, and Case of Anzualdo Castro Venezuela, Cf. testimony of witness Delgadillo Pér Cf. testimony of witness Delgadillo Pér Cf. testimony

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

Commission onHumanRightsresolution 1995/85,UNDoc.E/CN.4/1999/68,10March 1999,para.25. against women,itscausesandconsequences,RadhikaCoomaraswamy, submittedinaccordance with 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, March 2000,paras.78to83. Akkoç v. Turkey, Judgmentof10October2000,paras.77to99;ECHR,Kiliçv. Turkey, Judgmentof28 Cf. ECHR,Ergiv Case ofthePuebloBelloMassacr Panamá, Cf. CaseofthePuebloBelloMassacr 252, para.141. Cf.CaseofAnzualdoCastr 252, para.113 Cf. CaseofAnzualdoCastr Cf. CaseoftheMiguelCastr No. 186,para.115,andCaseofPerozo etal.v. Venezuela, supranote22,para.298. v. Panamá. Preliminary Objections,Merits,ReparationsandCosts.JudgmentofAugust12,2008.SeriesC Cf. CaseofthePuebloBelloMassacr Cf. CaseofthePuebloBelloMassacr Cf. Secretary-General, Sixty-first session,A/61/122/Add.1,July6,2006,para.352. United Cf. UnitedNations,V 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 Cf. CaseofJuanHumbertoSánchezv v. Honduras,supranote190,para.78. 116. and 63,ECHR,CaseofOsmanv. theUnitedKingdom,Judgmentof28October1998,paras.115and bia, Indigenous Communityv. Paraguay, supranote261,para.155,andCaseofValle Jaramilloetal.v.- Colom 72, folio2155. Mexico produced byCEDAW, supranote64,folio1924,andCNDH,Recomendación44/1998, supra note IACHR, The Situation of the Rights of Women in Ciudad Juárez, supra note49,para.78.SeealsoECHR,CaseofKiliçv. Turkey, Judgment of28March 2000,paras.62 Nations, General Assembly, In-depth study on all forms of violence against women.Report of the supra note297,para.144,andCaseofValle Jaramilloetal.v. Colombia,supranote49,para.101. . Turkey, Judgmentof28.07(1)998,ReportsJudgments,n.81,paras.85-86,andECHR, iolence againstwomeninthefamily:ReportofSpecialRapporteuronviolence o v. Peru,supranote30,para.123,andCaseofGaribaldiv.supra note Brazil, o v. Peru,supranote30,para.179,andCaseofGaribaldiv. Brazil,supranote o Castro Prisonv. Peru,supranote248,para.344 e v. Colombia,supranote261,para.145,andCaseofKawasFernández e v. Colombia,supranote261,para.143;CaseofHeliodoro Portugalv. e v. Colombia, supranote261,para.142;CaseofHeliodoro Portugal e v. Colombia,supranote261,para.123;CaseoftheSawhoyamaxa . Honduras.Preliminary Objection,Merits,ReparationsandCosts. supra note 64, folio 1749; Report on supra note Inter-American Court of Human Rights - González et al. v. Mexico (“Cotton Field”) 61 en, omen in Ciudad Juárez, supra note 64, folios 1745 and 1770, omen in Ciudad Juárez, omen in Ciudad Juárez, supra note 64, folios 1748 and 1769 omen in Ciudad Juárez, nfeld, supra note 426, folio 3340. . Bulgaria, Judgment 26 July 2007, para. 98. 26 July 2007, para. . Bulgaria, Judgment e v. Colombia. Merits, Reparations and Costs. Judgment of May 11, 2007. Judgment of May 11, Merits, Reparations and Costs. Colombia. e v. o Castro Prison v. Peru, supra note 248, para. 303. Prison v. o Castro e notary public by expert witness Lira Kornfeld on April 21, 2009 (merits case file, oduced by CEDAW, supra note 64, folio 1946. oduced by CEDAW, to justice for women victims of violence in the Americas, OEA/Ser.L/V/II. Doc. 68, January 20, Americas, OEA/Ser.L/V/II. in the of violence to justice for women victims eation of the National Council for Children and Adolescents (case file of attachments to the eation of the National Council for Children note 417, paras. 56, 57 and 60, and Case of the 57 and 60, and note 417, paras. 56, Child, supra Status and Human Rights of the W, General recommendation 24: Women and health, twentieth session, A/54/38/Rev.1, 1999, and health, twentieth session, A/54/38/Rev.1, 24: Women General recommendation W, W, General recommendation 19: Violence against women, supra note 268, paras. 1 and 6. General recommendation W, Juridical Condition and Human Rights of the Child. Advisory opinion OC-17/02 of August 28, 2002. 2002. 28, August of OC-17/02 opinion Advisory Child. the of Rights Human and Condition Juridical application, attachment 43, volume XXVIII, folio 9816) and Law for the Protection of the Rights of Girls, of Rights the of Protection the for Law and 9816) folio XXVIII, volume 43, attachment application, note 66, folio 2235. , supra note 66, folio CNDH, Informe Especial Cf. IACHR, The Situation of the Rights of W Cf. Report on Mexico pr Cf. statement made befor Cf. testimony of expert witness Lira Kor Cf. IACHR, The Situation of the Rights of W Such as the cr 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 volume XI, folio 3340). supra note 64, folio 1924. by CEDAW, and Report on Mexico produced Cf. CEDA Article 4 (case file of attachments to the answer to Cf. Political Constitution of the United Mexican States, 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, Paulo Sérgio Pinheiro, submitted pursuant to General Assembly resolution 60/231, A/61/299, 29 August 60/231, A/61/299, to General Assembly resolution submitted pursuant Paulo Sérgio Pinheiro, 2006, paras. 25, 29 and 30. 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. Cf. Juridical Dominican Republic, supra note 417, para. 134. Jean and Bosico Girls v. Dominican Republic, supra note 417, para. 134. para. 6, and Case of the Jean and Bosico Girls v. 2007 (case file of attachments to the application, volume VII, attachment 2, folio 1822). to the application, volume VII, attachment 2, folio 2007 (case file of attachments of violence against childr the independent expert for the United Nations study United Nations, Report of Cf. Series C No. 163, paras. 156, 158 and 164. Series C No. 163, Cf. Cf. CEDA Cf. Case of the Miguel Castr IACHR, Access Cf. ECHR, Case of Angelova and Iliev v Cf. ECHR, Case Rochela Massacr Cf. Case of the

438 426 427 439 440 421 417 418 419 420 416 397 400 412 2009, paras. 180, 191 and 200. Judgment of 9 June Turkey, 413 , Case of Opuz v. 414 306 415

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.

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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

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” 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 Court of Human Rights

Rosendo Cantú et Al. v. Mexico

Preliminary Ojections, Merits, Reparations and Costs

Judgment of August 31, 2010 72 Gender-based Violence […] indigenous people,particularlywomen,toobtainaccessjusticeandhealthcare.” investigate andprosecute human rightsviolations,”andthedifficultiesencountered by to the[alleged]victimandhernextofkin”;“usemilitaryjusticesystem punishment oftheperpetrators”thesefacts;“thefailure tomakeadequatereparation that took place onFebruary 16, 2001;the “lack of due diligence in theinvestigationand responsibilityinternational oftheStatefor“rapeandtorture” ofMrs.RosendoCantu 2. […] […] and the generally characterizedbytakingplaceintheabsenceofpersons otherthanthevictim on February26,2002,Mrs.Rosendo CantúandMr. BernardinoSierrafiledacomplaint mestic levelandintheproceedings before theInter-American System.Amongothers, 89. C. […] 90. fundamental proof ofthatwhichoccurred. not awaitgraphicordocumentaryevidence,thusthevictim’s testimonybecomesthe a VIII. I.

2, do and to I Accor First, theCourtfindsitevidentthatrapeisaparticulartype ofviolence,whichis i) Evidence oftherapeMrs.RosendoCantú The allegedvictimtestifiedabout thefactsonseveraloccasions,atbothdo ( right ntroduction

aggressor or aggressors. In view of the nature of this type of violence,one can- R and P T estimony ofMrs.RosendoCantú P ding totheInter-American Commission,theapplicationrefers tothealleged espect ara rticles unish

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Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 73 - - para. 76), and on August 14, on August para. 76), and para. 147); on March 8, 2001, on March para. 147); . Lastly, on May 27, 2010, she rendered a statement she rendered on May 27, 2010, . Lastly, 95 , wherein she stated: , wherein 96 son, and he asked me again if I did not […] know the person in the picture, and I […] know the person in the picture, son, and he asked me again if I did not no; that same soldier took out a list of names of eleven people, and he answered no, […] he said how is it possible that asked me if I knew those names. I answered no that I was Barranca Bejuco, I answered you from know them, aren’t you don’t Barranca to a man from just been married and that I had barely Caxitepec, from the stomach with me, hit me in that was pointing at same soldier Bejuco, and that - I fainted and when I re I was washing and where his weapon, I fell on the rock another soldier who was showing me the gained consciousness, I sat up […] and Barranca, […] and you not from how are list of people, angrily [pulled] my hair […] going to kill everyone say anything we are […], if you don’t that I wasn’t I answered want to say anything because […] I was very afraid that in Bejuco, and well, I didn’t scratched my face, and me with force, they would kill me and that soldier grabbed that is and the hooded men [los encapuchados] where, me to say where pressured when one of the soldiers abused me, he got on top of me […] against my will […] teased and laughed at me like there he abused me and the six soldiers that were the two soldiers abused me against my will, and is where their peers did, and there for asked I and […] surrounded, me had soldiers six the because escape not could I is no people, there help, and well, no one could hear me because it is a place where […] very solitary and when they finished abusing me, I escaped semi-undressed, […] what had happened to me arrived at my house, and I told my sister-in-law On February 16, 2002, at a stream five minutes walking distance away from my from five minutes walking distance away at a stream On February 16, 2002, a footsteps I heard washing, and was almost done […] when home […] I was […] asked me and turned of them, angrily, to see, and it was eight soldiers, and one with fear I answered and hooded men” [“los encapuchados”] were, “the where me and towards came soldiers The two […] one. knew no I that know, didn’t I that with the two soldiers. in the middle me, and I remained the other six surrounded to shoot me chest, and he threatened One of [them] pointed his weapon at my soldiers took out a photograph of a per if I did not tell him anything; one of the 2009, she carried out an expansion of her ministerial statement within the Preliminary within the Preliminary an expansion of her ministerial statement 2009, she carried out Investigation FEIDSVI/002/2009 para. 76); On March 6, 2001, On March (supra para. 76); Human Rights Commission the National before Office, Public Prosecutor’s the Military a statement before Cantú rendered Mrs. Rosendo (infra Investigation 35ZM/05/2002 Preliminary within the the before and of Guerrero Rights Commission the Human statement before she gave a on (supra para. 77); of Allende District of the Judicial Office Prosecutor’s Common Public for inter a request Cantu and her husband presented 11, 2002, Mrs. Rosendo March (supra Governorto the Constitutional vention of Guerrero before this Court before 74 Gender-based Violence sions 91. been victims differences inthestatementsofindividualsrelating the sexual abuse ofwhichtheyhave 92. time ofthefactsMrs.RosendoCantúwasachild 2002 and 2010. TheCourt also highlights that, inaddition, in the present case atthe determined imprecision; said statementswere rendered atdifferent momentsbetween to atraumaticmomentwhichshesuffered, andtheimpact,whenrecalling it,can leadto the CourttakesintoconsiderationthatfactsnarratedbyMrs.RosendoCantúrefer aspects thatcouldbeconsidered, apriori,lackofprecision inthenarration. Inthisregard, Court considers that it is not unusual that the retelling of acts of this nature contain some in allprobability, havenegativerepercussions inhersocialand culturalmedium,such rape before variousauthoritiesthatspokealanguageshe didnotcommand,thatwould, to receive medicalcare forthephysicalharmsuffered, andtofileacomplaint abouta minor, who was living in an isolated mountainous area, who had to walk several hours her statements.Theallegedvictimisanindigenouswoman, andatthetimeshewasa Rosendo Cantu,theCourthasnotfoundelementsthatwould impairthecredibility of 93. soldiers watchedtherapetakeplace. consecutively bytwosoldierswhohadrequested informationfrom her, whiletheother forum of forceful coercion, alone and surrounded by eight armed soldiers, she was raped and subsequentlytheygrabbedherbythehairscratched herface,andvii)inthat the abdomenwithaweapon,towhichshefellground andlostconsciousness v) thesoldiersthreatened to killherandeveryoneincommunity;vi)theyhit other whosephototheyshowedher;iv)shetoldthemdidnotknowthosepeople; information regarding peoplewhosenameswere includedinalistandregarding an- and encircled her;iii)two of them,whilethreatening herwithweapons,askedfor proximately three eightarmedmembersoftheArmyapproached intheafternoon, her a stream nearherhomewhere shewenttowashclothes,inanisolatedarea; ii)atap- sistently, one can derive the following facts: i) onFebruary 16, 2002, she was alone at considers thatthedifferences inthenarrationare notsubstantiveandfrom them,con-

97 Of thevariousstatementsmadebyMrs.RosendoCantu,despitesomeimpr time hadbeenatwork[…]andItoldhimwassexuallyabusedbythesoldiers. scratch theygaveme[…]andthenmyhusbandarrived,[whom]duringthat […] and I wascrying,punched in thestomach, and my face was bleeding from the It isnotthefirsttimethataninter On theotherhand,fr , itisnotedthatthere isconsistencyamongthenarrationsregarding therape.The 99 . Nevertheless, from a reading of the mentioned statements, the Court om thecircumstances pertainingtothesituationofMrs. national humanrightscourtshouldnotepossible 98 . eci- Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 75 - ” The Court 101 e exist other convincing elements in e made known to the National Human e made known to the . On the other hand On the other hand, 100 para. 70), in some cases, as in the present, present, the in as cases, some in 70), para. ementioned, the Court notes that the first time Mrs. ementioned, the Court notes that the Likewise, Mrs. Rosendo Cantú, at the time the facts occurred, was a the facts occurred, Likewise, Mrs. Rosendo Cantú, at the time

. 102 Notwithstanding the afor Likewise, the Court noted that the facts wer Likewise, the Court noted On the other hand, the Court notes that ther

on February 26 of the same year, she went to the Hospital of Ayutla were she also did were she went to the Hospital of Ayutla on February 26 of the same year, she told the doctor that “10 days [ago], a piece not state that she had been raped, rather pain [there]. her extreme of wood had fallen on her abdomen, causing Rosendo Cantú appeared at a health care clinic after the event occurred, on February 18, occurred, clinic after the event at a health care Rosendo Cantú appeared hit with military weapons, and 2002, (supra para. 75), she told the doctor that she was no when asked if she had been raped, she said as the possible rejection by her community. In this sense, she pressed charges and was charges In this sense, she pressed by her community. rejection as the possible is a continu- she lives there in which that in the area with her claim, knowing persistent a charged with committing had been criminally some of whom of soldiers, ing presence serious crime. 94. the facts victim herself and her husband informed authorities, the alleged responding (supra para. 76). asking for his intervention Governorto the Constitutional of Guerrero, to the to report to the attempts made by the alleged victim These complaints correspond the of criteria with the accordance in which, to suffered, had she what authorities various statement. Rosendo Cantú’s of Mrs. the credibility Court, strengthens 95. Rights Commission by the victim. Similarly, apart from the various complaints to the cor the various complaints apart from the victim. Similarly, Rights Commission by considers that the fact that she did not indicate that she had been raped in the two initial two the in raped been had she that indicate not did she that fact the that considers of the case and of to the circumstances medical consultations should be contextualized crime that the victim does not tend to report. the victim. First, sexual assault is a type of social as well as cultural the given communities, indigenous in specifically occurs This (supra face must victim the that particularities because of fear girl child who was forced to live an experience in which, in addition to being physically girl child who was forced soldiers the by community her against threats death received she assaulted, sexually and the Based on this, it is the criteria of the Court, that not having told who attacked her. having indicated that she was raped by soldiers first doctor that she was raped and not the existence of her statements regarding visit, does not discredit at the second doctor’s relate the lack of sufficient safety or trust to said omission may be due to said rape. Lastly, what had happened. 96. case. the body of evidence in the present […] 76 Gender-based Violence 100. of theNationalHumanRightsCommissionDecember11,2002 nardino Sierraalsomakes reference inasimilarmanner. been rapedandthatthoseresponsible were soldiers,information to whichMr. FidelBer was crying,halfnaked,andwithbloodonherface,thatsheindicatedhad first witness,itis revealed thatwhenshefirstsawtheallegedvictimafterevent, were present forthemomentssoonafterfactstookplace.Ofstatementof Fidel BernardinoSierra,whothoughtheywere notdirect witnessesofthefacts,they rape. ence eventhoughthere is alackofphysicalevidencethatsaidexperienceconstitutes traumatic lifeexperiences,”andindicatedthatshewas“exposedtoaexperi- traumatic stress” and an “episodeofgreater milddepression” asa“consequenceof report states, among other information, that Mrs. Rosendo Cantu suffered “acute post- view. on thecheekbone,approximately onecentimeterinsize,beingtheonlyinjuryvisibleatplain that Mrs.RosendoCantu,“hadascratch,approximately twocentimetersfrom therighteye, tary PublicProsecutor’s Officecarriedouta“statementofinjuries,”inwhichitdetermined nations performedonMrs.RosendoCantúfollowingtherape.OnMarch 6,2002,theMili- 101. 11, 2002 story appearstobesupportedbyamedicalpsychiatricreport carriedoutonMarch 99. touch shehasmediumintensity paininthehypogastricregion. violence[,] non-recent scarsof5mmindiameterunderher rightlowereyelid[,at]thetender occurred, indicatedthat,amongotherdata,she“hadwounds corresponding to physical on Mrs.RosendoCantúMarch 19,2002,thatis,more thanonemonthafterthefacts the narrationofaggression Mrs.RosendoCantustates shesuffered. feels painwhenshewalks. she received inherbelly, there are nophysicalwounds,yetneverthelessshestatesthat proximately] onecentimeterinsize;regards totheblowwhichcomplainantstates height ofthebottomhereyelid,abruisedarea, irregularly shaped,ofapurplishcolor, [ap- Commission ofthestateGuerrero onMarch 8,2002,determinedthatshehad“atthe that] sherelives thesensation thattheyare rapingher. physical integritywasthreatened,” whichshe“[r]elivesinacontinuousmanner[given

112 109 In addition,theCourthastestimonyofMrs.EstelaBer Apart fr On theotherhand,Courtalso iii) ” The statement of injuries carried out on the alleged victim by the Human Rights ” The statement of injuriescarriedout on the alleged victim bythe Human Rights ”Moreover, she concluded that “she was exposed to a traumatic event where her

Other persuasiveelements 107 , whichwasincorporatedintotheconclusionofcasefile2002/597-4 om theabovementioned,Courthasinformationofspecificmedicalexami- 113 ” As such, the medical gynecological certificate carried out ” Assuch,themedicalgynecologicalcertificatecarriedout finds that thecredibility ofMrs. RosendoCantú’s 110 111 ” ” 114 ! This data coincides with ! Thisdatacoincideswith nardino SierraandMr. 108 . Saidpsychiatric - Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 77 - 117 ” In this regard, the Court has indicated that the burden of proof of proof that the burden the Court has indicated ” In this regard, 115 e than eight years have passed since the facts occurred, the State has occurred, the facts e than eight years have passed since esent case, the Court notes that, apart from the statements of Mrs. Rosen- the statements apart from the Court notes that, esent case, appears in the case file of the present case, that once the facts were made known made the facts were once that case, present of the file case in the appears

In the pr Given that mor It

116 that founds the argument is the responsibility of the plaintiff, in principle; nevertheless, in principle; nevertheless, of the plaintiff, is the responsibility that founds the argument violations law regarding that, contrary to domestic criminal the Court has highlighted inability to present on the plaintiff’s defense cannot rest State’s of human rights, the within its terri- the means to clarify the facts the State who controls evidence, when it is tory. 102. do Cantú, the Court has circumstantial evidence regarding the alleged facts. The Court the alleged facts. evidence regarding the Court has circumstantial do Cantú, to and the presumptions evidence, the signs that use of circumstantial has established the regarding a consistent conclusion it, from “when legitimate, are found a Judgment, facts can be inferred. not provided any evidence in the proceedings of the present case that would contradict case that of the present any evidence in the proceedings not provided to reasonable it considers Court the place, took Cantu Rosendo of Mrs. rape the that the case file (su- that arise from grant weight to the evidence and the presumptions Rosendo Mrs. against soldiers the by rape a of occurrence the regarding 102) para. pra conclude the contrary would mean that the Court permits the State to seek Cantú. To diminish their as to so investigation criminal ineffective and negligence their in protection for the violation of Article 5 of the Convention. responsibility to the authorities, the victim did not receive any psychological attention in order to obtain in order any psychological attention victim did not receive to the authorities, the various examinations carried out, among were better information to clarify the facts, nor (infra para. the veracity of what had occurred others, evidentiary tests, used to determine acknowledged by the State as it is important to note that which was 179). In this regard, was a delay then there 8, 2002, in the sense that from of the complaint filed on March Cantú, as one month passed to Mrs. Rosendo of specialized medical care in the provision examined by a medical exam- 19, 2002, when she was seen until March and she was not Office. The State did Public Prosecutor’s iner adjoined with the agency of the Common the Court with advances in the investigation initiated by the authorities that not present that indicates the existence of rape by would suggest otherwise in light of the evidence the defense of the State is supported contrary, the soldiers. The Court states that, to the by whom it was perpetrated, and of whether the rape occurred by a lack of awareness State had knowledge the moment the From own authorities. is attributable to its which an individual who is a member of a par of the existence of a rape committed against given her status as indigenous and as a girl child, it had the ticularly vulnerable group so as to confirm the veracity investigation obligation to carry out a serious and effective for the facts. of the facts and to determine those responsible 104. 103. 78 Gender-based Violence 106. the individualresponsibilities nortoassess,underthatcriteria,thesameevidence. proof are notthoseofacriminalcourt,giventhatitistheCourt’s role todetermine sufficient toderivetheaforementioned conclusions.Thestandards or requirements of ment before this Court, the elements of proof that arise from the body of evidence are its veryfoundation. race, orethnicgroup, income,culture, levelofeducation,ageorreligion, andstrikesat between womenandmen,” that “pervadesevery sector ofsociety, regardless ofclass, against humandignityandamanifestationofthehistoricallyunequalpowerrelations against women constitutes not only a violation of human rights, but is “an offense 107. D. others atastream nearher homewhere shewenttowashclothes(suprapara.73). was avictimofactsthatconstituterape,committed by twosoldiersinthepresence ofsix 108. should beclassifiedfrom a juridicalpointofview. acts ofgender-based violencecommittedbyagentsoftheState,itmustdecidehowthis system. nal thecriteria for the assessmentof evidence is less formal than in thedomesticlegal 105. may includeactswhichdonotinvolvepenetrationoreven anyphysicalcontact. their will,andthatinadditiontoinvolvingphysicalinvasion ofthehumanbody, they means ofactsasexualnature, committedonapersonundercircumstances against sions ofsaidConvention,hasconsidered previously thatsexualviolenceiscommittedby 109. should notbeconfusedwithcriminaljustice. protectionmestic courts do not automatically apply to it. International of human rights and characteristicswhichpertainonlytoit,alltheprocedural elementsofdo- the crimeoftorture, asaffirmedbytheInter-American Commissionandthe represen- 110. sequences gofarbeyondaffecting thevictim. particular, rapeconstitutesaparadigmaticformofviolenceagainstwomen, anditscon-

The Courtr Since theCourthasfounditpr Juridical classificationofthefactsr Based ontheafor As indicatedbytheCourtsinceitsfirstcontentiouscase,foraninter The Court,following The Court 118 Itsprocedure, tribunal,presents beingoneofaninternational particularities will examine whether the facts of the present case are subsumedunder ecalls, asindicatedbytheConventionofBelémdoPará,thatviolence 120 ” ementioned, theCourtfindsitproven thatMrs.RosendoCantú international jurisprudence and taking intoaccounttheproviinternational - oven thatMrs.RosendoCantúwasthevictimof elated totherape 119 Fortheeffects andpurposesoftheJudg- national tribu- 121 In Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 79 - 124 pursuant to the pursuant 122 This reveals that the severe suffering of the victim is suffering that the severe This reveals In addition, this Tribunal has recognized that rape is an has recognized In addition, this Tribunal 126 125 123 ding the existence of an intentional act, from the evidence in the case file it the evidence in the case an intentional act, from ding the existence of der to analyze the severity of the victim’s suffering, the Court must take into ac- suffering, der to analyze the severity of the victim’s Intentionality Severe physical or mental suffering

ii) In or Regar i) Regar Regar

extremely traumatic experience that can have severe consequences and cause significant traumatic experience that can have severe extremely physical and psychological damage that leaves the victim “physically and emotionally with the passage of time, contrary humiliated,” a situation that is difficult to overcome to other traumatic experiences. count the specific circumstances of each case. As such, characteristics of the action, the count the specific circumstances potential the inflicted, was suffering the which in way the or used, method the duration, suffer this person who endured of the the status and also effects, and mental physical and physical condition, among other personal details, must ing, including age, gender, be considered. 111. against the victim. In was inflicted deliberately the mistreatment has been verified that in Cantú Mrs. Rosendo hit attackers the one of that it proven considers Court the effect, and hit her head ground weapon, causing the victim to fall to the the abdomen with his force, hair and her face was scratched, and with by the then she was thrown on a rock, the while soldiers two by sexually penetrated she was her, at pointed were rifles while other six observed the rape. 112.

definition established in the Inter-American Convention to Prevent and Punish Torture, it Torture, and Punish Prevent Convention to established in the Inter-American definition fulfills the when the mistreatment act of torture with an that it is confronted understood and or mental suffering, physical severe causes ii) intentional; i) requirements: following any objective or purpose. iii) is committed with

114. acute mental or perpetrated both by acts of physical violence and by acts that produce for the victim. moral suffering canbe dless oftheabove,Courthasestablishedthatanacttorture 113. days after the incident, which indicate evidence of cates issued twelve and twenty-three evidence has testimonial the Court also injuries (supra para. 101). Furthermore, physical twomedicalcertifi- are thatthere theCourtrecalls ding thephysicalsuffering, physical was hurt, with Rosendo Cantú Mrs. the incident subsequent to that indicating two doctors (supra para. 100). of a summoned the assistance which she even aches, to Bueno Alves v. Argentina, v. in Bueno Alves that, such, the Court recalls tatives. As 80 Gender-based Violence 118. to provide therequired information. present case,therapehadspecificpurposeofpunishingvictimbecauseshefailed possibility thatthere were alsootherobjectives,theCourtconsidersitproven that,inthe tain aresponse totheinformation theyrequired denyingthe (suprapara.73).Without context ofasituationinwhichthesoldierswere questioningthevictimanddidnotob- based inasinglefactaloneandtakesplaceoutsideStatefacilities. and Article2oftheInter-American Conventionto Prevent andPunishTorture. Cantú, constitutinganactoftorture pursuanttoArticle5(2) oftheAmericanConvention the rapeinpresent caseentailedaviolationofthepersonal integrityofMrs.Rosendo present case,havebeenfulfilled.Basedontheaforementioned, theCourtconcludes that tention, theseverityofsuffering, andthepurposeofact,requisites that,inthe to theaccumulationoffactsorplacewhere theactiscommitted,buttoin - the objective and subjective elements thatclassify an actastorture donotrefer either controlling thepersonwho israped. rape hasotherobjectives,includingintimidating,degrading,humiliating,punishing,or 117. […] witnessed therape,owingtopossibilitythattheywouldalsorapeher. likelihood thattheviolencesuffered couldbefurtherincreased bytheStateagents who view ofthecircumstances in whichtherapeoccurred, becauseshecouldnotignore the considering shewasachild. This psychologicalandmoralsuffering wasaggravatedin against herwillwhileothersixpeopleobserved,wasextremely intense,evenmore so the suffering endured byMrs.RosendoCantú,beingobligedtoundergosexualacts context ofsexualviolenceperpetratedagainstthevictim.TheCourtfindsitevidentthat participation oftheothersixsoldiers,whowere alsoarmed,whichexacerbatedthe and thecoercion thattheagentsofStateexercised overherwasenhancedbythe lence andcontrol bysoldierswhointentionallysexuallypenetratedher. Hervulnerability 115. rape alsoexperiencecomplexconsequencesofapsychologicalandsocialnature. the after-effects ofrapewillnotalwaysbephysicalinjuriesordisease.Women victimsof inherent inrape,evenwhenthere isnoevidenceof physical injuriesordisease.Indeed,

On theotherhand,Courtfindsthatrapemayconstitute tortur The Courtconsidersthat,ingeneralterms,asthecaseofotheractstortur iii) In thepr

Purpose esent case,Mrs.RosendoCantúwassubjectedtoanactofphysicalvio- 128 TherapeofMrs.RosendoCantúoccurred inthe 129 Thisissobecause e evenwhenitis e, Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 81 - 134 ” 135 but includes, among other protected forums, other protected but includes, among 131 Moreover, the concept of private life is a wide-ranging the concept Moreover, 130 egoing, the Court concludes that the State is responsible for violat- is responsible egoing, the Court concludes that the State and the right to establish and develop relationships with other human be- other human with and develop relationships to establish right and the ding the alleged violation of Article 11 of the American Convention based on the Convention based 11 of the American violation of Article ding the alleged 132 Personal Integrity of Mrs. Rosendo Cantú The Court finds that the rape of Mrs. Rosendo Cantú violated essential aspects and the rape of Mrs. Rosendo Cantú violated The Court finds that

i) Personal Integrity of Mrs. Rosendo Cantú and her next of kin On the other hand, the Court finds that it is not necessary to rule on other allega On the other hand, the Court finds that Based on the for As Regar

133

values of her private life, represented an intrusion in her sexual life, and annulled her right intrusion in her sexual life, and annulled an life, represented values of her private control causing her to lose complete have intimate relations, with whom to to decide freely bodily functions. and intimate decisions, and over her basic over this most personal sexual life, sexual […]

121. to carry out an analysis of the eventual violations based on the same facts and decides mentioned in Chapter IX the provisions obligations derived from tions of the procedural to Articles 8 and 25 of the American Convention. of this Judgment, which correspond […] E. ing the rights to personal integrity and to private life and personal dignity enshrined in ing the rights to personal integrity and to to Article 1(1) Convention, in relation Articles 5(2) and 11(1) and 11(2) of the American and Pun- Convention to Prevent Articles 1, 2, and 6 of the Inter-American and thereof, the obligation enshrined in Article 7(a) of the and for the non-compliance of ish Torture, and Eradication of Violence Punishment Convention on the Prevention, Inter-American to the detriment of Mrs. Rosendo Cantú. against Women, 122. 120. against women that the definition of discrimination has stated nation against Women against a woman because that is directed violence, that is, violence “includes gender-based of Discrimi- Committee fortheElimination by thisCourt,the indicated previously it has also Furthermore, women disproportionately.” [i] she is a woman or [ii] that affects is a form of discrimination that seriously inhibitsindicated that “[v]iolence against women on a basis of equality with men. ability to enjoy rights and freedoms women’s 119. same facts, the Court has specified that, even though this provision is entitled “Right to Pri- is entitled “Right this provision that, even though the Court has specified same facts, oth- contents include, among in Spanish], its of Honor and Dignity Protection vacy” [entitled private life. of ers, the protection ings. term, which cannot be defined exhaustively, term, which cannot be 82 Gender-based Violence rape. Themilitaryjusticesystem shouldbeusedonlytotrysoldiersonactiveservice the interventionofmilitary justicesystemintheinvestigationofcomplaintfor 156. B. […] threats andharassmentofpeopleinvolvedinthecase. the State’s requestspecific aspects oftheinvestigations,ande)alleged concerning of duediligenceintheprocessing ofthecomplaintandinvestigationrape;d) the Courtinrelation to:b)theinterventionofmilitaryjurisdiction;c)allegedlack preliminary inquiries;itwillthensetouttheargumentsofpartiesandfindings of der toexaminetheallegedviolationsofArticles 8and25oftheAmerican Inter-American treaties, theCourt:willestablish a)thefactsofthiscaseinrelation tothe Convention andtheallegednon-complianceofobligationsenshrinedinotherrelated 141. […] with Article1(1)ofthesame. of Mrs.RosendoCantúenshrinedinArticle5(1)theAmericanConvention,relation pursuit ofjustice,theCourtdeclares thatMexicoviolatedtherighttopersonalintegrity lated damages,interalia,withthefilingofcomplaintandobstaclesfacedin 131. […] received whenshefiledthecomplaintbefore the authorities Cantú, there are evidentimpactstoherpersonalintegrity related tothetreatment she 128. faced inthesearch forjustice,andthefeelingsoffeargivenmilitarypresence. Ix

. A

P A of the to The Inter Intervention ofthemilitarycriminaljusticesystem In or T Likewise, aking intoaccounttheacknowledgmentofresponsibility oftheStateandre- rotection merican rticles B R A elém espect merican -American Commissionstated thatthere were noelementsthatjustified the Court notes that from the statements provided by Mrs. Rosendo 8(J

do C R ) onventi 152 P udical ights C , ará in onventi R

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Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 83 elationship to elationship to In no case does the rape of someone by military personnel bear a r rape of someone by military personnel In no case does the for the alleged perpetration of strictly service-related offenses. In cases involving human involving In cases offenses. service-related strictly of perpetration alleged for the of requirements does not satisfy the jurisdiction the military criminal rights violations, Convention. 8(1) of the American established in Article and impartiality independence to the common jurisdiction the military from of partial competence the transfer Similarly, the Convention. Conse- only civilians is incompatible with jurisdiction so as to investigate 25 of the that the State violated Articles 8(1) and to declare it asked the Court quently, to Article 1(1) thereof. in relation American Convention, […] 161. the military discipline or mission. To the contrary, the offense committed by military by military committed the offense the contrary, or mission. To the military discipline domestic by juridical rights protected Rosendo Cantú affected personnel against Mrs. dignity. and integrity personal victim’s the as such Convention, American the and law and to contrary to the obligations to respect It is evident that such conduct is openly the competence of the mili- from is excluded rights, and consequently, human protect the Court concludes that the intervention of tary jurisdiction. Based on the foregoing, investigation of the rape was contrary to the military justice system in the preliminary of that system and nature the parameters concerning the exceptional and restrictive that functioned without taking into involved the application of the military jurisdiction case, of the acts involved. This conclusion is valid in the present account the nature - investigation stage by the Military Public Pros even though the incident is only at the indicated above, the incompatibility of the revealed by the criteria Office. As ecutor’s of the military justice system in this type American Convention with the intervention a of responsibility which is the to the act of prosecution, merely not refer of case does constitutes the itself, because this procedure court, but essentially to the investigation for the subsequent intervention of an incompe- beginning and the necessary grounds finds that the State violated the rights to tent court. Based on the above, the Court established in Articles 8(1) and 25(1) of judicial guarantees and to judicial protection to the detriment of Mrs. to Article 1(1) thereof, the American Convention, in relation cases 216 when it has found that the military criminal Rosendo Cantú. As in previous on the jurisdiction is not competent, the Court considers that it is not necessary to rule other arguments concerning independence and impartiality of the military justice the system or the possible violation, based on the same facts, under other Inter-American instruments. […] 84 Gender-based Violence be performedbycompetentprofessionals, usingthemostappropriate procedures. dition, the scene of the crime should be examined thoroughly, and rigorous analysis should ments, anddeterminationofthecause,form,placetimeactinvestigated.Inad- investigation oftheauthors;identificationpossiblewitnessesandobtainingtheirstate- alia: recovery andpreservation ofprobative materialinorder toassistanypotentialcriminal served incriminalinvestigationsintohumanrightsviolations,andthesemayinclude,inter 178. to eliminateitandensure thatvictimstrusttheStateinstitutionsthere fortheirprotection. into account society’s obligation to reject violence against women and the State’s obligation ties inchargeoftheinvestigationcarryitoutadeterminedandeffective manner, taking when anactofviolenceagainstawomanoccurs,itisparticularlyimportantthattheauthori- ties to apply due diligence to prevent, punish, and eradicate violence against women. Thus, vention ofBelemdoPará.Article7(b)thisConventionspecificallyobligestheStatespar arising forStatespartiesfrom thespecificobligationsofInter-American treaty, theCon- and 25oftheAmericanConventionare complementedandenhancedbytheobligations 177. […] C. the enhancedStateobligation to investigatethem with duediligence. instrumentsdescribeandillustrate cases ofviolenceagainstwomen,severalinternational ings shouldbeprovided tothevictim. custody of the evidence, and vi) access to free legal assistance at all stages of the proceed- immediate examinationofthescene oftheincident,andguaranteeingproper chainof possible perpetratoroftheact, andobtainingotherevidencesuchasthevictim’s clothes, care, includingtakingsufficientsamplesandperformingallpossibleteststodetermine the tive measures shouldbecoordinated anddocumentedtheevidencehandledwith that shecanbeaccompaniedbyapersonofconfidenceif sowishes;v)theinvestiga- the sexpreferred bythevictiminsofarasthisispossible,andshouldbeinformed chological examinationshouldbemadeimmediatelybyappropriate trainedpersonnel,of at reducing theconsequencesofrape;iv)acompleteanddetailedmedicalpsy - emergency basis,andcontinuouslyifrequired, underaprotocol forsuchattentionaimed victim shouldbeprovided withmedical,psychologicalandhygienictreatment, bothonan victim’s statementshouldberecorded soastoavoidorlimittheneedforrepetition; iii)the should betakeninasafe and comfortableenvironment, providing privacyandtrust;ii)the requirements, inthecourseofacriminalinvestigationforrape:i)victim’s statement

On otheroccasions,thisCourthasdefinedtheguidingprinciplesthatmustbeob In casesofviolenceagainstwomen,thegeneralobligationsestablishedinArticles8 Due diligenceinpr ocessing thecomplaintandinvestigatingrape 239 Among other Amongother 238 In In - -

Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 85 egarding specific aspects of the investigations egarding ” 252 e, the Court notes that, in the present case, several of the govern- that, in the present e, the Court notes on the abovementioned considerations and on the State’s partial acknowl- partial State’s the on and considerations abovementioned the on eover, the Court notes with particular concern notes with particular the Court in charge of that the authorities eover, addition, this Court positively assesses the establishment of an interdisciplinary interdisciplinary an of establishment the assesses positively Court this addition, In Request of the State r Based Furthermor Mor

group with a gender perspective composed of female personnel from the Office of the with a gender perspective composed of female personnel from group […] 189. 182. that the State authorities Court concludes the Inter-American edgement of responsibility, of the rape of Mrs. Rosendo Cantú, did not act with due diligence in the investigation the State violated the time. Consequently, exceeded a reasonable which, additionally, and 8(1) Articles in established protection judicial to and guarantees judicial to rights and did not comply to Article 1(1) thereof, 25(1) of the American Convention, in relation the for Convention Inter-American the of 7(b) Article in established obligations the with to the detriment Punishment, and Eradication of Violence against Women, Prevention, of Mrs. Rosendo Cantú. […] D. […] 180. ment employees who intervened initially in the complaint made by Mrs. Rosendo Cantú Mrs. by made the complaint in initially intervened who employees ment the failure Likewise, and capacity. absence of motivation, sensitivity, showed a complete Prosecu- the Public medical officials and the officials of by the to use an action protocol especially serious and had Office who initially attended Mrs. Rosendo Cantú were tor’s to the victim and on the legal to the attention merited negative consequences in regards that stated by the this aspect, the Court stresses investigation of the rape. Regarding that in during the public hearing of the case, regarding Vargas, expert witness Arroyo [of gathering evidence] must be im- standards “cases of sexual violence, the minimum mediate action and speed. the investigation focused their efforts on repeatedly summoning Mrs. Rosendo Cantú summoning Mrs. on repeatedly efforts focused their the investigation The Court other evidence. and safeguarding and not on obtaining to make statements, must try to avoid of rape, insofar as possible, the investigation emphasizes that, in cases traumatic experience each time of the profoundly or the re-experiencing re-victimization about what happened. or testifies the victim recalls 181. 86 Gender-based Violence child, consideringthechild’s particularconditionofvulnerability this sense, the State must offer special attention to the necessities and the rights ofthe Office. conduct theprocedure directly orcarryitoutusingofficialsoftheCivilPublic Prosecutor’s pear bytheMilitaryPublicProsecutor’s Office,irrespective ofwhetherthisauthoritywill rape attributed to soldiers feels profound fear and apprehension when summoned to ap- offenses totestify, (supraparas.178and180)alsofindsitisevidentthatavictimof recalls its previous observations with regard to repeatedly summoning a victim of sexual testify on various occasions and, thus, advance the investigation. Nevertheless, the Court this regard, theCourtappreciates theState’s effort tosummonMrs.RosendoCantú ding thefailure ofMrs.RosendoCantútoattendthesummonstestify, this investigation shouldnotrest onthevictim,victim’s participationmaybenecessary. In Court understandsthat,wheninvestigatingcriminalacts,eventheburden ofthe 190. facts hadbeenreported. Inter-American CommissiononOctober2007;inotherwords, almostfiveyearsafterthe sequence ofacommitmentacquired bytheStateinhearingorthiscasebefore the said group withagender perspective playedapositiverole, itbeganitsworkasacon- fully aspossible,intheinvestigationprocedures. TheCourtobservesthat,eventhough for referring to the act suffered and to facilitate her participation, as simply and as care- onset oftheinvestigationinorder toensure hersafety andanappropriate framework Court reiterates that it is fundamental to provide support to a victim of rape from the a measure thatcouldleadtotheidentificationofpossibleauthorsrape.The was functioning,forexample,theartist’s sketchwiththeaidofMrs.RosendoCantú, victimization. TheCourtalsoappreciates thatsomeprogress wasmadewhilethisgroup the measures undertaken,supportthevictim,andinsofaraspossible,lessenherre- GeneraloftheRepublicadjoinedtodifferentAttorney institutions,inorder tomonitor responsibility andmusttakespecialmeasures aimedatthebestinterest ofthechild. Convention, theStatemustassumeaspecialpositionasguarantor withgreater care and 201. […] its conventionalobligations,the Stateshouldhaveadoptedspecialmeasures infavorof X .

A A A Regar The merican rticle rticle Court has previously held, that in conformity with Article 19 of the American 19(R 1(1)(O C onventi ights 258 bligation

the

to C R hild espect ) 260

R in R ights elation . 262 ) of Inaccordance with

the with

261 In Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 87 may imply, may imply, ii) in cases in 263 264 espect the rights and and iii) to ensure and iii) to ensure

espected. 265 ence with his private life, his family, his ence with his private life, his family, 266 espected and his dignity recognized. inter alia, that: e or to cruel, inhuman, or degrading punishment or treatment. All treatment. e or to cruel, inhuman, or degrading punishment or i) to provide with information and to implement the appropriate appropriate the implement to and information with provide to i) Everyone has the right to have his honor r No one to may be the object of arbitrary or abusive interfer Every person has the right to have his physical, mental, and moral integrity r Every person has the right to have his physical, mental, No one shall be subjected to tortur

home, or his correspondence, or of unlawful attacks on his honor or reputation. or of unlawful attacks on his honor home, or his correspondence, freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise exercise and full to all persons subject to their jurisdiction the free and to ensure herein recognized freedoms religion, language, sex, color, race, of reasons for discrimination any without freedoms, and rights those of political or other opinion, national or social origin, economic status, birth, or any other social condition.” persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. for the inherent with respect persons deprived of their liberty shall be treated Article 11 of the Convention establishes, 1. 2. Article 1(1) establishes that: “[t]he State Parties to this Convention undertake to r Article 5 of the American Convention establishes, in what is pertinent, that: Article 5 of the American Convention establishes, in 1. 2. As

ndnotes E that children are not interogated on several occasions to avoid, to the extent possible, the not interogated are that children of the child. or traumatic effects revictimization 51. 50. 49. 202. for her appropriate that she did not count on special measures time the facts occurred, the that declares Court the State, the of responsibility of acknowledgment the and age, the at child girl a was Cantu Rosendo Mrs. that considering consequence, a given Mrs. Rosendo Cantú status as a girl State violated her right to special protection with Article 1(1) Convention, in relation child, enshrined in Article 19 of the American thereof. […] Mrs. Rosendo Cantú, not only during the filing of the criminal complaint, but also during criminal complaint, during the filing of the Cantú, not only Mrs. Rosendo investi- the ministerial [investigative] she was a part of being a girl child, the time when, since she was also all the more she was the victim, of which the offense gations regarding by poverty affected are whose communities children given that indigenous indigenous, the best The obligation to protect vulnerability. situation of particular find themselves in a a part, of which they are during the proceedings of the children interest which children have been victims of crimes such as sexual abuse or other mistreatment, mistreatment, other or abuse sexual as such crimes of victims been have children which ensuring full protection, is provided to be heard of their right that the exercise to assure and that the interview rooms children to address trained that personnel are making sure or inappropriate, hostile, insensitive safe and not intimidating, are the following: the alia, inter the that guaranteeing and necessities, particular child’s the to them adapting procedures, their needs; other assistance at all times, pursuant to child have legal and 88 Gender-based Violence 100. 99. 98. 96. 95. 53. 52. 97.

pain ormentalanguish. personality ofthevictimortodiminishhisphysicalmentalcapacities,eveniftheydonotcause purpose. Torture shallalsobeunderstoodtotheuseofmethodsuponapersonintendedobliterate as ameansofintimidation,personalpunishment,preventive measure, asapenalty, orforanyother whereby physicalormentalpainsuffering isinflicted onapersonforpurposesofcriminalinvestigation, Cf. paras. 72and73. Cf eighteenyearsofageis a minor.”person whohasnotturned earlier.” TheCivilCodeoftheFree andSovereign stateofGuerrero establishesinitsArticle35that“the being belowtheageofeighteenyearsunlessunderlawapplicableto child,majorityisattained In accor or thedurationofherperiodunconciousness. duration ofthesexualpenetration,specificdetails regarding theinterrogation madebytwoofthesoldiers, In thevariousaccountsmadebyMrs.RosendoCantúther Statement byMrs.RosendoCantúr 9735 to9737). onAugust14,2009(casefileofannexestotheanswerapplication,tome Domestic Violence V, folios Common Jurisdiction, adjoined ot the Special Prosecutor Special Prosecutor’s Office ofSexual Offenses and Cf. b. thorities, officials,personnel,agents,andinstitutionsactinconformitywiththisobligation[, and] a. means andwithoutdelay, policiestoprevent, punishand eradicatesuchviolenceandundertaketo: The StatesPartiescondemnallformsofviolenceagainstwomenandagr Article 7(a)and(b)oftheConventionBelémdoPará,establishes,inwhatispertinent,that: ous nature. their criminallawandshallmakesuchactspunishablebysevere penaltiesthattakeintoaccounttheirseri- The StatesPartiesshallensur punish torture withintheir jurisdiction. In accor Article 6 For Article 2 The StatePartiesundertaketopr Article 1 The Inter the doctorthatattendedtoMrs.Rosendo CantúonFebruary18,2010,before theInvestigationOfficerof

. ECHR,CaseofAydin v. Turkey (GC),

ClinicalhistoryoftheBernardinoRosendo family, supranote74,folio7756;testimonialstatement of Appearance andratificationofthebriefMrs.RosendoCantúbefor the purposes of this Convention, torture shall be understood to be any act intentionally performed apply duediligencetopr r efrain from engaginginany actorpracticeofviolenceagainstwomenandtoensure thattheirau- dance withtheConventiononRightsofChild,inits Article 1,“achildmeanseveryhuman dance withthetermsofArticle1,StatesPartiesshalltakeeffective measures toprevent and -American ConventiontoPrevent andPunishmentTorture establishes,interalia,that: e thatallactsoftorture and attemptstocommittorture are offenses under event, investigateandimposepenaltiesforviolenceagainstwomen[.] event andpunishtorture inaccordance withtheterms ofthisConvention. endered duringthepublichearing,supranote64. Judgment of25September1997,App. No.57/1996/676/866, eare somedifferences withrespect totheexact ee topursue,byallappropriate e thePublicProsecutor of the Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 89 osecutor’s Office adjoined to the 35th Military osecutor’s sworn statement by Mr. Bernardino Sierra before an agent of Public Bernardino Sierra before sworn statement by Mr. note 72, folio 358. On his behalf, Mr. Bernardino Sierra stated: “I went to my house […] Bernardino Sierra stated: note 72, folio 358. On his behalf, Mr. supra Psychiatric report of March 11, 2002, supra note 107, folios 7694 and 7695. of March Psychiatric report Psychiatric report in the case of Mrs. Rosendo Cantú of March 11, 2002 in case file No. 2002/597-4 of 11, 2002 in the case of Mrs. Rosendo Cantú of March Psychiatric report Of the psychiatric medical report of Mrs. Rosendo Cantú, carried out on March 11, 2002, within the within 2002, 11, March on out carried Cantú, Rosendo Mrs. of report medical psychiatric the Of note 74, folio 7756; testimonial statement of supra note 74, folio 7756; testimonial Rosendo family, Clinical history of the Bernardino Mrs. Bernardino Sierra stated: “I don’t recall the exact time but […] it was after two when [Mrs. Rosendo time but […] it was after two the exact recall Sierra stated: “I don’t Mrs. Bernardino Certificate of injuries issued by the Agent of the Military Public Pr to the application, tome II, annex 1, folio 7830). 6, 2002 (case file of annexes to the answer Zone, on March Cf. her hair all messed up, […] she was also naked from Cantú] arrived at the house […] crying, and […] with [..] and she was also punched because she had blood the waist down [without] underwear on or a skirt, S]he told me that they had raped her but she did not tell me how under her eye [and she] was barefoot[. had another person whose hands eight solders, and that they also were many did it […] but that there of the Common sworn the Public Prosecutor tied,” Sierra before were statement of Mrs. Estela Bernardino Jurisdiction, Cf. application, tome I, folios 7673, 7688, 7689, 7690, the NHRC (case file of annexes to the answer to the 7691, 7694 y 7696). of December 2002/597-4, file No. case Rights Commision, Human National of the of Conclusions Cf. Order tome I, application, the answer to the of annexes to Rosendo Cantú (case file to Mrs. 11, 2002, addressed annex 1, folios 7792 and 7793). me that she had been raped by two […] she told my wife crying, and upon asking the reason I found where my house, that is about 200 meters from [soldiers] when she was washing clothes at the bank or stream the COD- Bernardino Sierra before telling me in detail how the facts unfolded,” sworn statement of Mr. of pleadings and motions, tome II, annexes 40 8, 2002 (case file of annexes to the brief DEHUM on March and 57, folio 5687 and 5743). Also cf. of the Common Jurisdiction, supra note 72, folio 5739. Prosecutor Cf. that she is very afraid that “Mrs. [Rosendo Cantú] manifested that the NHRC, it states case file open with take her going to because she thinks they are look for her to speak with her, people like the [psychiatrist] to the answer to the application, tome I, (case file of annexes to jail, even though she cannot explain why,” folio 7694). Cf. Officer of the Investigation Mrs. Rosendo Cantú on February 18, 2010, before the doctor that attended to arguments written final the to annexes of file (case 2010 31, May on Prosecutor, Public Military Special the Cantú Rosendo Mrs. to attended that doctor the of statement testimonial 21916); folio I, tome State, the of I, folios 22, 2002 (case file of annexes to the application, tome on March the CODDEHUM carried out before 7731 and 7732). the Special Military Public Prosecutor, on May 31, 2010 (case file of annexes to the final written arguments written final the to annexes of file (case 2010 31, May on Prosecutor, Public Military Special the Cantú Rosendo Mrs. to attended that doctor the of statement testimonial 21916); folio I, tome State, the of application, tome I, folios file of annexes to the 22, 2002 (case CODDEHUM on March the carried out before 7731 and 7732). Cf.

Psychiatric report of March 11, 2002, supra note 107, folio 7694. of March 110. Cf. Psychiatric report 111. 108. 109. 112. 107. 102. 101. 90 Gender-based Violence 115. 125. 124. 123. 122. 121. 120. 119. 118. 117. 114. 113. 116. 126. 130. 129. 128.

Cf. MedicalgynecologicalcertificateofMarch 19,2002,sentbythemedicalexaminerofOffice the application,tomeI,annex17,folio490). GeneralofJusticetheState,bymeansOrderAttorney No.130/80/02/62/2002(casefileofannexesto Cf and Preamble. Cf. naked, withscratchesonherface. in thatwhentheysawtheallegedvictimforfirsttimeafterfactstook place,shewascrying,half Cf. Statementsr 19, 1999.SeriesCNo.63,para.74,andCaseofBuenoAlves,supranote122,83. Cf. No. 164,para.79. Cf. CaseofBuenoAlvesv ber 2,1998.CaseNo.ICTR-96-4-T, para.688. Series CNo.160,para.306.T Inter para. 134. Cf. CaseofV para. 128. Cf. CaseofV C No.196,para.97 Cf. CaseofKawasFer para. 127,andCaseofRadillaPacheco,supranote36,89. Cf. CaseofV plication, tomeI,annex1,folio7598). on March 8,2002,casefileNo.CODDEHUM-VG/065/2002-II(caseofannexestotheanswerap- Certificate ofinjuryforMrs.RosendoCantú,pr Case ofManuelCepedaVargas, supranote25,para.66. nes Preliminares, Merits, Reparations and Costs. Judgment of July 6, 2009. Series C No. 200, para. 127, and 2003. SeriesCNo.103,para.91. Judgment ofJuly1,2006,SeriesCNo. 148,para.193;CaseofTristán Donosov. Panamá.Preliminary Cf. CaseoftheItuangoMassacr Cf. CA Decision of22January2007,U.N.Doc. CAT/C/37/D/262/2005, para.8.10. Cf. ICTR,Pr Turkey (GC),supranote99,para.83. Cf. CaseoftheMiguelCastr .

Case of Velásquez Rodríguez. Case ofCantoralBenavidesv. Perú. Case of the “Street Children”” et al.) v. (Villagrán-Morales Guatemala. Merits. Judgment of November -American ConventiononthePrevention, againstWomen. Punishment,andEradicationofViolence Case ofMaritza Urrutia v. Guatemala. T, CaseV.L. v. Switzerland,supranote128,para.8.10. osecutor v. Jean-PaulAkayesu,supranote121,para.597,andCAT, CaseV.L. v. Switzerland, elásquez Rodríguez.Merits,supranote33,para.135;CaseofEscheretal.,115, elásquez Rodríguez.Merits,supranote33,para.135;CaseofEscheretal.,115, elásquez Rodríguez.Merits,supranote33,para.135;CaseofEscheretal.,115, endered byMrs.BernardinoMoralesandMr. BernardinoMorales,supra nández v. Honduras.Merits,ReparationsandCosts.JudgmentofApril3,2009Series . Argentina.Merits,ReparationsandCosts.JudgmentofMay11,2007.SeriesC o-Castro Prison,supranote121,para.311.Cf.AlsoECHR,CaseofAydin v. ambién ICTR, Merits, supra note 33, es v. Colombia.Preliminary Exceptions,Merits,Reparations,andCosts. Merits. JudgmentofAugust18,2000.SeriesCNo.69,para.100, Case ofProsecutorv. Jean-PaulAkayesu.JudgmentofSeptem- Merits, Reparations, and Costs.JudgmentofNovember27, ocedure signedbytheInspectorGeneralofCODDEHUM para. 130; Case of Escher et al. v. Brazil . note 111,coincide Excepcio- Inter-American Court of Human Rights - Rosendo Cantú et Al. v. Mexico 91 22. osecutor in Ayutla osecutor in Ayutla easonable time, by a compe- note 96. She also stated: “I have a justified Case of Peck v. United King- Case of Peck v. note 131, para. 29, and ECHR, supra e if they never believed me […] and I was so afraid because of the fear, of the fear, e if they never believed me […] and I was so afraid because Every person has the right to a hearing, with due guarantees and within a r , Germany ECHR, Case of Niemietz v. , Judgment of 16 December 1992, App. No. 13710/88, para. 29, and No. 13710/88, para. 29, and 16 December 1992, App. , Judgment of Germany v. ECHR, Case of Niemietz , 2003, App. No. 39272/98, para. 150, e ICTY Bulgaria, Judgment of 4 December ECHR, Case of M.C. v. México, supra note 21, para. 395. Field”) v. Case of González et al. (“Cotton , Judgment of 22 October 1981, App. No. 7525/76, para.7525/76, No. October 1981, App. of 22 the United Kingdom, Judgment v. Dudgeon of ECHR, Case .

. Cf. Cf Cf. Exceptions, Merits, Reparations, and Costs. Judgment of January 27, 2009. Series C No. 193, para. 55, and 27, 2009. Series C No. 193, Judgment of January Reparations, and Costs. Exceptions, Merits, 113. et al., supra note 115, para. Case of Escher 44647/98, para. 57. 28 January 2003, App. No. Kingdom, Judgment of United v. Case of Peck No. 8978/80, para. 1985, App. , Judgment of 26 March the Netherlands 41, and ECHR, Case of X and Y v. fear that the […] investigation will be […] unlawfully handed over to the Military Public Prosecutor, with seri- handed over to the Military Public Prosecutor, fear that the […] investigation will be […] unlawfully filed by Mrs. Rosendo Cantú before [amparo] for relief ous detriment to my individual guarantees, petition annexes on June 6, 2002 (case file of in the state of Guerrero Circuit First District Judge of the Twenty-first also indicated: “I did not want to go out because of to the application, annex 20, tome I, folio 506). She my leave want to not [I] did […] scared was very I […] very big was with me left the soldiers memory the many were leave because I wanted to leave, rather I left because of the fear that there I didn’t community, during the public hearing, supra note 64. soldiers,” statement of Mrs. Rosendo Cantú rendered Article 25 of the American Convention establishes that: Article 8(1) of the American Convention establishes that: 1 and, how was I going to go to the military justice system if they were the ones that abused me?” statement if they were and, how was I going to go to the military justice system at the public hearing, supra of Mrs. Rosendo Cantú rendered in the substantiation of any accusation by law, established tent iindependent, and impartial tribunal, previously obligations of a civil, labor, made against him or for the determination of his rights and of a criminal nature fiscal, or any other nature. Mrs. Rosendo Cantú stated: “despite that […] they told me that I was going to speak to the military justice Mrs. Rosendo Cantú stated: “despite that […] they told system, how was I going to go ther . 57. dom, supra note 131, para could take was no person who me enter becaue they said that there they did not want to let […] there […] and that was also an attorney who told us that the workday was over, my statement and there there had to get involved to file a complaint. And when I is when the Commission of human rights of the state and when I finally knew that I did not speak Spanish well, and they didnt give me a translator, they entered soldiers who raped you? Be- did you know they were spoke and gave my statement, they told me, ‘how did they say that to you if you said good.’ And, they also told me, ‘how do that, they are cause they don’t speak Spanish, and how do you know it was soldiers who raped you.’ […] Then we left, I thought you don’t going to catch the soldiers who raped me, but that did I was only going to file a complaint and they were supra note 64. at the public hearing, not happen,” statement of Rosendo Cantú rendered Cf. para. 492. 1998. Case No. IT-96-21-T, Camp”. Judgment of November 16, Case of Mucic et. al. “Celebici Cf. the Public Pr “when i went to file a complaint at the offices of Mrs. Rosendo Cantú stated:

131. 132. 133. 151.

152. 134. 138. 135. 137. 92 Gender-based Violence 266. 265. 264. 261. 260. 258. 252. 239. 238. 216. 1. 153. 263. 262.

note 263,para.24. Cf note 263,para.21infine,34and64. Cf of theChild,GeneralComment12:Therightchildtobeheard, supranote263,para.64. sessiones, 2003,U.N.Doc.CRC/GC/2003/5(November27,2003),para.24,and CommitteeontheRights the ConventiononRightsofChild(Articles4and42paragraph6 of Article44),34 Cf period ofsessiones,2009,U.N.Doc.CRC/C/GC/2009(July20,2009),para.70. mitted bypersonsactinginthecourseoftheirofficialduties. orbythisConvention,eventhoughsuchviolationmayhavebeencom- tion orlawsofthestateconcerned court ortribunalforprotection againstactsthatviolatehisfundamentalrightsrecognized bytheconstitu- of September21,2006.SeriesCNo.152,para.116,andCaseChitayNechetal. , Garcíav.A No.17,paras.56,59and60;CaseofServellón Honduras.Merits,ReparationsandCosts.Judgment Cf. part ofhisfamily, society, andthestate. Every minorchildhastherighttomeasur Article 19oftheConventionstablishesthat: Cf. Cf. 30, 31,34,39to44,and5774. W.H.O., Guidelinesformedico-legalcare forvictimsofsexualviolence,supranote39,interalia,pages17, inter alia,paras.67,77,89,99,101to103,155,162,163,170,171,224,225,260,269,and290, Cf. UnitedNationsOfficeoftheHighCommissionerforHumanRights,IstanbulPr Case ofGonzálezetal.,(“CottonField”),supranote21,para.300. Judgment ofJune7,2003.SeriesCNo.99,para.128;CaseGaribaldi,supranote211,115,and Cf. CaseofJuanHumbertoSánchezv nary Objection,Merits,Reparations,andCosts.JudgmentofNovember20,2009.SeriesCNo.207,para.124. Cf. CaseofCantoralBenavides,supranote125,para.115,andUsónRamír give effect tothoserightsor freedoms. processes andtheprovisions ofthisConvention,suchlegislativeorothermeasures asmaybenecessaryto islative orotherprovisions, theStatesPartiesundertaketoadopt,inaccordance withtheirconstitutional Wher Article 2oftheAmericanConventionestablishesthat: 1. Cf Erres Massacre,supranote27,para.184,andCaseofChitayNechetal. note25,para.164. Juridical ConditionandHumanRightsoftheChild,

. CommitteeontheRightsofChild. GeneralComment12:Therightofthechildtobeheard, supra . CommitteeontheRightsofChild. GeneralComment12:Therightofthechildtobeheard, supra . CommitteeontheRightsofChild.GeneralComment5:measures ofimplementationfor . CommitteeontheRightsofChild.GeneralComment12:Theright childtobeheard, 51

-17/02 of August 28, 2002. Series OpinionOC-17/02ofAugust28,2002.Series Juridical ConditionandHumanRightsoftheChild.Advisory Answer totheapplication(casefileonmerits,tomeI,folio471). Statement ofexpertwitnessArroyo Vargas rendered duringthepublichearingonMay27,2010. Everyone hastherighttosimpleandpr e theexercise ofanytherightsorfreedoms referred toinArticle1isnotalready ensured byleg- . Honduras.Preliminary Exceptions, Merits,Reparations,andCosts. ompt recourse, oranyothereffective recourse, toacompetent es ofprotection required byhisconditionasaminoronthe

supra note261,paras.60,86and93;CaseoftheDos supra note25,para.164. ez v. Venezuela. Prelimi- otocol, supranote39, th periodof st

Inter-American Commission on Human Rights

Raquel Martín de Mejía v. Peru

Case Nº 10.970

Report Nº 5/96

March 1, 1996 94 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 r F acts egard toRaquelMejía,right tohumanetreatment andrighttoprivacy(Article R epor ted

Inter-American Commission on Human Rights - Raquel Martín de Mejía v. Peru 95

ions onsiderat C o presume the facts relating to the repeated violation of Raquel Mejía by Peruvian Army personnel to be true T

a. Presumption of facts esent case, (…) the Commission (…) has decided: eneral

G 1. V. […] In the pr […] […] 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 […] 96 Gender-based Violence 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 The Commissionobservesthatthereasons givenbythepetitionerfornotsub […] 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 sexual violationsinemergency areas, todatenomember ofthesecurityforces operating hasstatedthatdespitetheexistenceofalarge numberofcases Amnesty International victims meantthatalargepercentage ofthesecaseswere neverevenreported”. petition inthedomesticcourtsar because: of herhusband,shedidnotreport thesexualabusetowhichshehadbeensubjected theabductionandsubsequenthomicide laration withtheOxapampapoliceconcerning Raquel MejíainformedtheCommissionthatwhen,onJune20,1989,shefiledherdec- […] me tobeostracizedandexposedgreater dangerorphysicalharm... [I was]fearfulthattheviolationscommittedagainstmypersonwouldhavecaused b. Raquel Mejía permit remediesforthehumanrightsviolationssufferedbyFernandoand

T o presumethenonexistenceofeffectivedomesticrecoursesthatwould e supportedbydifferent documentspublishedbyin- ting evidenceorsociety’ s attitudetothe mitting a 87 Inter-American Commission on Human Rights - Raquel Martín de Mejía v. Peru 97 - - . 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

tutes a violation of Article 5 and Article 11 of the American Convention on Convention American the of 11 Article and 5 Article of violation a tutes Human Rights a. 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 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. 98 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”. 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

As establishedin the Fourth Convention and Protocol I, any act of rapecommitted 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. r 1. espected.

102 106 No oneshallbesubjectedtotortur 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 e ortocruel,inhumandegradingpunish- 100 foritspart,statesthat stitute “seriousof 105 103 of Protocol II ad- 104 TheICRC fens- Inter-American Commission on Human Rights - Raquel Martín de Mejía v. Peru 99 112

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 - and suf pain and mental physical which through act intentional be an must it must be committed with a purpose; it must be committed acting at the by a public official or by a private person it must be committed it

3. instigation of the former fering is inflicted on a person; fering is inflicted on 2. 1. 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 Regarding the first element, the Commission considers that rape is a 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. […] to be combined: elements have to exist three for torture Accordingly, 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.” 100 Gender-based Violence attack againsthumandignity. 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 Accor Raquel Mejíawasrapedwiththeaimofpunishingherpersonallyandintimidatingher. intimidation. to Prevent andPunishTorture includes,amongotherpurposes,personalpunishmentand intentionally, i.e.toproduce acertainresult inthevictim.TheInter-American Convention The secondelementestablishesthatforanacttobetorture itmusthavebeencommitted provided.” jority of casesthe necessary psychological treatment and care will not and cannot be personality andthelong-term effects are perforce extremely harmful,since inthema- life... 2. 1. ding to her testimony, the man who raped her told her that she, too, was wanted

No Everyone hastherighttohavehishonorr 113 one may be the object of arbitrary or abusive interference with his private

Women are affected inthemostsensitivepartoftheir espected andhisdignityrespected. -

Inter-American Commission on Human Rights - Raquel Martín de Mejía v. Peru 101 780 (1992),

114 Women shall be especially protected against any attack against shall be especially protected Women

- humane treat esponsible for the violation of the right to , idem supra, Note 15, p. 22. atch, idem supra, Note 19, p. 3. es the petitions concerning the human rights violations suffered by Raquel es the petitions concerning the human rights violations suffered supra, Note 13 para. 433. , p. 4. , p. 5. the Peruvian State is r it declar 27, insofar as it concerns us, reads: Protected persons are entitled, in all circumstances, to respect for theirfor respect to circumstances, all in entitled, are persons Protected concernsit as insofar 27, reads: us, They shall at all times be humanely treated, and shall be protected especially against all acts of violence or and shall be protected They shall at all times be humanely treated, supra supra egard to the petitions considered admissible it concludes that: admissible it concludes that: the petitions considered to egard onclusions

threats, thereof and against insults 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 Human Rights W Idem Idem Article their manners and cus- and convictions and practices, their religious family rights, their persons, their honour, toms. U.N., idem Amnesty International in application of Articles 47 of the Convention and 39 of its Regulations: in application of Articles 47 of the Convention In r 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 (…) b. Mejía admissible.

ndnotes

E VI. C […] 95 91 94 87 88 89 90 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. 102 Gender-based Violence 109 113 113 112 111 110 114 114 107 106 105 104 103 102 101 100 99 98 97 96

U.N., idem D. Blair U.N. Doc.E/CN.4/1986/15,para.119. See Article2oftheConvention. See U.N., idem D. Blair of theformerYugoslavia, 32I.L.M.,1159,1173,1174(1993). tions ofpersonsresponsibleforseriousviolationsInternationalHumanitarianLaw committedintheterritory ICRC Commentar Final Report...,idem and anyformofindecentassault; Attacks againstpersonaldignity Article 4(2)ofPr “(a) Attacks Article 3states: Final Report...,idem against personaldignity. apartheid andotherinhumandegradingpractices,basedonracialdiscrimination,thatentailanoutrage when committed intentionally and in violation of the Conventions or the Protocol: Article 85(4)statesthat: protected inparticularagainst rape,forced prostitution andanyotherformof indecent assault. Article 76,entitled“Pr AJIL 426. ICRC, Final Report...,Idem ing ...wilfullyfactofcausinggreat suffering orserious injurytobodyorhealth...” against personsorproperty protected bythepresent Convention:...torture orinhumantreatment, includ- Article147r May 5,1994,p.17. 1987) 1375. 1949, Yves Sandoz,ChristopheSwinarski, BrunoZimmerman,eds.(Geneva: physical and mentalintegrity of persons, in particular homicide and crueltreatments suchastorture...... (e) and inallplaceswithrespect tothepersonsreferred toinparagraph1: persons, theirhonor, theirreligious convictionsandpractices.... 2. have ceasedtoparticipateinthem,whetherornotdeprivedoftheirliberty, shallbeentitledtorespect oftheir torture andordeals; ...(c)Attacksagainstpersonaldignity...”

United X andYvs.TheNetherlands Aide Mémoire (Dec. 3, 1992) cited in T. Meron, Rape as a Crime under International Humanitarian , Law 87 , idemsupraNote49,p.855. , RecognizingRapeasaMethodofTorture, 19N.Y.U. Rev.L &Soc.Change821,854. Nations: supra, Note12,para.580. supra, Note13,para.431. against life andbodily integrity, especially homicide in all its forms, mutilations,cruel treatment,

eads: QuotedinD.ThomasandR.Ralph,idemsupra,Note30,p.95.

Thefollowingare prohibited, atanytimeandinplace... otocol II,foritspart,states:

Secretary General Report on aspects of establishing an international tribunal for the prosecu- Secretary y ontheAdditionalProtocols

Seriousoffenses are thosethatinvolveoneormore ofthefollowingacts,“ifcommitted supra, Note34,p.18 supra, Note34,p.17. supra, Note34,p.17. otection ofWomen”, specifies that:

...Thefollowingactswillbeconsidered seriousoffenses underthepresent Protocol , Application8978/80,SeriesA.No.167. , especiallyhumiliatinganddegradingtreatment, rape,forced prostitution

Allpersonswhoare notparticipating directly inthehostilities,or of 8June,1977totheGenevaConventions12August

Women shallbeafforded specialrespect and

Thefollowingshallbeprohibited atalltimes (a) Attacksagainstthelife,healthand

MartinusNijhoff Publishers,

...

Inter-American Commission on Human Rights

X and Y v. Argentina

Case Nº 10.506

Report Nº 38/96

October 15, 1996 104 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. 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. […] 1. […] ment ofArgentinar 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 The petitionallegesthatthispracticebytheFederalPenitentiaryService(SPF)constitutes lodged awritofamparo (“recurso deamparo”) demandingthattheinspections cease. was incarcerated intheDefendants’ Prisoninthefederalcapital.OnAprilof1989Ms.X spections eachtimetheyvisitedherhusbandandthefatherofchild,whoat The complaintallegesthatthe Human Rights. Federal) acted in violation of the rights protected under the American Convention on of UnitNo.1theFederalPenitentiaryService(UnidaddelServicioPenitenciario prison authoritieswho,routinely performedvaginalinspectionsonthewomenvisitors I.

OnDecember29,1989,theCommissionreceived- acomplaintagainsttheGovern

Accor Regar F acts ding to Major Mario Luis Soto, Chief of Internal SecurityoftheFederalPeni- ding toMajorMarioLuisSoto,ChiefofInternal ding Ms. X, MajorSotodeclared thatshehadbeensubmittedtobothtypes

Ms.Xandherthirteen-year-old daughterwere submittedtovaginalin- egarding thesituationofMs.Xandherthirteen-year-old daughterY.

Headdedthat,atfirst,gloveswere usedforfriskingthatarea 5 Convention asitoffends the dignityofpersonssubjected

Argentine State,andparticularlytheFederalGovernment’s 3

4 Astothefactthat 2

Inter-American Commission on Human Rights - X and Y v. Argentina 105 - equirement that visitors to Unit 1 submit to vaginal equirement

9 equirement and the performance of the procedure prevented them prevented of the procedure and the performance equirement the requirement that Ms. X and her daughter undergo a vaginal inspec- her daughter undergo X and Ms. that the requirement

nment of Argentina argued that all of the measures it adopted are accept- it adopted are nment of Argentina argued that all of the measures Article 19, which protects the rights of the child, was not invoked by the by not invoked was child, of the rights the which protects 19, Article equirement that visitors undergo a vaginal inspection in order to be per that visitors undergo a vaginal inspection in order equirement whether whether this r efore, when considering this case the Commission must examine two separate case the Commission must examine two when considering this efore, is nalys

General Considerations Although The petitioners allege that the r The Gover from fully exercising their rights protected under 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 tion before each physical contact visit with Mr. X is in compliance with the 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 r Ther 1)

VI. A mitted a physical contact visit 48. searches or inspections in order to be permitted personal contact 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. able restrictions to the Convention’s provisions and were reasonable under the circumstances under the circumstances reasonable and were provisions to the Convention’s able restrictions 50. B. A. […] 47. issues: 106 Gender-based Violence Convention suchmeasures shouldmeetthree specificconditions. accomplish thoseobjectives. circumstances present inArticle32.2andbeproportionate andreasonable inorder to of ademocraticsociety;3)anditsapplicationmustbestrictlyconfinedtothespecific by law;2)benecessaryforthesecurityofallandinaccordance withthejustdemands way affects therightsprotected bytheConventionshouldnecessarily: 60. […] […] of thecase. the pr 64. […] possible from itsarbitraryandabusiveapplication. plying thisprocedure sothatallpersonssubjectedtoitare grantedasfullaguarantee measure maybeimposedandsetsforthwhatconditionsmustobeyedbythoseap - tion, mustbeprescribed byalawwhichclearlyspecifiesthecircumstances whensucha involves athreat ofviolation toanumberoftherightsguaranteedunderConven- 66. […] probing, ofdetaineesandprisonersmaysometimesbenecessary. ner, typeofcontact,etc. prisoners anddetainees,which alsoregulate theirvisitation rights astotime,place,man-

The Commissionconsidersthatinor rights protectedbytheConvention 1.

(…) [A]measur The Commissionisawar ovisions oftheConvention,andwhatare thepermissiblelimitationstothoserights.

1) Thelawfulnessofthemeasure b. State obligationsto“respectandensure”theimpositionofconditionson 2) Necessityinademocraticsocietyforthesecurityofall

TheCommissionmustthusconsiderwhatare theState’s obligationsregarding

The impositionoflimitations e asextreme asthevaginal search orinspectionofvisitors,that

Itisalsorecognized thatcorporalsearches, andevencorporal e thatallcountrieshaverules regarding thetreatment of

der tobeconsidered incompliance withthe 17

Ameasure thatinany

1)beprescribed

Inter-American Commission on Human Rights - X and Y v. Argentina 107 Con-

ches prior to entry ches prior ch or inspection, in a

The Commission notes that a vaginal search The Commission notes that a vaginal search 1) it must be absolutely necessary to achieve 1) it must be absolutely necessary to achieve

estrictive procedures, such as the search of insuch as the search estrictive procedures, Although the measure in question may be exception- in question Although the measure

The Commission would like to underline the fact that a visitor or visitor a that fact the underline to like would Commission The

Non-existence of an alternative option Vaginal searches or inspections are nevertheless an exceptional and very and exceptional an nevertheless are inspections or searches Vaginal

easonableness and proportionality of a measure can only be ascertained can only of a measure easonableness and proportionality b) 3) Reasonableness and proportionality of the measure 3) Reasonableness and proportionality of the It would seem that other and less r

The Commission considers that the lawfulness of a vaginal sear The Commission considers that the lawfulness The r

The Commission does not question the need for general sear the need for does not question The Commission The pr

sequently, the balancing of interests involved in an analysis of the measure’s lawfulness, of the measure’s involved in an analysis the balancing of interests sequently, vagi- the case of in standard higher a to interest government’s hold the necessarily must nal inspections or any corporal probing. 72. […] 76. guaranteeing internalreasonable means of efficient and a more mates and their cells, are particular case, must meet a four-part test: particular case, must meet a four-part through the examination of a specific case. the through must not exist an alternative option; in the particular case; 2) there the security objective - be carried out by an appropri and 4) it must judicial order; 3) it should be determined by ate health professional. […] 71. […] body. as it involves the invasion of a woman’s measure a restrictive than is more into prisons. into search. of type intrusive 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. 67. inmates. contact with the by virtue of their matically limited 68. not auto- rights are therightsofvisitorswhose entails esent case,however, 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 to security. to pose a grave threat 108 Gender-based Violence 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. search the inmates after apersonalcontact visit, than submit all of the womenvisitorsto human dignity. detainees andprisonersare sometimesjustifiable,usingmethodscompatiblewiththeir stricted anditmaytherefore occurthatcorporalsearches, andevencorporalprobing, of 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 itsverynatur security. 3, whichread: 86. 87. in order toensure that suchtreatment doesnot generateagreater degree ofanguish forms anykindofphysicalintervention inindividuals,itmustobservecertainconditions

1. The rightspr Mor 3. ishment ortreatment (...) 2. r 1. The petitionersallegedaviolationofArticle5,inparticular The pr espected

Inaddition,itshouldnotbeignored thatthespeciallegalpositionofprisoners, eover, theCommission wouldalsoliketonotethatinthecaseofYnoreal The righttophysicalintegrity:Article5 Punishment shallnotbeextendedtoanypersonotherthanthe criminal. No oneshallbesubjectedtotortur Every personhastherighttohavehisphysical,mental,and moralintegrity ocedure inquestionisnotperseillegal.Nevertheless,whenthe stateper

Itwouldhaveobviouslybeenamore reasonable andsimplermeasure to e, results inanumberoflimitations to theexercise oftheirrights. otected bytheConvention

By definition, a detainee’s personal libertiesare re-

Searches ofvisitorsshould becarriedoutonly e ortocruel,inhuman,degradingpun- , ofitsparagraphs2and

The - Inter-American Commission on Human Rights - X and Y v. Argentina 109 The The

The object of The object of 20 The notion of “arbi-

In this sense, various guarantees In this sense, various guarantees

Nevertheless, it also requires the state the state Nevertheless, it also requires

- ovision covers, in addition to the protec otection of the law against such interference otection of the law against such interference ohibits “arbitrary or abusive” interference with this right. ohibits “arbitrary or abusive” interference has the right to have his honor respected and his dignity recognized. and honor respected have his right to has the one may be the object of arbitrary or abusive interference with his private his with interference or abusive of arbitrary object the be one may Everyone No Everyone has the right to the pr Right to Privacy: Article 11 Right to Privacy: Article

or attacks. The right to privacy guaranteed by this pr Article 11 of the Convention stipulates that: 1. 2. life, his family, his home, or his correspondence, or of unlawful attacks on his honor his on attacks unlawful of or correspondence, his or home, his family, his life, or reputation. 3. Article 11.2 specifically pr 2.

91. 90. the physical and moral integrity of the person. tion against publicity, right to privacy guarantees that each individual has a sphere into which no one can into which no one can has a sphere right to privacy guarantees that each individual own. one’s intrude, a zone of activity which is wholly This provision indicates that in addition to the condition of legality, 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 “arbitrary or abusive” interferences. a special obligation to prevent to adopt all necessary legislation in order to ensure this provision’s effectiveness. provision’s this to ensure to adopt all necessary legislation in order zones of the person create the sanctity of the Convention which protect throughout privacy. 92. 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 by public officials. against arbitrary interference 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 of a judicial 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. […] 110 Gender-based Violence between 98. […] above inorder toguarantee thelegalityofpractice. only, withthe strictcompliancebytheauthoritieswithstandards whichwere outlined presence ofaparticularlyserious situationandinveryspecificcircumstances, andthen a familymemberwasindetention. dignity andhonorrespected whentheysoughttoexercise theirrightstofamily, evenif that isdifficulttoevaluate. ing a13yearoldchildtosuchprocedure couldresult inseriouspsychologicaldamage of shameandanguishinalmostallpersonswhoare submittedtoit. 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. 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 The Article 17r to protection bysocietyand theState. 1. It isallegedthatundueinterfer

the prisoner and his or her family, notwithstanding the restrictions of personal right to family life can suffer certain limitations that are inherent to it. Special Rights oftheFamily:article17 The familyisthenaturalandfundamentalgr ecognizes thecentralrole of thefamilyandfamily-lifeinindividual’s

Ms.Xandherdaughterhadarighttohavetheirprivacy,

Theserightsshouldhavebeenrestricted onlyinthe ence withMs.X’s andherchild’s visitcontravened like tounderscore thatthepresent casein- 21 oup unitofsocietyandisentitled

Thoughimprisonment

Inaddition,subject- Inter-American Commission on Human Rights - X and Y v. Argentina 111 Thus, the

Indeed, and particularly because of the of because particularly and Indeed, - Commission has re the In this respect

22 ecognizes that children must be the subject ecognizes that children e a fundamental requirement for ensuring respect for ensuring respect requirement e a fundamental A child is especially vulnerable to violations to his

e not a right, and indeed in many countries, this type of e not a right, and indeed ning children, whether undertaken by public or private so- ning children, Usually, the possibility of conducting personal contact visits contact personal conducting of possibility the Usually, Article 19

eads: ovides that: In all actions concer All States Parties to the Convention are obliged to ensure that the action of the obliged to ensure All States Parties to the Convention are

The text of the American Convention r Argentina has also ratified the United Nations Convention on the Rights of the Argentina has also ratified the United Article 19 r 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 Every minor has the right to the measures of protection required by his condition 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, Personal contact visits ar Personal contact visits 4. Rights of the Child:

peatedly indicated that visiting rights ar that visiting peatedly indicated liberty implicit in the condition of the prisoner. in the condition liberty implicit - pro right to the corollary, and, as a inmate the of and freedom integrity the personal of parties. affected the all for family the of tection or her rights because, by virtue of their very status, as children have no legal standing in standing no legal have as children status, very of their by virtue because, rights her or of special care and attention, and that the State has a duty to adopt all “measures of “measures all to adopt duty a has State the that and attention, and care special of by his condition.” required protection Child, which pr 103. 102. visit is not even an option. an even not is visit out carried internalof its the organization as well as state system are and legal apparatus within certain boundaries of legality. […] 101. exceptional circumstances of imprisonment, the state must establish positive provisions positive provisions imprisonment, the state must establish of exceptional circumstances relations. right to maintain and develop family guarantee the to effectively 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 of law. necessity of any measures restricting this right must adjust themselves to the ordinary and and right must adjust themselves to the ordinary this restricting necessity of any measures of imprisonment. requirements reasonable 99. 112 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 measure wasdeemednecessary requiring thatitbeperformedbymedicalpersonnel. proper judicialauthorityto decideonthepropriety oftheprocedure, andintheevent against abuseoractualphysicaldamagethatcouldhavebeenoffered byrequiring the rights oftheConvention. ality whichare amongthenecessary conditionstotheimpositionofanyrestriction onthe without observingtherequirements oflegality, necessity, reasonableness andproportion - potentially couldhaveviolatedanumberoftherightsguaranteedbyConvention who didnothavethelegalcapacitytoconsent,apotentiallytraumaticprocedure that 104. taken toguaranteethechild’s rightsandwellbeing. whenever stateauthoritiestakeactionsthatmayinanywayaffect achild,specialcare is on their well being. situationsthatmayhavegraveconsequences most casestomakedecisionsconcerning The Commissiondoesnotconsiderthattheexistingr performing thesesearches andinspectionsunderthese conditions, theStateofArgen- fulfillment oftheirprisonvisits withoutjudicialandappr 116. […] c VIII.

4) 3) 2) case; 1) In Report IntheinstantcaseStateofArgentinahasproposed andperformedonaminor, The Commissionthusconcludes thatbyimposinganunlawfulconditionforthe

it mustbecarriedoutbyanappr it shouldbedeterminedbyjudicialor ther it onclusions must be absolutely necessary to achieve the lawful objective in the particular e must not exist an alternative measure;e mustnotexistanalternative No. 16/95,theCommission concluded that inorder to establish the law-

The state has a special duty to protect children and to ensure that,

Furthermore, thestatedid notgrantYtheminimumprotection

opriate healthprofessional. der; and equirements describedby the Chief opriate medicalguaranteesand

Inter-American Commission on Human Rights - X and Y v. Argentina 113 eputable

Case, pp. 31-2; Cuba Case, p. 62 (1983); and Cuba Case, p. Case, pp. 31-2; Miskito

d Minimum Rules on the Treatment of Prisoners states: d Minimum Rules on the Treatment national Justice, Lotus case, Judgment No. 9, 1927, Series A No. 10, pp. 31 and national Justice, Lotus case, Judgment No. 9, 1927, ema de Justicia, Ruling on the writ of amparo, Tomo 207 del Libro de Sentencias, Buenos Aires, de Sentencias, Buenos Aires, 207 del Libro Tomo ema de Justicia, Ruling on the writ of amparo, equest of petitioners, their identities have not been disclosed because of the minority of one victim identities have not been disclosed because of the minority equest of petitioners, their d Minimum Rules on the Treatment of Prisoners, adopted by the First United Nations Congress on of Prisoners, adopted by the First United Nations Congress d Minimum Rules on the Treatment espect the Court has stated that: , the European Court made such a connection regarding the parallel such a connection regarding Court made Netherlands, the European the Y v. case of X & of Appeals, 35972-X y otra; s/ writ of amparo-17/151-Int.IIda., Buenos Aires, April 25, 1989, para. IV. para. 1989, 25, April Aires, Buenos amparo-17/151-Int.IIda., of writ s/ otra; y 35972-X Appeals, of To affirm otherwise would be to recognize in those who govern be to virtually absolute power over their affirm otherwise would To

this topic, see the following Commission reports: Commission see the following topic, this ithin the framework of the protection of human rights, the word “laws” would not make sense without “laws” of human rights, the word ithin the framework of the protection In the case of Y, the Commission concludes that the State of Argentina also violated violated also Argentina of State that the concludes Commission the Y, of the case In Uruguay Case (1983-84), p. 130, paragraph 10. Standar 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 On provision, Article 8, in the European Convention on Human Rights, Judgment of 26 March 1985, Series A of 26 March Convention on Human Rights, Judgment Article 8, in the European provision, 91, para. 22. Vol. Article 37 of the United Nations Standar to communicate with their family and r Prisoners shall be allowed under necessary supervision W governmentalof authori- discretion sole the at restricted be cannot rights such that concept the to reference ties. subjects. OC-6, Series A No. 6, para. 27. In the Corte Supr November 21, 1989, pp. 105, para. 3. Permanent Court of Inter para. 24, No. A Series 1976, December 7 of Judgment Case, Handyside Rights, Human of Court European 41. In this r visits. and by receiving intervals, both by correspondence friends at regular At the r of the violations denounced. and the nature Court Ibid.

ndnotes

E 22 21 20 4 9 17 2 3 5 Article 19 of the Convention. […] 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.

Inter-American Commission on Human Rights

María Eugenia Morales de Sierra v. Guatemala

Case Nº 11.625

Report Nº 4/01

January 19, 2001 116 Gender-based Violence 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 February 22, 1995, the Inter-American Commission on Human Rights (herein- 109, 110, 113, 114, 115, 131, 133, 255, and 317 of the CivilCode of the Republic after “Commission”)received apetitiondatedFebruary8,1995,allegingthatArticles 1. […] 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 I.

The petitionersr The petitioners,theCenterforJusticeandInter On C laims P resented eported thattheconstitutionalityoftheselegalprovisions had

national LawandMaríaEuge- - Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 117 11 Article 131 states 16 7 esentation of vari- 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

otection of the law set forth in Article 24 of the American Con- otection of the law set forth in Article 24 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 pr At the outset, it is pertinent to note that, notwithstanding the pr 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 vention requires that national legislation accord its protections without discrimination. without discrimination. its protections national legislation accord that vention requires not necessarily discrimi- are in otherwise similar circumstances in treatment Differences natory. […] of and before Sierra to equal protection The right of María Eugenia Morales de the law 31. 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 118 Gender-based Violence dignity andworthofallhumanbeings.” American Courthasstated,theseprinciples“are inherent intheideaofoneness Duties ofManr 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 ofAllFormsDiscriminationagainstW 32. of theAmericanConvention,

In thepr The Commissionobservesthattheguaranteesofequalityand non-discrimination 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 oceedings before theCommission, theStatehasnotcontroverted that eflect essentialbasesfor theveryconcept ofhumanrights. Asthe Inter- 20 18 itmustbenotedthatArticle15.1oftheformerrequires 19 Statutorydistinctionsbasedonstatuscriteria, omen, 17 andthetermsofArticle29 Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 119 The fact that the Civil 21 - a matter of domes have been upheld as under study -based distinctions 22 requiring married women to depend on their husbands to represent the union–in the represent to husbands their on depend women to married requiring In By The gender

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 distinctionsestab- gender-based thatthe finds Commission the case instant the 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 this case María Eugenia Morales de Sierra–the terms of the Civil Code mandate a system Code mandate the Civil of Sierra–the terms de 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 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 the marital protect to 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. 120 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 ofwifeandhusbandtoequallyexer 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- the case of Guatemala and other States Parties, the Convention on the Elimina- 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 The petitionershaveindicatedthatthecitedarticlesofCivilCodeimpede In Article 23 discussed above, the challenged articles of theCivil Code establish distinctroles Article17(4),which derives from Article 16(1) of theUniversal Declaration 17(1) of the American Convention establishes rights pertaining to family life cise theirrightsandfulfill responsibili- 24 Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 121 om ensuring the “equality of rights and adequate om ensuring the “equality controvert the duty of the State to protect the family by mandating a regime by mandating a regime the family to protect the State the duty of controvert

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 fr The Commission finds 25

45. 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 balancing of responsibilities” within marriage, the cited provisions institutionalize 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 the home to 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.” 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. 122 Gender-based Violence one’s identity, anddefineone’s personal relationships. the abilitytopursuedevelopmentofone’s personalityandaspirations,determine pass arangeoffactorspertainingtothedignityindividual,including,forexample, r 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 48. State authoritieswhichinfringesintheprivatesphere. 47. 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 Convention, andisreasonable underthecircumstances. that anysuchregulation (or otheraction)comportswiththenormsandobjectivesof only bejustified,but required. Theguaranteeagainstarbitrarinessisintendedtoensure tion ofmatterswithinthatsphere isnecessarytoprotect therightsofothers,itmaynot estrict MaríaEugeniaMoralesdeSierra’s abilitytoexercise herprofession anddispose

The pr The petitionersclaimthatthecitedarticlesofCivilCode,particularlyasthey A principalobjectiveofArticle11istopr ovisions inquestionhavebeenupheldasamatterofdomestic lawonthe otect individualsfrom arbitraryactionby 26 27 Ofcourse,where Stateregula- 28 Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 123 - - - 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 egoing analysis, the State of Guatemala has failed to egoing analysis, the State of Guatemala Article 1 imposes both negative and positive obligations positive and negative both imposes 1 Article 31 cise of her profession cise of her - 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 for 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 rect effect on the victim in this case, in contravening her right to equal protection 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, their rights, and and fully exercise ates to impair or nullify the ability of women to freely gives rise to an array of consequences. 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. 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. fulfill its obligations under Article 1(1) of the American Convention to “respect 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 rightsof reasons uted under the rules of international public author law to the action or omission of any 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. 50. her exer Sierra--opposes 124 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. 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. tions betweenwomenandmen.” the recommendations issuedinReport86/98havebeen compliedwithinimportant 83. land. the State’s law, obligationsundernationalandinternational theyremain thelawof authoritieshaveidentifiedthesearticlesasincompatiblewith national andinternational […] VI.

37 The obligationtor On thebasisoffor Recognizing thatthedefenseandpr C

onclusions

espect andensure therights oftheConventionrequires the egoing analysisandconclusions, theCommissionfindsthat 33 “Traditional attitudesbywhichwomenare regarded otection ofhumanrightsnecessarilyrests first 34 36 Dejure ordefacto Althoughrelevant 38

35 Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 125 operty acquired during marriage [comunidad de ganan- operty acquired - repre esentation of the marital union). The husband shall otection of the wife). The husband must provide protection protection otection of the wife). The husband must provide ife employed outside the home). The wife may perform work, ife employed outside the home). The wife may perform Code establishes: “The husband may object to his wife pursuing activities outside the wife pursuing activities to his Code establishes: “The husband may object 115 of the Civil Code establishes: “(Representation by the wife). Representation of the marital union marital the of Representation wife). the by “(Representation establishes: Code Civil the of 115 ciales], the husband shall administer the marital property, exercising 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, Article 131 of the Civil Code establishes: “Under the system of absolute joint ownership [comunidad Article 131 of the Civil Code establishes: “Under the system of absolute joint ownership [comunidad absoluta] by husband and wife or community of pr Article 113 of the Civil Code establishes: “(W Article 110 of the Civil Code establishes: “(Pr 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 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 shall be exercised by the wife should the husband fail to do so for any reason 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.” Article 114 of the Civil Article sent the marital union, but both spouses shall enjoy 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, 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.” Article 109 of the Civil Code establishes: “(Repr ndnotes

E 8 4 7 3 5 6 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. […] 126 Gender-based Violence 25 22 19 16 13 11 28 27 26 24 23 21 20 18 17 15 14 10 9

See, CEDA See OC-4/84,para.66. See generally 21, “Equalityinmarriageandfamilyrelations,” U.N.Doc.HRI\GEN\1\Rev.1 at90(1994),para.7. See See e.g.,Eur Advisory OpinionOC-4, Convention onHumanRights),AdvisoryOpinionOC-1/82ofSeptember24,1982.SeriesANo.1. See I/ACourtH.R.,“OtherT See e.g.BelgianLinguisticsCase, of theConstitutionCostaRica,”January19,1984,para.56. See e.g.,I/ACourtH.R.,AdvisoryOpinionOC-4/84,“Pr See e.g.,Eur 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).Thefollowingmaybeexcusedfr and administertheirgoods.” cise parental authorityoverminorchildren, thehusband shallrepresent theminororincompetentchildren Article 255oftheCivilCodeestablishes:“Wher pr Article 133oftheCivilCodeestablishes:“(Administrationbywife).Administrationmarital See U.N.H.R. See generally and professional.) 29 (notingthatrespect forprivatelifeincludesrightto“establish and developrelationships,” bothpersonal cessing records childhoodandearlydevelopment);Niemetzv. concerning Germany, Ser. ANo.251-B,para. 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, restrictions, andresponsibilities asthoseestablishedin theforegoing articles.” Eur Guatemala ratifiedtheConventiononAugust12,1982. Seegenerally disposal ofcommonproperty.” de Vries v. TheNetherlands,Comm.No.182/1984,para.13. operty shall be transferred to the wife in the instances set forth in Article 115, with the same powers, . Ct.H.R.,Reesv. UnitedKingdom,Ser. ANo.106,17Oct.1986,para.50. generally, Committee on the Elimination of Discrimination against Women (CEDAW), General Recom. inter alia W, GeneralRecom.21,supra,para.24. . Ct.H.R.,KarlheinzSchmidtv. Germany, Ser. ANo.291-B,18 July 1994,para24,citing,Schuler- . Ct.H.R.,BelgianLinguisticsCase,Ser. ANo.6,p.34,para.10. , Eur. Ct.H.R.,Kroon v. TheNetherlands,Ser. ANo. 297-C,para.31(1994). , U.N.H.R.Committee,AtodelAvellanal v. Peru,Comm.No.202/1986,para.10.2. , Eur. Ct.H.R.,Gaskin v. UnitedKingdom, Ser. ANo.160(addressing interest of applicantinac- Committee, Toonan v. Australia, Comm. No. 488/1992, para. 8.3, citing, General Comment , id.;U.N.H.R.Committee,Broeks v. TheNetherlands,Comm.No.172/1984,para.13,Zwaan supra, para.55. reaties” SubjecttotheAdvisory JurisdictionoftheCourt(Art.64American supra. e husbandandwife,orcommon-lawspouses,jointlyexer oposed AmendmentstotheNaturalizationProvisions om exercising - Inter-American Commission on Human Rights - María Eugenia Morales de Sierra v. Guatemala 127 .L/V/II.95, Doc. 7 rev., Mar. 14, 1997, para. 102. Mar. .L/V/II.95, Doc. 7 rev., .L/V/II.98 doc. 7 rev., 13 April 1998. 13 7 rev., .L/V/II.98 doc. esent case the victim’s husband has not opposed the exercise of her profession. the exercise husband has not opposed victim’s esent case the supra, para. 23. , paras. 6, 7 23 (recording position of State itself that articles in question were not itself that articles in question were position of State supra, paras. 6, 7 23 (recording , at p. 1018-1020. supra , Report on the Status of Women, -American Convention on the Prevention, Punishment and Eradication of Violence against Women Punishment and Eradication of Violence Women against the Prevention, -American Convention on W, General Recom. 19, “Violence against women,” U.N. Doc. HRI\GEN\1\Rev.1, p. 84, at para. 11 General Recom. 19, “Violence against women,” U.N. Doc. HRI\GEN\1\Rev.1, W, elásquez Rodríguez Case, Interpretation of the Compensatory Damages Judgment, Judgment of August elásquez Rodríguez Case, Interpretation elásquez Rodríguez Case, para. 164; Godínez Cruz Case, para. 173. Case, para. 164; Godínez elásquez Rodríguez V 17, 1990, Series C No. 9, para. 27. See Report 28/98, 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 V General Recom. 19, 11.430, Mexico, OEA/Ser See, Report Nº 43/96, Case Published in, Report of the IACHR 1997, OEA/Ser Report of the IACHR 1997, Published in, See generally See, Inter Art. 7.e [ratified by Guatemala April 4, 1995]. preamble, (Convention of Belém do Pará), CEDA Belém do Pará, Art. 6(b). Convention of (1994); see generally, 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 in the pr As noted above,

33 36 37 38 32 34 35 29 30 31

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 130 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 IV. A I.

Article 7(1)oftheAmericanConvention guaranteeseverypersontherighttoper Right topersonalliberty(Article7oftheAmericanConvention Accor On January16,1996,theInter S ummary nalysis ding tothepetition,onJune4,1994agroup ofmilitarypersonneldetainedin

ThepetitionallegesthatonJune 4,1994,thesistersAna,Bea- -American CommissiononHumanRights(hereinafter - Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 131 - since

According to According 6 The IACHR has ascer This medical evidence

elated by the petitioners and borne 5 eats continued in that room, with the partici- room, eats continued in that After this, the mother was allowed to enter the After this, the mother was allowed to enter

On August 30, 1994, Ana and Beatriz González Pérez On August 30, 1994, Ana and Beatriz González Pérez oom near the checkpoint where the Tzeltal sisters were the Tzeltal sisters were oom near the checkpoint where

7 eatment and privacy (Articles 5 and 11 of the American eatment and privacy (Articles 5 and 11 e them to make them confess their membership in the EZLN … confess their membership in the EZLN e them to make them The petition states that the three sisters were then repeatedly raped by the then repeatedly sisters were The petition states that the three

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 The Commission will now discuss the events r An analysis must now be done of the information pertaining to what was said to An analysis must now be done of the information Right to humane tr The petitioners maintain that the thr The petitioners maintain

14. harass and tortur 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 out in documents that were not disputed by the Mexican State. out in documents that were office in San was included with the complaint filed on June 30, 1994 with the PGR’s Cristóbal de las Casas, Chiapas. tained that on June 29, 1994, Dr. Guadalupe Peña Millán, a certified medical practitioner, 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 reported. than 20 days after the facts were evident, more were have taken place in the closed r Convention) 28. of the American Convention. provisions detained in Chiapas, based on the applicable [...] 32. [...] B. 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 women. until 4:30 p.m. 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 132 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 timely fashion 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. medical examinationdoneofthethree sisters,aswellofthecircumstances surround - to provide anyclarification.” 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 UnitedNationsCommissiononHumanRightsr In The medicalr

the view of the IACHR, the document summarized above contains clear and de-

The“r Cir

cumstances of the interview: name of the subject and name affiliation of Inthatregard, Dr. PeñaMillánexplainsthatthewomen:“simultaneously eliable report” tobeprepared immediately by medicalexperts should 18 eport, whichwasnotdisputedbytheMexicanState,isdatedJune29, According totheseprinciples,theconductofdoctorsshould,atall

Themedicalreport provides adetaileddescriptionof the

They were also given a detailed description of ecently defined aseriesofprin- Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 133 These acts

The context in which The context in

eport and other evidence ez sisters falls within the param- Indeed, it relates the circumstances under which the circumstances Indeed, it relates

ecord of the subject’s story as given during the interview, story as given during the interview, of the subject’s ecord etation as to the probable relationship of the physical and relationship etation as to the probable eport should clearly identify those carrying out the examina- eport should clearly identify those carrying It adds “the report should also be provided in writing, where in writing, where should also be provided It adds “the report

and psychological examination: records of all physical and psycho- and physical all of records examination: psychological and eports, the parameters of which are defined by the United Nations, eports, the parameters of which are Authorship: the r Physical Opinion: an interpr History: a detailed r

The IACHR establishes, on the basis of the unchallenged r logical findings on clinical examination including appropriate 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. Pér The medical examination done of the González The medical r including alleged methods of torture or ill-treatment, the times when torture 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) - 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)

were perpetrated on June 4, 1994 in Altamirano, Chiapas, by a group of military officers perpetrated on June 4, 1994 in Altamirano, Chiapas, by a group were of their liberty. illegally deprived were sisters that the the time during eters established by the United Nations. - subjected to illegal interroga were available, that Ana, Beatriz, and Celia González Pérez sisters. tion, accompanied by physical abuse that included the rape of the three the interview took place with the level of detail necessary, with data that is sufficiently 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. 40. ap- representative to the alleged victim or must be confidential and must be delivered pointed by that person. appropriate, to the authority responsible for investigating the allegation of torture or the allegation of torture for investigating to the authority responsible appropriate, ill-treatment.” 41. 134 Gender-based Violence women victims.” quences of sexual violence are physically, emotionally and psychologicallydevastatingfor and inducecivilianstofleetheirhomesvillages.” women explainsthat“rapeduringwarfar antees allwomentherighttoa lifefree ofviolence. againstWomenishment andEradicationofViolence (BelémdoParáConvention)guar 46. of international humanitarianlaw.of international protected underArticles5and11oftheAmericanConvention,aswellguidelines civilian populationconstitutes,inanysituation,aseriousviolationofthehumanrights 44. and PunishtheCrimeofTorture definesthisaberrantpractice: of personswhohavebeendeprivedtheirliberty. tional instrumentclearlyprohibits torture andguaranteesrespect forthehuman dignity have 43. Pérez sistersandtheirmotherhadtofleehabitual residence andtheircommunity. IACHR establishesthat, as a result of the humiliation created by this abuse, theGonzález intimidate thethree womenbecauseoftheirallegedtieswiththeEZLN. these eventstookplacealsoleadsustoconcludethattheactswere committedinabidto under international law.”under international can benodoubtthatrapeandotherformsofsexualassault are expressly prohibited CriminalTribunalternational fortheformerYugoslavia (ICTY)expressly statedthat“there 45. or hiscorrespondence, orof unlawfulattacksonhishonororreputation.” be theobjectofarbitraryorabusiveinterference withhisprivatelife,family, hishome, right torespect ofthisprivacy andrecognition ofhisdignity, andstates that“noonemay

The IACHRpointsoutthatthe Inter Sexual violencecommittedbymembersofthesecurityfor Furthermor pain ormentalanguish. or todiminishhisphysicalmentalcapacities,eveniftheydonotcause use ofmethodsuponapersonintendedtoobliteratethepersonalityvictim as apenalty, or foranyotherpurpose.Torture shallalsobeunderstoodtothe tion, asameansofintimidation,personalpunishment,preventive measure, or mentalpainsuffering isinflictedonapersonforpurposesofcriminalinvestiga- Torture shallbe understood tobe any actintentionally performed whereby physical Article 5(1)oftheAmericanConventionstatesthat“everypersonhasrightto his physical, mental, and moral integrity respected.” e, Article11oftheAmericanConventionguaranteeseveryindividual 20

TheUnitedNationsSpecialRapporteuronviolenceagainst

Infact,initsfinalverdict intheČelebićicase,In- -American Conventiononthe Prevention, Pun- e hasalsobeenusedtoterrorize populations

TheAmericanConventiontoPrevent 21

Shealsoaddsthat“theconse-

- Article 5(2) of that interna ces ofaStateagainstthe

Furthermore, the - Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 135 The

22 24 Furthermore, Furthermore,

ed to be an especially In addition to the vio- In addition

In the Furundzija case, this

e has indicated that rape is Rape is resorted to either by to either by Rape is resorted

Being the object of this kind of abuse also Being the object of ecent years, particularly in cases referred to ecent years, particularly in cases referred

International case law, and the reports of the United Nations Special United Nations Special of the and the reports International case law,

Her testimony reveals that the person who sexually abused her told her person who sexually abused her told that the Her testimony reveals

25 Using similar language, the European Court of Human Rights stated: Using similar language, the European

23 international law, rape is a form of torture under certain circumstances. certain under torture of form a is rape internationallaw, Rapporteur evince a momentum towards addressing, through legal process, the 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 a violation of international as law. and, therefore, the interrogator himself or by other persons associated with the interrogation 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. As evidenced by international case law, the reports of the United Nations Human 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 ous forms. The concept has been developed in r grave and abhorrent form of ill treatment given the ease with which the offender with which the offender given the ease form of ill treatment grave and abhorrent of his victim. resistance can exploit the vulnerability and weakened Rape of a detainee by an official of the State must be consider Rape of a detainee by an official of the State 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 Rape produces physical and mental suffering for the victim. for and mental suffering physical Rape produces 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 date her. that both she and her husband were wanted for subversive activities… husband were that both she and her lence suffered at the time that it is perpetrated, victims usually sustain injuries and victims usually sustain injuries at the time that it is perpetrated, lence suffered pregnant. in some instances become In The United Nations Special Rapporteur against tortur The United Nations Special Rapporteur

49. 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. a method of physical torture that is used in some instances to punish, intimidate, and a method of physical torture humiliate. 136 Gender-based Violence of violations alsoconstituteaviolationoftherightthesepersons tohumanetreatment. guish andsuffering imposedonthecloserelatives ofthevictimsserioushumanrights 53. ation. privacy, which ledthemtofleetheircommunityinasituationoffear, shame,andhumili- 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. these actswere reported andneverinvestigatedinaccordance withdueprocess inMexi- and additionalactsoftorture reported bytheaggressors whentheyreleased them,since this caseandthepertinentanalysis,alsolendscredence tothereports ofdeaththreats of collaboratingwiththeEZLN. 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 facts established here are particularly serious, since one of the women raped tion. 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

the private lives of the four women and their families and an illegal attack on their

Giventhemannerinwhichtheywere assaulted,theaccusationsmadeagainstthem,

Based oninter In Ana, The Rights ofthechild(Article19 oftheAmericanConvention) Furthermore, therapetookplacewhilethree women were illegallydetained, the view of the Inter-American Commission, abuses targeting the physical, men- Beatriz, and Celia González Pérez were sexually assaulted as part of an illegal national humanrightscaselaw, undercertaincircumstances, thean- 27

Furthermore, theeventsdescribed herein represent aviolation

TheInter-American Commission,withinthecontextof 26

Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 137

- 31 fect in Mexico on the date on fect in Mexico on the ecommended that the Mexican State Article 2 of this instrument states: Article 2 of this instrument 30 - that the child is pro to ensure opriate measures espect and ensure the rights set forth in the present Con- set forth in the present the rights espect and ensure

29 ementioned instrument also states that “no child shall be subjected to ar ementioned instrument also states that “no States Parties shall take all appr States Parties shall r

The Committee on the Rights of the Child r The afor 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. The Convention on the Rights of the Child was in ef 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

the measures of protection required by his condition as a minor on the part of his of part the on minor a as condition his by required protection of measures the 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. family, society, and the state.” The Inter-American Court has determined that “both the 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.” 57. 56. to case occurred. to this which the events related 138 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 September2,1994,thePGRdecidedtotur The petitionersaddthatthismedicalexamination“indicatessexualinter The victimsinthiscaser The righttoafairtrialandjudicialpr Celia GonzálezPér ez was16yearsoldatthetimethatactsdescribedinthis eported theactsoftorture andrape,whichallegedlyoc- 33

otection (Articles8and25ofthe n overPreliminary Investigation64/94 35 34

course - Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 139 the PGJM closed the PGJM closed 38 -American Commission must determine whether the actions undertaken -American Commission must determine 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 has not State - of the representa on the part allegation of lack of interest the State’s ith regard This guideline is compatible with Article 25 of the American Convention, which This guideline is compatible with Article 25 of the American Convention, which The Inter W The

states: tives of the victims, CEJIL maintains that 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. by the Mexican courts in this case meet 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. 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. evidence that the victims enclosed therewith. The Inter-American Commission notes 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 […] 69. 140 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.

persons actinginthecourseoftheirofficialduties. or by this Convention, even though such violation may have been committedby fundamental rightsrecognized bytheconstitutionorlawsofstateconcerned recourse, toacompetentcourtortribunalforprotection againstactsthatviolatehis 1. The Eur In Rape isanaberrantact,which,becauseofitsverynatur The Inter 2.

the case oftheGonzález Pérez sisters, it has been noted that the medical examina- state; termined bythecompetentauthorityprovided forbythelegalsystemof granted.

c. toensure thatthecompetent authoritiesshallenforce suchremedies when Everyone hastherighttosimpleandpr a. toensur The StatesPartiesundertake: b. todevelopthepossibilitiesofjudicialr opean CourtofHumanRights has establishedthatwhenanindividualfilesa -American CourthasindicatedthatpursuanttoArticles8and25ofthe e thatanypersonclaimingsuchremedy shallhavehisrightsde- 41 ompt recourse, oranyothereffective emedy; and e, requires evidencethatis 42 Consequently, the - Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 141 In 48 43 In that regard, the Inter-American the Inter-American In that regard, 45 49 50 -American Commission has maintained that “when the State that “when the State -American Commission has maintained Nations Commission on Human Rights has formulated a series of prin- formulated a Human Rights has on Nations Commission 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 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: permits investigations to be conducted by 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 […] 81. 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. 142 Gender-based Violence 83. into thefactsrelated tothis casebythemilitarycourtsiscompletelyinappropriate. the Inter-American Courthasindicated: identify, and sanction the perpetrators of and accessories to human rights violations. As 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 85. and stripsthevictimsrelatives oftheabilitytodefendthemselves. combat impunity, sincethisencouragesthechronic repetition ofhumanrightsviolations avoid impunity. TheInter-American Courthasindicatedinthisregard thattheStatemust tigate human rightsviolations, prosecute those responsible, compensate victims,and 84. is categoricallyprohibitedlaw, by international of themilitarycourts.TheInter-American Conventionstresses thattorture inallitsforms here), there isno link to an activity by theArmed 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 the termsofConvention.” of theAmericanConvention,butveryrulelawinademocraticsociety fered. AsthisCourthasruled, Article25“isoneofthefundamentalpillarsnotonly rights violationsmaybeprosecuted andreparations obtained forthedamagessuf- lar, tosimple and prompt recourse, sothat,interalia,thoseresponsible forhuman guarantee toeveryindividualaccesstheadministrationofjusticeand,inparticu- Article 25inrelation toArticle 1(1)oftheAmericanConventionobligesStateto The actsofabusecommittedbythemembersArmedFor In thecaseunderanalysis,Inter Because oftheobligationsmentionedabove,Statehasanobligationtoinves American Convention imposes on States the obligation to prevent, investigate, 52 -American Commissionholdstheviewthat 51 and,forthisreason, the investigation 53 ces thatdeprived - Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 143 - , since, more than six years after the , since, more 55 has been defined as “the failure by States to fulfill their obligation to by States to fulfill “the failure has been defined as The Inter-American Court has maintained that: Court has maintained The Inter-American eport, the Inter-American Commission has assessed all the information avail- Commission has assessed eport, the Inter-American 54 56 onclusions C In this r This case is characterized by complete impunity 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. 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.” 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 […] 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. 144 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 espondence from thepetitionersdatedJanuary16,1996,page1. 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. CN.4/1998/54, January26,1998,paras13and14. women, includingitscausesandconsequences,inaccordancewithResolution1997/44 oftheCommission,E/ Mexico signedtheBelémdoParáConvention onJune10,1994(sixdaysaftertheeventsr of Law, Fall1999,page447. LawReview, Crimes,PaceInternational Evolution ofSexualAssaultsasInternational PaceUniversity School Samantha I.R 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. United Foundation Pr Case NºIT Annex, E/CN.4/RES/2000/43,April20,2000. tigation anddocumentationoftorture andothercruel,inhumanordegradingtreatment orpunishment. United Nations, Idem, page2. Idem Corr The four Nations, -96-21 T, Ruling,para.476,November16,1998. victims in this case are members of the Tzeltal community in Mexico.When ess, NewYork, 1999,pages380and381. yan, FromCriminal Court: thefuriesofNankingtoEumenidesInternational Torture andothercruel,inhumanordegradingtreatment. Report submittedbyMrs.RadhikaCoomarasway, SpecialRapporteuronviolenceagainst

Women havebeensubjectedtovariousformsofsexual Anarticlerecently publishedbyPaceUniversitystates:

Taken from LouisHenkinetal,HumanRights.

In efforts to demoralize and humili-

Principlesontheeffective inves- 62 Intheinstantcase,

Article4ofthis elated tothis

The

Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 145 These

It is a battle

This judicial decision was This judicial decision was

In order to address the right to humane to address In order

espected; the right to personal liberty and secu- right to personal liberty and espected; the It is a message of castration and emasculation.

Inter-American Court, Case of Villagrán Morales et al., cited above, Inter-American

orture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Other Cruel, Inhuman or Degrading Treatment and orture Consequently, the Court determined that “the manner in which the remains of the the remains the Court determined that “the manner in which Consequently,

eet children of Guatemala, the Inter-American Court established that the victims had of Guatemala, the Inter-American eet children Sexual violence against women is meant to demonstrate victory over the men of the other Sexual violence against women is meant to demonstrate

e than the honour of the victim, it is the perceived honour of the enemy that is targeted in the e than the honour of the victim, it is the perceived In the decision, the Inter-American Court cites its own precedent in the case of Blake (Judgment Court cites its own precedent In the decision, the Inter-American

egard, the report of the Special Rapporteur states the following: of the Special Rapporteur the report egard, ruling of December 10, 1998, para. 163. Anto Furudzija, ruling of December 10, Prosecutor v. ding to international standards related to protection, torture can be perpetrated not only through the be perpetrated not only through can torture protection, to international related ding to standards ecent decision, the Inter-American Court explains: Court ecent decision, the Inter-American -American Court, Villágran paras. 194-196. Morales case cited above, -American Court, Cantoral Benavides Case, Judgment of August 18, 2000, paras. 100 and 101. -American Court, Cantoral Benavides Case, Judgment , (57/1996/676/866), Ruling of September 25, 1997, para. 83. (57/1996/676/866), Ruling Turkey, v. Aydin opean Court of Human Rights, Inter Mexico deposited the instrument of ratification for the Convention on the Rights of the Child on September 21, 1990. victims were treated, which were sacred to their relatives and to their mothers, constituted a form of cruel to their relatives sacred which were treated, victims were for them.” and inhuman treatment para. 174. Court of Human Rights and the United of January 24, 1998, para. 115) and other decisions of the European Nations Committee on Human Rights. Inter In the case of the “str and assassinated by State agents, who, in addition, abandoned their abused been kidnapped, tortured, bodies to the elements. among men fought over the bodies of women. United Nations, E/CN.4/1998/54 cited above, para. 13. among men fought over the bodies of women. United Accor for mental, or moral suffering acts that cause acute physical, physical violence, but also through of exercise the victim. Both the Convention against T 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. Perhaps mor In a r rity; the right not to be subjected to torture; the right to have the inherent dignity of her person respected 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 paras. 119 and 431. United Nations, E/CN/4/1986/15, Eur ICTY of Appeals by a ruling of July 21, 2000. confirmed in the ICTY Court In that r seen and often experienced as a means of humiliating perpetration of sexual violence against women; it is the opposition. their women. have failed to protect who group The right to have her physical, mental and moral integrity r her physical, mental and The right to have pages 199 and 200. IACHR, Report 5/96 cited above, 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 rights instruments.” human embodied in regional and freedoms of all human rights among others: rights include,

30 29 28 27

22 24 25 26 23 146 Gender-based Violence 38 35 34 33 31

illegal detention,andrapeofthevictims. examination wouldentail,particularlybefore theentityrepresenting thepersonsresponsible forthetorture, themselves oncemore tothepsychologicaltorture thatanotherround ofquestioningandgynecological Public Prosecutor’s Office.Thisisallthemore truesincetheyhavealready obtainedthetestimonyoftheir not beconsidered valid,sincethiswouldmeanignoringtheinvestigation already conducted bytheFederal on June4,1994.Forthisreason, therecommendation ofmilitarythattheinvestigationbe reopened can- The for The ones responsible forconductingtheinvestigation. appear before amilitary institution. Furthermore, theentities involved, in this case the Army, would be the It shouldbenotedthat,duetothe 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,whohadendur In thatr 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 GeneralMarioGuillermoFr Corr Corr 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 The casewasalsodocumentedbyAmnestyInter to minoritygroups orindigenouscommunitiesandothervulnerablechildren.” (para.16) allocate resources tochildren, “particularlychildren livingand/orworkinginthestreets, children belonging Add. 13,February7,1994,para.17.TheCommitteealsorecommended totheauthoritiesthatState United victims, who had already provided a statement to the appropriate court, had no obligation to subject espondence from thepetitioners ofJanuary16,1996.Inthatcorrespondence, theystate: espondence from thepetitioners ofMay27,1999,page8. egoing implies a violationandformofaggression that is the sameor worsethanthatexperienced Nations, Concluding observations of the Committee on the Rights of the Child: Mexico. CRC/C/15/ egard, thepetitionersstate: nature ofthecase, it waslogical that thevictimswouldbeterrifiedto omow, responsible forcriminalproceedings inthemilitarycourt, national inareport onMexicoentitled“Three Tzeltal ed torture atthehandsof the membersofthatinstitu- Inter-American Commission on Human Rights - Ana, Beatriz y Celia González Pérez v. Mexico 147 , ecommend- eas of family, civil, penal, labour eas of family, osecute, and impose sanctions in cases of human rights osecute, and impose sanctions in cases of human rights orld Conference on Women, Beijing Declaration and Platform for Action, para. Beijing Declaration and Platform for Action, on Women, orld Conference ea of women’s rights, one of which is particularly relevant in this case: in this rights, one of which is particularly relevant ea of women’s d Report on the Situation of Human Rights in Colombia (1999), pages 175-186. In that regard, (1999), pages 175-186. In that regard, d Report on the Situation of Human Rights in Colombia fense is to fall under military criminal jurisdiction, there must be a clear link, from the outset, between a clear link, from must be fense is to fall under military criminal jurisdiction, there -American Court, Velásquez Rodríguez Case, Preliminary Exceptions, Judgment of June 26, 1987, para. Exceptions, Judgment Rodríguez Case, Preliminary -American Court, Velásquez espondence from the petitioners dated May 27, 1999, pages 5 and 6. the petitioners dated espondence from military penal system of justice has several unique characteristics that bar access to effective and impartialand effective to access bar that characteristics unique several has justice of system penal military opean Court, Aydin v. Turkey, cited above, para. 107. Turkey, v. opean Court, Aydin Constitutional Court of Colombia, Decision C-358, August 5, 1997. IACHR, Thir If an of 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 violations has been the subject of rulings of the Inter-American Commission: violations has been the subject of rulings of the Inter-American 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 the Constitutional Court of Colombia has indicated: IACHR, 1995 Annual Report, Report Nº 10/95 (Case 10.580, Manuel Stalin Bolaños Quiñonez), Ecuador IACHR, 1995 Annual Report, Report Nº 10/95 (Case The unsuitability of military courts to investigate, pr and commercial law in order to ensure the implementation of the principles and procedures of all relevant 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 United Nations, Fourth W 232(d). Eur Nº 2. United Nations, E/CN.4/2000/L.54 cited above, Principle Nations Commission on Human Rights r 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 para. 48. The Beijing Platform establishes several strategic objectives and actions for ensuring equality and combating several strategic objectives and actions for ensuring The Beijing Platform establishes discrimination in the ar customary laws and legal practices in the ar Review national laws, including Corr Inter 91. 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,

43 44 45 48 49

41 42 148 Gender-based Violence 62 56 55 54 53 52 -American Court,CaseofDurandandUgarte,RulingAugust16,2000,para.117.Thecaseper 50 51

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 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… as definedby United Nations,Expertonthequestionofimpunitypersonswhoviolatecivilandpoliticalrights, Idem, paras.174and176. Inter Inter Inter In thatr Inter graphs 540to564. IACHR, ReportonthesituationofhumanrightsinMexico It istheobligationofStateMexico,basedonitsconstitutionalprinciplesandinter In itsr 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 -American Court,PaniaguaMoralesetal.,JudgmentofMarch 8,1998,para.173. -American Court,Velásquez RodríguezCase,JudgmentofJuly29,1988,para.166. -American Court,LoayzaTamayo Case,JudgmentofNovember27,1998,para.169. eport onMexico,theIACHRstated: egard, seetheInter-American Court,CaseofCantoralBenavidesmentionedabove,paras.95-103. the United Nations, Doc. E/CN.4/Sub.2/1997/20, para. 20. Amnesty International hasalso the UnitedNations,Doc. E/CN.4/Sub.2/1997/20, para.20.Amnesty International supra, pára.577.See,inthesamereport, para- nationally - Inter-American Commission on Human Rights

Maria da Penha Maia Fernandes v. Brazil

Case Nº 12.051

Report Nº 54/01

April 16, 2001 150 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. 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. 15 years,ithasfailedtotaketheeffective measures required toprosecute andpunish Maria daPenhahassuffered from irreversible paraplegiaandotherailmentssince1983. murder andfurtheraggression inMayandJune1983. 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. The petitionmaintainsthattheStatehascondonedthissituation,since,formor I.

(…) W The petitionallegesthattheFederativeRepublicofBrazil(her On August20,1998,theInter S ummary ith respect tothemeritsofcase,Commission concludes thattheState -American CommissiononHumanRights(hereinafter

ThepetitionallegesviolationofArticle1(1)

Asaresult ofthisaggression, einafter “Brazil”or

In viewof the e than

The

Inter-American Commission on Human Rights - Maria da Penha Maia Fernandes v. Brazil 151

- 17 ase In Ceará alone (the place where the In Ceará alone (the place where

C the

erits The Commission has received information on the high The Commission has received

M the

also allege violation of Article 24 of the American Convention in the 24 of violation of Article also allege of

In its special report on Brazil in 1997, the Commission found that there on Brazil in 1997, the Commission found that there In its special report before the Law (Article 24 of the Convention) and Articles II and Articles II and and the Convention) 24 of (Article Law the before

ed to men, women are the victims of domestic violence in disproportionate the victims of domestic violence in disproportionate ed to men, women are egard, the Inter-American Commission notes that it has followed with spe- Commission the Inter-American egard, 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

eover, even where these specialized stations exist, it remains frequently the case the frequently these specialized stations exist, it remains even where eover, sis naly Mor 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 Compar In that r Equality The petitioners

V. a numbers. 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 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 number of domestic attacks of women in Brazil. number of domestic attacks of women 47. 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, by their wives. cial interest developments related to respect for the rights of women, particularly those the rights of women, particularly those for to respect developments related cial interest domestic violence. to related 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 relation to the right to equality before the law and the right to justice enshrined 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. B. XVIII of the Declaration 45. […] 152 Gender-based Violence 49. 24,103 ledtopoliceinvestigations,according tothatreport. 1994, of86,815complaintsfiledbywomenwhowere assaultedinthehome,only reported tospecializedstations are actuallyinvestigated. where statisticshavebeen kept,theyhaveshownthatonlyonepercent oftheoffenses legislative, judicial, and administrative spheres. of violation,theCommissionalsonotesthatpositivemeasures havebeentakeninthe 50. (Report oftheSanPabloCatholicUniversity complaints fordomesticviolenceagainstwomenleadtoconviction oftheaggressor. violence are putonholdwithoutanyconclusionbeingreached. ContraaMulhereImpunidade:UnaQuestãoPolítica(1995). Paulo, AViolencia 48. 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

In thisanalysisexaminingthepatter Other r That 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 report also makes reference to various studies that demonstrate thatin cases eports indicate that 70%ofthecriminal complaints pertaining to domestic n shownbytheStateinresponding tothiskind ,1998). 18 The Commission points to three initia-

(UnidodeMulheres deSao

Only2%ofthecriminal

Inter-American Commission on Human Rights - Maria da Penha Maia Fernandes v. Brazil 153 eflects the great eflects the great The CVM provides the The CVM provides

- prostitu e, trafficking in persons, forced The petitioners are seeking a finding of violation by the seeking The petitioners are

, the Commission has ratione materiae and ratione temporis , the Commission has ratione materiae -American instrument by means of which American States acknowledge by means of which American States acknowledge -American instrument - the same res or has shared elationship, whether or not the perpetrator shares r that occurs in the community and is perpetrated by any person, including,

idence with the woman, including, among others, rape, battery and sexual abuse; b. tion, kidnapping and sexual harassment in the workplace, as well as in educational tion, kidnapping and sexual harassment in the workplace, as well as in educational institutions, health facilities or any other place; and Article 2 Violence psy- against women shall be understood to include physical, sexual, and chological violence: a. among others, rape, sexual abuse, tortur The Convention of Belém do Pará is an essential instrument that r The Convention of Belém do Pará is an essential As indicated earlier 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,

competence to hear the case pursuant to the provisions 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. women: following definition of violence against the extent of this problem, establish guidelines to be followed, make 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 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 right of women to a life free to protect to identify specific measures made effort and violence, both outside and within the family circle. aggression 51. do Pará, the inter 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. 154 Gender-based Violence Duties oftheStates against Women states: Inter-American ConventiononthePrevention, Punishment,andEradicationofViolence to alifefree ofviolence(Article following rightsofwomenwhentheyhavebeenviolatedbyactsviolence:theright second, violenceperpetratedorcondonedbytheState. by twoconditions:first,violenceagainstwomenasdescribedinsections(a)and(b);and, the resulting dutyoftheState setforthinArticle7ofthatinstrument. tection againstactsthatviolateherrights(Articles4(a),(b),(c),(d),(e),(f),and(g), before andofthelaw; tosimpleandprompt recourse toacompetentcourt forpro- moral integrity, herpersonalsafety, andpersonaldignityrespected, toequalprotection 54.

a. eradicate suchviolenceandundertaketo: sue, byallappropriate means andwithoutdelay, policiestoprevent, punishand The StatesPartiescondemnallformsofviolenceagainstwomenandagree topur Article 7 b. conformity withthisobligation; to ensure that their authorities, officials, personnel,agents, and institutions act in W it occurs. c. 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;

ithin thescopeofapplicationCMV, reference ismadetosituationsdefined that isperpetratedorcondonedbythestateitsagentsr establish take all adopt include apply r efrain from engaginginany actorpracticeofviolenceagainstwomenand due diligence to prevent, investigate and impose penalties for violence legal measures to require the perpetrator to refrain from harassing, inappropriate measures, including legislative measures, to amend or re- in their domestic legislation penal, civil, administrative and any other fair and effective legal procedures for women who have been sub-

3), therighttohaveherlife,physical,mental,and

TheCMVprotects, interalia,the egardless ofwhere

Article7ofthe - -

Inter-American Commission on Human Rights - Maria da Penha Maia Fernandes v. Brazil 155 - e that Further

ineffective ineffective

The Commission

nandes has enjoyed and continues nandes has enjoyed The failure to prosecute and convict to prosecute The failure

es as may be necessary to give effect to to effect be necessary to give es as may fered by Maria da Penha is part of a general pat- by fered - ineffective That general and discriminatory judicial

The condoning of this situation by the entire system The condoning of this situation by the entire

, and the inability of victims to obtain compensation provide an , and the inability of victims to obtain compensation provide egoing, the Commission holds the view that this case meets the However, in this case, which represents the tip of the iceberg, in this case, which represents However, 19 adopt such legislative or other measur legislative or other adopt such establish the necessary legal and administrative mechanisms to ensur administrative mechanisms necessary legal and establish the Commission must consider, in relation to Articles 7(c) and (h), the measures measures the (h), and 7(c) Articles to relation in consider, must Commission

In light of the for The Given the fact that the violence suf women subjected to violence have effective access to restitution, reparations or reparations restitution, to access effective have to violence subjected women and remedies; and effective other just h. The impunity that the ex-husband of Mrs. Fer The impunity that the g. this Convention.

judicial action, impunity conditions for domestic violence and tolerance on the part of the State, defined in the conditions for domestic violence and tolerance on the part of the State, defined example of the lack of commitment to take appropriate action to address 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. tern of negligence and lack of effective action by the State in prosecuting 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 degrading practices. these prevent 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. the perpetrator under these circumstances is an indication that the State condones 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 by her ex-husband. of the aggression consequences is exacerbating the direct and factors that social, and historical roots only serves to perpetuate the psychological, sustain and encourage violence against women. 56. 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. taken by the State to eliminate the condoning 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. to this case; rather, to enjoy is at odds with the internationalto enjoy is at odds with voluntarily assumed by the State commitment Convention of Belém do Pará. when it ratified the 55. 156 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 mation received from policestations. Maia Fer Asar The Based onthefacts,whichhavenotbeendisputed,andfor The Inter C State has violated the rights of Mrs. Fernandes and failed to carry out its duty State has violated the rights of Mrs. Fernandes esult of joint action taken by the Government andtheCNDM[NationalCouncilforWomen’sesult ofjointactiontakenbytheGovernment Rights], nandes, Maria da Penha“Sobrevivi Posso Contar ” onclusis -American CommissiononHumanRightsreiterates totheStatefollow-

Fortaleza 1994, page150; data basedon infor egoing analysis,the - Inter-American Commission on Human Rights - Maria da Penha Maia Fernandes v. Brazil 157 - support for efforts support for efforts

The program also recommends that the Government implement the also recommends The program

tion of Human Rights in Brazil. See the chapter pertaining to the rights of Brazilian women in the 1997 IACHR Special Report on the Situa to the rights of Brazilian women in the 1997 IACHR See the chapter pertaining to develop gender-specific approaches in the training of State agents and in the establishment of 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 sphere. status of women in the labor Punishment, and Eradication of Prevention, Convention on the Inter-American decisions contained in the Violence against Women. rights. Rights Council for Women’s support for the National the rights of women include: aimed at strengthening Governmentthe by proposed initiatives the Rights, Human on Program National the of context the In 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; in the Penal and Civil Code on parental provisions peal of certain discriminatory

Inter-American Commission on Human Rights

Jessica Lenahan (Gonzalez) et Al v. United Estates

Case 12.626

Report Nº. 80/11

July 21, 2011 160 Gender-based Violence tic violenceanderraticreckless behavior. department inasmalltown–kneworshouldhaveknowntobeassociatedwithdomes- lege that by June 22, 1999, Simon Gonzales was a name that “the CRPD – a small police private property andobstructing publicofficialsattheCRPDstation.Thepetitionersal- with hisdaughters,fortwobreak-ins toJessicaLenahan’s house,andfortrespassing on Rock PoliceDepartment(hereinafter “CRPD”),amongthese,forroad ragewhiledriving Between JanuaryandMay, 1999,SimonGonzaleshadseveralrun-inswiththeCastle ued displaying erratic and unpredictable behavior thatharmed her andtheirdaughters. 19. rately from him. attempted tocommitsuicide,JessicaLenahanfiledfordivorce andstartedlivingsepa- their three daughtersLeslie, KatherynandRebecca(ages7,810).In1999,afterhe Simon Gonzalesallegedlybeganadoptingabusivebehaviortowards JessicaLenahanand descent, livedinCastleRock,ColoradoandmarriedSimonGonzales1990 18. A. […] at least100yards awayfrom thislocationatalltimes. children; excludedSimonGonzalesfrom thefamilyhome;andordered himto“remain directed SimonGonzalesnotto“molestordisturbthepeace”ofJessicaLenahantheir Courts on May 21, 1999. 20. to theBureau, includingtheCastleRockPoliceDepartment. database registry thatisaccessible to anystateorlocalenforcement agencyconnected of Investigation’s centralregistry ofrestraining orders, whichisacomputerizedcentral the order wasissued,thepetitionersreport thatitwasentered intotheColoradoBureau contained “importantnoticesforrestrained partiesandlawenforcement officials. front pageofthetemporaryrestraining order notedincapitallettersthatthereserve side order….,” according totherequirements of Colorado’s mandatoryarrest law. officials asfollows:“You shalluseevery reasonable meanstoenforce this restraining The reverse sideofthetemporaryrestraining order allegedlydirected lawenforcement III.

They allegethatafterJessicaLenahanseparatedfr The petitionersallegethatJessicaLenahan,ofNative-AmericanandLatin-American Position ofthePetitioners Jessica Lenahanr P ositons

equested andobtainedarestraining order from theColorado the 12 The petitioners indicate that the temporary restraining order P arties 11 ” 13 ” Thepetitionersaffirmthatthe om SimonGonzales,hecontin- 16 10 . In1996, 15 . When 14 ” Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 161 - ” The 18 der, her for der, estraining order, estraining order, 19 estraining order, the petitioners claim that on Tuesday, the petitioners claim that on Tuesday, estraining order, ” 17 petitioners allege that approximately ten hours after Jessica Lenahan’s first call first Lenahan’s Jessica after hours ten approximately that allege petitioners The Despite the existence of the r On June 4, 1999, the state court made permanent the temporary r state court made permanent the temporary On June 4, 1999, the Jessica Lenahan alleges that, despite the issuance of the temporary or the issuance alleges that, despite Jessica Lenahan

mer husband continued to terrorize her and the children. She called the CRPD to report the CRPD to report She called and the children. her continued to terrorize mer husband calls most of her the police ignored but order, restraining violations of the this and other them scolded me for calling of me, and they would be dismissive “they words: and in her and asking for help. petitioners claim that, upon Jessica Lenahan’s request, the judge restricted Simon Gonza- restricted the judge request, upon Jessica Lenahan’s petitioners claim that, that Simon and Jessica the girls to one “mid-week dinner visit,” les’ weekly contact with arrange. Lenahan would previously to the police, Simon Gonzales drove up to and parked outside the police station at 3:15 to the police, Simon Gonzales drove 10-15 minutes, and then began shooting a.m. on June 23, 1999, waited approximately then and Gonzales, Simon killed and shot and fire returned police The station. the at the bodies of Leslie, Katheryn and Rebecca in the back of Simon Gonzales’ discovered having been shot to death.(…) truck, apparently […] […] 24. the daughters and their friend from his three June 22, 1999, Simon Gonzales abducted home. Simon Gonzales allegedly abducted his daugh- of Jessica Lenahan’s in front street since time for visitation had not been previously order, ters in violation of the restraining - over the next ten hours, Jessica Lenahan re arranged with Jessica Lenahan. In response, - the enforce and to request missing, the children peatedly contacted the CRPD to report ignored to the petition, the police continuously According order. ment of her restraining CRPD, the from officers police various with conversations her During help. cries for her children, the abducted had Gonzales Simon that communicated clearly Lenahan Jessica dinner visit, and was no pre-arranged that there order, in violation of a valid restraining that she was concerned for the safety of her missing children. […] 32. 22. physical custody of the such as granting Jessica Lenahan sole including slight changes time. Gonzales occasional visitation or “parenting girls and allowing Simon three 21. 162 Gender-based Violence as NativeAmericanwomenandthosepertainingtolow-income groups. United Statesfemalepopulationare ataparticularrisktodomesticviolenceacts,such numbers are scarce. also frequently exposed to domestic violence in the United States, although definitive battered spouseattemptstoseparatefrom herabuser. gain control overdepartingspousesandchildren, batterers willescalateviolenceafterthe 95. 61. A. […] forcement agencies. are more atriskandmore inneedoflegalprotections andinterventions from lawen- battered parent seeks to leaveanabusiverelationship, thisisthetimewhere thechildren of themaritalrelationship and/orreestablish thebatterer’s control. escalation ofviolence,theabductionchildren isameanstocoerce theresumption the majorityofdomesticviolencevictimsinUnitedStates. 94. violence atthehandsofanintimatepartnereachyear. highlight thatintheUnitedStatesbetweenoneandfivemillionwomensuffer non-fatal lence intheUnitedStates,attimeofeventsandpresent. Thepetitioners 93. and thequalityofstateresponse, ascontexttotheirclaims. presented informationrelated tothesituationofdomesticviolenceinUnitedStates 92. […] ties, theCommissionconcludesthatfollowingfactshavebeenproven: IV. A

Empirical After acompr Findings ofFact Studies Both partiesr Thr 6.

nalysis oughout the processing of this case before the Commission, both parties have Problem ofDomesticV and investigations presented by the parties reveal that women constitute research presented to the Commission also confirmsthatinorder to re- ecognize thegravityandprevalence oftheproblem ofdomesticvio- ehensive review oftheargumentsandevidencepresented bythepar 150 153 iolence intheUnitedStatesandColorado 151 145 Inmanycasesandaspartofthe (…) 148 Somesectorsofthe 152 Therefore, whena 149 Children are - Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 163 171 Police officers In practice this A 2002 national 160 174 158 The Commission has 175 e the law does not mean is widely considered an achieve- considered is widely 157 The principle of non-discrimination is 170 ” 161 epeatedly established that the right to equality and non dis- epeatedly established that the right to equality However, one of the most serious historical limitations of civil restraining restraining serious historical limitations of civil one of the most However, 159 efore, the creation of the restraining order of the restraining the creation efore, The Right to Equality before the Law and the Obligation not to Discriminate The Right to Equality before the Law and the Right to Special Protection (Article (Article II), the Right to Life (Article I), and VII), established in the American Declaration

1. The Commission has r Considerations of Law The Commission has clarified that the right to equality befor Ther

still tend to support “traditional patriarchal gender roles, making it difficult for them to making it difficult for gender roles, “traditional patriarchal still tend to support female victims. identify with and help orders has been their widespread lack of enforcement by the police. of enforcement lack has been their widespread orders means that States have the obligation to adopt the measures necessary to recognize and recognize to necessary measures the adopt to obligation the have States that means introducing the law; to abstain from equality of all persons before guarantee the effective either certain groups discriminatory towards that are in their legal framework regulations in their face or in practice; and to combat discriminatory practices. […] 107. crimination contained in Article II of the American Declaration is a fundamental principle crimination contained in Article II of the American system of human rights. of the inter-American […] […] B. […] 109. that the substantive provisions of the law have to be the same for everyone, but that the that the substantive provisions application of the law should be equal for all without discrimination. ment in the field of domestic violence in the United States, since it was an attempt at States, since it violence in the United field of domestic ment in the seriously. violence would be treated domestic the state level to ensure […] 97. survey found that female victims of intimate partner violence are significantly more likely more significantly are victims of intimate partner violence survey found that female against their order or restraining to obtain a protective than their male counterparts assailants. the backbone of the universal and regional systems for the protection of human rights. human of protection the for systems and regional the universal of backbone the 164 Gender-based Violence Declaration which has undoubtedly attained the status of customary international law.Declaration whichhasundoubtedlyattainedthestatusofcustomary international problems ofdiscrimination andviolenceagainstwomen. American systemaswellhasconsistentlyhighlightedthestrong connectionbetweenthe violence. age, raceandethnic origin, among others, which increases their exposure to actsof nation onthebasisofmore thanonefactorduringtheirlifetime,basedonyoung 113. of women. humanrights bodies have moreoverarious international considered Statefailures in the realm ofdomesticviolence notonlydiscriminatory, butalsoviolationstotherightlife 112. form ofdiscrimination,anddenieswomentheirrighttoequalitybefore thelaw. State’s failure toactwithduediligenceprotect womenfrom violenceconstitutesa strong linkbetweendiscrimination, violenceandduediligence,emphasizingthata 111. nation, severely impairingandnullifyingtheenforcement ofwomen’s rights. 110. or theyapplywithouttextualdistinctions. tential discriminatoryimpact,evenwhentheirformulationorwording appearsneutral, the principlesofequalityandnon-discrimination;ananalysisthatshouldassesstheirpo- underscored thatlawsandpoliciesshouldbeexaminedtoensure thattheycomplywith from domesticviolenceacts perpetratedbyprivateactors. principles havealsobeenappliedtoholdStatesresponsible forfailures toprotect women races andsocialclasses. of themostpervasiveformsdiscrimination,affecting womenofallages,ethnicities, part, hasbeenrecognizedlevelasahumanrightsviolationandone at theinternational human being,respect forwhich theenjoymentofallotherrightsdepends. 114. VII oftheAmericanDeclaration. two factors, their sex and age. This principle of special protection is contained in Article dren, for example, since they maybe at agreater risk of humanrightsviolations based on the CommissionunderArticles I,IIandVIIoftheAmericanDeclarationthatitwillreview rights instrument. tance ofthe right to life is reflected human inits incorporationintoeverykeyinternational

The Commissionhasalsor V In thesamevein, Gender In lightoftheparties’arguments andsubmissions,ther 186 182 Protection measures are considered particularly criticalinthecaseofgirl-chil- -based violence is one of the most extreme and pervasive forms of discrimi- TheCommissionhasdescribedtherighttolife“assupreme rightofthe 184 Therighttolifeisoneofthecore rightsprotected bytheAmerican the international and regionalthe international systems have pronounced on the 181 ecognized thatcertaingroups ofwomenfacediscrimi- 176 178 180 e are three questionsbefore Domesticviolence,forits 183 ” Theimpor 177 Theinter- 179 These 185 - Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 165 e obligated . Furthermore, Furthermore, . . 200 201 esponsible for the conduct of non- . It has moreover held that the rights contained . It has moreover 199 otect women from domestic violence domestic otect women from Commission also underscores that a State’s breach of its obligation to protect protect to obligation its of breach State’s a that underscores also Commission Legal obligation to pr Legal obligation to

In its analysis of the legal obligations contained in the American Declaration, the In its analysis of the legal obligations contained a. American Declaration under Article II of the The In light of these considerations, the Commission observes that States ar In light of these considerations, the Commission

in the American Declaration may be implicated when a State fails to prevent, prosecute prosecute when a State fails to prevent, in the American Declaration may be implicated individuals private by perpetrated violence domestic of acts sanction and State actors in certain circumstances Commission has also noted that a State can be held r Commission has also noted that a State can […] 119. in the following section. The first is whether the obligation not to discriminate contained not to discriminate is whether the obligation section. The first in the following women to protect member States to act requires of the American Declaration in Article II form of discrimi- an extreme domestic violence as understanding domestic violence; from legal obligation and scope of this to the content second question pertains nation. The due diligence Declaration in light of the internationallyunder the American recognized the right to to protect analyzed in conjunction with the obligations principle, and when Dec- American the of VII and I Articles in contained protection special provide to and life in this case. this obligation was met by the authorities is whether laration. The third the Commission notes that both the universal system of human rights and the inter- the and rights human of system universal the both that notes Commission the to the International Covenant on Civil and American system of human rights – referring and other internationalPolitical Rights, the American Convention, - have instruments that the duty of the State to implement human rights obligations in practice underscored actors to the acts of private and response can extend to the prevention under the American Declaration to give legal effect to the obligations contained in Article effect under the American Declaration to give legal - established in Article II extend to the pre II of the American Declaration. The obligations component of the State’s of violence against women, as a crucial vention and eradication with this In accordance forms of discrimination. and indirect duty to eliminate both direct domestic women from to protect for failures may be incurred State responsibility duty, violence perpetrated by private actors in certain circumstances. 121. women from domestic violence under Article II may also give rise to violations of the right women from special to life established in Article I of the American Declaration, and the duty to provide principles These cases. given in Declaration American the of VII Article under protection in the following section. will be reviewed 120. 166 Gender-based Violence ing GeneralAssemblyresolutions adoptedbyconsensus 124. women perpetratedbyprivate actors,includingthosepertainingtogirl-children due diligenceprincipleasabenchmarktoruleoncasesandsituations ofviolenceagainst universal andregional systems and platforms lifies theenjoymentoftheirhumanrightsandfundamentalfreedoms against women and girl-children, and that the failure to do so “violates and impairs or nul- due diligencetoprevent, investigate, prosecute andpunishtheperpetratorsofviolence United NationsHumanRightsCouncil,hasunderscored thisyearthatStatesmustexercise these problems machinery andjudicialsystem-toadequatelyeffectively prevent andrespond to structure – including the State’s legislative framework, public policies, lawenforcement or omissionsofprivateactors.Thisdutyencompassestheorganization oftheentire state circumstances underwhichaStatemaybeobligatedtoprevent andrespond totheacts contexts, includingdomesticviolence.Thisprinciplehasalso been crucialindefiningthe when itcomestoviolenceperpetratedagainstwomenofvarying agesandindifferent dard asawayofunderstandingwhatState’s humanrightsobligations meaninpractice 125. acts ofviolence,whentheseare committedbyeitherStateornon-Stateactors a range of circumstances to mandate States to prevent, punish, and provide remedies for inter 122. dard incasesofviolenceagainstwomenhighlights particular fourprinciples.First, 126. requiring Stateaction munity’s growing recognition of violenceagainstwomenasahumanrightsproblem problem ofdomesticviolence. Thisconsensusisareflectioncom- oftheinternational tions towards theproblem ofviolenceagainstwomen;aconsensusthatextendstothe over theuseofduediligenceprincipletointerpret thecontentofStatelegalobliga- 123.

national legal system and its standards on state responsibility. It has been applied in This consensushasfoundexpr The inter The Commissionnotesthattheprincipleofduediligencehasalonghistoryin and DomesticV b. The evolvinglawandpractice r The Commissionmor

The AmericanDeclaration,theDueDiligencePrinciple 205 national communityhasconsistentlyreferenced theduediligencestan- 211 , treaties . BoththeInter-American CommissionandtheCourthaveinvoked 203 iolence . 206 , views from treaty bodies eover observesthatthere is abroadconsensus international 209 , andothersourceslaw. ofinternational Forexample,the ession in a diversity of international instruments,includ- ession inadiversityofinternational elated totheapplicationof duediligencestan- 207 , custom 204 , broadly-approved declarations 208 , jurisprudence from the 210

.” 202 212 . . Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 167 . - 221 . . Fourth, the 218 215 . States must adopt 214 . Second, they underscore the link underscore . Second, they 213 . 216 . It also extends to the obligations a State may have to. It also extends to the obligations a State 217 . On the other, it is linked to the international that recognition . On the other, . This stems, on the one hand, from the broadly-recognized in- the broadly-recognized . This stems, on the one hand, from 220 219 otection related to the right to life is considered especially rigorous in rigorous especially to the right to life is considered otection related otection of the right to life is a critical component of a State’s due diligence ob- due diligence of a State’s otection of the right to life is a critical component d, they emphasize the link between the duty to act with due diligence and link between the duty to act with d, they emphasize the In light of these considerations, the Commission observes that the evolving stan Thir The duty of pr The pr

the due diligence duty of States to protect and prevent violence has special connotations special has violence prevent and protect to States of duty diligence due the in the case of women, due to the historical discrimination they have faced as a group ternational obligation to provide special protection to children, due to their physical and children, to protection special ternationalprovide to obligation emotional development between discrimination, violence against women and due diligence, highlighting that violence against women and due diligence, between discrimination, prevent to against women also involves measures violence the States’ duty to address that perpetuates this problem to the discrimination and respond international and regional systems have identified certain groups of women as being at identified certain groups international systems have and regional having been subjected to discrimination based particular risk for acts of violence due to and women pertaining to ethnic, among these girl-children, than one factor, on more by States in the adoption a factor which must be considered racial, and minority groups; all forms of violence to prevent of measures 130. the scope and reach to interpret relevant due diligence principle are to the related dards cases of States’ legal obligations under Articles I, II, and VII of the American Declaration in taking place in the domestic context. Cases of violence against women and girl-children the required measures to modify the social and cultural patterns to modify the social and men and of conduct of measures the required based on customary practices and other practices prejudices, women and to eliminate roles and on stereotyped or superiority of either of the sexes, the idea of the inferiority for men and women. 127. the obligation of States to guarantee access to adequate and effective judicial remedies judicial remedies to adequate and effective the obligation of States to guarantee access acts of violence they suffer for victims and their family members when the case of girl-children 129. internationalinternational incur may State a that established consistently have bodies sanction and investigate, diligence to prevent, to act with due for failing responsibility apply to actions a duty which may violence against women; for acts of reparations offer certain circumstances by private actors in committed prevent and respond to the actions of non-state actors and private persons to the actions of non-state actors and respond and prevent 128. entire the to pertains obligation This legal violence. of acts from women protect to ligation the security of entrusted with safeguarding state institution, including the actions of those the State, such as the police forces 168 Gender-based Violence murdered by a parent in a domestic violence situation, and the authorities had already should have known of a situation of risk tect children from domestic violenceresulting in their deatheventhoughtheyknewor the right to life when their authorities failed to undertake reasonable measures to pro- 133. abuse from takingplace abused inthehomesetting,andfailedtoadoptpositivemeasures toprevent further in caseswhere socialserviceshadalready recognized ariskofharmtochildren whowere with theauthorities.Thislineofreasoning hasalsobeenfollowedbytheEuropean Court tion “toprevent thesedegrading practices the prompt investigation, prosecution, andsanctionoftheseacts,butalsotheobliga- duty toactwith due diligencetowards domesticviolencebroadly, encompassingnotonly the problem ofviolenceagainst womenanddiscriminationinthedomesticsetting violence, whichpromoted their repetition, andreaffirmed theinextricablelink between ofStatetoleranceandjudicialinefficiencytowardsa generalpattern casesofdomestic rights violationsappliestocasesofdomesticviolence tion ofStatestoactwiththeduediligencenecessaryinvestigateandsanctionhuman part, established in the case of principle toindividualcasesofdomesticviolence.TheInter-American Commission,forits 131. prevent, investigate,sanctionandoffer remedies. the State’s legalobligationsundertheAmericanDeclarationtoactwithduediligence of violenceagainstwomenperpetratedbyprivateactorsrequire anintegratedanalysisof 132. ance ofprotection orders failed toactdiligentlyprotect them.Therecognition ofriskwasreflected in theissu- had already recognized ariskofharmtothevictimand/orherfamilymembers,buthad question ofknowledge,onecommonfeature oftheserulingsisthattheStateauthorities failed toundertakereasonable measures toprotect themfrom harm.Indeterminingthe and/or other family members, created bythe estranged husband,and the authorities the authorities knew of a situation of real and immediate risk to the wife, her children, protect victimsfrom imminentactsofdomesticviolencewhentheyhaveconsidered that Committee havealsoissuedanumberofrulingsfindingStates responsible forfailures to proceedings and/or herfamilymembersinthefilingofcomplaints

In Inter In ther several of these cases, the States have been held responsible for violations to national andregional humanrightsbodieshavealsoappliedtheduediligence 228 ealm ofprevention, theEuropean CourtofHumanRightsandtheCEDAW inresponse tothevictim’s and/orherfamilymembersrepeated contacts 229 225 . , thedetentionofaggressor Maria Da Penha Maia Fernandes 230 . Among these are cases where children were 223 .” Furthermore, itfoundthe existenceof 222 227 .The Commissioninterpreted the , andtheinstitutionofcriminal 226 , assistancetothevictim v. Brazil that the obliga- 224 . Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 169 - . Lastly, the . Lastly, 234 - of domes . Given the nature 233 cumstances of this case, the Commission proceeds to proceeds cumstances of this case, the Commission . eviously held in cases involving the American Declaration, eviously held in cases involving the American 236 esponse of the authorities in this case . The Court has established that authorities should consider the that authorities should consider the . The Court has established 232 . 231 Analysis of the r . the analysis of the cases referred to, the European Court of Human Rights has ad- has Rights Human of Court European the to, referred cases the of analysis the

235 As the Commission has pr In Considering the specific cir In the following section, the Commission will apply these considerations to the In the following section, the Commission c.

national human rights systems 135. not bound to follow the judgments are System while the organs of the Inter-American constructive insights of international supervisory bodies, their jurisprudence can provide and inter to regional common and application of rights that are into the interpretation vanced important principles related to the scope and content of the State’s obligation to to the scope and content of the State’s related vanced important principles the obligation to Court has considered The European acts of domestic violence. prevent when holding the State responsible not results, means, and as one of reasonable protect of altering the outcome prospect that had a real measures it failed to take reasonable or mitigating the harm 134. review: i) whether the state authorities at issue should have known that the victims review: in a situation of imminent risk of domestic violence; and ii) whether the authori- were these acts. The Commission’s them from to protect measures ties undertook reasonable Police examination in this case will not be limited to the actions of just the Castle Rock the organization and co- due diligence obligation requires Department, since the State’s domestic violence victims to protect State structure of the work of the entire ordination imminent harm. from specific case of Jessica Lenahan and Leslie, Katheryn and Rebecca Gonzales. specific case of Jessica Lenahan and Leslie, 136. 137. prevalence of domestic violence, its hidden nature and the casualties of this phenomenon and the casualties of this phenomenon its hidden nature of domestic violence, prevalence even in an obligation which may be applicable measures; in the adoption of protection their complaints victims have withdrawn cases where Court has ruled that a State’s failure to protect women from domestic violence breaches violence breaches domestic from women protect to failure State’s a that ruled has Court does not need to be inten- of the law and that this failure their right to equal protection tional recognized the risk involved after one of their parents had filed complaints related to had filed complaints of their parents involved after one the risk recognized domestic violence tic violence, under certain circumstances authorities may have reason to know that the to know authorities may have reason circumstances tic violence, under certain on the part of the aggressor, of threats withdrawal of a complaint may signify a situation that possibility investigate to required be minimum at a may the State or 170 Gender-based Violence this determination;thattheyunderstood thecharacteristicsofproblem ofdomestic represents a judicial determination of risk and what their responsibilities were in light of were aware ofitsexistence anditsterms;thattheyunderstoodaprotection order This required thatthe authorities entrustedwiththeenforcement oftherestraining order coordinated fashiontoenforce thetermsofthisorder toprotect thevictimsfrom harm. tion, theStatewasobligatedtoensure thatitsapparatusresponded effectively andina 145. reasonable effort toprotect theallegedvictimandherchildren from violence. of aviolation.Theorder authorizesandrequires lawenforcement officialstouseevery the arrest oftheaggressor inthepresence ofinformationamountingtoprobable cause employing theword “shall”–toactdiligentlyeitherarrest ortoseekawarrantfor this order when needed. The order expressly mandates law enforcement officials – by were strict;andthatlaw enforcement authoritieswere responsible forimplementing the justicesystemincludedlanguageinthisorder indicatingthatitsenforcement terms 144. indicator ofwhichactionscouldhavebeenreasonably expectedfrom theauthorities. of imminentriskdomesticviolenceuponbreach ofthetermsorder. Itisalsoan mining whethertheStateauthoritiesshouldhaveknownthatvictimswere inasituation or inactioninresponding to thefactspresented inthiscase.Itisakeycomponentdeter order -isarelevant elementinassessingthehumanrightsimplicationsofState’s action mestic violencesituationthrough theissuanceofarestraining order –andtheterms ofsaid 143. protection implemented bythepolice,sincetheyrepresent anassessmentofriskandaformState measures atthefederaland statelevelstoensure thatprotection orders are effectively The UnitedStatesitselfacknowledgesinitspleadingsthatithasadoptedaseriesof her children and/orotherfamily members–willsuffer harmwithoutpoliceprotection. the product of a determination from a judicial authority that a beneficiary – a woman, the partofrestrained party, andneedStateprotection. Thisrecognition istypically recognition ofriskthatthebeneficiarieswouldsuffer harmfrom domesticviolenceon 142. […]

Ther In lightofthisjudicialr W The Commissionconsidersthattheissuanceofar i.

ith respect tothequestion of whichactionscouldhavereasonably beenexpected, The authorities’knowledgethatvictimswereinasituationofrisk efore, theCommissionconsiders thattheState’s recognition ofriskinthisdo- 241 . ecognition ofrisk,andthecorresponding needforprotec- estraining order signalsaState’s - Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 171

- . 246 , the dispatchers and officers and dispatchers the , 245

esents below some observations concerning the CRPD response concerningesents below some observations response the CRPD and the morning of June 23rd that she was concerned and the morning that she of June 23rd over the whereabouts Measures undertaken to protect the victims Measures undertaken nd

Second, by 8:49 p.m in the evening of June 22nd, Jessica Lenahan had informed the The Commission pr that the police of does not have any information indicating First, the Commission ii.

153. police that Simon Gonzales had taken the girls to another jurisdiction in Colorado without were Rebecca and Leslie locate Katheryn, to officers’ actions police the notice. However, morning.next the early found of- police The were bodies their until Rock Castle to limited butficers should have called the Denver police department to alert them of the situation, taken themmight have Gonzales Simon midnight that They knew by do so. they failed to for them there. but they failed to perform any actions to search to the Pueblo Area, of her daughters. While Jessica Lenahan did indicate at a point in the evening that she of her daughters. While Jessica Lenahan daughters harm his would Gonzalez Simon not think did ficers who responded to Jessica Lenahan’s calls and those who visited her house ever responded to Jessica Lenahan’s ficers who and their to ascertain its terms order the permanent restraining reviewed thoroughly they took note of the ex- information indicates that obligations. Available enforcement throughout Lenahan provided that Jessica on the information based of the order istence information, and not on the this regarding the evening, and their conclusions and biases Jessica Lenahan that from heard as soon as they For example, actual terms of the order. no follow- was there time, with parenting Gonzales Simon provided order the protection time. Jessica Lena- limited this parenting order up to determine whether the terms of the the evening of throughout repeatedly, and han told dispatchers and officers consistently, June 22 from the evidence presented by the parties. the evidence presented from 152. […] 151. - re proper violations. A of potential to reports trained to respond were violence; and and training on how directives or the existence of protocols have required sponse would placed by calls such as those to and how to respond orders, restraining to implement Jessica Lenahan. apparently applied only their personal perceptions in determining that the girls were safe that the girls were in determining applied only their personal perceptions apparently it is also evident that information the record, From with their father. because they were adequately communicated was not order pertaining to the existence of the restraining the evening, and that Jessica throughout between the dispatchers and police officers questions during each of her calls Lenahan was consistently asked the same 172 Gender-based Violence officers thatthe restraining order hadbeenviolated.TheCommissionhasmanifested pleadings has presented as a defense that Jessica Lenahan never reported to the police though theywere aware thatthiswasadomesticviolencesituation.TheStateitself inits to callthembackthroughout theevening,andtocontact SimonGonzalezherself,even whether therestraining order hadbeenviolated.TheykeptonaskingJessicaLenahan dence thattheydidnotunderstandwere theonesresponsible forascertaining 158. thinking thekidsare gone had madesomearrangementssince“that’s alittleridiculousmakingusfreak outand back ona“non-emergencyline,”andtoldhershewishedthat sheandSimonGonzales 9:57 p.m.toreport thatherchildren were stillnothome,thedispatcheraskedhertocall seriousness ofthesituation.WhenJessicaLenahancalled CPRDforathir 157. even thoughhewassubjecttoarestraining order had a sense of relief that the children were at least in a known location with their father, appeared tobea“misunderstanding” betweenMr. andMs.Gonzales,theofficers State concedesinitspleadingsthat,from thepointofviewCRPD,thissituation derstandings andmisinformationregarding theproblem ofdomesticviolence. Even the police officers,whenassessedasawholethroughout thistimeperiod,displaysmisun- of June 22 156. from JessicaLenahandespite hereightcontactswiththepoliceduringthatevening. tion suchasthephysicaldescriptionsofchildren. Thisinformationwasneverrequested tion intothescreens forthe “AttempttoLocate”becauseshewasmissingcrucialinforma- for SimonGonzalesandhisvehicle – between2:153:25a.m.-tofindtheguidelinesenteran“AttemptLocateBOLO” in theirresponse. Forexample, theundisputedfactsshowthatittookadispatcheranhour tential restraining order violationsinvolvingmissingchildren, whichcontributed todelays protocols ordirectives inplaceguidingpoliceofficers onhowto respond to reports ofpo- 155. would havebeenimportantinunderstandingtheriskofaviolationprotection order. d, thefilebefore a theCommissionalsoshowsthatpoliceofficersneverdid ofemotionalissues,andunpredictable police. Thishistorydisplayedapattern behaviorthat thorough checkofSimonGonzales’previous criminal background andcontactswiththe 154.

Sixth, theCommissionnotesthatpoliceofficersthr Some statementsdisplaythatpoliceofficersdidnotunderstandtheurgencyor Fifth, thelackoftrainingCastleRockpoliceofficersthr Fourth, theinformation Thir nd and the morning of June 23 andthe morning 249 .” before the Commission indicates there were apparently no 247 . Shealsoreported havingproblems enteringinforma- rd was evident. Theresponse of the Castle Rock 248 . oughout theeveningevi- oughout theevening d timeat Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 173 ; - - 256 . 250 . Palsulich initially had to decline 254 . The record before the Commission before . The record 253 . The State has not contested this point, 255 . Simon Gonzales contacted Palsulich at 6:00 p.m. Simon Gonzales contacted 251 . Within this context, there is also a high correlation . Within is also a high correlation this context, there 257 es are particularly serious since they took place in a context particularly es are considerations, the Commission concludes that even though the Commission concludes considerations, the the established facts also show systemic failures not only from the CRPD, butCRPD, the from only not failures systemic show also facts established the Conclusions

. Simon Gonzales went to Palsulich’s house at 7:10 p.m on June 22, 1999 with Leslie, house at 7:10 p.m to Palsulich’s . Simon Gonzales went Seventh, These systemic failur iii. Based on these

252 159. purchased On June 22, 1999, Simon Gonzales of Investigations. the Federal Bureau from William handgun with 9 mm ammunition, from 9mm George Palsulich, who held a Taurus 1992 License since a Federal Firearms a problem that has disproportionately affected women - especially those pertaining to pertaining those - especially women affected has disproportionately that a problem - since they constitute the major ethnic and racial minorities and to low- income groups holders order ity of the restraining between the problem of wife battering and child abuse, exacerbated when the par between the problem legislation and the recognizes Commission though the Even separate. a marriage in ties Katheryn and Rebecca Gonzales to purchase this gun Gonzales to purchase Katheryn and Rebecca the sale since the FBI refused the background check, but the FBI later called and informed check, but the the background the sale since the FBI refused Palsulich that the transaction had been approved - themselves re its concern are the position that victims mistakenly take on how States defenseless and in which leaves them measures, monitoring the preventive sponsible for reprisals of the assailant’s becoming the victims danger of where there has been a historical problem with the enforcement of protection orders of protection with the enforcement a historical problem has been there where 160. and Re- Jessica Lenahan and Leslie, Katheryn to protect the necessity State recognized domestic violence, it failed to meet this duty with due diligence. becca Gonzales from vic- these protect to and ready coordinated, organized, duly not was state apparatus The implementing the restraining domestic violence by adequately and effectively tims from which constituted a form of discrimination in violation to protect failures at issue; order of Article II of the American Declaration. 161.

nor it has indicated how the background check of a person, such as Simon Gonzales, nor it has indicated how the background The approved. been have could history, criminal a having and order restraining a to subject did not show up in the apparently order State has not explained either why the restraining check. data performed as part of the background of review on June 22, 1999, in response to an advertisement Palsulich had placed in the newspaper to an advertisement Palsulich had placed response on June 22, 1999, in the gun and ammuni- concerning purchase the sale of the gun, asking whether he could tion indicates that the seller processed a background check through the Federal Bureau of In- the Federal Bureau check through a background processed indicates that the seller to make the sale to Simon Gonzalez vestigations in order 174 Gender-based Violence obligation incasesofdomesticviolence this phenomenon these measures hadnotbeensufficientlyputintopracticeinthepresent case programmatic efforts oftheUnitedStatestoaddress theproblem ofdomesticviolence, 164. effective, however, iftheyare diligentlyenforced. women victimsandtheirchildren toprotect themfrom imminent harm. Theyare only from righttolifeviolationsrequires thattheauthorities inchargeofreceiving reports of 165. more critical. as beneficiaries–madetheadequateimplementationofthis protection measure even need forprotection –through theissuanceofaprotection order whichincludedthem care, prevention and guarantee. The State’s recognition of the risk of harm and the and from deprivationsoftheirlifeduetoageandsex,withspecialmeasures of Gonzales, theStatehadareinforced dutyofduediligencetoprotect themfrom harm that mayberequired foritsprotection. InthecaseofLeslie,KatherynandRebecca to protect andprevent violationstothisright,through thecreation oftheconditions person isarbitrarilydeprivedorhisherlife.Theyare alsounderapositiveobligation under theAmericanDeclaration,Statesare notonlyrequired toguaranteethatno girl-children underArticle VII oftheAmericanDeclaration.Aswithotherobligations a violationoftheirrighttolifeunderArticleIandspecialprotection as protect themfrom domesticviolencenotonlywasdiscriminatory, but alsoconstituted lishes thatthefailure ofthe UnitedStatestoadequatelyorganizeitsstatestructure to of thevictims is aproblem thatdisproportionately affects women,sincetheyconstitutethe majority in thedischargeoftheirduties,Statesmusttakeintoaccountthatdomesticviolence must alsobeimplementedinpractice.AstheCommissionhasestablishedpast, 163. ber States. protection ofthelaw. Thisduediligenceobligation inprincipleappliestoallOASMem- of theirlegalobligationtorespect andensure theright nottodiscriminateandequal as aserioushumanrightsviolationandanextreme formofdiscrimination.Thisispart en from domesticviolence:aproblem widelyrecognized community bytheinternational 162.

The State’ In thecaseofLeslie,KatherynandRebeccaGonzales,Commissionalsoestab The States’dutiestopr The Commissionunderscor 259 s dutytoapplyduediligence actexpeditiouslytoprotect girl-children . Children are alsooftencommonwitnesses,victims,andcasualtiesof 260 . Restrainingorders are criticalintheguaranteeofduediligence otect andguaranteetherightsofdomesticviolencevictims es thatallStateshavealegalobligationtoprotect wom- 261 . Theyare oftentheonlyremedy availableto 258 . - Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 175 o- .” 269 . The police officers’ . The police officers’ 264 . In this case, the police . In this case, 262 .” Her pleas for police action be- 266 . The Commission accentuates that accentuates Commission The . n the insensitive nature of some of the n the insensitive nature 267 . The police officers should also have been aware that should also have been aware . The police officers 263 . 265 . The Commission also underscores the internationally-recognized principle that principle internationally-recognized the underscores also Commission The . As part of its conclusions, the Commission notes that when a State issues a pr As part of its conclusions, the Commission The Commission notes with particular concer

268 response throughout the evening was uncoordinated, and not conducive to ascertaining and not conducive to ascertaining uncoordinated, the evening was throughout response had been violated by Simon Gonzales. whether the terms of the order 166. the protection who requested this has safety implications for the women tection order, - the prob may aggravate her family members. Restraining orders and her children order, the towards directed the aggressor from in reprisals lem of separation violence, resulting legal the need of victims to receive which increases a problem woman and her children, has been issued. Jessica Lenahan has kind of this order after an State the from protection find her to actions more taking from desisted she how Commission the before declared them, since she to protect State would do more daughters that evening thinking that the order held a restraining law enforcement officials “shall respect and protect human dignity and maintain and human dignity respect and protect officials “shall law enforcement uphold the human rights of all persons in the performance of their duties came more disturbing as the evening progressed evening the as disturbing more came the children were at an increased risk of violence due to the separation of their parents, due to the separation of their parents, risk of violence at an increased were the children his criminal back- contact with Jessica Lenahan, and to maintain Simon Gonzales’ efforts that were and/or directives of no protocols the Commission knows Moreover, ground. of missing reports respond to police officers at hand on how to in place to guide the orders violence and protection in the context of domestic children missing persons have the capacity to understand the seriousness of the phenomenon of the seriousness to understand the have the capacity persons missing them, and to act immediately perpetrated against of violence appear to have assumed that Jessica Lenahan’s daughters and their friend would be safe friend would be daughters and their Lenahan’s have assumed that Jessica appear to is There father. and Rebecca’s he was Leslie, Katheryn Gonzales because with Simon violence and fatal of the connection between domestic international broad recognition have should officers CRPD the and parents, by perpetrated children against violence this link been trained regarding CRPD comments to Jessica Lenahan’s calls, considering that in her contacts she demon- calls, considering that in her contacts CRPD comments to Jessica Lenahan’s strated that she was concernedand daughters. For example, well-being of her for the time at 9:57 p.m. to when Jessica Lenahan called the CPRD for a third as noted earlier, still not home, the dispatcher told her she wished that were her children that report ridiculous a little arrangements since “that’s she and Simon Gonzales had made some gone out and thinking the kids are making us freak 167. this form of mistreatment results in a mistrust that the State structure can really protect protect can really in a mistrust that the State structure results this form of mistreatment these the social tolerance toward harm, which reproduces from women and girl-children acts 176 Gender-based Violence access judicial remedies when theyhavesuffered humanrightsviolations protection containedinArticle VIIoftheAmericanDeclaration. established inArticleIoftheAmericanDeclaration,relation totheirrightspecial and RebeccaGonzales,thatthisfailure constitutedaviolationoftheirrighttolife State failure to undertake reasonable measures to protect the life of Leslie, Katheryn the lawunderArticleIIofAmericanDeclaration.TheCommissionalsofindsthat of theirobligationnottodiscriminate,andaviolationrightequalitybefore and herdaughtersfrom domestic violence,constitutedanactofdiscrimination,abreach the UnitedStatestooffer a coordinated andeffective response toprotect JessicaLenahan 170. the followingsection. circumstances ofLeslie,Katheryn andRebeccaGonzales’death,aswillbediscussedin extended tooffering Jessica Lenahanaremedy forthesefailures andtoinvestigating the nahan andherdaughtersfrom domesticviolencedidnotconcludethatevening.They 172. […] 169.

able andeffective istence ofsuchremedies thatdemonstratesduediligence, butratherthattheyare avail- 173. society, totakeeffective actiontosanctionsuchacts “since society sees noevidence of willingness by theState,as representative ofthe women fostersanenvironment ofimpunityandpromotes therepetition ofviolence 168. corresponding righttoobtainreparations fortheharmsuffered dependent tribunalthatestablisheswhetherornotaviolation hastakenplace;andthe violated; toobtainajudicialinvestigationconductedby competent, impartial and in the rightofeveryindividualtogoatribunalwhenany his orherrightshavebeen 25 oftheAmericanConventiononHumanRights,whichis understood toencompass: is similarinscopetotherightjudicialprotection andguaranteescontainedinArticle unpunished andthevictim’s fullenjoymentofhumanrightsisnot promptly restored,

Based ontheseconsiderations,theCommissionholdsthatsystemicfailur The Commission Article XVIIIoftheAmericanDeclarationestablishesthatallpersons ar 2. The inter The Commissionr

The righttojudicialpr -American systemhasaffirmed formanyyearsthatitisnottheformalex- 273 . Therefore, whenthe State apparatusleaveshumanrightsviolations also observesthattheState’s obligationstoprotect JessicaLe- eiterates thatStateinactiontowards casesofviolenceagainst otection underArticleXVIII 270 .” 272 . 271 e entitledto . Thisright e of - Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 177 . . 279 274 es to . The Commission 275 . States must hold public officials 277 e are State failures, negligence and/ failures, State e are . inquiry on its own motion and promptly inquiry 280 . 278 . According to this principle, the failures of the State in this case of the State in this to this principle, the failures . According will discuss how the obligations under Article XVIII apply to the XVIII apply to the under Article obligations the discuss how will 276 Claims related to remedies for the non-enforcement of a protection order Claims related to remedies for the non-enforcement

i. of State parties to adopt legal measur The Commission has identified the duty The Commission The Commission also considers that when ther The Commission also considers that when The State should undertake this systemic

accountable – administratively, disciplinarily or criminally - when they do not act in ac- disciplinarily or criminally - when they do not act in accountable – administratively, with the rule of law cordance A delay in this inquiry constitutes a form of impunity in the face of acts of violence A delay in this inquiry constitutes a form of impunity in the face of acts of violence their repetition against women and promotes 177.

The same principle applies when a State allows private persons to act freely and with and freely persons to act a State allows private principle applies when The same in the governing of the instruments rights recognized the detriment of the impunity to system. inter-American […] 176. for the non-enforcement to remedies i) claims related order: given case in the following the investigation of Leslie, Katheryn and to related and ii) claims order; of the protection and to access to information pertaining allegations including deaths, Gonzales’ Rebecca the right to truth. that victims acts of violence, as one side of their obligation to ensure imminent prevent mechanisms access judicial protection can adequately and effectively or omissions to protect women from imminent acts of violence, the State also has the imminent acts of violence, women from or omissions to protect This in the future. repetition their to prevent obligation to investigate systemic failures that investigation of the State structures involves an impartial, serious and exhaustive inquiry into including a thorough order, of a protection in the enforcement involved were involved the individual actions of the public officials to adequately and effectively organize its apparatus to ensure the implementation of apparatus to ensure organize its and effectively to adequately of Jessica Lenahan and also violated the right to judicial protection order the restraining Leslie, Katheryn and Rebecca Gonzales. 178. the State fails to comply with its positive duties under international positive duties under to comply with its the State fails human rights law has identified restraining orders, and their adequate and effective enforcement, among enforcement, effective and their adequate and restraining orders, has identified these legal measures […] 179. 178 Gender-based Violence implicating therighttolifeofgirl-children obligation and thedue diligence principle, this obligation is particularlycriticalin cases of thetruthwhathashappened against womentoaccessjudicialpr 181. formalities withouttheStategenuinelyseekingtruth investigation “wasnottheproduct ofamechanicalimplementationcertainprocedural les, andnotthemurder ofLeslie,KatherynandRebeccaGonzales mainly focusedonclarifyingthefactssurrounding theshootingdeathofSimonGonza - Investigations andonebytheCriticalIncidentTeam ofthe18thJudicialDistrict,butthese by thepoliceofficers,butfailtoprovide anyfoundationforthispremise shooting attheCRPDstation,andthattheywere notstruckbyanyoftherounds fired conclude insummaryfashionthatSimonGonzalesmurdered hisdaughtersbefore the circumstances related tothegirl-children deaths.Documentsrelated totheinvestigations reports before the Commission indicate as their main objective the clarification of the on theefforts ofthevictim orhernext-of-kin one responsible forascertaining thetruthonitsowninitiative,andthisdoesnotdepend this area and impartial,mustbeconductedinaccordancestandards withinternational in 184. […] Each girlwasfoundtobeshot intheheadandchestfrom multipleangles to theconclusionthatSimonGonzales’s bulletswere theonesthatkilledhisdaughters. 187. undertaken bytheStaterelated tothecaseathand 186. […] fying thecause,timeandplaceofdeathsLeslie,KatherynRebeccaGonzales. take, onitsowninitiative,aprompt, thorough andseparateinvestigationaimedatclari-

The Commissionhasemphasizedtheprinciplethatabilityofvictimsviolence access toinformation,andtherighttruth ii. In lightoftheseinter A The establishedfactsbefor vailable information regarding thecircumstances of theshootingleavedoubtas

282 The investigationofLeslie,Kather . In addition, the IACHR has established that the State must show that the . national standards, theUnited Stateshadthedutytounder e theCommissionreveal that twoinvestigationswere 281 otection andremedies includesensuringclarification . Investigationsmustbeserious,prompt, thorough, 285 yn andRebecca’s deaths, . 284 . Inaccordance withitsspecial protection 291 , onebytheColoradoBureau of 283 .” The Stateisultimatelythe 292 . Noinvestigation 293 294 . . (…) - Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 179 - espect to . 302 - ders of Leslie, Katheryn and Rebecca Gon . (…) 303 esented, the Commission finds that the United esented, the Commission . The inter-American system has established that this system . The inter-American 301 es that under the American Declaration, the State is ob- es that under the American Declaration, . A critical component of the right to access information is the right of the vic- of the right to access information is the . A critical component ding this issue, the Commission finally underscores that the State had the obli- the had State the that underscores finally Commission the issue, this ding 300 In light of the considerations pr The Commission underscor Eleven years have passed since the mur Regar in r also identified the right to access information The Commission has

right - the right to truth - is not only a private right for relatives of the victims, affording victims, affording of the - is not only a private right for relatives right - the right to truth access that society has also a collective right that ensures but them a form of reparation, of democratic systems to information essential for the workings States violated the right to judicial protection of Jessica Lenahan and her next-of-kin un- States violated the right to judicial protection proper der Article XVIII, for omissions at two levels. First, the State failed to undertake a for the non-enforcement and the individual responsibilities inquiry into systemic failures exhaus- thorough, Second, the State did not perform a prompt, order. of the protection Gonzales, Rebecca and Katheryn Leslie, of deaths the into investigation impartial and tive of to the circumstances and failed to convey information to the family members related their deaths. ligated to investigate the circumstances surrounding Leslie, Katheryn and Rebecca Gon- Rebecca Katheryn and Leslie, surrounding circumstances the investigate to ligated an investigation to their family. such of to communicate the results deaths and zales’ United the in message social a sending to critical is obligation State this with Compliance in im- will not be tolerated, and will not remain States that violence against girl-children even when perpetrated by private actors. punity, 196. 195. 194. zales, and the State has not fully clarified the cause, time and place of their deaths. The zales, and the State has not fully clarified The petitioners have to their family. State has not duly communicated this information information highlighting the challenges that Jessica Lenahan and her family presented of Leslie, the circumstances surrounding members have faced to obtain basic information Katheryn and Rebecca Gonzales’ deaths existing investigations as a crucial component of a victim’s adequate access to judicial as a crucial component of a victim’s existing investigations remedies […] 192. separate occur Rebecca Gonzales as Leslie, Katheryn and the death of gation to investigate manner. exhaustive and impartial initiative, and in a prompt, on its own motion and rences, 193. tim, her family members and society as a whole to be informed of all happenings related of all happenings related and society as a whole to be informed tim, her family members violation to a serious human rights 180 Gender-based Violence American CommissiononHumanRightsrecommends totheUnitedStates: 201. Declaration. claims articles VandVI.AstoArticlesXXIVIVoftheAmericanDeclaration,itconsiders 200. the AmericanDeclaration. right tojudicialprotection ofJessicaLenahanandhernext-ofkin,underArticleXVIII the AmericanDeclaration.Finally, theCommissionconcludesthatStateviolated in conjunctionwiththeirrighttospecialprotection asgirl-children underArticleVIIof Gonzales inviolationoftheirrighttolifeunderArticleItheAmericanDeclaration, undertake reasonable measures toprevent thedeathofLeslie,KatherynandRebecca before the law under Article II of the American Declaration. The State also failed to violated theState’s obligationnottodiscriminateandprovide forequalprotection Lenahan andLeslie,KatherynRebeccaGonzalesfrom domesticviolence,which mission concludesthattheStatefailedtoactwithduediligenceprotect Jessica evidence andargumentspresented by theparties during the proceedings, theCom- 199. […] VI. R V.

4. their perspectiveandspecific needs. 3. laws, andholdingthoseresponsible accountable. determine theresponsibilities ofpublicofficialsforviolatingstateand/orfederal order asaguaranteeoftheirnon-repetition, includingperforminganinquiryto ures that took place related to the enforcement of Jessica Lenahan’s protection 2. gation. Rebecca Gonzales,andtodulyinformtheirnext-of-kinofthe courseoftheinvesti- tive of ascertaining the cause, time and placeof the deaths of Leslie, Katheryn and 1. Based ontheanalysisandconclusionspertainingtoinstantcase,Inter The Commissiondoesnotfindthatithassufficientinformationtoviolationsof Based C related to these articles to have been addressed under Article XVIII of theAmerican

ecommendations onclusions T T T T o adopt multifaceted legislation at the federal and statelevels,or to reform o offer fullreparations toJessicaLenahanandhernext-of-kinconsidering o conductaserious,impartialandexhaustiveinvestigationinto systemicfail- o undertakeaserious,impartialandexhaustiveinvestigation withtheobjec- on the foregoing considerations of fact and law, and having examined the - Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 181 . The same The . 307 Nº 114/10 eport R to

es, as established in the present report, that the report, es, as established in the present ubsequent S ctions o adopt multifaceted legislation at the federal and state levels, or reform reform levels, or and state federal the legislation at multifaceted adopt o - aimed at re institutional programs o continue adopting public policies and com- at the federal and state levels specifying the proper o design protocols . Therefore, when the State apparatus leaves human rights violations unpun- violations rights human leaves apparatus State the when Therefore, . T T T 306

The Commission also underscor existing legislation, including protection measures for children in the context of for children measures including protection existing legislation, resources should be accompanied by adequate measures domestic violence. Such their enforcement; to ensure implementation; regulations destined to foster their will and justice system officials who enforcement for the law training programs that and directives of model protocols participate in their execution; and the design the country. can be followed by police departments throughout 6. the eradi- of domestic violence victims, and to promote structuring the stereotypes cation of discriminatory socio-cultural patterns children’s that impede women and to train public ofdomestic violence acts, including programs from full protection of justice and police, and comprehensive ficials in all branches of the administration programs. prevention 7. report of missing officials of a ponents of the investigation by law enforcement violation. order of a restraining the context of a report in children existing legislation, making mandatory the enforcement of protection orders and orders protection of the enforcement making mandatory existing legislation, acts of violence, imminent women from to protect measures other precautionary be ac- should These measures mechanisms. implementation effective and to create - regula their implementation; destined to foster by adequate resources companied and for the law enforcement programs training their enforcement; tions to ensure and the design of who will participate in their execution; justice system officials - be followed by police departments through that can and directives model protocols out the country. 5.

VII. a principle applies when a State allows private persons to act freely and with impunity to principle applies when a State allows private persons to act freely - in the governingthe detriment of the rights recognized instruments of the inter-Ameri can system. […] 212. of existence formal the not is it that years many for affirmed has system inter-American available and that demonstrates due diligence, but rather that they are judicial remedies effective ished and the victim’s full enjoyment of human rights is not promptly restored, the State restored, full enjoyment of human rights is not promptly ished and the victim’s internationalunder duties positive its with comply to fails law rights human 182 Gender-based Violence 14. 13. 11. 12. 17. 16. 15. 10. […] concrete measures toremedy theviolations. failure tocomplywiththe foregoing obligationsgivesrisetotherequirement toadopt thorough andeffective, and undertakenbythestateatitsowninitiative.Thestate’s provide Jessica Lenahan access to that information. That investigation must beprompt, clarify thecircumstances of thedeathsofLeslie,KatherynandRebeccaGonzales,to Further, asestablished intheCommission’s report, thestateisobligedtoinvestigateand tify thereasons, remedy themwhere required, andholdthoseresponsible toaccount. restraining order, thestateisrequired toinvestigatethecircumstances inorder toiden- and thepolicedidnoteffectively enforce it.Giventhefailure toeffectively enforce that her atthestateleveltoprotect herselfandherchildren inacontextofdomesticviolence, the termsofrestraining order. Thatrestraining order wastheonlymeansavailableto Ms. Lenahan’s callsandcomplaintsthatherdaughterswere atriskduetotheviolationof the partofStatethatwere notprovided, beginning firstwiththedutyto respond to quent deathsofherdaughters.Thisobligationcoversarangerequired responses on Lenahan withrespect tothenon-enforcement ofthe protection order andthesubse- analysis wascentered ontheobligationofstatetoprovide judicialremedies toMs. judicial response of the State at all levels to the concrete events of the present case. This of federalclaimsactionundernationallaw 213. E ndnotes

1999. Douglas, StateofColoradomakingtemporaryrestraining order permanent. 1999 andPetitioners’petitiondatedDecember27,2005,ExhibitB:Decision of DistrictCourt,County Inter-American CommissiononHumanRights,March 2,2007. Hearing onthematterof 2005. See 1999. See Petitioners’petitiondatedDecember27,2005,ExhibitA:T 1999. See Petitioners’petitiondatedDecember27,2005,ExhibitA:T See Petitioners’petitiondatedDecember27,2005,ExhibitA:T See Petitioners’petitiondatedDecember27,2005,ExhibitA:T Final ObservationsRegar Hearing onthematterof The keyaspectoftheCommission’s analysisinthiscasedidnotdealwiththescope C.R.S. § 18-6-803.7 (Colorado’s Central Registry Statute), Petitioners’ petition dated December27, ding theMeritsofCasesubmittedbypetitioners,March 24,2008,p.9. Jessica Gonzalesv. UnitedStatesatthe127 Jessica Gonzalesv. UnitedStatesatthe127 , butratherwiththedeficienciesin emporary RestrainingOrder datedMay21, emporary RestrainingOrder datedMay21, emporary RestrainingOrder datedMay21, emporary RestrainingOrder datedMay21, th th Ordinary PeriodofSessionsthe Ordinary PeriodofSessions ofthe Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 183 oups of women that are at a particular risk oups of women that are , Consequences of Intimate Partner Violence eviously indicated that women are five to eight times eviously indicated that women are eport on family violence statistics discussed by both parties in their eport on family violence statistics discussed by both estraining order permanent. estraining order der was “Respondent, upon reasonable notice, shall be entitled to a mid-week be entitled to a mid-week notice, shall upon reasonable der was “Respondent, ee American women experience physical abuse by a partner; and that approximately one- partner; and that approximately ee American women experience physical abuse by a petition dated December 27, 2005 and Final Observations Regarding the Merits of the Case the of Merits the Regarding Observations Final and 2005 27, December dated petition 18 (2003) (estimating 5.3 in the United States 18 (2003) (estimating 5.3 against Women Violence Costs of Intimate Partner of domestic violence acts, including women pertaining to lower-income groups and women pertaining to groups of domestic violence acts, including women pertaining to lower-income of Justice, Office of Justice Thoennes, U.S. Department See, Patricia Tjaden and Nancy groups. minority National Institute of Justice, Extent, Nature and Programs, sample of July 2000, p. 33 (The survey consists of telephone interviews with a nationally representative 8,000 U.S. women and 8,000 U.S. men about their experiences with intimate partner violence. The survey A 2000 national domestic violence survey identified several gr more likely to be victims of domestic violence than men. See, Final Observations Regarding the Merits of the to be victims of domestic violence than men. See, Final Observations Regarding likely more et al., U.S. Department A. Greenfield 24, 2008, citing Lawrence Case submitted by the petitioners, March of Justice, Violence by Intimates 38 (1998). leading cause of injury to American women; that at Other studies have found that domestic abuse is the least one in thr The United States Department of Justice has also pr See, C.J. partner. killed by an intimate in the United States each year are women murdered of the third Mental Health Journal, FINDCOUNSELING.COM February 2001, Newton, Domestic Violence: An Overview, ; Montana State University-Northern, Statistics, http://www.findcounseling.com/journal/domestic-violence/ in favor cited in Amicus Curiae Brief presented http://www.msun.edu/stuaffairs/response/stats/stats/html, the IACHR, October 17, 2008. before against Violence (WEAVE) Empowered of petitioners by Women million intimate partner assaults against women in the United States each year); Patricia Tjaden and Nancy against women in the United States each year); million intimate partner assaults Justice, Extent, Na- National Institute of of Justice, Office of Justice Programs, Thoennes, U.S. Department , July 2000. Intimate Partner Violence ture and Consequences of A United States Department of Justice r - and Preven Center for Disease Control 24, 2008, citing statistics from March submitted by the petitioners, tion, The exact language of the or The exact language Petitioners’ B, Exhibit See parties.” the by arranged be shall visit Said children. minor the with visit dinner State of Colorado making 2005, Decision of District Court, County of Douglas, petition dated December 27, permanent. order temporary restraining Petitioners’ violence between unreported and reported all of for 11% accounted violence family that found pleadings, to fatal family violence, female. In regards 73% - were 1998 and 2002, and that the majority of the victims – and 58% of those family murders in 2002 were indicates that about 22% of the murders the same report female. See, U.S. Response to the Petition Alleging Violations of the Human Rights of Jessica victims were of Colorado, September 22, 2006, p. 12, citing U.S. Gonzales by the United States of America and the State and Others Statistics, Mathew Durose of Justice Statistics, Family Violence Department of Justice, Bureau (June 2005). Inter-American Commission on Human Rights, March 2, 2007. on Human Rights, March Commission Inter-American of Douglas, of District Court, County 27, 2005, Exhibit: B, Decision petition dated December See Petitioners’ making temporary r State of Colorado

149. 148. 145. 18. 19. 184 Gender-based Violence 158. 157. 153. 152. 151. 150.

by MayaRaghufrom LegalMomentumandothersonbehalfofpetitioners onOctober15,2008,p.46. Protection Orders,56OhioStreet L.J.1153,1170(1995)citedin,SupplementalAmicus CuriaeBriefsubmitted as ameansofprotecting victimsofdomesticviolenceandpreventing furtherabuse. By 1989,all50statesandtheDistrict of Columbiahadenactedstatutesauthorizingcivilrestraining orders child custody and visitation issues; mandating offender counseling; and even forbidding firearm possession. A r Barbara J.Hart,MinnesotaCenterAgainstV Barbara J.Hart,MinnesotaCenterAgainstV W.favor ofpetitionersbyWilliam Oxleyandothersbefore IACHRonOctober17,2008,p.4,note10. (1992), http://www.mincava.umn.edu/documents/hart/hart.html, citedin,AmicusCuriaeBriefpresented in Barbara J.Hart,MinnesotaCenteragainstV and othersbefore IACHR, on October17,2008,p.5. W.& Abuse321,323(2000),citedinAmicusCuriaeBriefpresented infavorofpetitionersbyWilliam Oxley, posed toIntimatePartnerViolence:1Trauma, ResearchFindingsandImplicationsforIntervention Violence National CenterforChildr Native Americanwomenar Resource AgainstNativeWomen. CentertoEndViolence from theIndianLawResource CenterandJacquelineAgtucaTerri Henryfrom theSacred Circle National Women; AmicusCuriaeBrief ofNovember13,2008,submittedbyLucySimpsonandKirstenMatoyCarlson ment ofJusticeReauthorizationAct2005,P.L. XI–SafetyforIndian No.109–162§901(2)(2006),Title 1,000, compared againstWomen with8per 1,000amongCaucasianwomenSee,Violence andDepart- VAWA 2005indicatesthatIndianwomenexperiencetheviolentcrimeofbattering atarateof23.2per violence byincludingaspecifictitlewithinthe VAWA 2005geared towards the“SafetyofIndian Women.” The UnitedStatesCongr and victims’involvementwiththejusticesystem). violence, the rate of injury among rape and physical assault victims, injured victims’ use of medical services, and same-sexopposite-sexcohabitants.Italsoexaminesriskfactorsassociatedwithintimatepartner compares victimizationratesamongwomenandmen,specificracialgroups, Hispanicsandnon-Hispanics, David M.Zlotnick, W.Favor ofPetitionerbyWilliam Oxley, andothersbefore IACHR,October17,2008,para.32,p.8. http://www.mincava.umn.edu/documents/hart/hart.html citedinAmicusCuriaeBriefPresented(1992), in W.favor ofpetitionersbyWilliam Oxley, andothersbefore IACHR,October17,2008,para.32,p.8. http://www.mincava.umn.edu/documents/hart/hart.html(1992), citedinAmicusCuriaeBriefpresented in (WEAVE) before theIACHR,October17,2008,p.9. pdf, citedinAmicusCuriaeBriefpresented infavorofpetitionersbyWomen Empowered AgainstViolence ers andAcquaintances,10NCJ207846(June2005),availableathttp://www.ojp.usdoj.gov.bjs/pub/pdf/fvs. Department ofJustice,Bureau ofJusticeStatistics,FamilyviolenceStatistics:IncludingStatisticsonStrang- African Americanwomen,CaucasianandLatinawomen.See,MatthewR.Durose etal., U.S. estraining order canincludeprovisions restricting contact;prohibiting abusivebehavior;determining Empowering theBatteredWoman: TheUseofCriminalContemptSanctionstoEnforce Civil ess identifiedNativeAmericanwomenasagroup atparticularriskofdomestic en Exposed to Violence, DomesticViolenceen ExposedtoViolence, (2007);BonnieE.Carlson,ChildrenEx- e alsothemostlikelytoreport experiencingdomesticviolence,followedby iolence &Abuse,ParentalAbductionandDomesticViolence iolence &Abuse,ParentalAbductionandDomesticViolence iolence &Abuse,ParentalAbductionandDomesticViolence Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 185 19 Violence Violence Accelerating efforts to elimi- Research Preview: Civil Protection Orders: Victims’ Orders: Victims’ Research Preview: Civil Protection oximately one million victims of violence against women obtain million victims of violence oximately one Oscar Elías Bicet et al. (Cuba), October 21, 2006, paras. 228-231; (Belize), October 12, 2004, para. 163; (Belize), October 12, 2004, Maya Indigenous Community William Andrews (United States), December 6, 1996, para. 173. Session 1992), U.N. Doc.A/47/38 at 1 (1993). th ., cited in, Amicus Curiae in, cited ., at http://www.ncjrs.gov/pdffiles1/nij/grants/191840.pdf available , IACHR, Report Nº 28/07, Cases 12.496-12.498, Claudia Ivette González and Others, (Mex- , Ms. A.T. v. Hungary , 26 January 2005; Eu- v. Committee, Communication 2/2003, Ms. A.T. , CEDAW Smithey, Susanne Green, & Andrew Giacomazzi, National Criminal Justice Reference Service, Col- Service, Reference Justice Criminal National Giacomazzi, Andrew & Green, Susanne Smithey, OEA/Ser. L/V/II. doc.68, January in the Americas, OEA/Ser. of Violence Victims Access to Justice for Women ., International Covenant on Civil and Political Rights (Articles 2 and 26); International Covenant on IACHR, Report Nº 57/96, Case 11.139, IACHR, Report Nº 67/06, Case 12.476, IACHR, See, e.g Convention on Human Rights (Article and Cultural Rights (Articles 2.2 and 3); European Economic, Social Rights (Article 2). 14); African Charter on Human and People’s See, IACHR Report 40/04, Case 12.053, See, IACHR Report 40/04, (Belize), October 12, 2004, paras. 162 IACHR Report Nº 40/04, Case 12.053, Maya Indigenous Community and 166. Brief presented in favor of petitioners by Women Empowered Against Violence (WEAVE) before the IACHR, the before ViolenceAgainst (WEAVE) Empowered Women by petitioners of favor in presented Brief October 17, 2008, p. 6. (Cuba), October 21, 2006, para. 228; IACHR, IACHR Report 67/06, Case 12.476, Oscar Elías Bicet et al. , 22 October 2002, para. 1 corr. Doc. 5 rev. and Human Rights, Doc. OEA/Ser.L./V/II.116 Report on Terrorism 335. (Jan. 14, 2002), 14, (Jan. Maria Da Penha Maia Fernandes (Brazil), An- 9, 2007; IACHR, Report Nº 54/01, Case 12.051, ico), March , in the Americas of Violence Victims nual Report of the IACHR 2001; IACHR, Access to Justice for Women Doc. 68 (January 20, 2007); I/A Court H.R.,Case of González et al. (“Cotton C.H.R., OEA/Ser.L/V/II, Inter-Am. Mexico, Judgment of November 16, 2009. Field”) v. See generally See generally 20, 2007, para. 90. Human Rights Council, See, e.g., United Nations General Assembly Resolution, 16 due diligence in prevention, A/HRC/14/L.9/Rev.1, nate all forms of violence against women: ensuring General Assembly of ViolenceJune 2010; United Nations Declaration on the Elimination against Women, Declara- Beijing Nations, 1994; United 23, A/RES/48/104, February 1993, 20, 48/104, December Resolution September 15, 1995, A/CONF.177/20 on Women, Conference tion and Platform for Action, Fourth World Committee, General Recommendation 19: Violence (1995); CEDAW (1995) and A/CONF.177/20/Add.1 , (11 against Women U.S. Department of Justice, National Institute of Justice, U.S. Department of Justice, on Effectiveness, January 1998, http:/.www.ncjrs.gov/pdffiles/fs000191.pdf. Views Martha Resolving Domestic Toward of Law Enforcement Training laborative Effort and the Effectiveness This national survey also showed that appr This national are 60% of these orders approximately their attackers annually and against orders or restraining protective of Office Justice, of Department U.S. Thoennes, Nancy and Tjaden Patricia assailants. See, by the violated - Partner Vio and Consequences of Intimate Institute of Justice, Extent, Nature National Justice Programs, lence, July 2000, pp. 52-53.

174. 175. 176. 170. 171. 179. 178. 177. 161. 159. 160. 186 Gender-based Violence 186. 182. 181. 201. 200. 199. 185. 184. 183. 180.

2002, para.38,note103. (February 19,2004). 2001; European CourtofHumanRights,CaseOpuzv. Turkey, ApplicationNo.33401/02,9June2009. 2001, paras.3,37-44. See, ReportNº54/01,Case12.051, epidemics anddisease). settling intheirterritory-duetotheconstructionofahighwaywhichresulted inthewidespread influxof and effective measures toprotect theYanomami indigenouscommunityfrom theactsofprivateindividuals found the State of Brazil responsible under the American Declaration when it failed to undertake timely environmental damage);IACHR,Resolution12/85,Case7615(Brazil),March 5,1985(TheCommission the effective consultationandtheinformedconsentofthisindigenouscommunity, resulting insignificant granted loggingandoilconcessionstothird partiestoutilizethelandoccupiedbyMayapeople,without 136-156 (TheCommissionfoundtheStateofBelizeresponsible undertheAmericanDeclarationwhen it IACHR, ReportNº40/04,Case12.053, 10, 2009,para.90. on theRightsofWomen inHaititobeFreefrom Violence andDiscrimination,OEA/Ser.L/V/II, Doc.64,March Armed Conflict in Colombia, OEA/Ser/L/V/II. 124/Doc.6, October 18, 2006, paras. 102-106; IACHR, L/V/II. doc.68,January20,2007,paras.195-197;IACHR,Violence andDiscrimination againstWomen inthe 2007, paras.251-252;IACHR,AccesstoJusticeforWomen Victims ofViolence intheAmericas, OEA/Ser. IACHR, IACHR, Peoples’ Rights,article4,amongothers. Rights, article6;European ConventiononHumanRights,article2;AfricanCharterRightsand See, e.g.,UniversalDeclarationofHumanRights,article3;Inter 38. para. 26;IACHR,Report62/02,Case12.285,MichaelDomingues(UnitedStates),October22,2002, IACHR, Report97/03,Case11.193, CEDAW onCommunicationNo.5/2005,SahideGoekcev. Committee,Views Austria,July21,2004. June 2009;European Court ofHumanRights,Kontrováv. Slovakia,no.7510/04,ECHR2007-VI(extracts); See generally United NationsGeneralAssembly See generally Court H.R.,CaseofGonzálezetal.(“CottonField”)v. Mexico,JudgmentofNovember16,2009. Report Nº 28/07, Cases 12.496-12.498, ropean CourtofHumanRights,CaseOpuzv. Turkey, ApplicationNo.33401/02,9June2009;IACHR, Velásquez RodríguezCase,JudgmentofJuly29,1988,SeriesCNo. 4. tion ImposedonStatesPartiestotheCovenant, CCPR/C/21/Rev.1/Add. 13,May26,2004;I/ACourtH.R., See, e.g,HumanRightsCommittee,General CommentNo.31,TheNatur Report onTerrorism andHumanRights,Doc.OEA/Ser.L./V/II.116 Doc.5rev. 1corr., 22October Report Nº28/07,Cases 12.496-12.498, Claudia Ivette González and Others(Mexico),March 9, , IACHR, Report Nº54/01, Case 12.051, Maria Da PenhaMaiaFernandes(Brazil), April 16, , European CourtofHuman Rights,CaseofOpuzv. Turkey, ApplicationNo.33401/02,9 , EliminationofDomesticViolence againstWomen, U.N.Doc.A/Res/58/147 Gary T.Gary Graham(ShakaSankofa)v. UnitedStates,December29,2003, Maria DaPenhaMaiaFernandes(Brazil),AnnualReportoftheIACHR Claudia Ivette González and Others (Mexico), March 9, 2007; I/A Maya IndigenousCommunity(Belize),October12,2004,paras. national CovenantonCivilandPolitical e oftheGeneralLegalObliga- Report Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 187 The Due Dili- Sess., U.N. Doc. A/ th omen, General Recom- - Accelerating efforts to elimi Commission on Human Rights, Commission on Accelerating efforts to eliminate all Fourth World Conference on Women, on Women, Conference Beijing Declaration and Platform for Action, Fourth World , July 21, 2004, para. 12.1.1; Committee on the Elimination of 2004, para. 12.1.1; Committee 21, Austria, July v. Fatma Yildrim -American Convention on the Prevention, Punishment and Eradication of Violence against -American Convention on the Prevention, , Application No. 33401/02, 9 June Turkey opean Court of Human Rights, Case of Opuz v. e detailed discussion, see generally J. Hessbruegge. 2004. “The Historical development of the Historical development of Hessbruegge. 2004. “The see generally J. e detailed discussion, paras. 18 and 38. 12 July 1993, of Action, A/CONF.157/23, Declaration and Programme Vienna , United Nations General Assembly Resolution, Human Rights Council, Accelerating efforts to elimi- See, e.g., Assembly Resolution, Human Rights Council, See, e.g., United Nations General doctrines of attribution and due diligence in international law”, New York University Journal of International in international and due diligence doctrines of attribution law”, New York International Com- Principle under International The Due Diligence Law, Barnidge, Jr., vol. 36; Robert P. Law, The History (2006); Johanna Bourke-Martignoni, munity Law Review the Due Diligence and Development of , Due Diligence and against Violence and its Role in the Protection of Women Standard in International Law Special Rapporteur on violence against Violence Report from (2008); from Women its Application to Protect for the Elimination as a Tool Ertürk, The Due Diligence Standard Yakin women, its causes and consequences, , E/CN.4/2006/61. against Women of Violence 16 , A/HRC/14/L.9/Rev.1, against women: ensuring due diligence in prevention nate all forms of violence Intensification of efforts a vote); United Nations General Assembly Resolution, June 2010 (adopted without 2010 (adopted without a against women, A/RES/64/137, 11 February to eliminate all forms of violence - General Assembly resolu against Women, vote); United Nations, Declaration on the Elimination of Violence also, See vote). a without (adopted 1994 23, February A/RES/48/104, 1993, 20, December 48/104, tion , G.A. Res. 58/147, U.N. GAOR, 58 against Women Elimination of Domestic Violence For a mor , A/HRC/14/L.9/Rev.1, 16 nate all forms of violence against women: ensuring due diligence in prevention, A/HRC/14/L.9/Rev.1, Sixty-second session, E/CN.4/2006/61, January 20, 2006, para. 29 (The United Nations Special Rapporteur Sixty-second session, E/CN.4/2006/61, January 20, 2006, has attained the status of a established that the duty of due diligence therein on Violence against Women to with due diligence and respond which obligates States to prevent norm of customary international law, acts of violence against women). 16 June 2010. forms of violence against women: ensuring due diligence in prevention, A/HRC/14/L.9/Rev.1, Res/58/147 (February 19, 2004) (adopted without a vote). Res/58/147 (February 19, 2004) (adopted without a (1994), para. 11. against women, U.N. Doc. HRI/GEN/1//Rev.1 mendation 19, Violence against Women, of Violence the Elimination for a Tool Standard as gence Views- on Communica Women, against of Discrimination on the Elimination 2009, para. 246; Committee tion No. 6/2005, See, e.g. See, e.g., Eur Hungary , January 26, v. Views on Communication No. No. 2/2003, A.T. Discrimination against Women, 2003, para. 9.2. United Nations General Assembly Resolution, Human Rights Council, Women (hereinafter “Convention of Belém do Pará”), Article 7(b). (hereinafter Women September 15, 1995, A/CONF.177/20 (1995) and A/CONF.177/20/Add.1 (1995), paras. 112-126. (1995) and A/CONF.177/20/Add.1 September 15, 1995, A/CONF.177/20 See, e.g., Inter of Discrimination against W See, e.g., United Nations, Committee on the Elimination women, its causes and consequences, Report of the Special Rapporteur on violence against See, e.g., United Nations,

203. 204. 202. 209. 211. 205. 208. 210. 207. 206. 188 Gender-based Violence 215. 214. 213. 212.

against Women, (11 women, A/RES/63/155,January30,2009,paras.8-16;CEDAW, GeneralRecommendation19:Violence Nations GeneralAssemblyResolution,Intensificationofeffortstoeliminateallformsviolenceagainst eral Assembly resolution 48/104, December 20, 1993, A/RES/48/104, February 23, 1994, Article 4; United June 2010,paras.1-16;UnitedNations,DeclarationontheEliminationofViolence againstWomen, Gen- See, e.g., See, e.g., See generally See, e.g., bly oftheUnion,Maputo,11July2003,Article4. and Peoples’RightsontheofWomen SessionoftheAssem- inAfrica,Adoptedbythe2ndOrdinary Case ofOpuzv. Turkey, ApplicationNo.33401/02,9June2009;ProtocoltotheAfricanCharteronHuman For r See also Annual ReportoftheIACHR2001,paras. 36-44. 20, 2007),paras.123-216;IACHR,Report Nº54/01,Case12.051,MariaDaPenhaMaiaFernandes(Brazil), Justice forWomen Victims ofViolence intheAmericas,Inter-Am. C.H.R.,OEA/Ser.L/V/II, Doc.68(January violence againstwomen,A/RES/63/155,January30,2009,paras. 11,14,15and16;IACHR,Accessto Eugenia MoralesdeSierra(Guatemala),January19,2001,para.44. against women, U.N. Doc. HRI/GEN/1//Rev.1 (1994),paras. 1, 11, and 23;IACHR, Report Nº 4/01, Maria Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence resolution 48/104,December20,1993,A/RES/48/104,February23,1994,articles3and4;UnitedNations, 2009; CEDAW onCommunication6/2005,FatmaYildirim Committee,Views v. Austria(July21,2004). March 9,2007;European CourtofHumanRights,CaseOpuzv. Turkey, ApplicationNo.33401/02,9June 2009. SeriesCNo.205. (“Cotton Field”)v. Mexico.Preliminary Objection,Merits, ReparationsandCosts.JudgmentofNovember16, Ser.L/V/II, Doc.64,March 10,2009,para.80.Seealsogenerally, I/ACourtH.R.,CaseofGonzálezetal. para. 44;IACHR,ReportontheRightsofWomen inHaititobe FreefromViolence andDiscrimination,OEA/ in Chile:EqualitytheFamily, LaborandPoliticalSpheres,OEA/Ser.L/V/II.134, Doc.63,March 10,2009, Colombia, OEA/Ser/L/V/II. 124/Doc.6, October 18, 2006, para. 24; IACHR, 44, March 7,2003,para.104; IACHR,Violence andDiscrimination againstWomen intheArmedConflict in CiudadJuárez,Mexico:TheRighttobeFreefromViolence andDiscrimination,OEA/Ser.L/V/II.117, Doc. cas, (Brazil), April16,2001,paras.55-58;IACHR,AccesstoJusticeforWomen Victims ofViolence intheAmeri - March 9,2007,paras.160-255; IACHR,ReportNº54/01,Case12.051,MariaDaPenhaMaiaFernandes I/A CourtH.R.,CaseofGonzálezetal.(“CottonField”)v. Mexico,JudgmentofNovember16,2009. Access toJusticeforWomen Victims ofViolence intheAmericas,OEA/Ser. L/V/II.doc.68,January20,2007; IACHR, ReportNº54/01,Case12.051,MariaDaPenhaMaiaFernandes(Brazil),April16,2001; OEA/Ser. L/V/II.doc.68,January20,2007,paras.26-58;IACHR,TheSituationoftheRightsWomen eferences totheEuropean andAfricansystemsofhumanrightssee,European CourtofHumanRights, , IACHR,Report28/07,Cases12.496-12.498,ClaudiaIvetteGonzálezandOthersMarch 9,2007; United Nations General Assembly Resolution, UnitedNations,DeclarationontheEliminationofViolence againstWomen, GeneralAssembly IACHR, Report Nº28/07,Cases 12.496-12.498, ClaudiaIvette Gonzalez and Others(Mexico), , IACHR,ReportNº28/07,Cases12.496-12.498,ClaudiaIvetteGonzálezandOthers (Mexico), th Session1992),U.N.Doc.A/47/38at1(1993),paras.1-23. Intensification of efforts toeliminateall formsof Report on the Rightsof Women Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 189 Session th No. 46598/06, 15 Accelerating efforts to elimi- Accelerating efforts to eliminate all Accelerating (Mexico), March 9, Others (Mexico), March Claudia Ivette Gonzalez and 9, Others (Mexico), March Claudia Ivette Gonzalez and 9, Others (Mexico), March Claudia Ivette Gonzalez and e than 17 years had passed since the launching of the inves- e than 17 years had passed since the launching of the Michael Domingues (United States), October 22, 2002, para. 83. E. and Others v. the United Kingdom, Application No. 33218/96; E. and Others v. Maria Da Penha Maia Fernandes (Brazil), April 16, 2001, para. 55. Maria Da Penha Maia Fernandes (Brazil), April 16, 2001, para. 56. General Assembly resolution 48/104, General Assembly resolution against Women, Declaration on the Elimination of Violence Kontrová v. Slovakia, Application No. 7510/04, ECHR 2007-VI (ex- opean Court of Human Rights, Kontrová v. Branko Tomasic and Others v. Croatia, Application and Others v. opean Court of Human Rights, Branko Tomasic opean Court of Human Rights, Case of - Objec Mexico . Preliminary Field”) v. Court H.R., Case of González et al. (“Cotton 2007, paras. 247-255; I/A No. 205, para. 245. Costs. Judgment of November 16, 2009. Series C tion, Merits, Reparations and 2007, paras. 247-255. Objec - . Preliminary Mexico 2007, paras. 247-255; I/A Court H.R., Case of González et al. (“Cotton Field”) v. 16, 2009. Series C No. 205, para. 245. tion, Merits, Reparations and Costs. Judgment of November See, IACHR, Report Nº 62/02, Case 12.285, Human Rights Council, See, e.g., United Nations General Assembly Resolution, See, IACHR, Report Nº 28/07, Cases 12.496-12.498, See, IACHR, Report Nº 28/07, Cases 12.496-12.498, See, IACHR, Report Nº 28/07, , A/HRC/14/L.9/Rev.1, 16 June 2010, , A/HRC/14/L.9/Rev.1, due diligence in prevention against women: ensuring forms of violence OEA/ , Colombia in Conflict Armed the in Women against Discrimination and IACHR, Violence 10; para. of Violence Victims for Women para. 140; IACHR, Access to Justice October 18, 2006, Ser/L/V/II.124/Doc.6, Commit- CEDAW 272; para. 2007), 20, (January 68 Doc. OEA/Ser.L/V/II, C.H.R., Inter-Am. Americas, the in Special Measures, U.N. Doc./CEDAW/C/2004/I/WP.1/Rev.1 25, on Temporary tee, General Recommendation (2004), section II, para. 12. Cases 12.496-12.498, See, IACHR, Report Nº 28/07, 16 due diligence in prevention, A/HRC/14/L.9/Rev.1, nate all forms of violence against women: ensuring Intensification of efforts to eliminate all forms of June 2010; United Nations General Assembly Resolution, January 30, 2009; United violence against women, A/RES/64/137, 11 February 2010 and A/RES/63/155, Nations, United Nations, Beijing Declaration and Platform December 20, 1993, A/RES/48/104, February 23, 1994; (1995) and A/ , September 15, 1995, A/CONF.177/20 Conference on Women for Action, Fourth World , (11 against Women General Recommendation 19: Violence (1995); CEDAW, CONF.177/20/Add.1 United Nations General Assembly Resolution, Human Rights Council, Human Rights Council, General Assembly Resolution, United Nations , Application No. 33401/02, 9 June 2009. Turkey Court of Human Rights, Case of Opuz v. See, European tracts). Eur IACHR, Report Nº 54/01, Case 12.051, See, Eur See, Eur 1992), U.N. Doc.A/47/38 (1993). In this case, the Commission noted that mor opened the accused remained by the victim and to date the case against tigation into the attacks suffered without a final ruling. IACHR, Report Nº 54/01, Case 12.051, July 21, 2004; Austria, Views Committee, v. No. 5/2005, Sahide Goekce on Communication See CEDAW Austria, July 21, 2004. v. Committee, Views on Communication No. 6/2005, Fatma Yildrim CEDAW January 2009.

218. 219. 220. 217. 221. 216. 229. 228. 222. 223. 225. 226. 227. 224. 190 Gender-based Violence 251. 250. 249. 248. 247. 246. 245. 241. 236. 235. 234. 233. 232. 231. 230.

U.S. ResponsetothePetitionAllegingV the CasebyPetitioners,October17,2008,p.7. Reply bytheGover U.S. ResponsetothePetitionAllegingV the UnitedStatesofAmericaandStateColorado,September22,2006,T See, forexample,U.S.ResponsetopetitionallegingviolationsofthehumanrightsJessicaGonzalesby Incident Report90623004,06/23/99,00:06hrs. States of America and the State of Colorado, September 22, 2006, Tab F, Castle Rock Police Department U.S. ResponsetothePetitionAllegingV Merits oftheCasebyPetitioners,October17,2008,pages25-34. See, ReplybytheGover port 98/03,StatehoodSolidarityCommittee(UnitedStates),December29,2003,paras.91-93. IACHR, Eur 2009. See, generally Eur 136; E.andOthersv. theUnitedKingdom,no.33218/96,para.99. Eur 15 January2009. tracts); European CourtofHumanRights,BrankoTomasic andOthersv. Croatia,Application See, Eur Objection, Merits,ReparationsandCosts.JudgmentofNovember16,2009.SeriesCNo.205. 15 January2009;seealsoI/ACourtH.R.,CaseofGonzálezetal.(“CottonField”)v. Mexico.Preliminary tracts); European CourtofHumanRights,BrankoTomasic andOthersv. Croatia,Application See, Eur Z andOthersv. theUnitedKingdom[GC],Applicationno.29392/95ECHR2001-V. December 11,2006Observationsfr 20, 2007,para.170. IACHR, Castle RockPoliceDepartment,Rock,Colorado,Cr#99-3226,Third Callat21:57hours. States ofAmericaandtheStateColorado,September22,2006,Tab D:Investigator’s Progress Report, A. Lisk. States ofAmericaandtheStateColorado,September22,2006,Tab G:StatementsignedbyCpl.Patricia Cpl. PatriciaLisk. 191. 132. Judicial DistrictCriticalIncidentTeam Detectives BobbieGarret andChristian Contos,June23,1999,7:04 opean CourtofHumanRights,CaseOpuzv. Turkey, ApplicationNo.33401/02,9June2009,para. opean CourtofHumanRights,CaseOpuzv. Turkey, ApplicationNo.33401/02,9June2009,para. opean CourtofHumanRights,CaseOpuzv. Turkey, ApplicationNo.33401/02,9June2009,para. Access toJusticeforWomen Victims ofViolence intheAmericas , OEA/Ser. L/V/II.doc.68,January Report 63/08,Case 12.534, AndreaMortlock(United States), July 25, 2008,para.80; IACHR, Re- opean CourtofHumanRights,Kontrováv. Slovakia,ApplicationNo.7510/04,ECHR2007-VI(ex- opean CourtofHumanRights,Kontrováv. Slovakia,ApplicationNo.7510/04,ECHR2007-VI(ex- , European CourtofHuman Rights,CaseofOpuzv. Turkey, ApplicationNo.33401/02,9June nment oftheUnitedStatesAmericatoFinalObservationsRegarding theMeritsof nment oftheUnitedStatesAmericatoFinalObservationsRegarding the om Petitioners,Tab GeorgePalsulichby18 N:InterviewwithWilliam iolations oftheHumanRightsJessicaGonzalesbyUnited iolations oftheHumanRightsJessicaGonzalesbyUnited iolations oftheHumanRightsJessicaGonzalesbyUnited ab G:StatementSignedby No. 46598/06, No. 46598/06, th

Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 191

th th th th Maria Da Penha Maia Fernandes (Brazil), April 16, 2001, para. 57. Maria Da Penha Maia Fernandes (Brazil), April 16, 2001, para. 47. ney General’s Task Force on Domestic Violence: Final Report, pages. Force Task ney General’s eau of Justice Statistics, National Crime Victimization Survey (2007); om Petitioners, Tab N: Interview with William George Palsulich by 18 om Petitioners, Tab om Petitioners, Tab N: Interview with William George Palsulich by 18 om Petitioners, Tab om Petitioners, Tab N: Interview with William George Palsulich by 18 om Petitioners, Tab om Petitioners, Tab N: Interview with William by the 18 George Palsulich Tab om Petitioners, , IACHR, Report Nº 28/07, Cases 12.496-12.498, Claudia Ivette Gonzalez and Others (Mexico), Judicial Critical Incident Team Shooting of Simon Gonzales Castle Rock PD Case #99-3226, p. 32. Judicial Critical Incident Team Judicial Critical Incident Team Shooting of Simon Gonzales Castle Rock PD Case #99-3226, p. 32. Shooting of Simon Gonzales Judicial Critical Incident Team Judicial Critical Incident Team Shooting of Simon Gonzales Castle Rock PD Case #99-3226, p. 32. Shooting of Simon Gonzales Judicial Critical Incident Team Judicial Critical Incident Team Shooting of Simon Gonzales Castle Rock PD Case #99-3226, p. 32. Rock PD Case #99-3226, p. Simon Gonzales Castle Shooting of Incident Team Judicial Critical th th th th recent United Nations Study on Violence against Children confirms that the majority of violent acts ex- acts violent of majority the that confirms Violenceon Study Nations United Children against recent , E/ against Women of Violence akin Ertürk, The Due Diligence Standard as a tool for the Elimination . Preliminary . Preliminary Mexico 9, 2007, paras. 247-255; I/A Court H.R., Case of González et al. (“Cotton Field”) v. March Objection, Merits, Reparations and Costs. Judgment of November 16, 2009. Series C No. 205, para. 285. The inti- that and parents, including lives, their of part are who people by perpetrated are children by perienced as Independent Expert for See, Study of Paulo Sergio Pinheiro children. mate partner violence heavily affects , OEA/Ser. in the Americas, OEA/Ser. of Violence Victims CN.4/2006/61, para. 49; IACHR, Access to Justice for Women L/V/II. doc. 68, January 20, 2007, para. 53. See generally 18-19 (1984). For a more detailed review of this issue, see section on “findings of fact” supra paras. 91-99. of this issue, see section on “findings detailed review 18-19 (1984). For a more IACHR, Report Nº 54/01, Case 12.051, IACHR, Report Nº 54/01, Case 12.051, as Independent Expert for the United Nations Study on Violence Paulo Sergio Pinheiro See, Study of Dr. pursuant to General Assembly Resolution 60/231, 29 August 2006, paras. 38-47. against Children violence against women, its causes and consequences, United Nations, Report of the Special Rapporteur on Y See, U.S. Department of Justice, Bur See U.S. Department of Justice, Attor Partner Violence (CDC), Costs of Intimate in the United States and Prevention Centers for Disease Control Nation- Programs, Office of Justice of Justice, Thoennes, U.S. Department (2003); Patricia Tjaden and Nancy , July 2000; Lawrence Nature and Consequences of Intimate Partner Violence of Justice, Extent, al Institute detailed review by Intimates 38 (1998). For a more et al., U.S. Department of Justice, Violence A. Greenfield paras. 91-99. of this issue, see section on “findings of fact” supra December 11, 2006 Observations fr December 11, 2006 Observations fr December 11, 2006 Observations December 11, 2006 Observations fr December 11, Judicial District Critical Incident Team Detectives Bobbie Garret and Christian Contos, June 23, 1999, 7:04 and Christian Contos, June Detectives Bobbie Garret Judicial District Critical Incident Team 24, 2008, Ex. the Merits of the Case submitted by the petitioners, March p.m; Final Observations Regarding C: 18 December 11, 2006 Observations fr December 11, 2006 Observations Judicial District Critical Incident Team Detectives Bobbie Garret and Christian Contos, June 23, 1999, 7:04 p.m. June 23, 1999, 7:04 and Christian Contos, Bobbie Garret Detectives Critical Incident Team Judicial District and Christian Contos, June 23, 1999, 7:04 Garret Detectives Bobbie Team Judicial District Critical Incident 2008, Ex. 24, Merits of the Case submitted by the petitioners, March the p.m; Final Observations Regarding C: 18 and Christian Contos, June 23, 1999, 7:04 Garret Detectives Bobbie Team Judicial District Critical Incident 2008, Ex. 24, Merits of the Case submitted by the petitioners, March the p.m; Final Observations Regarding C: 18 p.m; Final Observations Regarding the Merits of the Case submitted by the petitioners, March 24, 2008, Ex. petitioners, March the Case submitted by the the Merits of Regarding p.m; Final Observations C: 18

259. 260. 263. 262. 257. 261. 255. 256. 258. 252. 254. 253. 192 Gender-based Violence 274. 273. 272. 271. 270. 269. 266. 268. 267. 265. 264.

20, 2007,para.134. 2003), para.51. IACHR, Case (Villagrán Moralesetal.).JudgmentofNovember19,1999.Series CNo.63,para.235. the Americas,OEA/Ser.L/V/II, Doc.68(January20,2007),para.26;I/ACourtH.R., The“StreetChildren” Others (UnitedStates),July24,2007,para.42;IACHR,AccesstoJusticeforWomen Victims ofViolence in 2010, para.62;IACHR,ACHR,ReportonAdmissibilityNº52/07,Petition1490-05, JessicaGonzalesand See, IACHR,ReportNº81/10,Case12.562, 54/01, Case12.051,MariaDaPenhaFernandes(Brazil),April16,2001,para.37. IACHR, ReportNº40/4,Case12.053, IACHR, ReportNº54/01,Case12.051, IACHR, ReportNº54/01,Case12.051, IACHR, 20, 2007,paras.172-180. Inter-American CommissiononHumanRights,March 2,2007. IACHR, more detaileddiscussion,see paragraphs71-79ofthisreport. for herchildren, thatshewas afraidSimonGonzaleshad“lostit,”andthathemightbe“suicidal.”Fora was crying,andsheinformedOfficerAhlfingerthatstill“didn’t knowwhattodo”andwas“scared” that shewasveryworriedaboutherchildren. WhenJessicaLenahanvisitedtheCRPDat12:30a.m.,she she reported thatherdaughters were stillnothome,thatSimonGonzaleshadrunoff withthegirls,and do,” thatshewasa“mess,”and“freaking out.”DuringherlastcalltotheCRPDatmidnight, was a“littlewiggedout”becauseherdaughterswere stillnothomeandthatshe“didknowwhatto “weird.” During her third call at 9:57 p.m. that evening, Jessica Lenahan informed the dispatcher that she considered SimonGonzales’ takingofhisdaughtersandtheirfriendtothepark,“unusual”,“wrong” and not know During herfirstcall,JessicaLenahandescribedthesituationtodispatcheras“scary”and“thatshedid Castle RockPoliceDepartment,Rock,Colorado,Cr#99-3226,Third Callat21:57hours. States ofAmericaandtheStateColorado,September22,2006,Tab D:Investigator’s Progress Report, U.S. ResponsetothePetitionAllegingV Hearing onthematterof forcement GuidetoCaseInvestigationandManagement,Third Edition(2006). See, e.g.,NationalCenterforMissingandExploitedChildr on AllFormsofViolence againstWomen, A/61/122/Add.1,July6,2006,para.169. violence can….befatalforchildren”. See,UnitedNations,ReportoftheSecretary-General, InDepthStudy “[c]hildren are oftenpresent duringepisodesofdomesticviolence”andthat“[d]omesticorintimatepartner 29 August2005,para.28.Arecent againstWomen UnitedNationsStudyonViolence hashighlightsthat againstChildren,the UnitedNationsStudyonViolence pursuanttoGeneralAssemblyResolution60/231, Access toJusticeforWomen Victims ofViolence intheAmericas,OEA/Ser. L/V/II.doc.68,January Access toJusticeforWomen Victims ofViolence intheAmericas,OEA/Ser. L/V/II.doc.68,January The Situation of the Rights of Women in Ciudad Juarez, OEA/Ser. L/V/II.117. Doc. 44 (March 7, what todo.” During her telephone conversation with Officer Brink, shecommunicatedthat she Jessica Gonzalesv. UnitedStatesatthe127thOrdinary Period ofSessionsthe Maya IndigenousCommunity(Belize),para.174;IACHR,ReportNº Maria DaPenhaMaiaFernandes(Brazil),April16,2001,para.37. Maria DaPenhaFernandes(Brazil),April16,2001,para.56. iolations oftheHumanRightsJessicaGonzalesbyUnited Wayne Smith,HugoArmendatriz,etal.,UnitedStates,July12, en, MissingandAbductedChildren, ALawEn- Inter-American Commission on Human Rights - Jessica Lenahan (Gonzalez) et Al v. United Estates 193 para. 188.

equested from the United States the entire investiga- the United States the entire equested from (Mexico), March 9, 2007, para. para. 2007, 9, March (Mexico), Others and González Ivette Claudia para. 2007, 9, March (Mexico), Others and González Ivette Claudia Crime Prevention and Criminal Justice Measures to Eliminate Violence Justice Measures to Eliminate Violence Crime Prevention and Criminal eau of Investigation (CBI) and Investigation by Critical Incident Team (CIT) Incident Team eau of Investigation (CBI) and Investigation by Critical , OEA/Ser.L/V/II, Doc. 68 (January Doc. 68 Americas, OEA/Ser.L/V/II, in the of Violence omen Victims Juan Carlos Abella et al. (Argentina), November 18, 1997, para. 412. (Mexico), Case 11.565, April 4, 2001, paras. González Pérez (Mexico), Ana, Beatriz and Celia (Mexico), March 9, and Others (Mexico), March Ivette González 12.496-12.498, Claudia Report Nº 28/07, Cases , OEA/Ser. L/V/II.117. Doc. 44 (March 7, (March 44 Doc. L/V/II.117. OEA/Ser. Juarez, Ciudad in of Women Rights the of Situation The , OEA/Ser.L/V/II, Doc. 68 (January , OEA/Ser.L/V/II, in the Americas of Violence Victims Access to Justice for Women Doc. 68 (January , OEA/Ser.L/V/II, in the Americas of Violence Victims Access to Justice for Women , OEA/Ser.L/V/II, Doc. 68 (January Doc. 68 in the Americas, OEA/Ser.L/V/II, of Violence Victims for Women Access to Justice Access to Justice for W Access to Justice Report Nº 28/07, Case 12, 496, 12, Case 28/07, Nº Report Report Nº 28/07, Case 12, 496, 12, Case 28/07, Nº Report , OEA/Ser.L/V/II, Doc. 68 (January 20, in the Americas, OEA/Ser.L/V/II, of Violence Victims Access to Justice for Women Judicial District, Exhibits B and C respectively of Final Observations Regarding the Merits of the Case of Final Observations Regarding Judicial District, Exhibits B and C respectively th IACHR, 2007), para. 40; I/A Court H.R., Godínez Cruz Case. Judgment of January 20, 1989. Series C No. 5, IACHR, 2007, para. 247. Investigation by the Colorado Bur IACHR, Report Nº 53/01, IACHR, Report Nº 55/97, of 18 IACHR, in the Americas, OEA/Ser.L/V/II, of Violence Victims 2003), para. 142; IACHR, Access to Justice for Women Doc. 68 (January 20, 2007), Recommendation 1. IACHR, in Ciudad Juárez, Mexico: The Right to be Free from 84-88; IACHR, The Situation of the Rights of Women 7, 2003, para. 132. Doc. 44, March and Discrimination, OEA/Ser.L/V/II.117, Violence Crime Prevention and Criminal Justice Measures to Eliminate Violence Justice Measures to Eliminate Violence Nations, Crime Prevention and Criminal 20, 2007), para. 77; United A/RES/52/86, February 2, General Assembly, by the United Nations approved resolution against Women, 1998, Annex, Section II. IACHR, Nations, 20, 2007), para. 77; United IACHR, 242, Recommendation 2. IACHR, A/RES/52/86, February 2, General Assembly, by the United Nations approved resolution against Women, 1998, Annex, Section II. Doc. 68 (Janu- in the Americas, OEA/Ser.L/V/II, of Violence Victims 206; IACHR, Access to Justice for Women ary 20, 2007), para. 40. 20, 2007), para. 56. 20, 2007), para. IACHR, 56. 20, 2007), para. IACHR, submitted by the petitioners, March 24, 2008. The State also presents a supplemental report related to the related a supplemental report 24, 2008. The State also presents submitted by the petitioners, March ViolationsAlleging Petition the to the Response U.S. of its of E Tab in 1, 1999 July dated investigation CIT Human Rights of Jessica Gonzales by the United States of America and the State of Colorado, September 22, 2006. The Commission observes that on August 3, 2009, it r tion file related to the death of Leslie, Katheryn and Rebecca Gonzales, but this request has not been met. Gonzales, but this related to the death of Leslie, Katheryn and Rebecca tion file bases the analysis of these two investigations on the information that has been the Commission Therefore, to date by the parties. provided

285. 291. 284. 281. 283. 279. 278. 280. 282. 275. 276. 277.

194 Gender-based Violence documents related to these two investigations read in conjunction also show that their main objective 292. 293. 307. 306. 303. 302. 301. 300. 294.

the Petitioners,October17,2008,Tab I:Letterfrom theDistrictAttorney, 18 oftheUnitedStatesAmericatoFinalObservationsRegardingGovernment theMeritsofCaseby Letter toColoradoBureau ofInvestigationsfrom Agents ContosandVanecek, June28,1999;Replybythe Observations Regarding theMeritsofCasesubmittedbypetitioners,March 24,2008,ExhibitH: was toinvestigatetheexchangeofgunfire betweenthepoliceandSimonGonzales.See,forexample,Final The C: 18 Final ObservationsRegar Police Department,August13,1999. 2003), para.51. IACHR, (Villagrán Moralesetal.).JudgmentofNovember19,1999.SeriesCNo.63,para.235. Americas, OEA/Ser.L/V/II, Doc. 68 (January 20, 2007), para. 26; I/A Court H.R., (United States),July24,2007,para.42;IACHR,AccesstoJusticeforWomen Victims ofViolence inthe 2010, para.62;IACHR,ReportonAdmissibilityNº52/07,Petition1490-05,JessicaGonzalesandOthers See, IACHR,ReportNº81/10,Case12.562, 2008. Rivera,Marchof theCasesubmittedbypetitioners,March 17, 24,2008,Ex.A:DeclarationofTina Inter-American CommissiononHumanRights,October22,2008;FinalObservationsRegarding theMerits Hearing onthematterof December 12,1999,para.224. See, December 12,1999,paras.224-226. See, 20, 2007),paras.54,134,139,172and177. IACHR, eryn Gonzales,andExhibitG:DouglasCountyCoroner’s Report:LeslieGonzales. E: DouglasCountyCoroner’s Report:RebeccaGonzales,ExhibitF:DouglasCountyCoroner’s Report:Kath- Final ObservationsRegar i.e., IACHR, Report on the Merits i.e., IACHR, Report on the Merits th JudicialCriticalIncidentTeam ShootingofSimonGonzalesCastleRockPDCase#99-3226, p.38. Access toJusticeforWomen Victims ofViolence intheAmericas,OEA/Ser.L/V/II, Doc.68(January The Situation of the Rights of Women in Ciudad Juarez, OEA/Ser. L/V/II.117. Doc. 44 (March 7, ding theMeritsofCasesubmittedbypetitioners,March 24,2008,Exhibit ding theMeritsofCasesubmittedbypetitioners,March 24,2008,Exhibit Jessica Gonzalesv. UnitedStatesatthe133thOrdinary Period ofSessionsthe

N° 136/99, N° 136/99, Wayne Smith,HugoArmendatriz, etal.,UnitedStates,July12, Case 10.488, Ignacio Ellacuria and Others(El Salvador), Case 10.488, Ignacio Ellacuria and Others(El Salvador), th JudicialDistricttoCastleRock The “Street Children” Case European Court of Human Rights

Aydin v. Turkey

Application Nº 23178/94

Judgment of September 25, 1997 196 Gender-based Violence […] Mrs against theRepublicofTurkey lodgedwiththeCommissionunderArticle damental Freedoms (“the Convention”). Itoriginatedinanapplication(no. case was referred to the Court by the European Commission of Human Rights ticle 32§1andArticle47oftheConventionforProtection ofHumanRightsandFun- (“the Commission”)on15 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 born 13. 14. eastern Turkeyeastern hadsince1987beensubjectedto emergencyrule. At thetimeofCourt’s consideration of thecase,tenelevenprovinces ofsouth- 4,036 civiliansand3,884membersofthesecurityforces. istan). Thisconfrontation hassofar, accordingclaimedthelivesof totheGovernment, Turkey betweenthesecurityforces andthemembersofPKK(Workers’ PartyofKurd- 1. A

rocedure s

Ş to 1. The P 2. The applicant,Mrs Since ükran Aydın, aTurkishükran national,on21December1993.

articula r

the The applicant The situationinthesouth-eastofT approximately 1985, serious disturbances have ragedin the south-eastof F acts C ircumst

Ş ükran Aydın, isaTurkish citizenofKurdish origin.Shewas

April 1996,withinthethree-month periodlaiddownbyAr ances

of urkey

the C ase

years oldandlivingwith

23178/94)

25 by - European Court of Human Rights - Aydin v. Turkey 197 - 14 above). Her family 14 above). Her family

, in Derik to lodge complaints about theabout complaints lodge to Derik in , s complaint Bekir Özenir

June 1993. June 1993.

, Seydo Aydın, and her sister-in-law, Ferahdiba Aydın, were were Aydın, Ferahdiba and her sister-in-law, , Seydo Aydın, July 1993 the applicant together with her father and her sister-in-law went to July 1993 the applicant together with her father and her sister-in-law ding to the applicant, a group of people comprising village guards and a gen- and comprising village guards of people applicant, a group ding to the from her father and her sister-in-law. At some stage she was taken upstairs to upstairs taken was she stage some At sister-in-law. her and father her from members of the group came to her parents’ home and questioned her family her questioned and home parents’ her to came group the of members

reatment of the applicant during detention reatment The investigation of the applicant’ On 8 T the gendarmerie headquarters, she was The applicant alleges that, on arrival at The applicant, her father Accor Four The detention of the applicant The detention

the office of the public prosecutor, 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 23. about recent visits to the house by PKK members (see paragraph visits to the house about recent 20. were threatened and subjected to insults. They were then taken to a village square where 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. merie headquarters. [...] B. singled out from the rest of the villagers, blindfolded and driven away to Derik gendar blindfolded and driven away to Derik of the villagers, the rest singled out from separated darme arrived in her village on 29 in her village on darme arrived 17. 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. A. 16. 198 Gender-based Violence was submitted,undated,totheCommissionalongwithherapplication. in astatementgiventotheDiyarbakırHumanRightsAssociationon15 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 establish whethertheapplicanthadlosthervirginityand,ifso, sincewhen.Themedical HospitalrequestingDiyarbakır Maternity thatamedicalexamination becarriedoutto plicant whobythatstagewasmarried.Onthesamedayhe referred theapplicantto 26. He didnotfrequently dealwithrapevictims. inner thighsonaccountofthefactthathewasaspecialistin obstetrics andgynaecology. since when.ShewasexaminedbyDr 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 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. account were recorded inhisreport. Dr happened tohernorwhethertheresults oftheexaminationwere consistentwiththat her examination.Noswabwastakenandneithertheapplicant’s accountofwhathad tor’s report, datedthesameday, deflorationhadoccurred more thana week priorto

1. On 12 On 9 All thr

Medical examinationoftheapplicant July 1993thepublicprosecutor senttheapplicanttobeexaminedatMardin ee were sentthesameday toDrDenizAkkuşatDerikStateHospital.The

August 1993thepublicprosecutor tookafurtherstatementfrom theap-

August 1993confirmedDr

July 1996,DrAkkuş,whohadnotpreviously dealt Ziya Çetin,agynaecologist.According tothedoc-

Çetin didnotcommentonthebruisingher

Çetin’ s earlierfindings (seeparagraph

July 1993, which July 1993,which

25 European Court of Human Rights - Aydin v. Turkey 199 - - - - 66, 66,

3 between 3 between

3 admits of no

ohibits in absolute judgment cited above, above, judgment cited Aksoy 3 of the Convention enshrines one 3 of the Convention

of particularly terrifying and humiliat-

Article s assessment ecalls that it has accepted the facts as established by the Commission, by the Commission, facts as established it has accepted the ecalls that 62).

The Court’ der to determine whether any particular form of ill-treatment should be should be form of ill-treatment der to determine whether any particular

The applicant was also subjected to a series While being held in detention the applicant was raped by a person whose identity While being held in detention the applicant In or The Court r The Court 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 15 even having regard

2278, § 167).

ing experiences while in custody at the hands of the security forces at Derik gendarmer ing experiences while in custody at the hands of the security forces 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 terms torture or inhuman or degrading treatment or punishment. Article degrading treatment or inhuman or terms torture 82. 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. (see the Ireland v. cruel suffering § 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. p. must be had to the distinction drawn in Article regard qualified as torture, by an official of the State must be consid has still to be determined. Rape of a detainee of the nation or to any suspicion, however well-founded, that 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 83. exceptions to this fundamental value and no derogation from it is permissible under Ar it is permissible from value and no derogation exceptions to this fundamental ticle of the fundamental values of democratic societies and as such it pr values of democratic societies and as such of the fundamental namely that the applicant was detained by the security forces and while in custody 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. 80. 200 Gender-based Violence State officials(see,forexample, theAksoyjudgmentcitedabove,p. plies toacivilclaimforcompensation inrespect ofill-treatment allegedlycommitted by 9 constitutes oneaspect(see,for example,theHolyMonasteriesv. Greecejudgmentof right ofaccess,thatis,thetoinstituteproceedings before acourtincivilmatters, 99. TheCourtrecalls thatArticle A. [...] complaint inthecontextofhercomplaintsunderArticles tion ofArticle3(...),theCourtconsidersthatitwouldbeappropriate toexaminethis effective investigationinto hertreatment whileincustodyconstitutedaseparateviola- 88. 87. separately. Indeed theCourtwouldhavereached thisconclusiononeitherofthesegrounds taken to whichshewassubjectedamountedtorture inbreach ofArticle physical andmentalviolenceinflictedontheapplicantespeciallycruelactofrape 86. purposes. the period of her detention must also be seen as calculated to serve the same or related the security forces to elicit information. The suffering inflicted on the applicant during count ofthesecuritysituationinregion (seeparagraph to Derikgendarmerieheadquartersforapurpose,whichcanonlybeexplainedonac- 85. being spunaround inatyre. vulnerability andononeoccasionshewaspummelledwithhigh-pressure waterwhile also paradednakedinhumiliatingcircumstances thusaddingtoheroverallsenseof ing questioningandbytheapprehension ofwhatwouldhappentohernext.Shewas III.

December

Article As totheapplicant’ In conclusion,ther Against thisbackgr The applicantandherfamilymusthavebeentakenfr C A onvention lleged

1994, Series 6 §

V 1 oftheConvention iola e hasbeenaviolationofArticle3theConvention. s contentionthatthefailure oftheauthoritiestocarryoutan ound theCourtissatisfiedthataccumulationofacts

tions A no.

301-A,

of 6 § A

1 embodiesthe“righttoacourt”,ofwhich pp. rticles

36–37, 6 §1 §

80).

6 and13oftheConvention. Furthermore, Article and om theirvillageandbrought

14 above)andtheneedof 13

3 oftheConvention.

of 2285, §

the

92).

6 §

1 ap- European Court of Human Rights - Aydin v. Turkey 201 - 13 must

12 of the

81 and 83

3 of the Convention has

95).

13 guarantees the availability at the na-

2286, §

- the civil or administra either before oceedings 13 varies depending on the nature of the applicant’s of the applicant’s on the nature 13 varies depending

48 above). However, such a requirement is implicit in the such a requirement 48 above). However,

13. Given the fundamental importance of the prohibition of tor the prohibition 13. Given the fundamental importance of

ecalls at the outset that Article 13 imposes, without prejudice to any other remedy available under the available to any other remedy 13 imposes, without prejudice

13 of the Convention 13 of the Convention

The Court r Article The applicant has never instituted pr has never instituted The applicant

Furthermore, the nature of the right safeguarded under Article of the right safeguarded the nature Furthermore, above), Article 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 been committed (see paragraph tional level of a remedy to enforce the substance of the Convention rights and freedoms 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 under Article scope of the obligation by Article required the remedy complaint under the Convention. Nevertheless, implications for Article 103. 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 State (see the Aksoy judgment cited above, p. (see paragraphs victims the especially vulnerable position of torture and ture 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 provision no express tive courts to seek compensation in respect of the suffering to which she was subjected 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. 100. 202 Gender-based Violence was made to evaluate,psychologically, whether herattitude and behaviourconformedto of involuntarysexualintercourse (seeparagraphs doctor volunteered anopiniononwhetherthebruisingwas consistentwithanallegation explain whathadhappenedto herortoaccountforthebruisingonthighs.Neither summary reports drawnupbythesedoctorsastowhethertheapplicantwasasked victims (see paragraphs that neitherDr 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 they alleged theysuffered. Insuch seriousness ofherallegationsbearinginmindalsotheaccountswhichothermem- torture, thepublicprosecutor couldreasonably havebeenexpectedtoappreciate the (see paragraph 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 wouldappearthathisprimaryconcer The applicant,herfatherandsister Having r egard totheseprinciples,theCourtnotesthatapplicantwasentirely

Akkuş norDr 23 above).Althoughshemaynothavedisplayedanyvisiblesignsof

24 and

Çetin hadanyparticularexperienceofdealingwithrape 25 above). No reference is made in eitherof the rather -in-law complainedtothepublicprosecu - n inordering three medicalexaminations

24 and25above).Further, noattempt (see the Aksoy judgment cited above, European Court of Human Rights - Aydin v. Turkey 203 13 of the Convention.

It has been contended that the investigation is still being conducted and that the that the investigation is still being conducted It has been contended In the light of the above considerations, it must be concluded that no thorough and must be concluded that no thorough In the light of the above considerations, it

applicant’s absence from the vicinity of Derik impeded the investigation 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. effective investigation was conducted into the applicant’s allegations and that this failure 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 In conclusion, there [...] 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 108.

European Court of Human Rights

Jabari v. Turkey

Application Nº 40035/98

Judgment of July 11, 2000 206 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 arr 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 secr 9. […] 1. T

On 6February1998theapplicantwastransferr On 4February1998theapplicantwasputonaplaneforIstanbul. Followingher When theapplicantarrivedatairportinParis,Fr In November1997theapplicantenter The applicantunderwentavirginityexaminationwhileincustody In October1997theapplicantandXwer However In 1995,attheageof22,applicantmetaman(“X”)inIranwhileattending T F etarial college.Shefellinlovewithhimandaftersometimetheydecidedtoget he acts C ircumst , X’s familywasopposedtotheirmarriage.InJune1997Xmarriedanother ances

the C ed Turkey illegally. InFebruary1998theap- ase e stoppedbypolicemenwhilewalking ed from apolicestationinsidethe ench policefoundhertobe ested bypolicemenon . Afterafewdays - European Court of Human Rights - Jabari v. Turkey 207 s peti- e was no ac- f member of the UNHCR, with the permission of the f member of the UNHCR, ch 1998 the applicant lodged an application with the Ankara Administra- ch 1998 the applicant lodged an application ding to the applicant, she was held in detention at the Aliens Department until she was held in detention at the Aliens Department ding to the applicant, On 4 November 1998 the Ankara Administrative Court found that ther On 4 November 1998 the Ankara Administrative On 16 April 1998 the Ankara Administrative Court dismissed the applicant’ On 16 April 1998 the Ankara Administrative On 8 Mar On 12 February 1998 a staf On 12 February 1998 Accor

tions on the ground that there was no need to suspend her 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. 26 March 1998. Thereafter, following the intervention of the Ankara branch office 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. asked for a stay of execution of her deporta- tive Court against her deportation. She also tion. 20. authorities, interviewed the applicant about her asylum request under 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. 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 […] 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. 208 Gender-based Violence 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,whichar 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. applicant maintained that her removal to Iran would expose her to treatment prohibited byArticle3oftheConvention,whichprovides: 33. under Article3oftheConvention. Itwasalsosignificantthatshedidnotclaimasylum to theUNHCRwhenshearrived inTurkey in 1997wasatvariancewithherallegations opinion the fact that the applicant failed to make an application to the authorities or a 1. T he

The Gover The Gover The applicantfurtherclaimedthat,bearinginmindtheestablishedcase-lawof The applicantstatedthatshehadcommittedadulteryinIranandtoleavebe punishment.” “No oneshallbesubjectedtotorture ortoinhumandegradingtreatment or The L lleged aw nment furtherquestionedthe substance oftheapplicant’s fears.Intheir nment maintainedinreply thatwhenbecomingaContractingPartyto V iola tion

the A r ticle 3 of e penaltiesprescribed byIra -

the C onvention

- - European Court of Human Rights - Jabari v. Turkey 209 3 enshrines

96).

1859, §

Vilvarajah and Others v. v. Others and Vilvarajah espondent State conducted egard to the fact that Article to egard - States have the right, as a matter of well-estab ecalls that Contracting The Court is not persuaded that the authorities of the r The Court is not persuaded that the authorities The Court further observes that, having r The Court further observes that, having The Court r judgment of 20 March 1991, Series A no. 201, p. Sweden judgment of 20 March and Others v. Cruz Varas

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 one of the most fundamental values of a democratic society and prohibits 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. mutandis, the Chahal judgment cited above, p. 1855, § 79, and lished international law and subject to their treaty obligations, including the Convention, to Convention, the including obligations, lished international treaty to their and subject law the right to political asylum of aliens. Moreover, and expulsion residence the entry, control the (see Protocols its or Convention the either in contained not is 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. 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. 210 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 Islamic law. 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

Holds thatintheeventofdecisiontodeportapplicant toIranbeingimple Having r The CourtforitspartmustgivedueweighttotheUNHCR’

these egard totheaboveconsiderations, theCourtfindsitsubstantiatedthat

reasons , the

cour t

unanimousl y s conclusionontheap- - - European Court of Human Rights

Y. F. v. Turkey

Application Nº 24209/94

Judgment of July 22, 2003 212 Gender-based Violence December 1984,DR p. 155,andAcmanneOthersv. 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,§ integrity ofaperson(seeXandYv. concer 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

The CourtobservesthatArticle8isclearlyapplicabletothese complaints,which On thesamedayMrsF On 20October1993,followingherdetentioninpolicecustody Relying L n amatterof“privatelife”,conceptwhichcoversthephysical andpsychological lleged aw on Article 8 of the Convention, the applicant complained that the forced V

22). Itreiterates inthisconnectionthataperson’s the bodyconcerns iola

40, p.254). tion . wastakentotheBingölpublicprosecutor’s office,where

A the Netherlands,judgmentof26March 1985,Series

Belgium, no.10435/83,Commissiondecision of10 r ticle 8 of

the C onventi , Mrs

F. wasexam- European Court of Human Rights - Y. F. v. Turkey 213 ence was “in accordance with with ence was “in accordance 40679/98, § 151, 29 April 2003, 40679/98, § 151, 29 April 2003,

judgment of 25 March 1983, Series A no. 1983, Series A no. judgment of 25 March

A, p. 20, § 27, and Series A no. 176-B, p. 52, § 26, p. 52, § 26, A, p. 20, § 27, and Series A no. 176-B, ‑ 176

ence will violate Article 8 of the Convention unless it is “in ac- ence will violate Article 8 of the Convention that the applicant’s wife complained to the authorities that she had that she had to the authorities complained wife that the applicant’s s assessment egard, the Court notes that the Governmentegard, have not argued that the in- 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’ e has accordingly been an “interference by a public authority” with the right of by a public authority” with the right of been an “interference e has accordingly

In this r The Court must first consider whether the interfer The Court must first consider whether 2. Such an interfer Ther The Court notes The Court Silver and Others v. the United Kingdom, Silver and Others v.

the law”. This expression requires primarily that the impugned measure should have 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. 24 April 1990, Series A no. respectively). respectively). 42. terference complained of was “in accordance with the law” at the relevant 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 41. the applicant’s wife to respect for her private life. wife to respect the applicant’s 36. cordance with the law”, pursues one of the legitimate aims set out in the second 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. in pursuit of that aim (see Dankevich v. and 61, p. 32, § 84). […] been forced to undergo a gynaecological examination against her will (see paragraph 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. 34. 214 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 integritymustbeprescribed 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 findingsufficesfortheCourttoholdthatther However , in this case the Government failedtodemonstratetheexistenceofa , inthiscasetheGovernment e hasbeenaviolationofArticle European Court of Human Rights

M. C. v. Bulgaria

Application Nº 39272/98

Judgment of December 4, 2003 216 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 rapeofwhichshehadbeenavictimdidnotsecur Convention inthatdomesticlawandpracticerapecasestheinvestigationinto 3. […] Rules ofCourt). acceded totheapplicant’s request nottohavehernamedisclosed(Rule47§3ofthe 23 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

December 1997.Intheproceedings before theCourt, thePresident oftheChamber

C The applicantcomplainedthat Bulgarianlawandpracticedidnotpr She allegedthatshehadbeenrapedbytwomenon31July and1 The applicantisaBulgariannationalwhowasbor 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 n in1980. e theobservancebyrespon - nd 13O f T ovide effective August 1995, August 1995, he

- European Court of Human Rights - M. C. v. Bulgaria 217 eiterates that the obligation of the High Contracting Parties under Arti- s assessment egard to the nature and the substance of the applicant’s complaints in this and the substance of the applicant’s the nature to egard 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 elevant Convention provisions read: elevant Convention provisions

Having r The Court r 1. The Court’ 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 The r

particular case, the Court finds that they 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, 148. […] B. 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. 218 Gender-based Violence nature, localcircumstances andtraditionalapproaches are tobetakeninto account. doubtedly enjoy a widemargin of appreciation. In particular, perceptions ofacultural 154. rape andtoapplytheminpracticethrough effective investigationandprosecution. 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. to conduct an official investigation (see 151. and Augustv. the UnitedKingdom(dec.),no.36505/02,21 Netherlands, judgmentof26March 1985, Series A no.91,pp.11-13,§§ 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 Articles 3and8oftheConventiontoenactcriminal

In r On Further In anumberofcases, Positive obligationsontheStatear espect ofthemeanstoensure adequateprotection againstrape,Statesun- that basis, the Court considers that States have a positive obligation inherent in stance ofmemberStates’positiveobligationtoprovideadequate protection b.

, theCourthasnotexcludedpossibilitythatState’s positiveobligation The modernconceptionoftheelementsrapeanditsimpact onthesub- Article 3oftheConventiongives rise toapositiveobligation

3290, §102).Suchapositiveobligationcannotbe Assenov and Others v. Bulgaria, judgment of 28 e inherent intherighttoeffective respect for ‑ law provisions effectively punishing

January 2003).

23-24 and27, - European Court of Human Rights - M. C. v. Bulgaria 219 - - eciation are nonetheless cir nonetheless eciation are law and legal theory lack of consent, not law and legal theory lack of consent, not ‑ , proof of physical force and physical resistance and physical resistance of physical force , proof law was amended in 1989 to state that any act of sexual penetration would sexual act of any state that 1989 to amended in law was dless of the specific wording chosen by the legislature, in a number of coun- chosen by the legislature, dless of the specific wording , it appears that a requirement that the victim must resist physically is no lon- that the victim must resist , it appears that a requirement countries, in Europe and elsewhere, reference to physical force has force physical to reference elsewhere, and Europe in countries, common-law In by the continental legal tradition, the defini- influenced countries In most European Regar Belgian Firstly The Court observes that, historically The Court observes that, The limits of the national authorities’ margin of appr of the national authorities’ The limits

constitute rape when committed in respect 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 (…). been removed from the legislation and/or case-law (see paragraphs 98, 100 and 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 159. of violence by the per threats to the use of violence or tion of rape contains references cumscribed by the Convention provisions. In interpreting them, since the Convention them, since In interpreting provisions. by the Convention cumscribed Court must have of human rights, the 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. countries. in the statutes of European ger present 158. that in case It is significant, however, petrator. rape (…) of as the constituent element of the offence is seen force, 160. was required under domestic law and practice in rape cases in a number of countries. 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. 155. 220 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,Courtispersuadedthatanyrigidappr Mor As submittedbytheintervener In The CourtalsonotesthatthememberStatesofCouncilEur In thelightofabove, Court’

international criminal law,international it has recently been recognised that force is not an ele- eover, thedevelopment oflawandpracticeinthatarea reflects the evolutionof The Court’ s taskinthepresentcase , theevolvingunderstandingofmannerinwhich s taskistoexaminewhether or nottheim- ope, through the oach tothe - European Court of Human Rights - M. C. v. Bulgaria 221 ooted in defec- nment were unable to provide copies of unable to provide nment were s approach , is the meaning given to words such as “force” or such as “force” , is the meaning given to words e the Court is limited to the above. The Court is not concernedabove. The Court is is limited to the e the Court equirement of physical resistance by the victim and defines rape in a man- by the victim and defines of physical resistance equirement esent case, in the absence of case-law explicitly dealing with the question esent case, in the absence of case-law explicitly Application of the Court’

Nonetheless, it is noteworthy that the Gover In the pr What is decisive, however The Court observes that Article 152 § 1 of the Bulgarian Criminal Code does not The Court observes that Article 152 § 1 The applicant alleged that the authorities’ attitude in her case was r that the authorities’ attitude in her case The applicant alleged The issue befor The issue 2.

whether every sexual act carried out without the victim’s consent is punishable 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. ner which does not differ significantly from the wording 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. approach restrictive a of allegations the disproving clearly commentaries legal or judgments “threats” 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. tive legislation and reflected a predominant practice of prosecuting rape perpetrators rape perpetrators practice of prosecuting a predominant reflected tive legislation and resistance. of significant physical of evidence only in the presence 170. 169. mention any r 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. with allegations of errors or isolated omissions in the investigation; it cannot replace the replace omissions in the investigation; it cannot 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’ 222 Gender-based Violence credibility oftheconflictingstatementsmade. ties forestablishingallthesurrounding circumstances anddidnotassesssufficiently the 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, thefactthat vast majority in the prosecution of rape. The Government’s own submissions on the elements of rape 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. Littlewasdone,however, obviously calledforacontext-sensitiveassessmentofthecredibility ofthestatements

The Courtthusconsidersthatthe authoritiesfailedtoexplor It notes,nonetheless,thatthepr The Court T The Courtisnotr urning totheparticularfactsofapplicant’surning case,theCourtnotesthat, inthe recognises that the Bulgarian authorities faced a difficulttask, asthey equired toseekconclusive answers aboutthepracticeofBul- esence oftwoirreconcilable versionsofthefacts e theavailablepossibili- European Court of Human Rights - M. C. v. Bulgaria 223 ove s case. The Court finds that the failure of the au- s case. The Court finds that the failure essing an opinion on the guilt of P. and A., finds essing an opinion on the guilt of P. eason for that failure was, apparently, the investiga- was, apparently, failure eason for that e, they handled the investigation with significant delays (…). e, they handled the investigation with significant e, it appears that the prosecutors did not exclude the possibility that did not exclude the possibility that prosecutors e, it appears that the authorities may also be criticised for having attached little weight to the particu- to weight little attached having for criticised be also may authorities Furthermor In sum, the Court, without expr The That was not done in the applicant’ The Court considers that, while in practice it may sometimes be difficult to pr The Court considers that, while in practice Furthermor It is highly significant that the r significant that the It is highly

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. lar vulnerability of young persons and the special psychological factors involved in cases lar vulnerability of young persons and the concerning the rape of minors (…). 184. tor’s and the prosecutors’ opinion that, since what was alleged to have occurred 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. 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. the applicant might not have consented, but adopted the view 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. 179. 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. 224 Gender-based Violence […] also holdsthatnoseparateissuearisesunderArticle13oftheConvention. spondent State’s positiveobligationsunderbothArticles3and8oftheConvention.It 187. tion againstrapeandsexualabuserequires measures ofacriminal-lawnature (…). egards theGovernment’s argumentthatthenationallegalsystemprovided for this assertion has not been substantiated. In any event, asstated above, effective protec- the possibility of a civil action for damages against the perpetrators, the Court notes that 186.

The Courtthusfindsthatinthepr As r esent casethere hasbeenaviolationofthere- European Court of Human Rights

Siliadin v. France

Application Nº 73316/01

Judgment of July 26, 2005 226 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,withoutdayof 14. decided tokeepher. 13. given hisconsent. holidays andatweekends.TheapplicantlivedMrMrsB.’s home,herfatherhaving Mrs B.alsohadanotherdaughterfrom afirstmarriagewhostayedwithherduringthe two smallchildr 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., aFr 10. 9. […] […] I. T

The applicantsubsequentlybecameageneralhousemaidfor MrandMrsB.She On herr In thesecondhalfof1994,MrsD.“lent”applicanttoMrandB.,whohad It hadbeenagr She arrivedinFranceon26January1994,aged15yearsand7months,withMrs The applicantwasbor T F ench nationalofTogolese origin.Shehadapassportandtouristvisa. he acts C ircumst eturn fromhospital,MrsB.toldtheapplicantthatshehad eturn thematernity en, sothatshecouldassistthepregnant MrsB.withhouseholdwork. eed thatshewouldworkatMrsD.’s homeuntilthecostofherair ances n in1978andlivesParis.

the C ase f, andwasoccasionallyexceptionally European Court of Human Rights - Siliadin v. France 227 - 1995 to July

ecover her passport, which she s home. s mother, who gave her one or two 500 French 500 French gave her one or two who s mother, e prosecuted on charges of having obtained from July on charges of having obtained from e prosecuted aw , in obedience to her paternal, in obedience to her in contact with uncle, who had been L t elevan On 28 July 1998 the police raided Mr and Mrs B.’ On 28 July 1998 the police raided Mr and The couple wer On an unspecified date, the applicant managed to r On an unspecified date, the applicant managed In December 1995 the applicant was able to escape with the help of a Haitian na with the help of a was able to escape 1995 the applicant In December Subsequently She was never paid, except by Mrs B.’ paid, except by Mrs She was never

II. r […] 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 […] entrusted to an acquaintance of Mr and Mrs B. She also confided in a neighbour, 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 a complaint filed case. 19. tional who took her in for five or six months. She looked after the latter’s two children, 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. 15. franc (FRF) notes. franc (FRF) 16. 228 Gender-based Violence vention. Thisprovision states,interalia: 52. B. […] 39272/98, ECHR2003 65. the instantcase. 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. Kingdom, judgmentof23 X andYv. theNetherlands,judgmentof26 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 64. a I. T

2. 1. The applicantcomplainedthatther 1. The merits The applicantconsider The CourtnotesthattheGover She emphasisedthatthisobligation cover She addedthat, In theabsence L

lleged aw No oneshallber No oneshallbeheldinslaveryorservitude. Applicability ofArticle4andthepositiveobligations V iola of rulingsonthis matter inrespect ofArticle 4, shereferred indetail in thevarious cases in question, therespondent Stateshadbeen ‑ XII). tion

September 1998,Reports equired toperformforced orcompulsorylabour. (...) ed thattheexploitationtowhichshehadbeensubjected

of A nment donotdisputethatArticle4isapplicablein r ticle e hadbeenaviolationofArticle4theCon-

March 1985,SeriesAno.91;A.v. theUnited 4 ed situationswhere theStateauthorities of

1998 the ‑ C VI; andM.C.v. Bulgaria, onvention no. European Court of Human Rights - Siliadin v. France 229 opriate criminal-law machinery opriate criminal-law osecutor’s office had not considered it office had not considered osecutor’s eady been established that, with regard to certain eady been established that, with regard ed that the right not to be held in servitude laid down in Article 4 § 1 of to be held in servitude laid down in Article ed that the right not dingly, the applicant considered that the States had a positive obligation, inthat the States had a the applicant considered dingly, The Court points out that it has alr She further observed that, as the public pr She further observed that, as the public Accor She consider The applicant added that, in the absence of any appr The applicant added

Convention provisions, the fact that a State refrains from infringing 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. necessary to appeal on points of law on the grounds of public interest, 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 set out 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. herent in Article 4 of the Convention, to adopt tangible criminal-law provisions 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. to prevent and punish the direct perpetrators of alleged ill-treatment, it could not be 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 possible against 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 4 were Article under prohibited the practices She noted that and adults. international conventions which applied to both children 71. 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. 230 Gender-based Violence that: 80. 79. 78.

(dec.), no.36505/02,21January2003;andM.C.v. Bulgaria,citedabove,§150) Netherlands, citedabove,pp.11-13,§§23,24and27;Augustv. the United Kingdom vulnerable individuals,inparticular, are entitledtoeffective protection.” (XandYv. the of private life are at stake, requires efficient criminal-law provisions. Children andother 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 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 r “Positive obligationsontheStatear It subsequentlyclarifiedthisconcept: of 13 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, withr egards Article3oftheConvention,Courthasfoundonnumerous occasions

June 1979,SeriesAno.31,pp.14-15,§31)

2699, egard toArticle8oftheConvention,itheldaslongago1979: § 22; Z and Others v. the United Kingdom, cited above, §§ 73-75; e inherent intherighttoeffective respect forpri- - -

European Court of Human Rights - Siliadin v. France 231 11-

4 § 1 of the Forced Labour Convention, 4 § 1 of the Forced , cited above, pp. Netherlands , cited above, the X and Y v. eferring to the above-mentioned case, the Governmenteferring to the above-mentioned case, the September 1926: ... [d]ebt bondage, ... [a]ny institution or prac-

e, Article 1 of the Supplementary Convention on the Abolition of Slav- Abolition on the Convention Supplementary of the 1 e, Article - protec entitled to State are in particular, vulnerable individuals, en and other Furthermor In this connection, it notes that Article 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 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.” The Court notes that, in r or or permit the imposition of forced “The competent authority shall not impose individuals, companies or associations.” compulsory labour for the benefit of private The Court considers that, together with Articles 2 and 3, Article 4 of the Convention that, together with Articles 2 and 3, Article The Court considers tion, in the form of effective deterrence, against such serious breaches of personal personal of breaches serious against such deterrence, effective of form the in tion, mutatis mutandis, (see, integrity.” It has also found that: It has also “Childr , 22 October 1996, Kingdom, 22 October 1996, the United and Others v. §§ 21-27; Stubbings 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)

ope. ery, the Slave Trade, and Institutions and Practices Similar to Slavery, 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 accepted at the hearing that positive obligations did appear to exist in respect of 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. enshrines one of the basic values of the democratic societies making up the Council of basic values of the democratic societies enshrines one of the Eur [...] 84. 81. 82. 232 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: addition, with particular regard to children, Article 19 § 1 ofthe International 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 thosecir Finally 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 Parties shall take allappropriate legislative,administrative,socialand edu- In W

ith regard totheviolation ofArticle4theConvention,applicantnoted

Pr Pr States Partiesshalltakelegislative,administrative,socialandeducationalmea States Partiesr Alleged violationofArticle4 theConvention Pr , theCourtnotesthatitappearsfrom theParliamentaryAssembly’s findings ovide forappropriate penalties orothersanctionstoensure theeffective ovide forappropriate regulation ofthehoursandconditionsemployment; ovide foraminimumageoragesadmissiontoemployment; cumstances, theCourtconsidersthatlimitingcompliancewith Article ecognise therightofchildtobeprotected from economic - European Court of Human Rights - Siliadin v. France 233 ced s home, she con- esponded to three of the four servile of the four esponded to three om the facts that her situation was not temporary or om the facts that her situation was not temporary eferred to the documentation published by the Council of Eu- to eferred Referring to her working and living conditions at Mr and Mrs B.’ She added that it was clear fr The applicant also r She pointed out that her situation had corr She pointed out that She said that, although the Convention did not define the terms servitude or “for the terms servitude did not define although the Convention She said that,

cluded that her exploitation at their hands had compromised her education and social included that her exploitation at their hands had compromised occasional in nature, as was normally the case with “forced 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. rope on domestic slavery and pointed out that the criteria used included confiscation 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. institutions or practices referred to in Article 1 of the Supplementary Geneva Convention 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. or compulsory labour”, reference should be made to the relevant 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. 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. 234 Gender-based Violence among othercircumstances, certainsignsofconstraint orcontrol oftheindividual. vulnerable orinastateofdependence, thecourtswere entitledtotakeintoaccount, person’s labour bytakingadvantageofhimorher. Inassessingwhetherthevictimwas 100. which hadledinpracticetoundulyrestrictive interpretations. lack oflegalcriteriaenablingthecourtstodeterminewhether suchasituationobtained, tional Assembly’s taskforce slaveryhadhighlightedthe onthevarious forms ofmodern 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. 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 99. no legislationthatdirectly made itanoffence totrafficinhumanbeings. took. Inaddition,priortotheenactmentofLaw18March 2003,there hadbeen that wassufficientlyspecificandflexibletobeadaptedtheformsthosepracticesnow servitude orforced orcompulsory labour, stilllessadefinitionofthosethree concepts

Thus, Article225-13oftheCriminal Codemadeitanof Accor She notedthatFr As tothedefinitionof“for She added that in addition to the unremunerated exploitation of another’s work, dingly, theoffences towhichshehadbeensubjectedfellwithintheprovisions ench criminallawdidnotcontainspecificoffences ofslavery, ced orcompulsorylabour”,theapplicantdrew attention fence toobtainanother European Court of Human Rights - Siliadin v. France 235 ous international equired, and continued equired, ovisions in force at the ovisions in force om Togo at the age of 15 om Togo eality, the applicant worked for this person for a few months before being “lent” the applicant worked for this person for a few months before eality, The Court also notes that, in addition to the Convention, numer In r The Court notes that the applicant arrived in France fr The Court notes that the applicant arrived The applicant said in conclusion that the criminal-law pr The applicant said in She added that, contrary to Article 225-13, Article 225-14 r She added that, contrary

conventions have as their objective the protection of human beings from slavery, 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 to Mr and Mrs B. It appears from the evidence that she worked in their house without house their in worked she that evidence the from appears B. It Mrs and 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. to require, an infringement of human dignity for the offence to be established. That was 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. 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. material time had not afforded her adequate protection from servitude or from forced 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. 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. 236 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 “forthe paragraph 3ofArticle4theEuropean Conventionandparagraph2ofArticle 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 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 116. Series Ano. Labour Convention(seeVan derMusselev. Belgium,judgmentof23November1983, the CouncilofEurope’s memberStates,includingFrance,andespecially the1930Forced case already takenintoaccounttheILOconventions,whichare bindingonalmostallof

It considersthatther In interpr It isnotdisputedthatsheworkedforyearsMrandMrsB.,withoutr Accor The Courtr dingly, theCourt mustdeterminewhethertheapplicant’s situationfallswithin

70, p.16,§32). eting Article4oftheEuropean Convention,theCourthasinaprevious eiterates thatArticle4enshrinesoneofthefundamentalvaluesdem- e isinfactastrikingsimilarity, whichisnotaccidental,between ‑ V, p.1855,§79;andSelmouniv. espite and Kingdom, M.C. v. European Court of Human Rights - Siliadin v. France 237 eatened ee will, it is clear from the ee will, it is clear from ding to the 1927 Slavery Convention, cumstances, the Court considers that the applicant was, at the least, cumstances, the Court considers that the emains for the Court to determine whether the applicant was also held in servi- emains for the Court to determine whether The Court notes at the outset that, that accor In these cir It r As to whether she performed this work of her own fr As to whether she performed this work The Court notes that, in the instant case, although the applicant was not thr in the instant case, although the applicant The Court notes that, It

subjected to forced labour within the meaning of Article 4 of the Convention at a time the Convention at 4 of of Article the meaning within labour to forced subjected when she was a minor. 121. 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 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. facts of the case that it cannot seriously be maintained that she did. On the contrary, 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. by a “penalty”, the fact remains that she was in an equivalent situation 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 led her to that fear and 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. 117. work has to be is What there mental constraint. or of physical the idea brings to mind This labour. compulsory” or “forced was there whether be ascertained to remains 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. 238 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. 125. v. France(dec.),no. coercion, andistobelinked withtheconceptof“slavery”describedabove(seeSeguin “servitude” meansanobligationtoprovide one’s servicesthatisimposedbytheuseof 124. no. 7906/77,Commissiondecisionof5 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,§§ ous formofdenialfreedom” (seeVan Droogenbroeckv. Belgium,Commission’s report 123. status ofan“object”. Mrs B.exercised agenuinerightoflegalownershipoverher, thusreducing hertothe practices: to bringaboutthecompleteabolitionorabandonmentoffollowinginstitutionsand to theconventionmusttakeallpracticableandnecessarylegislativeothermeasures Slave Trade, and InstitutionsPracticesSimilartoSlavery, eachoftheStatesParties

In additiontothefactthatapplicantwasr 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 Furthermor It W follows in the light of the case-law on this issue that for Convention purposes ith regard totheconceptof“servitude”,whatisprohibited isa“particularlyseri- e, under the Supplementary Convention on the Abolition of Slavery, the

42400/98, 7March 2000).

July 1979,DR17,p.59). 78 ‑ 80). Itincludes,“inadditiontotheobligation equired toperformforced labour, the European Court of Human Rights - Siliadin v. France 239 X and Y v. the X and Y v. osecutor did not appeal on ested by the police, was not ested by the omises made to her father, the father, omises made to her 27; Stubbings and Others, cited above, p. ‑ 21

- at the rel concludes that the applicant, a minor cumstances, the Court egard to its conclusions with regard to the positive obligations under Article to the positive to its conclusions with regard egard , the Court has held in a case concerning rape that “the protection afforded afforded , the Court has held in a case concerning rape that “the protection Court has previously stated that children and other vulnerable individuals, in individuals, vulnerable other and children that stated previously has Court In this connection, it notes that, as the Principal Public Pr The Court observes that, in the instant case, the applicant, who was subjected to The Court observes that, in the instant case, the applicant, who was subjected Further The In those cir Having r As she had not been sent to school, despite the pr As she had not been In addition, the applicant, who was afraid of being arr was afraid of being the applicant, who In addition,

- eatment contrary to Article 4 and held in servitude, was not able to see those respon sible for the wrongdoing convicted under the criminal law. sible for the wrongdoing 146. tr 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. judgment of 19 October 2000, the appeal to points of law against the Court of Appeal’s particular, are entitled to State protection, in the form of effective deterrence, against deterrence, in the form of effective entitled to State protection, are particular, of personal integrity (see, mutatis mutandis, such serious breaches 4, it now falls to the Court to examine whether the impugned 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. applicant could not hope that her situation would improve and was completely depen- was and improve would her situation that 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. 127. in any event permitted to leave the house, except to take the children to their classes 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. 240 Gender-based Violence […] 2. […] […] (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 theamendments,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 Holds thatthere hasbeenaviolationofArticle4theConvention;

In thosecir In addition,accor

these

reasons cumstances, theCourtconsiders that thecriminal-lawlegislationinforce ding tothereport of12December2001bytheFrench National , the C our t

unanimously European Court of Human Rights

Bevacqua and S. v. Bulgaria

Application Nº 71127/01

Judgment of June 12, 2008 242 Gender-based Violence as relevant: complaints falltobeexaminedunderArticle8oftheConvention whichreads, insofar 55. protect thefirstapplicantagainstviolentbehaviourofherformerhusband. failed 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 Relying onArticles3,8,13and14,theapplicantscomplained thattheauthorities Later The firstapplicantmarriedMrN.in1995andgavebirthtoS.January1997. The firstapplicant,MrsV T L F to take the necessary measures to secure respect for their family life and failed to

he lleged aw acts

, therelations betweenthe spousessoured, MrN.becameaggressive andon Ther Everyone hastherighttor C ircumst e shallbenointerference byapublicauthoritywiththeexercise ofthis considers that in the particular circumstances of the present case these V iola ances tion alentina Nikolaeva Bevacqua, isaBulgariannationalwho

of of A

espect forhisprivateandfamilylife(...) the r ticle C ase 8 of

the C onventi European Court of Human Rights - Bevacqua and S. v. Bulgaria 243 51,

January

The Court

XII). ‑ 27966/06, §

(dec.), no. 36505/02, 21 36505/02, no. (dec.), otect the individual against arbitrary otect the individual 39272/98, ECHR 2003

no. Bulgaria,

s assessment espect for one’s family life under Article 8 includes a parent’s right family life under Article 8 includes a parent’s espect for one’s s task is to examine whether the authorities’ response to the situation for s task is to examine whether the authorities’ response Application to the facts of the case 2007, with further references). As regards respect for private life, the Court life, the private for respect As regards references). further with 2007, Relevant principles

b. The Court’ a. August v. the United Kingdom United the v. and August 27, and

VIII, §§ 128-130, and M.C. ‑ The Court’

The right to r While the essential object of Article 8 is to pr 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. 23-24

November

66. which the first applicant, acting on her own behalf and on behalf of her son, the 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. has previously held, in various contexts, that the concept of private life includes a person’s 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. 1998 2003). 65. 6 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 (…). to the taking of measures with a view to his or her being reunited 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. Šobota‑Gajić v. authority, (see, as a recent action by the public authorities, there may in addition be positive obligations inherent 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 §§ 64. […] 244 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 were divorcing, wishedto obtain 67. 69. (see paragraph7above). on allegationsofaggressive behaviourandthusclearlycalledforpriorityexamination applicants’ case. Indeed,theinterim custody measures application was based,interalia, 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 helpofther It istruethattheallegationsmadebyfirstapplicant,aswellallr The Courtobservesthatbecauseofitsverynatur Furthermor This delaywasther The evidenceis,however (i)

Examination oftheinterimmeasuresapplication e, after11September2000,whenthefirstapplicantinformed theDis- elevant authoritieswassolicitedinasituationwhere boththefirst esult of the domestic courts’ practice to adjourn custodyissues esult ofthedomesticcourts’practicetoadjourn , thattheDistrictCourtdidnottreat thematterwithany e andpurpose,anapplicationfor elevant cir - European Court of Human Rights - Bevacqua and S. v. Bulgaria 245 ning the first incident complained s decision to withdraw her request s decision to withdraw her request cumstances, the authorities’ duty under Article the authorities’ duty cumstances, s complaints about Mr N.’s aggressive behaviour s complaints about Mr N.’s s handling of the interim measures issue for a period of s handling of the interim measures , the District Court continued to adjourn, the District Court continued of the interim the examination (ii) The first applicant’ e is no doubt about the evidential value of the second medical certificate, which The Court notes that the medical certificate concer The Court notes that the medical certificate Ther

In sum, the District Court’ The Court also considers that the first applicant’ However The Court considers that in these cir considers that in these The Court

about was issued several days after the events and has, therefore, 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 77. for interim measures in February 2001 was not unreasonable in the circumstances, hav- in the circumstances, in February 2001 was not unreasonable for interim measures to the unjustified delays in its examination (…). ing regard 76. custody application repeatedly, sometimes for reasons so far removed from 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. 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. 8 to secure respect for the right to private and family life of both applicants – parent and 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. 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. 246 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 lence, inthisparticularcasetheCourtcannotacceptapplicants’argumentthather 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. 82. for damagesagainstMrN.(…). pensation –itwasopentoherbringprivateprosecution proceedings andacivilclaim applicant couldseekestablishmentofthefacts,aswellMrN.’s punishment,andcom-

On thebasisofconcr W Furthermor The Courtobservesthatthepoliceandpr On thebasisofthesefacts ithout overlookingthevulnerabilityofvictimsinmanycasesdomesticvio- e, theBulgarianlegalsystemprovided legalmeanswhereby thefirst ete factsinthiscase,theCourt considersthatcertain the Courtissatisfiedthatfirstapplicant’s complaints

N. wasprosecuted bythe State andthat osecutors, towhomthefirstapplicant European Court of Human Rights - Bevacqua and S. v. Bulgaria 247 t e has been a violation of Article 8 of the Conven- e has been a violation of Article 8 of the our C the , s view, the cumulative effects of the District Court’s failure to adopt failure of the District Court’s the cumulative effects s view, reasons

(iii) Conclusion these

In the Court’ Holds by six votes to one that ther

F interim custody measures without delay in a situation which affected 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 84. […] 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

European Court of Human Rights

Opuz v. Turkey

Application Nº 33401/02

Judgment of June 9, 2009 250 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 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 CEDA The tion againstwomen 1. Relevant inter The applicantalleged,inparticular The caseoriginatedinanapplication(no.33401/02)againsttheRepublicofT elevant

Convention on the Elimination of All Forms of Discrimination against Women The

applicant”), on15July2002. United Nations’ position with regard to domestic violence and discrimina- W definesdiscriminationagainstwomenas“(...) L aw national andcomparativelawmaterial

and P ractice , thattheStateauthoritieshadfailedtoprotect any distinction,exclu- urkey European Court of Human Rights - Opuz v. Turkey 251 omen 1 of CEDAW. Within 1 of CEDAW.

including penal sanc- 3 Consequently, gender-based violence triggers duties gender-based Consequently, 2 -based violence, which impairs or nullifies the enjoyment by women of e, in its explanations of General Recommendation no. 19, the CEDAW CEDAW 19, the no. Recommendation General of explanations its e, in o take all appropriate measures, including legislation, to modify or abolish including measures, o take all appropriate o take all appropriate measures to eliminate discrimination against women by against women to eliminate discrimination measures o take all appropriate In its Concluding Comments on the combined fourth and fifth periodic report fourth and fifth periodic In its Concluding Comments on the combined Gender T T and “family violence”. 4 1

human rights and fundamental freedoms 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 Furthermor 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. existing laws, regulations, customs and practices which constitute discrimination discrimination which constitute and practices customs laws, regulations, existing against women;” any person, organization or enterprise; any person, organization (f) Against W Elimination of All Forms of Discrimination The Committee on the - of eliminating discrimi delay a policy means and without all appropriate pursue by this end, undertake: women and, to nation against (...) (e)

Committee considered the following: Committee considered 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. 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. (hereinafter “the CEDAW Committee”) has found that “gender-based 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 under Article 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.” 252 Gender-based Violence 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. against women,whetherthose actsare perpetratedbythe Stateorprivatepersons”. vent, investigateand,inaccordance withnationallegislation, punishactsofviolence against Women (1993),initsArticle4(c),urgesStatesto “exercise duediligenceto pre-

The UnitedNationsGeneralAssembly DeclarationontheEliminationofV In In thecaseof 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) (...) the case of

T raditional attitudesbywhichwomenare regarded assubordinate tomenor A.T. v. (decisionof26 Hungary Fatma Yıldırım v. Austria (decision of 1 October 2007), which - con

January

2005), where theapplicant iolence European Court of Human Rights - Opuz v. Turkey 253 otection of women ecommended, in particular, that member States should ecommended, in particular, -American System d report, of 20 January 2006, to the Commission on Human Rights of the on Human 2006, to the Commission of 20 January d report, The Inter The Council of Europe , the Inter-American Court stated: , the Inter-American Velazquez-Rodriguez ith regard to violence within the family, the Committee of Ministers recommended the Committee of Ministers recommended to violence within the family, ith regard

In 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 W 3. The Committee of Ministers r In its Recommendation Rec(2002)5 of 30 April 2002 on the pr Rec(2002)5 of 30 April 2002 on the In its Recommendation In his thir 2.

83. penalise serious violence against women such 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. that Member states should classify all forms 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 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. 79. UN Economic and Social Council (E/CN.4/2006/61), the Special Rapporteur 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 254 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 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-

prevent theviolationortorespond toitasrequired bytheConvention.” of theState,notbecauseanactitself,butlackduediligenceto person responsible hasnotbeenidentified)canleadtointernational responsibility 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 legalbasisfortheultimateattributionofr The Inter The Inter -American CommissionadoptstheInter-American Court’s approach tothe -American ConventiononthePrevention, PunishmentandEradicationof 8 the Commission found that the State’s failure to exer

7 oftheConventionBelémdoPará,obliging esponsibility toaStateforprivateacts 7 setsoutStates’dutiesrelat - 9 6 TheInter-American 5 - European Court of Human Rights - Opuz v. Turkey 255 Federation, Serbia, Slovakia, Swe- Federation, Serbia, Slovakia,

ope, namely in Albania, Austria, Bosnia in Albania, Austria, ope, namely - pro of criminal the continuance State which bases to be the only 8 rights in deciding on a course of action.

om the legislation and practice of the above-mentioned 27 countriesom the legislation and practice of the above-mentioned Comparative-Law material Comparative-Law - Yugo Former the Finland, Wales, and England Denmark, Republic, Czech the

2 and Article

Romania seems It appears fr In 11 member States of the Council of Eur States of the Council In 11 member Belgium, Bulgaria, namely in Andorra, Armenia, Azerbaijan, In 27 member States, 4.

that the decision on whether to proceed where the victim withdraws 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 90. on the wishes/complaints of the victim. and in all circumstances, ceedings entirely, slav Republic of Macedonia, France, Georgia, Germany, Hungary, Ireland, Latvia, Luxem- Latvia, Ireland, Hungary, France, Georgia, Germany, slav Republic of Macedonia, the Netherlands, the Russian bourg, Malta, Moldova, 87. Cyprus, 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. - 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. 256 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 criminalacts byH.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

1. The Court’ In thatr

On theaboveunderstanding,Courtwillascertainwhether thenationalau L

lleged dmissblty aw Alleged failuretoprotecttheapplicant’ i) Scopeofthecase egard theCourtnotesthat from 10April1995theapplicantandhermother s assessment V iolation O f A rticle 2O s mother’s life f T he C onvention - European Court of Human Rights - Opuz v. Turkey 257 e was an escalating violence against e, the victims’ situations were also known to the authorities and the e, the victims’ situations were , before embarking upon these issues, the Court must stress that the issue that the Court must stress upon these issues, the embarking , before egard to the foregoing, the Court finds that the local authorities could have to the foregoing, egard Whether the local authorities could have foreseen a lethal attack from H.O. could have foreseen a lethal attack Whether the local authorities

Turning to the circumstances of the case, the Court observes that the applicant and of the case, the Court observes that to the circumstances Turning Having r Furthermor In view of the above events, it appears that ther In view of the above events, it appears that However ii)

mother had submitted a petition to the Diyarbakır Chief Public Prosecutor’s 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. her husband, H.O., had a problematic relationship from the very beginning. As a result 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. foreseen 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 133. 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 258 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 Courtnotesattheoutsetthatther The Gover plicant’s mother iii) Whethertheauthoritiesdisplayedduediligencetopreventkillingofap-

in thepast; chances ofthedefendantoffending again; and thedefendant’ the that relationship ofcontinuingwiththeprosecution againstthevictim’s wishes; the curr was, orcouldbecome,involved; the the ef if thedefendantplannedattack; if thedefendanthasmadeanythr if thedefendantusedaweapon; whether thevictim’ the seriousnessof continuing threat to the health and safety of the victim or anyone else who history of the relationship, particularly if there had beenany other violence fect (includingpsychological)onanychildren livinginthehousehold; nment claimedthateachtimetheprosecuting authoritiescommenced ent stateofthevictim’s relationship withthedefendant;effect on s criminalhistory, particularlyanyprevious violence. s injuriesare physicalorpsychological; fence; eats sincetheattack; e seemstobenogeneralconsensusamong - European Court of Human Rights - Opuz v. Turkey 259 matter” (see paragraph

esorted to violence from the very be- the esorted to violence from ed from this practice that the more serious the offence or the greater the greater or serious the offence that the more this practice ed from applicant’s mother became a target as a result of her perceived involvement her perceived of result a target as a became mother applicant’s egards the Government’s argument that any attempt by the authorities to sepa- argument that any attempt by the Government’s egards the Court’s opinion, it does not appear that the local authorities sufficiently authorities local the that appear not does it opinion, Court’s the In The In this connection, the Court notes that H.O. r In this connection, the As r It can be inferr

123 above). Moreover, there is no indication that the authorities considered 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 - 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 in what they perceived interfering from refrain ginning of his relationship 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. rate the applicant and her husband would have amounted to a breach 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. the risk of further offences, the more likely that the prosecution should continue in the should continue the prosecution likely that the more further offences, the risk of their complaints. if victims withdraw even public interest, 140. 139. 260 Gender-based Violence 147. diligence toprotect therighttolifeofapplicant’s motherinotherrespects. violence aside,theCourt 146. 82 above). this respect RecommendationRec(2002)5oftheCommitteeMinisters,§§ 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 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. 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. egards theGovernment’s argumentthatanyfurtherinterference bythenational the Convention,Courtrecalls itsrulinginasimilarcaseofdomesticviolence(see authorities wouldhaveamountedtoabreach ofthevictims’rightsunderArticle8 144. had been harassing her, invading her privacy by wandering around her property and car

The legislativeframeworkpr However As r In this connection, the Court notes that despite the deceased’s complaint that H.O.

§ 4,457and460ofthenowdefunctCriminalCode,whichprevented , theCourtregrets tonotethatthecriminalinvestigationsininstant

must

also considerwhetherthelocalauthoritiesdisplayeddue

71127/01, § eventing effective protection forvictimsofdomestic

42758/98 and45558/99,§

83, 12June2008),where itheldthatthe

81, 17February

80- - European Court of Human Rights - Opuz v. Turkey 261 53).

12.1.5 and 9.3, respectively).

e, in the light of the State’s positive obligation to take preventive op- preventive positive obligation to take State’s e, in the light of the cumstances, the Court concludes that the national authorities cannot becumstances, the Court concludes that the Conclusion 4320 (…). They could also have issued an injunction with the effect of banning of banning injunction with the effect 4320 (…). They could also have issued an

3) In these cir Furthermor

[…] considered to have displayed due diligence. They therefore 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. […] While the Government argued that there was no tangible evidence that the applicant’s 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 §§ Committee, both cited above, CEDAW erational measures to protect an individual whose life is at risk, it might have been 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 Law no. 148. 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- authorities remained him (…). While the 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. 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 § , cited above, with it (see Kontrová violent threats and had made had a shotgun 262 Gender-based Violence cited above,§ 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 eover, the Court concludes that the criminal prevention oftheunlawfulactscommittedbyH.O.Theobstaclesresulting from the stant case,didnothaveanadequatedeterrent effect capableofensuringtheeffective 153. B. […] caused herpainandfearinviolationofArticle threats several times but that the authorities were negligent towards her situation, which 154. Theapplicantcomplainedthatshehadbeensubjectedtoviolence,injuryanddeath and stateofhealththevictim(seeCostello ment, itsduration,physicalandmentaleffects and,insomeinstances,thesex,age depends onallthecircumstances ofthecase,suchasnature andcontextofthetreat- it istofallwithinthescopeofArticle3.Theassessment this minimumisrelative: it 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, § 158. III. A

Mor The Court’ punishment.” “No oneshallbesubjectedtotorture ortoinhumandegradingtreatment or 1. As r The Court

lleged

30, Series egards thequestionwhetherStatecouldbeheldresponsible, underArticle Applicable principles

116). There hastherefore beenaviolationofArticle2theConvention. reiterates that ill-treatment must attain a minimum level ofseverity if s assessment V

A no. iolation

247 ‑ C).

of A rticle ‑

Roberts v. theUnitedKingdom,25March 3 oftheConvention,whichprovides: 3 of

‑ the law system, as applied in the in- Osman v. the United Kingdom, C onvention European Court of Human Rights - Opuz v. Turkey 263 III). Children III). Children ‑ 1997 ed to fall within the group of ed to fall within the group Turkey v. Baykara and Demir VI). ‑ 40, Reports

fered by the applicant, in the form of by fered 22, Reports 1998 mutatis mutandis, mutatis 3 of the Convention.

November 2008) the Court will also look for any

, and bearing in mind that the Court provides final au- , and bearing in mind that the Court provides , 29 April 1997, § , 29 April 1997, France H.L.R. v. September 1998, §

e, in interpreting the provisions of the Convention and the scope of the of the Convention and the the provisions e, in interpreting Application of the above principles to the case Application of the above efore, the Court must next determine whether the national authorities have the efore,

, mutatis mutandis Furthermor In carrying out this scrutiny Ther The Court observes also that the violence suf The Court observes also that the violence The Court considers that the applicant may be consider The Court considers 2.

[GC], no. 34503/97, §§ 85 and 86, 12 State’s obligations in specific cases (see, cases specific in obligations State’s consensus and common values emerging from the practices of European 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 thoritative interpretation of the rights and freedoms defined 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. , 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. physical injuries and psychological pressure, were sufficiently serious to amount to ill- were physical injuries and psychological pressure, within the meaning of Article treatment 162. of violent attacks against the the recurrence to prevent measures taken all reasonable physical integrity. applicant’s 163. 160. 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 United Kingdom, 23 264 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 andinflicting 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 (see, en tosecure compliancewiththeirpositiveobligationsunderArticle3oftheConvention choose intheirsteadfrom amongthewiderangeofpossiblemeasures thatcouldbetak- 165.

However The Courtr However T Nevertheless, itisnottheCourt’ mutatis mutandis, urning toitsexaminationofthefacts,Courtnotesthatlocalauthorities, urning

19 oftheConventionandunderprinciplethatisintended , itcannotbesaidthatthelocalauthoritiesdisplayedrequired diligence , noneofthesemeasures were sufficienttostopH.O.from perpetrating eiterates itsopinioninrespect ofthecomplaintunderArticle2,namely Bevacqua andS.v. s role toreplace thenationalauthoritiesandto

Bulgaria, citedabove,§82).Moreover, under Maria daPenhav. Brazil, - European Court of Human Rights - Opuz v. Turkey 265

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 egoing, the Court considers that the response to the conduct egoing, the Court considers that the response 2 ion iolat V icles rt . A , the Court notes with grave concern that the violence suffered by the appli- , the Court notes with grave concern that the violence suffered lleged Finally “The enjoyment of the rights and freedoms set forth in [the] Convention shall be “The enjoyment of the rights and freedoms 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 In the light of the for with

. A 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

IV cant had not come to an end and that the 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 […] lack of efficacy and a certain degree of tolerance, and had no noticeable preventive or preventive noticeable no had and tolerance, of degree certain a and efficacy of lack on the conduct of H.O. effect deterrent […] 173. § Article 14 of the Convention provides: 177. of the Convention, that she and her mother had been discriminated against on the basis their gender of the applicant’s former husband was manifestly inadequate to the gravity of the of- former husband was manifestly inadequate to the gravity of the applicant’s mutandis, fences in question (see, mutatis 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. 266 Gender-based Violence B. […] issue ofdiscrimination: 13 November2007,§§175-180)theCourtlaiddownfollowingprincipleson 183.

1. The Court’ tional minority, property, birthorotherstatus.” religion, politicalorotheropinion,nationalsocialorigin,associationwithana- secured withoutdiscriminationonanyground such as sex,race,colour, language, § it isnotspecificallyaimedatthatgroup (seeHughJordanv. fects onaparticulargroup maybeconsidered discriminatorynotwithstandingthat accepted thatageneralpolicyormeasure thathasdisproportionately prejudicial ef- ferences or of similarunrebutted presumptions of fact. Moreover, thelevelof may followfrom thecoexistenceofsufficientlystrong, clearandconcordant in- the factsandparties’submissions. According toitsestablished case-law, proof by thefree evaluationofallevidence,includingsuchinferences asmayflowfrom its assessment.TheCourtadoptstheconclusionsthatare, initsview, supported procedural barriers to theadmissibility ofevidence or pre-determined formulaefor Nachova andOthers(citedabove,§147)thatinproceedings before itthere are no of shiftingtheburden ofproof ontotherespondent State,theCourtstatedin 178. 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 vention mayresult from adefactosituation(seeZarbAdamiv. Malta,no. 58461/00, 6January2005),andthatdiscriminationpotentiallycontrarytotheCon- IV; andOkpiszv. Germany , no.59140/00,§ In itsr 177. no. v.similar situations(Willis theUnitedKingdom,no. differently, withoutanobjectiveandreasonable justification,personsin relevantly “175. TheCourthasestablishedinitscase-lawthatdiscriminationmeanstreating

76, ECHR2006-...).(…)

24746/94, §

The relevantprinciples As totheburden ofproof inthissphere, theCourthasestablishedthatonce As regards thequestionofwhatconstitutesprimafacieevidencecapable ecent rulinginthecaseD.H.andOthersv. CzechRepublic([GC],no.57325/00, s assessment

154, 4May2001;andHoogendijkv. theNetherlands(dec.),no.

33, 25October2005).(...)Ithasalso

36042/97, §48,ECHR2002-

the UnitedKingdom,

17209/02, European Court of Human Rights - Opuz v. Turkey 267 38361/97, §

affirmanti incumbit affirmanti V). In certain circumstances, where where V). In certain circumstances, ‑ 2003

77-78), the Court relied extensively on statistics 77-78), the Court relied

decision the Court stated: “[W]here an applicant is able to able is applicant an “[W]here stated: Court the Hoogendijk decision , cited above, § 157), the of Nachova and Others, cited above, § 157), 2002-IV). In the case

no. 24351/94, § 272, ECHR no. 24351/94, § 272, As to whether statistics can constitute evidence, the Court has in the past As to whether statistics can constitute The Court has also recognised that Convention proceedings do not in all cas- do not proceedings that Convention has also recognised The Court Zarb Adami, cited above, §§

, no. Bulgaria and Anguelova v. 2000-VII; 21986/93, § 100, ECHR

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 produced by the parties to establish a difference in treatment between two groups groups between two in treatment by the parties to establish a difference produced (men and women) in similar situations. the in Thus, v. Turkey Turkey v. – Aktaş allegation that must prove something who alleges (he probatio (extracts), 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 180. es lend themselves to a rigorous application of the principle the of application rigorous a to themselves lend es 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 the events in issue lie wholly, or in large part, within the exclusive 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 no. 111, ECHR 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, 179. 268 Gender-based Violence 188. mestic violenceisaformofdiscriminationagainstwomen(…). [GC], no.37201/06,§63,ECHR2008 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 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 in resolution 2003/45 187. 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. bodies onthequestionofviolenceagainstwomen. provisions ofmore legal specialisedlegalinstrumentsandthedecisionsofinternational mined initscase-law(seeparagraph183above),theCourthastohaveregard tothe against women,inadditiontothemore generalmeaningofdiscriminationasdeter 185. Inthisconnection,whenconsideringthedefinitionandscopeofdiscrimination 184.

2. Furthermor The UnitedNationsCommissiononHumanRightsexpr The CEDA The Court In thatcontext,theCEDAW definesdiscrimination againstwomenunderArticle1

Application oftheaboveprinciplestofactspresentcase a. Themeaningofdiscriminationinthecontextdomesticviolence W Committeehasreiterated thatviolenceagainstwomen,includingdo- notes attheoutsetthat when itconsiders the objectandpurposeof e, theBelémdoParáConvention, whichissofartheonlyregional mul- ‑ ..., citedinDemirandBaykara,above,§76). essly recognised thenexus - European Court of Human Rights - Opuz v. Turkey 269 urkish law then in force did not make explicit urkish law then in force 77-78).

but rather resulted from the general attitude attitude general the from resulted rather but se per eports, the Court finds that the highest number of reported eports, the Court finds that the highest number of 12-21), the Court welcomes the reforms carried out by the Govern- 12-21), the Court welcomes the reforms

es from the above-mentioned rules and decisions that the State’s failure to failure rules and decisions that the State’s the above-mentioned es from egard, the Court notes that the applicant produced reports and statistics reports Court notes that the applicant produced the egard, , the Inter-American Commission also characterised violence against women characterised violence Commission also , the Inter-American 80).

The approach to domestic violence in Turkey The approach to domestic

Having examined these r b. In that r The Court observes that although the T It transpir Finally

194. prepared by two leading NGOs, the Diyarbakır Bar Association 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, §§ the applicant lived at the relevant where victims of domestic violence is in Diyarbakır, 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. distinction between men and women in the enjoyment of rights and freedoms, 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. Comments at §§ 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. 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, § 270 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 thevictims, and punish 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 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 thelightoffor As ar It alsotranspir Furthermor esult oftheseproblems, the aforementioned reports suggestthatdomestic e, there appeartobeseriousproblems intheimplementation ofLaw es from thesereports thatthere are unreasonable delaysinissuing

91-93, 95and101above).Moreover, theperpetratorsofdomestic egoing, theCourtconsidersthatapplicanthasbeenable European Court of Human Rights - Opuz v. Turkey 271 - - law system, as operated in the instant as operated in the law system, ‑ unanimously

ourt C the , reasons

Whether the applicant and her mother have been discriminated against on ac- on against have been discriminated mother her and applicant Whether the

these aking into account the ineffectiveness of domestic remedies in providing equal in providing of domestic remedies aking into account the ineffectiveness

T count of the authorities’ failure to provide equal protection of law to provide equal protection authorities’ failure count of the judicial passiv above that the general and discriminatory Bearing in mind its finding The Court has established that the criminal has established that The Court c.

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; […] - 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 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 […] 199. 272 Gender-based Violence 10 9 7 6 5 4 the Committee’s General Recommendation No. 3 2 and 3oftheConvention; 7. Holdsthatthere hasbeenaviolationofArticle14read inconjunctionwithArticles2 8 E

ndnotes Maria daPenhav Case 12.051,ReportNo.54/01,Inter which wasadoptedbytheOrganisationofAmericanStates(OAS)andcameintofor Signed attheInter V Ibid, at§ Ibid, at§ Ibid, at§ (2000) CEDAW/C/1992/L.1/Add.15 at§ 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 See elasquez-Rodriguez v. Honduras,judgmentofJuly

24 24 24

(t) (i);seealsoparagraph24 (t). (b); seealso§ . Brazil,§§ -American SpecializedConference onHumanRights,SanJose,CostaRica,22

55 and56.

(r).

(a). -Am. C>H.R.,AnnualReport2000,OEA/Ser.L/V.II.111 Doc.20rev.

(r) onmeasures necessary to overcome familyviolence.

29,

1988, Inter-Am. Ct.H.R.(ser. C)No.4,para.172. on “Violence Against Women,”on “Violence (1992) UN doc. ce on5

March

November

1995. International Criminal Tribunal for Rwanda

Case Nº ICTR-96-4-T

Prosecutor v. Jean-Paul Akayesu

Judgment of September 2, 1998 274 Gender-based Violence 449. Factual Findings […] Charges SetForthintheIndictment 5.5 […] […] sexual violence,theChamber findsthatthere issufficient credible evidenceto estab- 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,hundr ntroduction Having car (Paragraphs12A&12BoftheIndictment) Sexual Violence F actual efully reviewed the testimony of the Prosecution witnesses regardin F indngs eds ofcivilians(hereinaf- International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 275

With of the rapes and all of the other acts of sexual a few exceptions, most

violence described by the Prosecution witnesses were committed by Interahamwe. It 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 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. 276 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 makingthese statements 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 theAccused does not refer to sexual violence and there is no evidence 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, theChamberfindsbeyondar In consideringtherole ofthe Accusedinthesexualviolencewhichtookplaceand eason-

International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 277 - os- ovisions of the Statute, the Prosecutor has charged ovisions of the Statute, the Prosecutor law

he In accordance with the said pr In accordance Article 2 of the Statute stipulates that the Tribunal shall have the power to pr Tribunal Article 2 of the Statute stipulates that the Genocide (Article 2 of the Statute) Faced with first-hand personal accounts from women who experienced and wit women who experienced personal accounts from Faced with first-hand

6. t Akayesu with the crimes legally defined as genocide (count 1), complicity in genocide Akayesu with the crimes legally defined as genocide (count 1), complicity in genocide (count 2) and incitement to commit genocide (count 4). […] 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. nessed sexual violence in Taba and at the bureau communal, and who swore under 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 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. 278 Gender-based Violence 498. “in wholeorinpart”anational,ethnical,racialreligious group. tioned inArticle2(2)(a)through 2(2)(e)iscommittedwiththespecificintenttodestroy 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. nation ofgr 497. crime. tor wasliabletobebrought before thecompetentcourtsofRwandatoanswerforthis in Rwanda1994,atthetime of theactsalleged in theIndictment,andperpetra- 495. former Yugoslavia CriminalTribunalGeneral inhisReportontheestablishmentofInternational forthe sions oftheGenocideConvention,andaswasrecalled bytheUnitedNations’Secretary- law, CourtofJusticeontheprovi ascanbeseenintheopinionofInternational - on Genocide12February1975 496. the CrimeofGenocide(the“GenocideConvention”) verbatim from Articles2and3oftheConventiononPreve ntionandPunishmentof 494. Crime ofGenocide,punishableunderArticle2(3)(a)theStatute

Genocide isdistinctfrom othercrimesinasmuchasitembodiesaspecialintentor Contrary topopularbelief,thecrimeofgenocidedoesnotimply theactualextermi- Thus, foracrimeofgenocide to havebeencommitted,itisnecessarythatoneof The GenocideConventionisundeniablyconsidered partofcustomaryinter (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’ oup initsentirety, butisunderstoodassuchonceanyoneoftheactsmen- Special intent of acrimeisthe specific intention, required asaconstitu- 92 . 93 . Thus,punishmentofthecrimegenocidedidexist 91 . Itstates: s Statute,istaken national International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 279 - - . oup condi- 95 oup conditions of life calculated emediable. under another legal definition, the District Court of Jerusalem stated in its Court definition, the District under another legal “by the enslavement, starvation, deportation and persecution [...] and by their 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 In the Adolf Eichmann case, who was convicted of crimes against the Jewish peo- In the Adolf Eichmann case, who was convicted For purposes of interpreting Article 2(2)(c) of the Statute, the Chamber is of the For purposes of interpreting The Chamber holds that the expression deliberately inflicting on the gr The Chamber holds that the expression For purposes of interpreting Article 2 (2)(b) of the Statute, the Chamber takes seri 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

judgment of 12 December 1961, that serious bodily or mental harm of members of the judgment of 12 December 1961, that serious be caused can group 503. ple, genocide ily mean that the harm is permanent and irr ily mean that the harm opinion that the means of deliberate inflicting on the gr to bring about its physical destruction, in whole or part, include, inter alia, subjecting a 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. 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. 280 Gender-based Violence ments, namely: humanity. Thiscategoryofcrimesmaybebroadly broken downintofouressentialele- risdiction topr 578. Crimes againstHumanityinArticle3oftheStatuteTribunal […] 6.4. […] procreate. the samewaythatmembersofagroup canbeled,through threats ortrauma, notto intended toprevent births whenthepersonrapedrefuses subsequentlytoprocreate, in the group maybephysical, but can also bemental. 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 507. Imposing measuresintendedtopreventbirthswithinthegroup(paragraphd): n ofessentialmedicalservicesbelowminimumrequirement. group of people to a subsistence diet, systematic expulsion from homes and the reductio measures intended to prevent births within the group, should be construedas sexual

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 notesthatmeasur For purposesofinterpreting Article2(2)(d)oftheStatute,Chamberholdsthat osecute personsforvariousinhumaneactswhichconstitutecrimes against es intendedtoprevent births within - International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 281 - e is no commonly , extermination, torture, , extermination, torture, considers that rape is a form of aggression and that the central ele- central the that and aggression of form a is rape that considers The Chamber The Considering the extent to which rape constitute crimes against humanity, pursuant crimes against humanity, Considering the extent to which rape constitute The Chamber notes that the accused is indicted for murder The Chamber notes that the accused is indicted 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

, namely: murder; extermination; enslavement; deportatio n; imprisonment; torture; torture; enslavement; deportatio n; imprisonment; extermination; , namely: murder; rape; persecution on political, racial and religious grounds; and; other inhumane acts. 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. ments of the crime of rape cannot be captured 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. rape and other acts that constitute inhumane acts. The Chamber in interpreting 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. must define rape, as ther 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. ity […] acts The enumerated 585. 282 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,theT 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 598. l 7. person under circumstances which are coercive. Sexual violence which includes rape,

The Tribunal considersthatrapeisaformof aggr In consideringtheextenttowhichactsofsexualviolenceconstitutecrimesagainst In thelightofitsfactualfindingswith regar 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 ribunal mustdefinerape,asthere isnocom- d totheallegationsofsexualviolenceset ession andthatthecentralele - International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 283 - e, committed on a eason to know and in fact knew that The Tribunal has found that the Accused had r has found that the Accused had The Tribunal The Tribunal defines rape as a physical invasion of a sexual natur defines rape The Tribunal

acts of sexual violence were occurring on or near the premises of the bureau 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 person under circumstances which are coercive. The Tribunal considers 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. 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. 284 Gender-based Violence 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: wor 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 reason toknowthatsexualviolencewasoccurring,aided andabettedthefollowingacts ds, specificallyordered, instigated,aidedandabettedthefollowingactsofsexual

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 285 - ead and systematic attack against the egard to the acts alleged in paragraphs 12 (A) and 12 (B) of the Indictment, to egard With r Count 1 - Genocide, Count 2 - Complicity in Genocide Count 1 - Genocide, Count 2 - Complicity The Tribunal has established that a widespr The Tribunal (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

civilian ethnic population of Tutsis took place in Taba, and more generally in Rwanda, 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. the Prosecutor has shown beyond a reasonable doubt that 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”. ous incidents of such rape and sexual violence against Tutsi women occurred 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 […] 706. 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. 286 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 707. ing committed. opinion oftheChamber, thisconstitutestacitencouragementtotherapesthatwere be- charged indeedr 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 womenwassystematicandperpetratedagainstallT With r With In theopinionofChamber, theabove-mentionedactswithwhichAkayesuis egard, particularly, totheactsdescribedinparagraphs12(A)and12(B)of ender himindividuallycriminallyresponsible forhavingabettedinthe 181 andare even,according to utsi wom- 177 . Inthe International Criminal Tribunal for Rwanda - Prosecutor v. Jean-Paul Akayesu 287 are supra are e it, the Chamber finds e it, the Chamber finds , on 9 December 1948. s Report pursuant to paragraph 2 of resolution 808 (1993) of the Security Council, 3 May 808 (1993) of s Report pursuant to paragraph 2 of resolution Secretary General’ Secretary 1993, S/25704. 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 Nations General Assembly In light of the foregoing, the Chamber finds firstly that the acts described In light of the foregoing, On the basis of the substantial testimonies brought befor substantial testimonies brought On the basis of the

ndnotes

E 91 92 that in most cases, the rapes of Tutsi women in Taba, were accompanied 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. indeed acts as enumerated in Article 2 (2) 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 […] 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. 288 Gender-based Violence 181 177 95 93

genocide, inparticular, thedefinitionofconstituentelementsgenocide. See above,thefindingsof Trial ChamberontheChapterr muzambaza.” “Ntihazagire umbazaukoumututsikaziyariameze,ngokandimumenyekoejonibabicantakintu acceded totheGenocideConventionbutstatedthatitshallnotbeboundbyArticle9ofthisConvention. Legislative Decree of12February1975,OfficialGazettetheRepublicRwanda,p.230.Rwanda acceded totheGenocideConventionbutstatedthatitshallnotbeboundbyArticle9ofthisConvention. Legislative Decree of12February1975,OfficialGazettetheRepublicRwanda,p.230.Rwanda elating tothelawapplicablecrimeof International Criminal Tribunal for Rwanda

Case Nº ICTR-97-20-T

Prosecutor v. Laurent Semanza

Judgment of May 15, 2003 290 Gender-based Violence plicity ingenocide(Count3),the Accusedischargedcumulativelywithallformsofper Accused incitedagr meetings duringwhichhemadethr 11. […] of April1994.(…) and 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. […] 14. […] col II(partofcount13). against humanity;andwithseriousviolationsofCommonArticle 3andAdditionalProto- with rape(Count10),torture (partofCount11),andmurder (partofCount12)ascrimes of twowomenandthedeathonethem(…).Forthisevent, theAccusedischarged 12. direct andpublicincitementtocommitgenocide(Count2). planned, andorganizedthemassacres ofTutsi civilians(…),forwhichheischargedwith 1.

sexual violence, at four locations in Bicumbi and Gikoro communes during the month For all The Indictmentassertsthatbetween7and30April1994,in Gikoro commune,the The Indictmentfurtherallegesthatbetween1991and1994,theAccusedchaired It isallegedintheIndictmentthatAccusedorganized,executed,directed, and The Indictment The Indictment I ntroduction the Counts, except for incitement to commit genocide (Count 2) and com- oup torapeTutsi womenbefore killingthem,resulting intherape alleges that the Accused acted with the intent to destroy the Tutsi eatening remarks againstTutsi, andwhere heincited, - International Criminal Tribunal for Rwanda - Prosecutor v. Laurent Semanza 291 national law, national law, ounds. Although 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 inter This Tribunal The attack act, event, or series of events of the An “attack” is generally defined as an unlawful A crime against humanity must have been committed as part of a widespread or committed as part of a widespread A crime against humanity must have been Crimes Against Humanity elements the enumerated acts and the general The relationship between a.

V. t 328. the requirements of “widespread” and “systematic” should be read disjunctively in 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 327. (i) of the Statute. kind listed in Article 3(a) through systematic attack against any civilian population on discriminatory gr systematic attack against any civilian population 1. 326. […] B. 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. 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. 292 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 332. 3. 330. element ofthecrime. widespread orsystematic,butthattheexistenceofsuchaplanisnotseparatelegal in establishingthattheattackwasdirected againstacivilianpopulationandthatitwas that theexistenceofapolicyorplanmaybeevidentiallyrelevant, inthatitmaybeuseful 331. grounds. or furthertheattackongroup discriminatedagainstononeoftheenumerated attack where theactagainst theoutsidersupportsorfurthersisintendedtosupport against personsoutsidethediscriminatorycategoriesmayneverthelessformpartof committed “onnational,political,ethnical,racialorreligious grounds”. Actscommitted

555 b. c. “Widespread” refers“Widespread” tothelargescaleofattack. The accusedmusthaveactedwithknowledgeofthebroader contextoftheattack The mentalelementforcrimesagainsthumanity A civilianpopulationmustbetheprimaryobjectofattack. Article 3oftheStatuterequir

Thevictim(s)oftheenumeratedactneednotnecessarilyshare geographicor 556 The attackmustbedirectedagainstanycivilianpopulation The attack must be committed on discriminatory grounds The attackmustbecommittedondiscriminatory his actformed part ofthe attack onthecivilianpopulation. 552

551 554 TheAppealsChamberoftheICTYrecently clarified Theterm“population”doesnotrequire thatcrimes es thattheattackagainstcivilianpopulationbe 558 550 “Systematic”describesthe 553 Apopulationre- 557 How- - International Criminal Tribunal for Rwanda - Prosecutor v. Laurent Semanza 293

- - 577 ribunal, - 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 is charged with committing crimes against humanity of murder, exter murder, of humanity against crimes committing with charged is indings F 578 Rape

egal ohibited sexual penetration with the knowledge that it occurs without the consent ohibited sexual penetration with the knowledge The Akayesu Judgment enunciated a broad definition of rape which included any definition of rape which enunciated a broad The Akayesu Judgment d. L Crimes against humanity The mental element for rape as a crime against humanity is the intention to effect against humanity is the intention to effect The mental element for rape as a crime While this mechanical style of defining rape was originally rejected by this T was originally While this mechanical style of defining rape The Accused Accused The The enumerated acts The enumerated

VI. physical invasion of a sexual nature in coercive circumstance and which was not limited to and which was not limited circumstance in coercive sexual nature physical invasion of a sexual intercourse. forcible 344. 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. […] 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. of the victim. […] […] D. the Chamber finds the comparative analysis 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. the pr 345. 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. 294 Gender-based Violence and 31 July 1994, atic attackinRwanda: 441. a civilianpopulationontheenumerateddiscriminatorygrounds. crimes againsthumanityare committedaspartofawidespread orsystematicattackon 440. extermination (Count5). 4, 12,and14),rape(Counts810),tortur 439. 1. 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 […] manity becommittedinconnection withanarmedconflict. argument becausethere isnolegalrequirement intheStatutethatcrimesagainsthu- conflict inRwanda, the judiciallynoticedfacts,factualfindingsmadeinr 442.

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 As explainedinthelegalsectionabove,Prosecution isr The Accusedischargedwiththefollowingcrimesagainsthumanity:murder (Counts General elements The DefencearguedthattheProsecutor mustalsopr The Chamberisnowinapositiontomakemore specificlegalfinding.Inlightof 696 695 the Chamber finds that there were massive, frequent, large scale at- andtheevidenceofmassacres ofcivilians between 6April1994 judicial notice of the fact that there was a widespread or system- 694

e (Count11),persecution6),and 697 TheChamberseesnomeritinthis elation to the internal armed elation totheinternal ove thatthecrimesagainst equired toprove thatall - International Criminal Tribunal for Rwanda - Prosecutor v. Laurent Semanza 295 - ent SE- ictim A was raped by one of , 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 esence of commune and military authorities, addressed a crowd and a crowd and military authorities, addressed esence of commune regards, regards, Having The Chamber finds beyond a reasonable doubt that V The Chamber finds beyond a MANZA is responsible for the RAPE of Victim A and Victim B as part of a widespread 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, Count 10 charges: Count 10 above, Laur in paragraph 3.17 to the events described in relation By his acts Count 10: Rape Count 10:

rape of Victim A occurred directly after the Accused instructed the group 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. the assailants who heard the Accused encouraging the crowd to rape Tutsi women. 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 asked them how their work of killing the Tutsis was progressing and then encouraged 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. geted by the widespread attack, and the fact that the assailant arrived at Victim A’s 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. 476. Accused, in the pr 6. 475. 296 Gender-based Violence 480. 7. on Count10. of V 479. Accused, inthepr 481. 482. to drawanyconclusionsaboutwhethershehadalsobeenrapedortortured. BwaskilledbytwoothermenfromVictim thiscrowd, buthashadinsufficientevidence immediately thereafter by one ofthemenfrom thiscrowd. TheChamberhasfound that rape Tutsi women before killing A them. was The Chamber raped has found that Victim purpose. finds thattheprincipalperpetrator torturedVictim Abyraping herforadiscriminatory suffering inflictedforthepurposesofdiscriminationconstitutestorture and,therefore, targeting V 483. that non-consensualintercourse occurred. physical painorsuffering, forwhichtheProsecutor onlyadducedevidenceofthefact torture. Itistherefore unnecessarytodeterminewhetherthisrapealsoinflictedsevere perpetrator inflictedsevere mentalsuffering sufficienttoformthematerialelementof rounding theeventandnature A,theChamberfindsthat oftherapeVictim

ictim Aasacrimeagainsthumanity. Therefore, theChamberfindsAccusedguilty

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 systematicattackagainstacivilian population onpo- Laur By hisactsinrelation tothe eventsdescribedinparagraphs3.17and3.18above, Count 11charges: Count 11:Torture The Chamberfindsbeyonda reasonable doubtthattheAccusedinstigatedrape Noting, in The Chamberhasfound,inrelation toparagraph3.17oftheIndictment,that The Chamberfindsthattherapewascommittedon basis ofdiscrimination,

ent SEMANZA is responsible for the TORTURE of Victim A, Victim B and Victim ent SEMANZAisresponsibleBandVictim A,Victim ofVictim fortheTORTURE Victims AandB ictim A because she was a Tutsi woman. The Chamber recalls that severe particular, the extreme level of fear occasioned by the circumstances sur esence ofcommuneandmilitaryauthorities,encouragedacrowd to - International Criminal Tribunal for Rwanda - Prosecutor v. Laurent Semanza 297 ead attack on ead attack TC, para. 480; Kordic and Cerkez, Judg- , Judgment, TC, para. 77; Musema, Judgment, TC, a crowd to rape women because of their to rape women a crowd , Judgment, AC, Kunarac, Judgment, AC, para. 93; Tadic Rutaganda, Judgment, TC, para. 70; Akayesu, Judgment, TC, para. , Judg- Rutaganda, Judgment, TC, para. 70; Kayishema and Ruzindana Judgment, TC, para. 804; Bagilishema , Judgment, TC, paras. 646-648. See also 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. Musema, Judgment, TC, para. 205; Ntakirutimana, Tadic Musema, Judgment, TC, para. 205; ment, TC, para. 122; Akayesu, Judgment, TC, para. 581. paras. 202-203; Rutaganda, Judgment, TC, para. 68; Kayishema and Ruzindana, Judgment, TC, para. 123, footnote 26; Akayesu, Judgment, TC, para. 579. 581. The Chamber finds that by encouraging finds that by encouraging The Chamber The Chamber also finds that the torture formed part of the widespr formed part of the the torture also finds that The Chamber

ndnotes E 546 547 549 548 ethnicity, the Accused was encouraging the crowd to inflict severe physical 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 […] 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. 298 Gender-based Violence 552 697 696 695 694 578 577 576 575 558 557 556 555 554 553 551 550

para. 69;KayishemaandRuzindana,Judgment,TC,123;Akayesu580. para. 206;KayishemaandRuzindana,Judgment,TC,134. 72; KayishemaandRuzindana,Judgment,TC,paras.127,128;Akayesupara.582. ment, TC,para.77;Musema,Judgment,204;Rutaganda69. Defence ClosingBriefp.116. See chapterIVher See suprapara.281. 94 and54,AnnexA,para.2.SeeII,Part Semanza, DecisiononPr Kunarac, Judgment,AC,paras.127-128. Kunarac, Judgment,AC,paras.127,128,130. Kunarac, Judgment,AC,paras.127-128. Akayesu, Judgment,TC,para.598. Akayesu, Judgment,AC,para.467. Ntakirutimana, Musema, Judgment,TC,para.209; Bagilishema, Judgment,TC,para.80; ment, TC,para.128;Akayesu,Judgment,582. Bagilishema, Judgment,TC,para.79; Bagilishema, Judgment,TC,para.79; Kunarac, Judgment,AC,para.98. Ntakirutimana, Akayesu, Judgment,TC,para.580. Judgment, TC, Judgment, TC,para.803;Bagilishema eof. osecutor’s MotionforJudicialNoticeandPresumptions ofFactsPursuanttoRules para. 804; See alsoMusema,Judgment,TC,para.226. Rutaganda, Judgment,TC,para.74. See also Rutaganda, Judgment,TC,para.72;KayishemaandRuzindanaJudg- Musema, Judgment,TC,para.207;Rutaganda Kunarac, Judgment,AC,para.90. Musema, Judgment, TC, para. 204; Ntakirutimana, , Judgment,TC,para.94;Musema 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 300 Gender-based Violence parts”, of thecrimerapecannotbecaptured inamechanicaldescriptionofobjectsandbody rape is charged as a crime against humanity. Emphasizing that “the central elements in 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 Mukar 536. endorse theAkayesudefinitionofrape. 535. Statute oftheTribunal. der Count3forrapeasacrimeagainsthumanity, punishableunderArticle3(g)ofthe Indictment, the 534. 2. […] C. […] III.

the case Prosecutor v. Akayesu, by Trial Chamber I of the ICTR. In the present case,

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 Applicable Law On thebasisofitsfactualfindingsonallegationsrapeinParagraph6 Rape asaCrimeAgainstHumanity Crime AgainstHumanity–Rape(Count3) L 489 egal theAkayesuJudgmentdefinedrapeandsexualviolenceas: emera, asallegedinParagraph6(d)(ii)oftheIndictment,andshownby F 490 indngs Chamber has considered the criminal responsibility of the Accused, un-

both theDefence and theProsecution in thepresent case 488 International Criminal Tribunal for Rwanda - Prosecutor v. Mikaeli Muhimana 301 497

492 and by Trial Chamber II of the of Chamber II by Trial and , this Chamber notes with ap- , this Chamber notes 495 definition of rape was endorsed by Trial definition of rape was endorsed by Niyitegeka, and

493 494 Trial Chamber found this description too found this description Chamber Akayesu Trial No appeal was taken as to this issue in any of these cases. No appeal was taken as to this issue in any definition of rape briefly. It to the Akayesu definition of rape briefly. Chamber referred , the Trial 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 Kunarac Consonant with the definition of rape in Akayesu Consonant with the The general principle of respect for human dignity is the basic underpinning 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. In 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. Trial Chamber’s conclusion 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 made no adverse comments on the definition 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 541. ICTY in Delalić. 540. in Musema Tribunal of this Chamber I mechanical, insofar as “variations on the form of rape may include acts 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”. 538. the sexual intercourse”, consensual 302 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 543. 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 In analyzingtherelationship betweenconsentandcoer When 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 It isclearfrom theabove quotation thatthe 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 ent case the Trial Chamber considers that it is necessary to clarify its understanding law.of thecrimerapeininternational However, inthecircumstances ofthepres- of the crime of rape in international lawisconstitutedby:thesexual actus reusofthecrimerapeininternational mens reaistheintentiontoeffect this sexualpenetration,andtheknowledge the Kunarac AppealsChamberconcurred withtheTrial Chamber’s “defini- 498 499

(ii) ofthe Furundžija definition.The Trial Chamber Kunarac Trial Chamber wasdealing cion, theAppealsChamber International Criminal Tribunal for Rwanda - Prosecutor v. Mikaeli Muhimana 303 -

501 Akayesu, has not 500 502 Trial Chamber acknowledged ecalls that the Furundžija Trial Kajelijeli and Kamuhanda, for example, described only the Semanza stated: 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 The Trial The Chamber notes that the definition of rape, as enunciated in of rape, as enunciated The Chamber notes that the definition Accordingly, the Chamber is persuaded by the Appellate Chamber’s analysis that Chamber’s the Chamber is persuaded by the Appellate Accordingly, Similarly, the Chamber also r Similarly, 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, physical invasion of a sexual nature in coercive circumstance and which was not and circumstance in coercive physical invasion of a sexual nature The

cion is an element that may obviate the relevance of consent as an evidentiary factor cion is an element that may obviate the relevance 548. in the crime of rape. Further, this Chamber concurs with the opinion that circumstances 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 546. coer 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 that “any form of captivity vitiates consent”. 545. 304 Gender-based Violence 553. […] others: 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 theAkayesu definition of rape–aswas doneinSemanza-

Legal Findings The ChamberfindsthattheAccusedalsoabettedincommission ofrapesby This Chamber 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 wher On thebasisofforegoing analysis,theChamberendorsesconceptualdefini The Chamber takes the view that the considers that Akayesu, which encompasses the elements set out in Furundžija and Kunarac, which sometimes have been Akayesu definition and the Kunarac elements e theAccused Kunarac. - International Criminal Tribunal for Rwanda - Prosecutor v. Mikaeli Muhimana 305 509 510 518 osecution Closing Brief, Chapter 5, para.1. 511 emera. In its factual findings, the Chamber has found that the Ac- emera. In its factual findings, the Chamber 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 Akayesu Judgment (TC) para. 686. Akayesu Judgment (TC) para. 686. Furundžija Judgment (TC), para. 183. Defence Closing Brief, para. 133; T. 20 January 2005, p.5; Pr Defence Closing Brief, para. 133; T. Akayesu Judgment (TC) para. 687. Akayesu Judgment (TC) paras. 598 and 688.

ndnotes E 489 492 493 488 490 491 […] of RAPE AS the Chamber finds the Accused Mika Muhimana GUILTY 563. Consequently, under Count 3 of the Indictment. A CRIME AGAINST HUMANITY, […] 557. of Pascasie Mukar cused disembowelled Pascasie Mukaremera by cutting her open with a machete from 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 306 Gender-based Violence 518 511 510 509 502 501 500 499 498 497 496 495 494

See See See See Semanza Judgment(TC),paras.344-345. Delalić Furundžija (TC),para.271. Kunarac, Judgment(AC),paras.129-130. manza, Judgment(TC),paras.345-346. Kunarac, Judgment(TC),paras.460,437,appr Kunarac Judgment(TC),paras.437-438. Delalić Niyitegeka Judgment(TC),para.456. Musema Judgment(TC),paras.229,907,933,936. supra supra supra supra Judgment(TC),paras.478-479. Judgment(TC),paras.478-479. : ChapterII,SectionN. : ChapterII,SectionN. : ChapterII,SectionsLandM. : ChapterII,SectionsLandM. oved in:Kunarac,Judgment(AC),para.128;seealso:Se- 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

308 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 3. […] C. […] facility in the village of B. […] 193. III. H I.

ereby

3. General Requirements fortheApplicationofArticles2and3Statute solelywitheventsallegedtohaveoccurr The Indictmentisconcerned 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. ed at a detention ed atadetention International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 309 - - 225 efore, in no doubt that there is a clear nexus between the no doubt that there in efore, i prison-camp, a detention facility in the Konjic municipality operated prison-camp, a detention facility elebići (b) Torture Offences of Mistreatment

Elements of the Offences 2. The Trial Chamber is, ther The Trial In the present case, all of the alleged acts of the accused took place within the con In the present [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

[…] […] armed conflict in Bosnia and Herzegovina, including the military 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. […] 196. fines of the Č 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. 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, 310 Gender-based Violence […] 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. 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 apparent, thereinstrument containingadefini- isno convention orotherinternational 478.

There isonthebasisofthesepr There The crimeofrapeisnotitselfexpressly mentionedinthepr Although theprohibition onrapeunderinter Law

(iv) RapeasTorture a. Prohibition b. DefinitionofRape can be no doubt that rape and other forms of sexual assault are expressly of Rape and Sexual Assault under International Humanitarian ovisions alone,aclearprohibition onrapeandsexual national humanitarianlawisreadily ovisions oftheGeneva International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 311 - - eafter “Inter-American eafter “Inter-American 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 der 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 der 492 In or In Commission on Human Rights (her 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

om the conclusion of the ICTR in the Akayesu Judgment on this issue. Thus, the Trial Judgment on this issue. Thus, the Trial om the conclusion of the ICTR in the Akayesu 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. v.ican Commission handed down a decision in the case of Fernando and Raquel Mejia Commission”) and the European Court of Human Rights have recently 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: Chamber considers rape to constitute a physical invasion of a sexual nature, 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. 479. fr 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 312 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 rapegivesrisetopainandsuf 486. ture wasmetasthemanwhorapedRaquelMejiaamemberofsecurityforces. and intimidatingher. Finally, itwasheldthatthethird requirement ofthedefinitiontor Commission foundthatRaquelMejiawasrapedwiththeaimofpunishingherpersonally 485. Commission foundthatthefirstoftheseelementswassatisfiedonbasisthat: 484. Peru, 483. […] the PeruvianArmy. (…) tortur

494 Two important observations may be made about this decision. First, in considering In findingthatthesecond elementof 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- suf [r]ape causesphysicalandmentalsuffering inthevictim.Inadditiontoviolence In consideringtheapplicationoftheseprinciplestofacts,InterAmerican The Inter-American CommissionfoundthattherapeofRaquelMejiaconstituted e inbreach ofarticle5theAmericanConventionHumanRights.

which concerned therape,ontwooccasions,ofaschoolteacherbymembers which concerned fered atthetimeitiscommitted, thevictimsare commonlyhurtor, insomecas- fering, onemustnotonlylookatthephysicalcon- torture hadalso been met,theInter-American 496 499 495 Inreaching 497 498 - International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 313 500 ounds e and inhuman or Indeed, two of the dissenting judges explicitly 503 It went on to state that: 502 ecently considered the issue of rape as torture, as torture, the issue of rape as ecently considered 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 gr By stating that it would have found a breach The European Court held that the, distinction between tortur Court held that The European blindfolded, beaten, stripped, placed inside a tyre and sprayed with high pressure 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 The European Court has also r Court The European [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. had been considered separately, the European Court, on the basis of the facts before 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. prohibited by article 3 of the European Convention, in the case of Aydin v. Turkey. 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 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. 314 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 493. dr 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 essed intheReportofCommissionExpertsthus:

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 isfurthershar 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,theAkayesuJudgmentreferr of Slavery, Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed 507 506 504 508 505 ed toaboveexpresses aviewontheissue ed bytheUnitedNationsSpe- International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 315

- efore finds that the elements finds that the elements efore 509 - , whenever rape and other forms of sexual violence meet the aforemen Accordingly The Trial Chamber considers the rape of any person to be a despicable act which The Trial (v) Findings Chamber ther 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

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 strikes at the very core of human dignity and physical integrity. The condemnation and 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. tioned criteria, then they shall constitute torture, in the same manner as any other acts tioned criteria, then they shall constitute torture, that meet this criteria. […] 494. may be enumer applying Articles 2 and 3 of the Statute, for the purposes of of torture, ated as follows: 495. 316 Gender-based Violence […] dictment F. […] […] 925. 937. 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 Sometime beginningaround 27May1992andcontinuinguntilthebeginningof Paragraph 24oftheIndictmentstatesthat: Ms. The Trial Chambernotesthatsub-Rule96(i)oftheRulespr actul

Ć Torture andRape ofGrozdana (c) DiscussionandFindings ez, born on19April1949,wasastoreećez, born ownerinKonjicuntilMay1992. č , credible and compelling, and thus concludes that Ms. Ćećezwas raped

and L egal Delić andotherssubjected Grozdana ĆEEZtorepeated in - F elebići prison-camp. indngs Ćećez -Counts18,19and20 ovides thatnocorrobo- - International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 317 906 . Ms. cum- 904 i prison-camp. elebići . In addition, she was subjected to a further rape . In addition, she was subjected to a further 905 903 The Trial Chamber finds that acts of vaginal penetration by the penis under cir 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. stances that were coercive, quite clearly constitute rape. These acts were 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 kept in Building B for the first two nights of her detention and 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 He subsequently turnedoff took her back, 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. touched had anyone her whether 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”. 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 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 318 Gender-based Violence 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 for count19oftheIndictment. tocount19,itisdismissedinlightoftheguiltyfinding ment ischargedinthealternative 18 andcount19oftheIndictmentforrapeMs.Ćećez.As20Indict- 941. 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 944.

10. For thesereasons, theT Finally, ther The purposesoftherapescommittedbyHazimDelić 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 August 1992,HazimDeli Sometime beginningaround 15June1992andcontinuinguntilthebeginningof Paragraph 25oftheIndictmentstatesthat:

Torture andRape ofW e canbenoquestionthattheserapescausedsevere mentalpainand rial ChamberfindsHazimDelićguiltyoftorture, undercount subjected a detainee, here identified as Witness A, to ć subjectedadetainee,here identifiedas itness A-Counts21,22and23 were, interalia,toobtainin- International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Delalić et al. 319 - ’s testi- ć’s ovides that no cor . The Trial Chamber Trial The ć. 911 ć was raped for the first time on the night . Further, the probative value of these prior statements is con- the probative . Further, 912 contentions of the Defence, the Trial Chamber accepts Ms. AntiMs. accepts Chamber Trial the Defence, the of contentions , 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 Antić is a Bosnian Serb born the village of Idbar in 1948. In 1992, she lived in accords to the testimony of a victim of sexual assault the same presumption 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, pr The Trial Ms. Despite the Despite The Trial Chamber thus finds that Ms. Anti The Trial 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.

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. with her mother. She was arrested in her village on 15 June 1992 and 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 ć, Deli said to Mr. Mucić Mr. at which point was not married, she stated that she Mucić, “[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” of her arrival in the prison-camp. On this occasion she was called out of Building A and of her arrival in the prison-camp. On this occasion she was called out of Building siderably less than that of direct sworn- siderably less than that of direct testimony which has been subjected to cross-exam ination. 958. […] 320 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 r The secondrapeoccurred when HazimDeli The third rapeoccurr The Trial Chamberfindsthatactsofvaginal penetrationbythepenisandanalpen 913 . Thefollowingday, HazimDelićcametothedoorofroom where shewas ed inBuildingA.ItwasdaylightwhenHazimDelićcamein, , 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 oom inBuildingAtears,where shestatedthat č ć . 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. 321 Case No. 10.970, 1 5/96, i prison-camp and on each occasion prison-camp and elebići Č Case No. ICTR-96-4-T, Trial Chamber 1,2 Sept. 1998. Chamber 1,2 Trial Case No. ICTR-96-4-T, guilty of torture under count rial Chamber finds Hazim Delić guilty of torture e can be no question that these rapes caused severe mental and physical mental and caused severe these rapes that question can be no e Turkey, para. 40, sub-para. 4. v. Turkey, For these reasons, the T For these reasons, Finally, ther Finally, The rapes were committed inside the committed were The rapes Ibid., p. 187 16 November 1998 Case No.: IT-96-21-T Aydin Ibid., p. 241. Commission on Human Rights, Report No. Annual Report of the Inter-American Ibid., p. 187. Ibid., p. 185. Ibid., p. 186 (footnote omitted). Tadic Jurisdiction Decision, para. 70. Jurisdiction Decision, para. Tadic Jean-Paul Akayesu, Prosecutor v. March 1996. March

ndnotes E 21 and count 22 of the Indictment for the multiple rapes of Ms. Antić. (…) 21 and count 22 of the Indictment for the […] . The effects of the rapes that she suffered 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. 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 Ms. Antić. Further, and punish intimidate, coerce these rapes was to purpose of 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. 499 500 494 496 497 498 225 492 493 495 322 Gender-based Violence 914 913 912 911 906 905 904 509 508 507 506 505 504 503 502 501 903

T. 1777-T T. 1780. T. 1825andT1837. Tadic Judgment,para.536andAkayesu134. T. 551. T. 503 T. 494. Transcription (laterT).496. Conflict”; FinalReportsubmittedbyMs.GayJ.McDougall,SpecialRapporteur, “Contemporary FormsofSlavery:SystematicRape,SexualSlaveryandSlavery-likePracticesduringArmed Commission ofExpertsReport,AnnexesIXtoXIIS/1994/6741 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:tortur 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. June 1998,para.55. p. 38.JointDissentingOpinionofJudgesGolctiklti,Matscher, Pettiti,DeMeyer Partly Concurring,DissentingOpinionofJudgeMatscher, p.40,andPartlyConcurring, . 1780. e andothercruel,inhumanordegradingtreatment orpunish- Add.2 (Vol. V),para.25. E/CNAISub.2/1998/13, , LopesRocha,Makar 22 - International Criminal Tribunal for the former Yugoslavia

Case Nº IT-95-17/1-T

Prosecutor v. Anto Furundžija

Judgment of December 10, 1998 324 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- 121. On t V. H I. I

ereby ntroduction

N 1. Having considered theevidence, theT Factual Findings On or about 18 or 19 May 1993, Witness Awasarr On orabout1819May1993, Witness

he adioc or about 16 May 1993, Witness D was arrestedor about 16 May and 1993, taken Witness to the Bungalow by The Arrest

E renders vents

its

the

judgment B ungalow rial Chamberissatisfiedbeyond reasonable

and

the ested andtakenfrom herapart- H oliday C ottage 1

and in

- International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 325 149 e physical and mental suffering and public humili- e physical and mental suffering itness A was taken to a nearby house, the Holiday house, the Holiday taken to a nearby itness A was itness A continued in the pantry, once more before an au- before once more itness A continued in the pantry, ogated by the accused. She was forced by Accused B to un- ogated by the accused. She was forced A was left by the accused in the custody of Accused B, who proceeded to proceeded who B, Accused of custody the in accused the by left was A In the Pantry In the Large Room

The interrogation of W The interrogation 3. Witness A was subjected to sever Witness Witness A was interr On arrival at the Bungalow, W at the Bungalow, On arrival 2.

127. dience of soldiers. Whilst naked but covered by a small blanket, she was interrogated 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. ation. rape her, sexually assault her, and to physically abuse and degrade her. and to physically abuse sexually assault her, rape her, 126. 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. 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 326 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,andarticle4ofAdditionalPr 166. same treaties. serious sexualassaultsare expressly orimplicitlyprohibited invariousprovisions ofthe C. […] D. AandWitness information from Witness question, whileAccusedB’s role wastoassaultandthreaten inorder toelicittherequired pr 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. VI. T ocess ofinterrogation byperforming different functions.Therole oftheaccusedwasto

In addition,theTrial Chambernotesthatrape andinhumantr At leastcommonarticle3totheGenevaConventionsof1949, whichimplicitly 1. Law RapeandOtherSeriousSexualAssaultsinInternational There isnodoubtthatthe accusedandAccusedB,ascommanders,dividedthe It isclearthatinthepantry, bothW Dandr Accused BbeatWitness Rape intimeofwarisspecificallypr

he 189 , AdditionalProtocol Iof1977 International HumanitarianLaw L aw 192

epeatedly raped Witness A.Theaccusedwaspres- epeatedly rapedWitness itness A and Witness Dwere subjectedtosevereitness AandWitness ohibited bytreaty law:the GenevaConventions 190 andAdditionalProtocol II of1977. otocol II,whichexplicitlymentionsrape, eatment were prohibited 191 Other International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 327 or an act 197 The former 194 - along with the ripen 195 ohibits rape or other serious ovided for in Article 5 of the Statute of the and the general provisions contained in article contained in provisions and the general 193 , rape can amount to torture and has been found , rape can amount to torture national law. It has gradually crystallised out of the express prohibition prohibition out of the express gradually crystallised It has national law. 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 pr 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. 3. In certain circumstances, however In certain circumstances,

170. No international human rights instrument specifically pr by the provisions prohibited implicitly are sexual assaults. Nevertheless, these offences international contained in all of the relevant which are physical integrity, safeguarding treaties. International Tribunal as a crime against humanity. 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 172. 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 of rape in article 44 of the Lieber Code article 44 of the Lieber of rape in 168. inter in customary 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. by international judicial bodies to constitute a violation of the norm prohibiting torture, torture, by international judicial bodies to constitute a violation of the norm prohibiting as stated above in paragraph 163. customary international law. 171. 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, 328 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 rape ininter 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 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 notestheunchallengedsubmissionofPr 200

The DefinitionofRape 202 national lawoneshouldstartfrom theassumptionthat“thecentralele- According tothatTrial Chamber, lawitismore ininternational usefulto . However, some general 203 osecution initsPre- Itthenwentonto 199 Thisactisthe 201 International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 329 end can be discerned account must be taken of the specificity of of account must be taken of the specificity 206 204 national criminal rules do not define a notion of criminal law, reli- law, criminal of notion a define not do rules criminal national 205 om international treaty or customary law, nor is resort to general principles of to general principles nor is resort or customary law, om international treaty Whenever inter Whenever This Trial Chamber notes that no elements other than those emphasised may be that no elements other than those emphasised Chamber notes This Trial 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 tr Chamber would emphasise at the The Trial

ance upon national legislation is justified, subject to the following conditions: (i) unless 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 177. drawn fr 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. 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. in the national legislation of a number of States of broadening the definition of rape 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, 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. 330 Gender-based Violence law jurisdictionsoftenusewording openforinterpretation bythecourts. threat, oractingwithoutthe consentofthevictim: all jurisdictionssurveyedbytheTrial Chamberrequire anelement offorce, coercion, woman, though thelawsofmanycountriesspecifythatrapecanonlybecommittedagainsta 180. 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 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. 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 Chamberholdsthatthefor A majordiscrepancy may It isapparent fr 207 othersprovide that rape canbe committed against a victimofeither sex. om oursurveyofnationallegislationthat,inspiteinevitabledis- , however, inthecriminalizationofforced be discerned 213 ced penetrationofthemouthbymale 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 331 national criminal rules punish not only rape but also any , the Trial Chamber is of the opinion that it is not contrary to the general the opinion that it is not contrary to the Chamber is of , the Trial of the vagina or anus of the victim by the penis of the perpetrator or any other any or perpetrator the of penis the by victim the of anus or vagina the of 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 As pointed out above, inter Thus, the Trial Chamber finds that the following may be accepted as the objective Thus, the Trial (i) the sexual penetration, however slight: (a) Moreover

- 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 186. elements of rape: principle of nullum crimen sine lege to charge an accused with forcible 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. 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. 332 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 andlefttheT 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,or 187.

The definitionsandpropositions concer How to The Trial Chamber findsthatastheProsecution has relied onArticle 7(1)without 5. There hasbeensomevariation inthePr It followsfrom Article7(1) oftheStatutethatnotonlycommissionrapeor

Individual CriminalResponsibility Distinguish Perpetration of Torture from Aiding and Abetting Torture rial Chamberthediscretion toallocatecriminalresponsibility, osecution’s responsibil allegationsconcerning - ning aidingandabettingenunciatedabove dering orinstigatingofsuchacts,aswell 215 However, in the 216 International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 333 e based on a logical interpretation of the cus- e based on a logical interpretation national law, individuals must refrain from perpetrating torture torture perpetrating from must refrain individuals national law, , were it to fail to take account of these modern would , were trends, determine whether an individual is a perpetrator or co-perpetrator of torture torture of co-perpetrator or perpetrator a is individual an whether determine International law These legal propositions, which ar These legal propositions, To To Under current inter Under current

prove 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 tomary rules on torture, are supported by a teleological construction of these rules. To 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. or must instead be regarded as an aider and abettor, or is even not to be regarded 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. or in any way participating in torture. or in any way 252. 251. 334 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 256. torture butalsoanydeliberate participationinthispractice. 1985, from whichitcanbe inferred thattheyprohibit notonlythephysicalinfliction of contained intheT 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 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 follows, inter alia,thatifanofficialinterrogates adetaineewhileanotherperson it follows from the above that, at least in those instances where tor orture Conventionof1984andtheInter-American Conventionof 268 - International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 335 fering or serious injury to body or of 3 Dec. 1992 and in its recommendations to of 3 Dec. 1992 and in its recommendations national Military Tribunal for the Far East (1977), national Military Tribunal esponsibility for rape, and this was punished as a war crime. nment of Armies of the United States (1863)”, reprinted in nment of Armies of the United States (1863)”, reprinted

ar (torture), and Count 14, a Violation and Count 14, a of the Laws or Cus- ar (torture), 3, which prohibits “outrages upon personal dignity, and in particular, humiliating and humiliating particular, in and dignity, personal upon “outrages prohibits which 3, entencing common Art. common vol. I, p. 385. [. . .] to consider a commander a murderer In its decision of 7 Dec. 1945 the Commission held: “It is absurd the Conference on the Establishment of an International Criminal Court in Rome, July the Conference in each of the four Geneva Conventions, does include the crime of health”, categorised as a grave breach rape. (eds.), The Laws of Armed Conflicts (1988), p. 10. Schindler and Toman was found to be command r In this case, there 1998, the ICRC has confirmed that the act of “wilfully causing great suf causing great 1998, the ICRC has confirmed that the act of “wilfully Instructions for the Gover “Francis Lieber, Judgment: The Inter See Roeling and Ruter (eds.), The Tokyo 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 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). Introduction 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 195 193 194

192 * # 149 189 190 191 toms of War (outrages upon personal dignity including rape) both under Article 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. […] A. 276. of W the Laws or Customs […] 336 Gender-based Violence 204 203 202 201 200 199 198 197 196

tion 47/133of18Dec.1992andtheInter-American Conventionon HumanRightsof1969). Secretary-General), 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. Theexpr instrumentsonhumanrightsor Covenants onHumanRightsof1966andotherinternational such asthoselaiddownintheUniversalDeclarationonHumanRightsof1948, thetwoUnitedNations standar The parametersforthedefinitionofhumandignitycanbefoundininternational Ibid., p.15. Prosecution’ 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 (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. Aydin case, theEuropean Court found thatrapeofadetaineebyanofficialtheState“mustbe s Pre-trial Brief,p.15. or the enforced disappearance of persons (prohibited by the General Assembly resolu- ession atissueundoubtedlyembracessuchactsasserioussexualassaultsshort Under theAfrican Charter on HumanandPeoples’Rights,rape treatment, andcomplaintsallegingStatefailure ds onhumanrights International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Anto Furundžija 337 See Y Penal Code; Judgment, Case Judgment, Case . Drazen Erdemovic Y Penal Code. eus of the crime consists in the penetration of the female eus of the crime consists in course by force or threat to endanger her life or body or or threat course by force the Criminal Code of New South Wales s. 61 H (1). 61 s. Wales South of New Code Criminal the see (StGB); French Code Pénal Arts. 222-23; Art. 519 of the Italian Italian the Arts. 222-23; Art. 519 of Code Pénal (StGB); French . 70. s vagina”. ales the Sexual Offences Act 1956 to 1992. ales the Sexual Offences case: “[. . .] even a small cog, even an insignificant operator, is under our criminal law case: “[. . .] even a small cog, even an insignificant operator, , para. 479. s Reply Re: Art. 7(1) of the Statute of the International Tribunal, 31 March 1998, p. 2: “The 31 March s Reply Re: Art. 7(1) of the Statute of the International Tribunal, oad definition of sexual intercourse, intercourse, sexual of oad definition 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 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 eat of violence or threat of another act compels a person to submit to acts comprising or including sexual eat of violence or threat See Prosecution Opening Statement, T Prosecution See also the Eichmann The Penal Code of Bosnia and Herzegovina (1988) Ch. XI states that “[w]hoever coerces a female person XI states that “[w]hoever coerces The Penal Code of Bosnia and Herzegovina (1988) Ch. with whom he is not married to, into sexual inter Prosecutor’ 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, 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 See e.g. in England and W See Art. 180 of the Dutch Penal Code; Art. 180 of the SFR 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 thr 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. one to ten years in prison”. that of someone close to her will be sentenced to between No. IT-96-22-A, 7 Oct. 1997. No. IT-96-22-A, Case No. IT-96-21-T of Judge Cassese, Prosecutor v and Dissenting Opinion Para. 5, Separate Section 132 of the Zambian Penal Code. Section 132 of the Zambian 119 of the Argentinian Penal Code. Penal Code (as of 1978); Art. p. 257-8: “The actus r 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. penis into the woman’ man’s a br For See the German Penal Code (StGB); Art. 177 of the Japanese Penal Code; Art. 179 of the SFR Art. 177 of the Japanese Penal Code; Art. 179 the German Penal Code (StGB); See

268 213 216 211 212 214 215 207 205 206 208 209 210

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 340 Gender-based Violence prevented from moving around town,andwere sometimesputunderhouse arrest. Defense witnesssaidthattheworkingrelationship atthehospitalremained cordial. Fo ers were professionally ostracisedorsimplytoldthatthere wasnoworkforthem. 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 during thecourseoftrial,along 20 March 2000andcametoacloseon22November2000. Former Yugoslavia Tribunal” since1991(“International or“Tribunal”), commencedon Humanitarian Law Committed in the Territory 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 ča on8April1992,Muslimworkersstoppedreceiving theirsalaryandthatsomeoth-

ereby

Several Prosecution witnessesstatedthatinthemonthsleadinguptoattackon The three accuseddenied that theincidentsallegedinIndictmentwer The partieshaveagreed that anarmedconflictexistedbetweentheSerbandMus General background Other witnessessaidthatthefreedom ofmovementMuslimcitizenswasincr vidence R enders

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

- International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 341 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. The Serbs used heavy artillery to shell used heavy artillery ča. The Serbs a High School, which was situated in the High School, which was situated in the ča a High School were described by many witnesses as ex- a High School were 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 a was typically achieved achieved was typically Foča around towns and villages of take-over e kept in various houses, apartments, gymnasiums or schools. Even or schools. Even e kept in various houses, apartments, gymnasiums 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 wer Women On 8 April 1992, fighting broke out in Fo out in 1992, fighting broke On 8 April The military The Living conditions at Foč 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. the town and para-militaries to clean out the remaining pockets of resistance. pockets clean out the remaining para-militaries to the town and without much fighting but did involve futile violence. According to many 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 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. transported by bus to Fo Aladža neighborhood of Fo 29. poor. tremely 342 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. insufficient quantity; escaping, but they would notprevent soldiers from entering the facilities. there were oneortwoguards workinginshiftswhowouldprevent thedetaineesfrom 32. neighboring villageswere kept, were, according toseveralwitnesses,appalling. 31. 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 witnessessaidthattheconditionswer The witnesses said thattheycould Conditions attheKalinovikHighSchool,where civiliansfr 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 not leavethepremises. AtFočaHighSchool, 91 One woman, FWS-95, was occasionally 93 Sanitaryconditionswere almost 96 om Gacko, Kalinovik and om Gacko,Kalinovikand e evenworseatPartizan 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. 343 , - 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 , as soon as they arrived at Foča High School, women 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 of the local authorities. FWS-192 stated that the chief of the police and the of chief the that stated FWS-192 authorities. local the of 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 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 Witnesses described how Numerous witnesses stated that soldiers and policemen would come constantly Numerous

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. knowledge to the school to Democratic Party”) in Kalinovik came of the SDS (“Serb the president inspect it. linovik High School. linovik High 33. and girls were either taken out of the school, or into the classrooms where they were they were where either taken out of the school, or into the classrooms and girls were raped. 35. sometimes several times a day; they would 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. 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 344 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 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 meeting point. 7, DP8,Jure Radovic,DraganToljic (aka “Tolja”), Bane,MigaandPuko. Dragan orDragutin/DragomirVuković (aka“Gaga”),Miroslav Kontic(aka“Konta”),DP 40. 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 39. 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. Foč 38. that theywere ordered torapetheirvictims.

a HighSchool. At Partizan, witnesses testified that the pattern ofrapeswassimilarandthefr At Partizan,witnessestestifiedthatthepattern The houseatUlicaOsmanaÐikicano16servedasthesoldiers’ headquartersand The guards atPartizan,ashad beenthecaseatFo Some ofthesoldierswhocametoPartizantakeoutwomenhadalsobeen 120

Some of the men lived there more or less permanently; among them were 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 ča HighSchool,didnottrytopre - 119 Some women who 127 FWS-50,FWS- 125 e-

International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 345 135 FWS-75 and 131 e at some point e at some 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 e kept in a house in Trnovace for several for e kept in a house in Trnovace 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, e being moved to another apartment, generally with different soldiers. Thus, for soldiers. Thus, apartment, generally with different e being moved to another a and surrounding municipalities, all traces of Muslim presence in the area were were in the area municipalities, all traces of Muslim presence ča and surrounding 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 wer 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 wer 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. of Fo […] 47. 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 example, according to their testimony on or about 30 October 1992, 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 42. befor moved to different houses and apartments where they continued to be raped and 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 particular, In 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 41. ment, the women were locked in and permitted no contact with the outside world. ment, the women were 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 346 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. nor ininter 437. ¡t isalsoclearlyestablished. Statute, includinguponthebasisofcommonArticle3to1949GenevaConventions, personal dignity, inviolationofthelawsorcustomswarpursuanttoArticle3 nal’s jurisdictioninArticle5(g).Thetoprosecute rapeasanoutrageagainst Statute. TheStatuterefers explicitly torapeasacrimeagainsthumanitywithintheTribu- customs ofwarunderArticle 436. D. […] 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 Rape , Fočawasrenamed Srbinjebyreference tothefactthatitisnowalmostexclusively pplicable national humanitarianlaworhumanrightsinstruments,were thesubjectof 165 L ThetownisnowpartofRepublikaSrpska. a w 1117 1114 TheTrial Chamberfoundthat,basedonits review ofthe 3 andasacrimeagainsthumanity under Article5ofthe (…) 1116 1115 It then reviewed the various There theTrial Chamber 163

International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 347 1118 national ed a range of 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 national law. However, in the circumstances of the present of the present in the circumstances However, national law. 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 consider 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 (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 As observed in the Furundžija case, the identification of the relevant inter identification of the As observed in the Furundžija case, the

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. in inter of the crime of rape 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 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 law on the nature of the circumstances in which the defined acts of sexual 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. scope of this aspect of the definition in international law. 439. 348 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 ther 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, 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 requir elevant provisions ofanumber ofotherjurisdictionsindicatesthattheinterpretation

Force orthreatofforce domestic statutes and judicial decisions which define the crime of rape es thatthesexualactoccurs 1124 1123 International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 349

- 1129 ovi- Austria, This includes 1228 1132 The provision on The provision 1134 course with a female course with a female 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 e proof of force or threat of force (or equivalent concepts) (or equivalent concepts) of force or threat of force e proof 1131 Specific circumstances which go to the vulnerability or deception of the victim Specific circumstances which go to the vulnerability and Brazil.

1130 The penal codes of a number of continental European jurisdictions contain pr European The penal codes of a number of continental A number of jurisdictions provide that specified sexual acts will constitute rape not A number of jurisdictions provide In Denmark, section 216 of the Criminal Code provides that rape is committed by In Denmark, section 216 of the Criminal Code provides Certain jurisdictions requir The Criminal Code of Korea defines rape as sexual inter 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.

only where accompanied by force or threat of force but also in the presence of other 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. 446. sions of this type. The Swiss Penal Code provides that anyone who compels a 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 any person who “enforces sexual intercourse by violence or under threat of violence”, of violence”, by violence or under threat sexual intercourse any person who “enforces 448. 445. the victim. non-consensual or against the will of and that the act was 444. In Germany, the Criminal Code in force at the relevant time provided: relevant at the Criminal Code in force the In Germany, “through violence or intimidation”. “through some jurisdictions in 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 350 Gender-based Violence pines. 450. to rape. under twelve. illness orwhateverotherreason, theyare incapableofresisting” orwhere thevictimis force or intimidation, where the victim is “of unsound mind or effect, or when due to 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 orqualitativenatur 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. to resist theactshallbeequivalenttoviolence.” but specifiesthat“theplacingofapersoninsuchpositionisunable helpless situationofthevictim”. as sexual intercourse “by violence or threat of violence or by taking advantage of the Finland a woman” reason orincapacitytoresist, knowledgeof commitsanindecentactorobtainscarnal taking advantageoflossreason orincapacitytoresist orbycausingsuchlossof which willbeconsidered to amountrapebyproviding thatwhere aperson “by

The Criminal The emphasisofsuchprovisions isthatthevictim,becauseofanincapacity Some StatesoftheUnitedAmericaprovide intheircriminalcodesthat The JapaneseCriminalCodeprovides that“[a]personwhobyviolenceorthr 1147 1148 1140 , containsimilarprovisions. InEstonia,rapeisdefinedintheCriminalCode 1143 1144 istobepunishedinthesamewayasprovided forinthearticlerelating 1142 Similarprovisions applyin CostaRica, Article178oftheCodehowever, effectively widenstheconduct Code of Argentina defines rapeas sexual penetration where there is e (egmentalorphysicalillness,theageofminority) 1141 1138 ThePenalCodesofSweden 1145 Uruguay 1146 andthePhilip- 1139 and eat,

International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 351

- 1956 1957 1950 1952 New 1953 The English The English 1149 ee and genuine ee and genuine 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 cumstances. These include that it occurs “[a]gainst her cumstances. These include that it occurs 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 fr 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

sexual intercourse with a woman without her consent. her without woman a with intercourse sexual 453. consent to sexual penetration which is the defining characteristic of rape. characteristic is the defining sexual penetration which 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. ful 454. tute rape in any of six defined cir will”; “without her consent”, or with her 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 352 Gender-based Violence Consent forthispurposemust beconsentgivenvoluntarily, asaresult ofthevictim’s the perpetrator;where suchsexualpenetrationoccurswithout theconsentofvictim. any otherobjectusedbytheperpetrator; or(b)ofthemouthvictimbypenis however slight:(a)ofthevagina oranusofthevictimbypenisperpetrator r 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. TheBelgianPenalCodepr 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- 457. 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 eus of the crime of rape in international lawisconstitutedby:thesexualpenetration, eus ofthecrimerapeininternational

4. ing herhusband. tion astothenature oftheact,or, inthecaseofamarriedwoman,byimpersonat- In lightoftheaboveconsiderations,Trial Chamberunderstandsthatthe actus Given thatitisevidentfrom theFurundžijacasethattermscoer Certain non-commonlawjurisdictionsalsodefinerapeintermsofnon-consensual An examinationoftheaboveprovisions indicatesthatthefactorsr In practice,theabsenceofgenuineandfreely givenconsentorvoluntaryparticipa

The basicprincipleunderlyingthecrimeofrapeinnationaljurisdictions 1162 ovides: “Anyactofsexualpenetration, 1963 1964 eferred tounder cion, force, or - International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 353 - 1165 fence of rape (or any other sexual as- fence of rape (or any oboration of the victim’s testimony shall be required; oboration of the victim’s ence in the Rule to consent as a “defense” is not entirely consistent with is not entirely ence in the Rule to consent as a “defense” 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

sault) as defined by the law and rules of the Tribunal, and the existence of force, 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 The Prosecution submits that The Prosecution an element of the of [l]ack of consent is not The refer Rule 96 provides: In cases of sexual assault: (i) no corr 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 5.

461. traditional legal understandings of the concept of consent in rape. Where 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 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 463. 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. 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 354 Gender-based Violence 33 32 31 30 29 28 26 of Procedure andEvidenceinthelightofrelevant law. international 464. ity thatthealibiistrue. issue, thedefendantsimplyrequires theProsecution toeliminatethereasonable possibil-

[…] 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 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 1 and2ofAdmissionsbythePartiesOtherMattersnotinDispute. Regarding AdmissionsandContestedMatterstheAccusedZoranVukovi ć, 8Mar2000;seepars Prosecution Submission Regarding As emphasisedbytheAppealsChamber, theT Regarding Admissions and ContestedMatters, Matters ofFactsandLawWhich Admissions and Contested Matters, 1 Feb 2000;ProsecutionSubmission rial Chambermustinterpret theRules 1166 Consistently International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 355 ead, T 1143. See also FWS-62, T 989- osanj and Mješaja, for example, were taken in that way on 3 July 1992 were osanj and Mješaja, for example, 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 espect to Partizan, see FWS-75, T 1408; FWS-87, T 1689; FWS-95, T 2217; FWS-48, T 2649. With T 4855 and 4869-4870. T 4862-4864. With r 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. FWS-62, T 991; FWS-75, T 1485-1490; FWS-95, T 2215-2216; 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 4225. a jar of soup and slices of br FWS-51 said that they would only receive FWS-95, T 2215-2216. FWS-51, T 1143. FWS-51, T 1132-1133; FWS-75, T 1396-1397; FWS-87, 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; FWS-48, T 2818. 990; FWS-75, T 1407; FWS-87, T 1740; FWS-95, T 2215-2217; 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. The villages of Tr T 2637-2640. T 1386-1390; FWS-87, T 1670-1671; FWS-48, FWS-50, T 1241-1244; FWS-75, FWS-65, T FWS-65, 190, T 3315-3316. See also Ex P6 and 6/1 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

105 106 99 100 101 102 103 104 95 96 97 98 91 93 94 87 88 89 90 92 83 84 85 86 81 82 47 48 356 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

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 statingthatsomesoldierswer 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. 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, e indeed International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 357 - ove “coercion, force or threats” in the Final Trial Brief (par in the Final Trial or threats” force ove “coercion, a municipality by settlement, according to the results of the 1991 to the results a municipality by settlement, according -95-17/1-T, Judgment, 10 Dec 1998, par 177. See also Prosecutor v Tadic, v Tadic, Judgment, 10 Dec 1998, par 177. See also Prosecutor -95-17/1-T, -95-17/1-T, Judgment, 10 Dec 1998, par 177. Judgment, 10 Dec -95-17/1-T, elimir Djurovic, T 5066-5067. elimir Djurovic, T 5066-5067. elimir Djurovic, , Case IT-95-17/1-T, Judgment, 10 Dec 1998. Furundžija, Case IT-95-17/1-T, v Akayesu, Case ICTR-96-4-T, Judgment, 2 Sept 1998, par 597. This definition of the elements of elements the of definition This 597. par 1998, Sept 2 Judgment, ICTR-96-4-T, Case v Akayesu, 754) also apparently favours a narrower definition of what constitutes rape than is indicated by the sources 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 Furundžija, Case IT Prosecutor 31 Jan 2000, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin, Case IT-94-1-A-R77, et al., Case IT-96-21-T, 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. v Furundžija, Case IT Prosecutor Ibid, par 185 (“Furundžija definition”). by its emphasis on the need to pr The Prosecution, Prosecutor v Prosecutor Prosecutor See Ex P18, Ethnic composition of Foč T 6032. See also Witness V T 6032. See also Witness V 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. FWS-75, T 1599; FWS-87, 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, FWS-75, T 1433-1435; D.B., T 3815-3818; FWS-87, T 1700; FWS-190, 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; 3375. FWS-75, T 1449-1451. FWS-75, T 1454-1456. FWS-75, T 1494. of Statistics, pp 101- 110, Bureau Republic of Croatia and Herzegovina, Population of Bosnia census (from Apr 1995). 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

1120 1121 1116 1117 1118 1119 165 1114 1115 136 137 138 139 163 131 132 133 134 135 164 129 130 358 Gender-based Violence 1133 1132 1131 1130 1129 1228 1227 1226 1225 1124 1123 1222

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 Leone (1999),pp68-69. with awomanwithoutherconsentbyforce, fearorfraud”:seeThompson,TheCriminalLawofSierra statutory provisions). RapeisdefinedbycommonlawinSierraLeoneas“havingunlawfulsexualintercourse Eg, SierraLeone,where rapeisdefinedbycommonlaw(otherthanofminors,whichgover Código Penal,Art213(“[…]violenceorseriousthreat […]”). Código Penal,Art178:“Theassault on thesexual Strafgesetzbuch, Art201:“[...]byuseofsevere for […]”. Translation from NorwegianMinistryofJustice,The GeneralCivilPenalCode(1995). or healthcompelsanypersontocommitanactofindecencyisaccessorythereto shallbeguiltyofrape General CivilPenalCode,Ch19,Art192:“Anypersonwhobyforce orbyinducingfearforanyperson’ Section 236ofthatCodecontainsthesameprohibition). which wasinforce atthetime relevant totheseproceedings, hasbeenreplaced bythe1997CriminalCode. sentenced tonotlessthanthr Criminal Law(1979),Art139:“Whoeverbyviolence,coercion orothermeansrapesawomanistobe sppo.go.kr/laws/crimco_e.htm (siteaccessed18Mar1999). Criminal CodeofKorea, Ch XXXII,Art297.T 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 fr incapacity oranyotherconditionwhichhasrendered herunabletoresist. nalises sexualinter Penal CodeoftheSocialistRepublicBosniaandHerzegovina(1991),ChXI,Art88(1).90alsope- Ibid, par80. Prosecutor vFurundžija,CaseIT systems oftheworld,asdevelopedandrefined (wherejurisprudence.” applicable)ininternational par 15:“Itisotherwiseofassistancetolookthegeneralprincipleslawcommonmajorlegal rape refer toaperpetratorwho“compelspersonsubmitby for sexual libertyofanotherwithoutconsent,are punishablebylessertermsofimprisonment:Art181. will bepunishableasasexualaggression […]”.“Sexualabuses”,whichare definedasactsofassaultonthe directed againstthevictim orathird person[…]”(asinforce 1989-1997). course coerced bytakingadvantageofthevictim’s mentalillness,temporaryinsanity, , s130.05;130.35:rapeinthefirstdegree involvessexualintercourse withoutthe ee yearsandnotlessthantenoffixed-termimprisonment”.(Thislaw, -95-17/1-T, Judgment,10Dec1998,par178. ranslation from Korean websitehttp://www.dci. government liberty ofanotherperson,withviolenceorintimidation, ce orthreat ofpresent severe dangeroflifeorlimb ce andagainsthiswill,orcompelsa om 1April ned by s life International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 359 - efers to course by violence or by ranslation from New York New York ranslation from to this provision states that to this provision om Hoyer, Spencer and Greve, The Spencer and Greve, om Hoyer, course with a woman, by means of violence, woman, by means of violence, course with a e a person “by violence or threat which involves e a person “by violence or threat om EHS Law Bulletin Series, The Penal Code of Japan (1996), Vol II. (1996), Vol om EHS Law Bulletin Series, The Penal Code of Japan The definition in the Uruguay Code also refers expressly to sexual intercourse being to sexual intercourse expressly refers Code also in the Uruguay The definition Penal Code of the Philippines provides by Art 335 that rape is carnalrape is that 335 Art by a woman of knowledge provides Philippines the of Penal Code sexual intercourse with a person not the perpetrator’s wife where the victim 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”, The Revised Revised The California Penal Code, s 261(a)(1), (3), (4) and (5). See also the Model Penal Code, s 213.1 which r threat of 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). fr Criminal Code, Art 177. Translation Emphasis added. Código Penal, Art 119. Emphasis added. Código Penal, Art 156. 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 or otherwise uncon- reason deprived of “when the woman is or intimidation”, committed by “using force scious” or when the victim is under twelve. Penal Code of Finland, Ch 20, s 1(1) (“A person who forces a woman to sexual inter forces Penal Code of Finland, Ch 20, s 1(1) (“A person who Kriminaalkoodeks 1992, s 115(1). rape consists of sexually abusing someone against their will when the absence of will results from 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 The Italian Penal Code (1978). University, Danish Criminal Code (1997). that rape is committed wher 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). Codice Penale, Art 519; see particularly subpars (3) and (4) (as in force in 1992). T particularly subpars (3) and (4) (as in force Codice Penale, Art 519; see fr 24, Art 216(1). Emphasis added. Translation Danish Criminal Code, Ch Código Penal, Art 164 (as in force in 1992): “Whoever has inter 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 Emphasis added. A commentary translation). Code Pénal, Art 222 (unofficial person to submit by threat of bodily injury”. by threat person to submit 190. Emphasis added. Code Pénal, Art

1141 1143 1144 1145 1146 1147 1148 1142 1137 1138 1139 1140 1136 1134 1135 360 Gender-based Violence 1159 1158 1157 1156 1155 1154 1153 1152 1151 1150 1149

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, wher The NewZealandCrimes Act, 1961penalises“sexual of thevictim. any assault In Canada,rapefallswithinthestatutorycrimeofsexualassaultunders271CriminalCode.Thisis R vOlugboja,[1982]QB320. intercourse maybevaginal oranal. 1994, s142whichmakesitanoffence foramantorapewomanorandspecifiesthatthesexual in theSexualOffences Act 1956wasagainamendedin1994bytheCriminalJusticeandPublicOrder Act Sexual Offences (Amendment) Act1976,amendings1oftheSexualOf time oftheintercourse does not(b)consenttoit;[…]”. Ordinance, s118:“Aman commitsrapeif-(a)hehasunlawfulsexualintercourse withawomanwhoatthe Olugboja [1982]QB320.TheEnglishcommonlawdefinitionofrapeis reflected intheHongKongCrimes See, eg,ReportoftheAdvisory Gr over acentury.” books continuedtostatethelawinthosetermsuntilveryrecently buttheyhavebeenout-of-dateforwell At onetimeitwasstatedthattheintercourse musthavebeenpr See Smith,Smith&HoganCriminalLaw(1999),p457:“Theessenceofrapeistheabsenceconsent[…]. 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). 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 of a sexual nature, and assault is defined by s 265 as, in effect, a touching without the consent e thecommonlawoffence ofrapehasbeenrepealed bystatute,rapeisencom- oup ontheLawofRape(1975),Cmnd6352,pars18-22,citedinRv violation” which is definedastheactofamaleraping ocured through force, fearorfraud.Some fences Act1956.Thedefinition International Criminal Tribunal for the Former Yugoslavia - Prosecutor v. Kunarac et al. 361 - adic, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Judgment on Allegations of Contempt Against Prior Counsel, Milan adic, Case IT-94-1-A-R77, s Pre-Trial Brief I, par 128. Brief I, par s Pre-Trial the decision of K 1958 3 SA 429 (A) 421F. Consent is not established by mere submission: F 1990 1 1990 F submission: mere by established not is Consent 421F. (A) 429 SA 3 1958 K of decision the Prosecutor v T Prosecutor Zambian Penal Code, Cap 87, s 132 of The Laws of 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. 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 Bangladesh Penal Code, s 375. (Abdul Matin, The Penal Code (1994), p 718). The fifth circumstance enu The fifth circumstance 375. (Abdul Matin, The Penal Code (1994), p 718). Bangladesh Penal Code, s 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). 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.- merated in the Indian Penal Code is absent from the Bangladesh Code. The Pakistan Penal 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

1163 1164 1165 1166 1162 1160 1161

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

364 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 rapear This Chamberopinesthattheof The IndictmentchargestheAccusedinCount6withrapeasacrimeagainsthu Specific Of Law ontheCrimesCharged A andtheICC. pplicable 283 Indeed,theICTYTrial ChamberinKunaracdeclared that“[r]apeisoneofthe fences L 282 a Thestatusofrapeasanoffence undercustomaryinternational w fence ofrapehaslongbeenprohibited asawar 278 Itisalsoprohibited asacrime againsthuman- 277 279 andintheStatutesofICTY, 284 e asfollows: 280 the - - Special Court for Sierra Leone - Prosecutor v. Sesay et al. 365 293 286 289 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 specific circumstances of an armed conflict specific circumstances eus of rape refers to the circumstances which to the circumstances eus of rape refers efers to those situations where, even in the absence efers to those situations where, eus defines the type of invasion that is required to con- required of invasion that is eus defines the type 285 The second part of the provision refers to the penetration of to refers second part of the provision The 287 292 ea requirements for the offence of rape are that the invasion was inten- of rape are the offence for ea requirements The mens r The Chamber observes that the very The last part of this element r The second element of the actus r The first element of the actus r 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. 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, 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 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 366 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 opines that the prohibition of the more particular offences suchas 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,theChamberdoesnotsuggestthatof The The specificof (…) theChamberwillher The The Chamberdrawsattentiontotheprinciplesr 296 Indictment in Count 7 charges the Accused with sexual slavery and any other fence ofsexualslaverywasincludedforthefirsttimeasawarcrime 295 e consideronlytheelementsofoffence of“sexual 297 299 egarding inferences thatcannotbe Theoffence ischaracterised asa 298 Inthatcase,theICTYAp- fence isentirely new. Itis Special Court for Sierra Leone - Prosecutor v. Sesay et al. 367 306 305 elevant con- eus has been (the slavery element) and second, 304 303 eus of the offence of sexual slavery is made eus of the offence ession “similar deprivation of liberty” may cover 2 0 3 e detail below, this Chamber takes the view that the offence of view that the offence Chamber takes the this e detail below, 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 r In determining whether or not the enslavement T The Chamber also notes that the expr This Chamber considers that the actus r Consistent with the Rule 98 Decision, the Chamber has held that the r Rule 98 Decision, the Chamber has held Consistent with the As discussed in mor As discussed 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.

300 that the enslavement involved sexual acts (the sexual element). that the enslavement involved sexual acts 160. established, the Chamber notes that the list of actions that reflect the exercise 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. thatthe mustalsoprove theProsecution o convictanAccusedforthisoffence, 161. situations in which the victims may not have been physically confined, but were 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. up of two elements: first, that the Accused exercised any or all of the powers 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. 157. international customary at criminal individual entails and law prohibited is enslavement responsibility. sexual slavery are: stitutive elements of 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 368 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) 5.2.2. SexualV […] 5.2. […] 5. […] […] ownership. ing whetherornottheAccusedexercised anyofthepowersattachingtoright or notthere wasconsentmayberelevant from anevidentiaryperspectiveinestablish- or 163. constitutes sexualslavery. sexual violenceare theadditional element that,whencombinedwithevidenceofslavery, presume theabsenceofconsent.” that “circumstances which render itimpossibletoexpress consentmaybesufficient to e V.

to the sexual acts is not an element to be proved by the Prosecution, although whether

Legal FindingsontheCrimesinKonoDistrict Crimes inKonoDistrict The Chamberemphasisesthatthelackofconsentvictimtoenslavement valua 308 TheChambersubscribestothestatementofICTYAppeals tion iolence (Counts6to9)

of E 307 vidence 309 Thedurationoftheenslavementisnotanelement 310 Special Court for Sierra Leone - Prosecutor v. Sesay et al. 369 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 370 Gender-based Violence 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 thattheperpetrators intendedtodeprive 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” 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 2463 This suffering is in addition to the physical injuries that forced intercourse 2464 - - Special Court for Sierra Leone - Prosecutor v. Sesay et al. 371 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. 372 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. 373 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 374 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. 375 - iolence (Counts 6 to 9) 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 Legal Findings on Crimes in Kailahun District Legal Findings on Crimes in Kailahun Crimes in Kailahun District Crimes in Kailahun

[…] 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 […] 6.2.2. Sexual V […] 6.2. 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. 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. 376 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 ofthisnature, 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. 377 Appeal Trial Judg- Trial Trial Judgment, paras 165-169; Čelebići Trial ar Crimes, Crimes Against Peace and Against Humanity, Allied Control Allied Control Peace and Against Humanity, ar Crimes, Crimes Against ranscript of 25 October 2006, pp. 21-22. national Criminal Court, 2187 U.N.T.S. 90 (entered into force July 1, 2002), Art. into force 90 (entered national Criminal Court, 2187 U.N.T.S. each of the Geneva Conventions. , ICTR-95-1B-A, Judgment (AC), 21 May 2007, para. 49 [ Muhimana 2007, para. 49 May (AC), 21 Judgment , ICTR-95-1B-A, Muhimana . Trial Judgment, paras 457-459. Appeal Judgment, para. 129; Kunarac et al. Trial Appeal Judgment, para. 129. Appeal Judgment, para. 130. Appeal Judgment, para. 395; Furundžija . Trial Judgment, para. 655. . Trial Prosecutor v. Gacumbitsi, ICTR-01-64-A, Judgment (AC), 7 July 2006, para. 115 [Gacumbitsi Prosecutor v. rial Judgment, paras 183-185. Para. 184: “[F]orced oral sex can be just as humiliating and trau- rial Judgment, paras 183-185. Para. 184: “[F]orced Trial Judgment, para. 185. Trial T paras 457-458. national Criminal Court, Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2000), Art. 7(1)(g) and national Criminal Court, Elements of Crimes, U.N. Doc. , Secretarythe of Order by Field the in States United the of Government the for (Instructions War 47. of , for example, ICC Elements of Crimes, fn 51. : 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]; Appeal Judgment]. Infra Article 7(1)(g) identifies sexual slavery as a crime against humanity and Article 8(2)(b)(xxii) identifies sexual slavery as a grave br Kunarac et al. See See Prosecutor v Indictment, paras 54-60. matic for a victim as vaginal or anal penetration.” Furundžija ICC Elements of Crimes, fn 50. Kunarac et al. Kunarac et al. Kunarac et al Inter Art. 8(2)(b)(xxii) [ICC Elements of Crimes]. RUF Oral Rule 98 Decision, T Furundžija Rome Statute of the Inter 7(1)(g) [ICC Statute]. Kvocka et al. Punishment of Persons Guilty of W Punishment of Persons Guilty Article 5(g) of the ICTY Statute. Article 3(g) of the ICTR Statute. The Lieber Code of 1863 listed rape as a serious war crime that merited the death penalty in Articles 44 merited the death penalty a serious war crime that of 1863 listed rape as The Lieber Code 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 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 Indictment, paras 54-60. Indictment, paras

ndnotes E 284 295 297 296 288 290 291 292 293 294 285 286 289 283 287 281 282 279 280 277 278 378 Gender-based Violence 301 300 299 298 306 305 303 2458 2457 2456 2455 2451 310 309 308 307 304 302

Kunarac etal. 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;Finalr Kunarac etal. Kunarac etal. Chamber inKunaracetal.AppealJudgment,para.119. 04-15-T 532March 2009 Supra Supra Supra Supra Supra Kunarac etal. Kunarac etal. capable ofproviding voluntaryandgenuineconsent. notes omitted]Oncetheelementofenslavementhasbeenproven, thentheenslavedpersonwouldnot be it followsthatpersonaccusedofslaverycannotraiseconsentthevictimas adefense.”[originalfoot- “Likewise, apersoncannot,underanycircumstances, consenttobeenslavedorsubjectedslavery. Thus, Kunarac etal. Update ofReportbySpecialRapporteur 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. Kunarac Kunarac etal. RUF OralRule98Decision,T Update toFinalReportofSpecialRapporteur narac etal.AppealJudgment,para.124. para. 1208. para. 1206. paras 1193-1195. paras 1180-1181,1185. paras 147-148. Economic andSocialCouncil,CommissiononHumanRights,Sub-CommissionthePromotion et al. Trial Judgment, para. 543 [original footnotes omitted], cited with approval by the Appeals Appeal Judgment,para.186. Trial Judgment,paras746-782. Appeals Judgment,para.121. Appeals Judgment,para.120 Trial Judgment,paras519-537and539;Krnojelac Appeals Judgment,para.120.See Trial Judgment,para.750.Thisexpression wasalsoinsisted uponbysomedelegationsto Trial Judgment,para.540.SeealsoAFRCAppeal102.CaseNo.SCSL- ranscript of25October2006,p.22. during armedconflict,EconomicandSocialCouncil,Commissionon , paras47and51. , para.51. eport submittedbyMs.GayJ.McDougall,SpecialRapporteur, also UpdateofReportbySpecialRapporteur, para.51: Trial Judgment,para.355.See also Ku- Special Court for Sierra Leone - Prosecutor v. Sesay et al. 379 egnant by an RUF fighter in Daru in ont of children and other civilians: Transcript of 22 and other civilians: Transcript ont of children etary-General on the UN Mission in Sierra Leone, dated 19 on the UN Mission in Sierra etary-General atch, “We’ll Kill You if You Cry”, p. 4. if You Kill You atch, “We’ll ed along with 20 other civilians by armed fighters and the men inserted a pistol into the ed along with 20 other civilians by armed fighters and itness TF1-192, Disclosed to Sesay on 14 November 2003, to Kallon on 10 December 2003 Sesay on 14 November 2003, to Kallon on 10 December itness TF1-192, Disclosed to paras 1283-1297. para. 1205. para. 468. para. 1207. paras 1209-1214 paras 1154-1155. paras 1178-1179 - an enormous barrier to the effec ding to TF1-369, fear of discrimination and stigmatisation remains rebels captured TF1-305 and ordered her mother to make a choice between killing her or taking her taking or her killing between choice a make to mother her ordered and TF1-305 captured rebels Statement of Witnessof Statement Decem- on 10 Kallon to 2003, November 14 on Sesay to disclosed was TF1-218 Exhibit 381, Fourth Report of the UN Secr Exhibit 381, Fourth TF1-217 who describes the rape of five women in fr Indictment, paras 54-60. ranscript of 22 July 2004, TF1-217, pp. 17-19, 30. ranscript of 22 July 2004, TF1-217, pp. 17-19, 30. ebels, after the rape she felt dizzy and bled profusely and she stated that she lay on the ground feeling “as and she stated that she lay on the ground ebels, after the rape she felt dizzy and bled profusely RUF T T Exhibit 146, Human Rights W Accor 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 TF1-305, pp. 54-57 of 27 July 2004, eight of their gang raped her; Transcript away before vagina of one of the female captives, leaving it inside her overnight, Transcript of 1 February 2005, TF1-192, 2005, February 1 of overnight,her inside it leaving captives, female the of one of vagina Transcript p. 68. if I was in the hands of death itself”: Transcript of 27 July of 2004, TF1-305, pp. 54-57. of 27 July of 2004, if I was in the hands of death itself”: Transcript TF1-192 was captur eight months pr DIS-157 testified of the rape of a woman who was May 2000, p. 3578. See r 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. See The Supra Statement of W Supra See Supra Supra Supra 17 December 2003. ber 2003, and to Gbao on and to Gbao on 17 December 2003. by guarded were while her parents by eight rebels July 2004, TF1-217, pp. 23-24. TF1-305 was gang raped armed Supra Supra

2514 2512 2513 2515 2509 2508 2464 with another abductee, a to engage in sexual intercourse 2510 TF1-064 was a nursing mother who was forced 2511 2463 2467 2468 2469 2470 2471 2472 2507 2459 2460 2461 380 Gender-based Violence 2524 2523 2522 2521 2520 2519 2518 2517 ranscript of28November2005,TF1-029,pp.12-13;TF1-196alsoheard rebels saythattheywere going 2516

Supra Supra Supra communities thushadtoreturntheirabusers,Exhibit138,ExpertReportForced Marriage,p.12089. communities whofledfrom their rebel captorstotheircommunitieswerereturn notwelcomedbytheir Exhibit 138,ExpertReportFor Infra against women:seeparas54-60. The ChambernotesthatthePr T of 21October2004,TF1-016,pp.18-19. her daughtertobepatientastheywere powerlessand“itwaswar”sonothingcouldbedone:Transcript TF1-016’ because shewasrapedinpublic:Transcript of13July2004,TF1-196,pp.26-28. to rapevirginsandanRUFrebel threatened tokillTF1-196 ifsherefused sexualintercourse. Shefeltshame T ranscript of22July2004,TF1-217,p.10. paras 1406-1408 paras 1346-1352. paras 1171,1180-1183,1191-1195,1205-1208. paras 1152-1155. s daughtercomplainedofhavingbeenrapedbyanRUFrebel calledAlpha,howeverTF1-016told ced Marriage,p.12097-98;Anumberofthese‘wives’haverelocated toother osecution restricted itspleading ofsexualviolenceintheIndictmenttocrimes Committee on the Elimination of Discrimination against Women

A. T. v. Hungary

Communication Nº 2/2003

Views adopted January 26, 2005 382 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 1.1 […] 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 2.1 The factsaspresented submitted hercommunication,becauseshefeared forherlife. dance witharticle5,paragraph1,oftheOptionalProtocol, atthesametimethatshe 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 V iews

P The author The authorofthecommunicationdated10October2003,withsupplemen- In Mar The authorstatesthatforthepastfouryearsshehasbeensubjectedtoregular sever rotocol

under ch 1999, L. F. moved out of the family apartment. His subsequent visits al- urgently requested effective interim measures of protection in accor A rticle 7, p argrph 3, of ., a Hungarian national born on ., aHungariannationalborn

the O ptional

e e - Committee on the Elimination of Discrimination against Women - A. T. v. Hungary 383 ocedures against ocedures egarding division of the egarding oceedings regarding L. F.’s access access L. F.’s oceedings regarding ) issued a final decision authorizing L. F. to return and F. to ărosi Bíróság) issued a final decision authorizing L. is said to have battered the author severely on several occasions, beginning in occasions, beginning on several the author severely battered have is said to The author states that there have been two ongoing criminal pr The author states that there The author states that she also initiated civil proceedings r civil proceedings The author states that she also initiated The author states that there have been civil pr there The author states that L.F. L.F.

Pesti Központi 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 property, which have been suspended. She claims that L. F. refused her offer 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 the author refused to allow him to enter the apartment. The author further states that, author further states the apartment. The to allow him to enter refused the author using violence. into the apartment broke 2001, L. F. on 27 July 2.3 in connection with medical certificates have been issued 1998. Since then, 10 March family residence, left the 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 ), were Central District Court (Pesti Központi Kerületi Bíróság decision). On 4 September 2003, the Budapest and 13 September 2002 (supplementary Regional Court (Főrv 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. 2.5 384 Gender-based Violence violence. and c)provision offree legalaidtovictimsofgender-based violence,includingdomestic the OptionalProtocol, includingforjudges,prosecutors, policeandpractisinglawyers, the ConventiononElimination ofAllFormsDiscriminationagainstWomen 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 these criminalprocedures canhardly beconsidered effective and/orimmediateprotection. as wellviolationsofgeneralrecommendation 19oftheCommittee.Shemaintainsthat has notspentanytimeincustodyconstituteviolationsofherrightsundertheConvention protection orders or restraining orders under current Hungarian law and thefact thatL. F. 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,fr 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 Reportedly, thelatterprocedure wasinitiatedbythehospitalexofficio.Theauthorfur sion of 2 January 2004, the author states that there would be a trial on 9 January 2004.

The authorallegesthatsheisavictimofviolationsbyHungaryarticles The authoralsosubmitsthatshehasrequested assistanceinwriting,personand The authorisalsoseekingtheCommittee’s interventionintotheintolerablesitua The authorisseekingjusticeforherselfandherchildren, includingfaircompensa She claimsthattheirrationallylengthycriminalprocedur om thelocalchildprotection authorities,butthatherrequests havebeento es againstL.F., thelackof - - - - Committee on the Elimination of Discrimination against Women - A. T. v. Hungary 385 - ommittee C the

ecommendation No. 19 on violence against ecommendation No. before

- the in the light of all in communication present the considered proceedings

egard to article 2 a), b), and e), the Committee notes that the State party has to egard and

With r The Committee has The r its general The Committee recalls

ssues I more, the general recommendation addresses 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 formation made available to it by the author and by the State party, as provided 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 […] merits Consideration of the 9.1 […] 386 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 articles5and16togetherinitsgeneralr ecommenda- Committee on the Elimination of Discrimination against Women - A. T. v. Hungary 387 - es pre omen, the Committee is of the omen, the Committee 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 The Committee also notes that the lack of effective legal and other measur notes that the lack of effective The Committee also

view that the State party has failed to fulfil its obligations and has thereby violated 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 (…). […] the Elimination of All Forms of Discrimination against W the Elimination of All 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

Committee on the Elimination of Discrimination against Women

Şahide Goekce (deceased) v. Austria

Communication Nº 5/2005

Views adopted August 6, 2007 390 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, dir 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 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 theV V

iews

The authorsofthecommunicationdated21July2004withsupplementaryinfor Under section107,paragraph4,ofthePenalCode(Strafgesetzbuch), athreatened P On 3December1999,thepoliceissuedanexpulsionandprohibition tor The firstviolentattackagainstSahideGoekcebyherhusband,MustafaGoekce, rotocol

authors are aware of took place on 2 December 1999 at approximately 4 p.m. under ect descendant,brother orsisterrelative wholivesinthesamehouseholdof

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

the O ienna InterventionCentre ptional

eturn ordereturn - - Committee on the Elimination of Discrimination against Women-Şahide Goekce (deceased) v. Austria 391 ces that Mustafa Goekce nals issued an interim in- elfare Office (which had been in constant Office elfare e called to the Goekce’s apartment because of reports of apartment because of reports e called to the Goekce’s incidents of which the authors have knowledge occurred on 21 on knowledge occurred have authors the which of incidents The authors indicate that the police knew from other sour The authors indicate that the police knew from On 18 November 2002, the Youth W On 18 November 2002, the Youth On 23 October 2002, the Vienna District Court of Her On 17 December 2001, 30 June 2002, 6 July 2002, 25 August 2002 and 16 Sep- 30 June 2002, 6 July 2002, 25 August On 17 December 2001, The next violent violent The next

contact with the Goekce family because of the violent assaults that took place in front 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 disturbances and disputes 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 cheek was bruised and she had haematoma on the right side of her 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 junction for a period of three 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 and 22 August 2000. When the police arrived at the Goekce’s apartment on 22 August 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 wer tember 2002 the police 2.4 392 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,MustafaGoekcesurr On 7 PublicPr On 5December2002,theVienna December 2002, Mustafa Goekce shot Sahide Goekce with a handgun in their 2 osecutor stoppedtheprosecution of en- Committee on the Elimination of Discrimination against Women-Şahide Goekce (deceased) v. Austria 393 . 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 394 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 viewthatfactsbefore 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 395 - . v. Hungary. . v. der but was diagnosed to be mentally 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 disturbed to a higher degree generally disturbed to a higher degree 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 of sound mind (compos mentis) vis-à-vis the mur He is reportedly views on communication No. 2/2003, A.T See paragraph 9.3 of the Committee’s ndnotes

E 4 1 2 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 […]

Committee on the Elimination of Discrimination against Women

Fatma Yildirim (deceased) v. Austria

Communication Nº 6/2005

Views adopted August 6, 2007 398 Gender-based Violence 1. […] 2.3 would notagree andthreatened tokillherandchildren shouldshedivorce him. Austria, they constantly argued.Fatma Yildirim wanted to divorce IrfanYildirim, buthe an argumentwhilethecouplewasonatriptoTurkey inJuly2003.Ontheirreturnto 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 2.2 ter, on30July1998. Melissa, was born 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- had three children from herfirstmarriage mation dated22Novemberand10December2004,are theV V

iews

The authorsofthecommunicationdated21July2004withsupplementaryinfor P On 6August2003thepolice issued anexpulsionandprohibition tor On 4August2003,fearingforherlife,FatmaYildirim andherfive-year Irfan Y The authorsstatethatFatmaYildirim marriedIrfanY rotocol

under ildirim reportedly threatened to kill Fatma Yildirim for the first time during

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

the ildirim on 24July2001.She O ienna InterventionCentre ptional

-old daugh- eturn ordereturn - Committee on the Elimination of Discrimination against Women - Fatma Yildirim (deceased) v. Austria 399 - eats e against ienna Intervention Centre ienna Intervention Centre ildirim’s workplace at 7:00 pm. ildirim’s eatened to kill Fatma Yildirim at her workplace. She eatened to kill Fatma Yildirim ildirim appeared at Fatma Yildirim’s workplace and harassed workplace at Fatma Yildirim’s ildirim appeared On 14 August 2003, Fatma Yildirim gave a formal statement about the thr gave a formal statement On 14 August 2003, Fatma Yildirim On 12 August 2003, a staff member (name is given) of the V On 12 August 2003, a staff On 11 August 2003, Irfan Yildirim came to Fatma Y On 11 August 2003, Irfan Yildirim On 9 August, Irfan Yildirim thr On 9 August, Irfan Yildirim That same day, Irfan Y That same day, On 8 August 2003, with the assistance of the ViennaOn 8 August 2003, Centr Intervention

made to her life to the police, who in turn reported to the Vienna Public Prosecutor 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, 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 - 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 her. The police were called in to settle the dispute, but they did not report the incident 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 Domestic Violence, Fatma Yildirim applied on her own behalf and on behalf 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 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 Domestic Violence and the Youth Welfare Office of the issuance of the order and the order of the 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 2.5 400 Gender-based Violence 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 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-

Irfan Y On 11September2003,atapproximately 10:50pm,IrfanY DistrictCourtofHer On 1September2003,theVienna On 26August2003,FatmaYildirim filedapetitionfordivor ildirim was arrested while trying to enter Bulgaria on 19 September 2003. nals issuedaninteriminjunc- ce at the Vienna District ce attheVienna ildirim followedFatma Committee on the Elimination of Discrimination against Women - Fatma Yildirim (deceased) v. Austria 401 6 . The Committee has stated in its general 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

Convention were violated by the State party Convention were 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 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 Yildirim that Irfan connection had fact this 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 State party’s the 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 402 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 b) providing forsanctions thefailure todoso; diligence toprevent andrespond tosuchviolenceagainstwomenandadequately withintheFamilyandrelatedtion againstViolence criminallaw, byactingwithdue the Committee,andOptionalProtocol thereto. tion ofAllForms of Discrimination 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 a)

Vigilantly andinaspeedymannerpr Vigilantly Strengthen implementation andmonitoringoftheFederalActforPr Strengthen trainingpr Ensure enhancedcoor ograms andeducationondomesticviolenceforjudges, dination amonglawenforcement andjudicialofficers, osecute perpetratorsofdomesticviolence otec- Committee on the Elimination of Discrimination against Women - Fatma Yildirim (deceased) v. Austria 403 . v. Hungary. . v. en and one minor represented by her father have been received. represented en and one minor This act has been translated as both the Security Police Act and the Maintenance of Law and Order Act. Order Maintenance of Law and Security Police Act and the translated as both the This act has been 2/2003, A.T on communication No. views 9.3 of the Committee’s See paragraph Signed consent forms from two adult childr forms from Signed consent ndnotes

E 2 6 1

Committee on the Elimination of Discrimination against Women

Karen Tayag Vertido v. The Philippines

Communication Nº 18/2008

Views adopted Julu 16, 2010 406 Gender-based Violence 1. […] the doorway, almostnaked,withhisbackto herandapparently talking tosomeone.The back towards theroom, hopingthattheaccusedhadleft,butthensawhimstanding in or movementsoutside,shewent outtolookforatelephoneoranotherexit.Shewent bathroom forawhileinorder toregain hercomposure and,asshecouldhearnosounds ran insidetolookforanotherexit,butfoundonlyabathroom. Shelockedherselfinthe the door(thecarwasonlythree tofourmetres awayfrom themotelroom). Theauthor the accuseddraggedhertowards aroom, atwhichpointhelethergoinorder tounlock very quicklydrove thevehicleintoamotelgarage.Theauthorrefused toleavethecarbut a gun.Shetriedtostophimfrom drivingheranywhere otherthantoherhome,buthe ance, the author felt something in theaccused’s left-hand pocket that she thought was author’s breast. Thisactioncausedhertolosebalance.Whiletrying toregain herbal- and sped away. Shortly after the accused dropped off his friend, he suddenly grabbed the because shewasinahurrytogethome.Mr. C.,however, didnotallowhertotakeataxi Mr. C.intended todrop off hisfriendfirst,shetoldhimthat wouldrathertakeataxi a meetingoftheChamberonnight29March 1996.Whentheauthorrealized that 2.2 President oftheChamber, rapedher. Therapetook placeon29March 1996. City, thePhilippines, whenJ.B.C.(“theaccused”),atthattimeaformer60-year-old r 2.1 Facts aspresented bythe author […] of AllFormsDiscriminationagainstWomen havebeenviolatedbytheStateparty. that her rights under articles 2 (c), (d), (f) and 5(a) of theConventionon the Elimination of theCommitteeonEliminationDiscriminationagainstWomen. Shealsoclaims the meaningofarticle1Conventioninrelation togeneralrecommendation No.19 tido, aFilipinonationalwhoclaimstobevictim

ector oftheDavaoCityChamberCommerce andIndustry(“theChamber”)inDavao

of V The author of the communication, dated 29 November 2007, is Karen Tayag Ver The accusedoffer The authorisaFilipinowomanwhonowunemployed.SheservedasExecutiveDi- iews

the

O under ptional ed totaketheauthorhome,togetherwithoneofhisfriends,after

article P rotocol 7, paragraph of discriminationagainstwomenwithin 3,

- Committee on the Elimination of Discrimination against Women - Karen Tayag Vertido v. The Philippines 407

- - os- eported the incident to the police. On The information was filed in court on 7 November 1996 and the Court is in court on 7 November 1996 The information was filed The case was initially dismissed for lack of probable cause by a panel of public pr probable The case was initially dismissed for lack of On 30 March 1996, within 24 hours of being raped, the author underwent a medi On 30 March Within the author r 48 hours of being raped,

cal and legal examination at the Davao City Medical Centre. A medical certificate men- Medical Centre. cal and legal examination at the Davao City as well as place it was said to have occurred, tions the “alleged rape”, the time, date and the name of the alleged perpetrator. 2.4 she accused J. B. C. of raping her. 1 April 1996, she filed a complaint in which 2.5 - regard appeal an filed author The investigation. preliminary a conducted which ecutors, of the Department of Justice, which Secretary ing the dismissal of her complaint with the that the accused be charged the dismissal and, on 24 October 1996, ordered reversed reconsideration, which was denied by motion for with rape. J. B. C. subsequently filed a of Justice. the Secretary 2.6 than more He was arrested J. B. C. that same day. warrant for sued an arrest national on order an issued Police National Philippine the of chief the after later, days 80 within 72 hours. the police to make the arrest television directing - for the pro to 2005.The reasons 1997 court level from trial at the The case remained 2.7 thelonged trial included the fact that the trial court judge was changed several times and recused themselves judges the appellate courts. Three accused filed several motions before 2002. in September VirginiaJudge to Hofileña-Europa the case. The case was referred from accused felt her presence behind him, so he suddenly shut the door and turned towards door and turned he suddenly shut the behind him, so towards her presence accused felt accused his gun. The for was reaching the accused became afraid that The author her. author his weight. The pinned her down using forcibly onto the bed and pushed her the down, pinned go. While her let to accused the with pleaded and breathe hardly could raping was accused the consciousness, regained she When consciousness. lost author to beg him to stop. away by using her nails, while continuing She tried to push him her. he knew many that of her, telling her that he would take care But the accused persisted, him pushing in succeeded She finally career. her in advance her help could who people took the author After washing and dressing, his hair. herself by pulling away and freeing but car, the towards to run out of the room state of undress advantage of the accused’s her that he would bring open it. The accused ran after her and told could not manage to her to calm down. her home. He also told 2.3 408 Gender-based Violence […] and acquittedhim. reasonable doubts that the accused committedthe offence with which he was charged therefore declared itself unconvinced that there existed sufficient evidence to erase all the guidingprinciplesderivedfrom othercaselawindecidingrapecases,theCourt Court toachievethemoralcertaintynecessarymerita conviction. Againapplying lar thetestimonyofcomplainantherself,lefttoomany doubtsinthemindof Court therefore concludedthattheevidencepresented bytheprosecution, inparticu- of otherwitnesses(namelythemotelroom boyandthefriendofaccused).The testimony oftheaccusedwascorroborated onsomematerialpointsbythetestimony in particularbearingmindthathewasalready inhissixties.Italsoconcludedthatthe raping her, theaccusedwouldhavebeenunabletoproceed tothepointofejaculation, have foughtoff theaccused whenshehadregained consciousnessandwhenhewas Guided byaSupreme Court ruling,theCourtconcludedthatshouldauthorreally found theallegationsofcomplainantastosexualactitselfbeimplausible. when sheallegedlyappeared tohavehadsomanyopportunitiesdoso.TheCourt not applyinthiscase,astheCourtdidunderstandwhyauthorhadescaped to escapedoesnotnegatetheexistenceofrape”,itconcludedthatrulingcould into account a Supreme Court ruling according to which “the failure of the victim to try challenged thecredibility of theauthor’s testimony. AlthoughtheCourtallegedlytook allowed todrawstrength from theweaknessofevidencedefence.TheCourt the evidenceforprosecution muststandorfallonitsownmeritsandcannotbe the testimonyofcomplainantmustbescrutinizedwithextreme caution;and(c) the intrinsicnature of the crime of rape,in which only two personsare usually involved, but more difficultforthe person accused,thoughinnocent,todisprove; (b)inviewof the Supreme Court:(a)it is easytomakeanaccusationofrape;itdifficultprove Europa wasguidedbythe following three principles,derivedfrom previous caselawof Hofileña-Europa, issueda verdict acquittingJ.B.C..Inherdecision,JudgeHofileña- 2.9 common copingmechanismwasdissociation.(…) the factthatincidentwasan“acquaintanceorconfidencerape”andbecause her claim.Sheexplainedthatthelackofphysicalinjuryinauthor’s casewasdueto result ofarape.Shealsotestifiedthatshewassure thattheauthorhadnotfabricated she hadnodoubtthattheauthorwassuf testified thathavingcounselledtheauthorfor18monthspriortohertestifyingincourt, 2.8

On 26April2005,theRegionalCourtofDavaoCity, pr At the trial, an expert in victimology and rape trauma, Dr. June Pagaduan Lopez, fering from post ‑ traumatic str esided byJudgeVirginia ess disorder asa Committee on the Elimination of Discrimination against Women - Karen Tayag Vertido v. The Philippines 409 -based myths and that States parties can be responsible for judicial decisions which violate the decisions which violate judicial for can be responsible that States parties regard to the author’s claim in relation to article 2 (c), the Committee, while Committee, the (c), 2 article to relation in claim author’s the to regard The Committee further reaffirms that the Convention places obligations on all State The Committee further reaffirms With The Committee will consider the author’s allegations that gender allegations that consider the author’s The Committee will

provisions of the Convention. It notes that by articles 2 (f) and 5 (a), the State party is provisions and laws existing only not abolish or modify to measures appropriate take to obligated but also customs and practices that constitute discrimination against wom- regulations, right to a fair women’s affects that stereotyping the Committee stresses en. In this regard, of inflexible standards and just trial and that the judiciary must take caution not to create with a what women or girls should be or what they should have done when confronted notions of what defines a rape victim or on preconceived situation of rape based merely its general violence, in general. The Committee further recalls a victim of gender-based organs and acknowledging that the text of the Convention does not expressly provide for a right to for a provide the Convention does not expressly the text of acknowledging that article in particular in Convention, the in implied is right a such that considers remedy, a the rights of of “to establish legal protection required 2 (c), by which States parties are competent national tribunals through to ensure women on an equal basis with men and against any act of dis- of women protection and other public institutions the effective at the undisputed fact that the case remained crimination”. The Committee notes the adjudi- to be effective, 1997 to 2005. It considers that for a remedy trial court level from claims should be dealt with in a fair, offenses cation of a case involving rape and sexual impartial, timely and expeditious manner. 8.4 misconceptions about rape and rape victims were relied on by Judge Hofileña-Europa in Hofileña-Europa Judge by on relied were victims and rape rape about misconceptions 335 of the Revised Penal Davao City in its decision, under article the Regional Court of determine and will perpetrator, of the alleged acquittal to the 1930, leading Code of of the and a breach to a violation of the rights of the author whether this amounted under the legal process obligations to end discrimination in State party’s corresponding lim- are the Committee 5 (a) of the Convention. The issues before articles 2 (c), 2 (f) and the domestic not replace it does that The Committee emphasizes to the foregoing. ited the alleged perpetrator’s of the facts, nor does it decide on authorities in the assessment thenot address will also The Committee question ofresponsibility. criminal whether the deems Committee the its obligations under article 2 (d), which State party has breached in the case at hand. of less relevance 8.3 Consideration of the merits Consideration […] 8.2 410 Gender-based Violence influenced byanumberofstereotypes, theauthorinthis situationnothavingfollowed the judgementthatassessment ofthecredibility ofthe author’s versionofeventswas by thecourtasbeingnot“atimid womanwhocouldeasilybecowed”.Itisclearfrom of rape”andinsteadexpected acertainbehaviourfrom the author, who wasperceived principle that“thefailure ofthevictimtotryandescapedoesnotnegateexistence and sawthisasbeingaproblem. TheCommitteenotesthattheCourtdidnotapply attitude byreacting bothwithresistance atonetimeandsubmissionanothertime, ment reveals that the judge came to the conclusion that the author had a contradictory after therapeowingtocircumstances and hercharacterpersonality. Thejudge- ibility againstexpectationsabouthowtheauthorshouldhave reacted before, duringand however, thatthejudgedidnotapplytheseprinciplesinevaluatingauthor’s cred- not impose upon a rape victim the burden of proving resistance”. The decision shows, not negatetheexistenceofrapeaswelltofactthat “inanycase,thelawdoes react differently underemotionalstress, thatthefailure ofthevictimtotryescapedoes such asthatphysicalresistance isnotanelementtoestablishacaseofrape,thatpeople the judgement,notesfollowingissues.Firstofall,judgementrefers toprinciples above), theCommittee,afteracareful examinationofthemainpointsthatdetermined spread throughout thejudgementandclassifiedbyauthor(seeparas.3.5.1-3.5.8 regardin itselfagenderbias.With totheallegedgender-based mythandstereotypes particular, according towhich“anaccusationforrapecanbemadewithfacility”,reveals been influentialinthehandlingofcase.TheCommitteefindsthatonethem, that thoseguidingprinciples,evenifnotexplicitlyreferred tointhedecisionitself,have to three generalguidingprinciples usedinreviewing rapecases.Itisitsunderstanding At theoutsetofjudgement,Committeenotesareference inthejudgement in therevised penalcode of 1930andindecidingcasesrapewithsimilarpatterns. to guidingprinciplesderivedfrom judicialprecedents inapplyingtheprovisions ofrape of non dresses thequestionofwhetherStatespartiescanbeheldaccountableforconduct 8.5 trator threatened touseor usedphysicalviolence. the grounds ofarticles2(f) unwantedsexualconduct,regardless ofwhetherthe perpe- compliance oftheStateparty’s duediligenceobligationtobanishgenderstereotypes on and punish acts of violence, and for providing compensation”. In the particular case, the acts if they fail to act with due diligence to prevent violations of rightsor to investigate tional law and specific human rights covenants, States may also be responsible for private - …” and that “under general interna stricted to action by or on behalf of Governments recommendation No.

The Committeenotesthat,underthedoctrineofstaredecisis ‑ State actorsinstatingthat“…discriminationundertheConventionisnotr

19 onviolenceagainstwomen.Thisgeneralrecommendation ad- , theCourtreferred e- Committee on the Elimination of Discrimination against Women - Karen Tayag Vertido v. The Philippines 411 he had allegedly raped her when he did her when he raped had allegedly he 6 egard to the definition of rape, the Committee notes that the lack of con- egard eferences to stereotypes about male and female sexuality being more supportive more about male and female sexuality being to stereotypes eferences . It recalls its general recommendation No. 19 of 29 January 1992 on violence on 1992 January 29 of 19 No. recommendation general its recalls It . 7 “Why then did she not try to get out of the car when the accused must have applied the accused must have out of the car when did she not try to get “Why then did Why wheel? steering the grabbed she when wall the hitting avoid to brakes the slowed down before shout for help when the car must have she not get out or even after the bathroom garage? Why did she not stay in room’s getting into the motel Why did she not shout upon getting into the room? and locked it she had entered she not run accused talking with someone? Why did the for help when she heard to run out of the hotel room garage when she claims she was able out of the motel’s 5 on the bed? Why did was still NAKED AND MASTURBATING because the accused AFTER car the accused’s in to ride she agree With r Further misconceptions are to be found in the decision of the Court, which contains Further misconceptions are not make any threats or use any force to coerce her into doing so?” to coerce force or use any not make any threats

against women, where it made clear, in paragraph 24 (b), that “States parties should en- it made clear, against women, where gender- other and assault sexual rape, abuse, and violence family against laws that sure their integrity and to all women, and respect based violence give adequate protection what was expected from a rational and “ideal victim” or what the judge considered to considered judge the what or victim” “ideal and rational a from expected was what from clear become as situation rape a in woman a of response ideal and rational the be the judgement: quotation from the following sent is not an essential element of the definition of rape in the Philippines Revised Penal sent is not an essential element of the definition of rape in the Philippines Revised Code several r of the victim. In this of the alleged perpetrator than for the credibility for the credibility to which the Committee views with concern the findings of the judge according regard, to ejaculation with would be able to proceed it is unbelievable that a man in his sixties the sexual attack. Other factors taken into account in the judgement, the author resisting the author and the accused knew each other, such as the weight given to the fact that myths and misconceptions”. constitute a further example of “gender-based 8.7 Although there exists a legal precedent established by the Supreme Court of the Philip- Supreme established by the exists a legal precedent Although there the victim’s that the accused had overcome pines that it is not necessary to establish lack of consent, the Committee finds that to expect to prove in order physical resistance in a particular manner the in the situation at stake reinforces the author to have resisted the Committee the sexual assault. In this regard, myth that women must physically resist that a woman gives her should be no assumption in law or in practice there that stresses the unwanted sexual conduct, regardless consent because she has not physically resisted to use or used physical violence. of whether the perpetrator threatened 8.6 412 Gender-based Violence ii) at itscentre; i) Concrete measures include: b) a) State party: mendation No.19oftheCommittee,andmakesfollowing recommendations tothe and article5(a)read inconjunction witharticle1oftheConventionandgeneralrecom- its obligationsandhasthereby violatedtherightsofauthorunderarticle2(c)and(f), above considerations,theCommitteeisofviewthatStatepartyhasfailedtofulfil the EliminationofAllFormsDiscriminationagainstWomen, andinthelightofall 8.9 ary damagesduetothelossofherjob. gender-based mythsrelied uponinthejudgement. Theauthorhasalsosuffered pecuni- duration of the trial proceedings and bythe revictimization through thestereotypes and tion hassuffered moralandsocialdamageprejudices, inparticularbytheexcessive 8.8 bodily integrity, andthatitsessentialelementwaslackofconsent. time and again that rape constitutes a violation of women’s right to personal security and dignity”. Through itsconsiderationofStatesparties’reports, theCommitteehasclarified force orviolence,andanyrequirement ofproof ofpenetration,andminimize second-

education tochangediscriminatoryattitudestowards women. legal system,toimprove thejudicialhandlingofrapecases,aswelltrainingand der notions.To achievethis,awiderange ofmeasures are needed,targetedatthe offenses are impartialandfair, andnotaffected byprejudices orstereotypical gen- • Ensure that all legal procedures in cases involving crimes of rape and other sexual tions are pursuedwithout undue delay Remove anyrequir Review ofthedefinitionrapeinlegislationsoastoplace thelackofconsent • General tions ofherrights • theauthorofcommunication Concerning Acting under article7, The Committeefinallywouldliketo recognize thattheauthorofcommunica Take effective measures to ensure that court proceedings involving rape allega- rape involving proceedings court that ensure to measures Takeeffective Provide appropriate compensation commensurate with the gravity of the viola- the of gravity the with commensurate compensation appropriate Provide ement inthelegislationthat sexual assaultbecommittedby paragraph 3,ofthe Optional Protocol to theConventionon - Committee on the Elimination of Discrimination against Women - Karen Tayag Vertido v. The Philippines 413 - - - cumstances: cement officers and medical per .” 8 eason or otherwise unconscious; egular training on the Convention on the Elimination of All Forms Convention on the Elimination of All Forms egular training on the ce, threat, or intimidation; ce, threat, es the existence of “unequivocal and voluntary agreement” and requir and voluntary agreement” of “unequivocal es the existence and includes a circumstances” place in “coercive es that the act take requir requir By a man who shall have carnal knowledge of a woman under any of the following cir for a) Through party is deprived of r b) When the offended

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

In accordance with article 7, paragraph 4, the State party shall give due consider In accordance 1. Capitalized as per judgement Idem. Article 266-A of the Revised Penal Code of the Philippines. Rape: When And How Committed. Rape is committed: ing proof by the accused of steps taken to ascertain whether the complainant/ to ascertain whether of steps taken by the accused ing proof or survivor was consenting; b. broad range of coercive circumstances range of coercive broad a. Appropriate training for judges, lawyers, law enfor Appropriate Appropriate and r Appropriate

ndnotes

E mit to the Committee, within six months, a written response, including any information a written response, mit to the Committee, within six months, of the Committee. and recommendations on any action taken in the light of the views views and recommendations to publish the Committee’s The State party is also requested regional other recognized language and and to have them translated into the Filipino sectors of all relevant to reach and widely distributed in order languages, as appropriate, society. […] ation sonnel in understanding crimes of rape and other sexual offences in a gender-sensitive gender-sensitive a in offences sexual other and of rape crimes understanding in sonnel en- to and cases rape reported having women of revictimization to avoid as so manner decision-making. and values do not affect personal mores that sure 8.10

5. 6. 7. ary victimization of the complainant/survivor in proceedings by enacting a definition of by enacting a definition in proceedings of the complainant/survivor ary victimization that either: sexual assault iii) - and its general recommenda its Optional Protocol Women, of Discrimination against - and law enforce No. 19, for judges, lawyers recommendation tions, in particular general ment personnel; iv) 414 Gender-based Violence 8.

for theAdvancementofW Handbook forlegislationonviolenceagainstwomen,DepartmentofEconomicandSocialAffairs, Division or object,intothegenitalanalorificeofanotherperson. an actofsexualassaultbyinsertinghispenisintoanotherperson’s mouthoranalorifice,anyinstrument 2.

By anypersonwho,underofthecircumstances mentionedinparagraph1her circumstances mentionedabovebepr d) Whentheoffended partyisunder12yearsofageordemented,eventhoughnonethe c) Bymeansoffraudulentmachinationorgraveabuseauthority;and omen, UnitedNationsPublication,NewYork, 2009,p.27 esent. eof, shallcommit

Summaries of Jurisprudence Gender-based Violence 2nd Edition Updated

Published in Buenos Aires, Argentina in May, 2012