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Using regional forums

A number of cases in regional forums such as the European Court of Human Rights and the Inter- American Court on Human Rights have proven to be effective methods of reinforcing the duty of a state to protect women and girl victims of violence. Selected decisions follow:

Example: In the 2007 case of Kontrova v. Slovakia, the European Court of Human Rights affirmed the obligation of state authorities to take appropriate protective measures when an individual’s rights are at risk of being violated by another. In this domestic violence case, the complainant had reported to the police that her husband beat her and that her husband had been physically and psychologically abusing her for a long time. A few days later, the woman’s husband accompanied her to the police station where she withdrew her complaint. The police did not take any further action, and, following another incident of domestic violence a few weeks later, the husband shot and killed the complainant’s two children and then himself. In its decision, the Court articulated the circumstances under which a positive obligation on the part of state authorities arises: “For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” The Court found that the police were aware of the risk to the complainant and her children, based on the complainant’s previous report of abuse suffered at the hands of her husband and his continued threats of violence with a shotgun. The Court held that the authorities’ failure to launch a criminal investigation, commence criminal proceedings against the husband, and take action regarding the husband’s continued threats amounted to a violation of the right to life protected by Article 2 of the European Convention on Human Rights.

 

Example: In the case of Bevacqua and S. v. Bulgaria, decided in 2008, the European Court of Human Rights found that Bulgaria had violated Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms for failing to assist a victim of domestic violence in the prosecution of her abuser and for failing to reach a decision within a reasonable amount of time on the issue concerning the custody of the victim and abuser’s child. The victim had suffered domestic abuse at the hands of her husband and was seeking a divorce and custody of their one child. Under Bulgarian law, when domestic abuse consisted of a light bodily injury, the individual had to prosecute the offender. The Court found that it was unreasonable to expect the victim to prosecute in this domestic violence case, and that in doing so Bulgaria violated its obligations under Article 8 of the Convention. The Court also found a violation of Article 8 on the issue of prompt response on child custody during the interim of the divorce proceedings.

 

Example: In Caso González y Otras (“Campo Algodonero”) v. Mexico (Spanish only), released in December, 2009, the Inter-American Court of Human Rights (IACHR) found that the Mexican government did not uphold the human rights of its citizens under the American Convention of Human Rights and the Convention of Belém do Pará by failing to investigate the deaths of three women in Ciudad Juarez, which has been the site of massive, and unsolved, sexual violence and femicide since 1993. The IACHR ruled that Mexico has the obligation to legislate and act with due diligence to prevent, investigate and sanction violence against women. It stated that Mexico violated the human rights of the families of the victims by failing to guarantee their access to justice. The IACHR ruled that the Mexican government must implement a number of remedies, including paying more than $200,000 to each of the families of the three women, taking steps to find the perpetrators of the femicide, and creating a monument in commemoration of hundreds of murder victims.

 

Example: In April 2009, the European Court of Human Rights issued a decision awarding damages to eight Romani women in the case of K.H. and Others v. Slovakia. The Court found that Slovakia had violated Article 6 (right to a hearing regarding civil rights and obligations) and Article 8 (right to family life) of the European Convention on Human Rights by wrongfully sterilizing the women without their consent.

 

Example: In Opuz v. Turkey, decided by the European Court of Human Rights in June, 2009, the Court found that gender-based violence is a form of discrimination prohibited under the European Convention on Human Rights, and that Turkey violated its obligation to protect women from domestic violence by failing to adequately respond to the complainant and her mother’s reports of brutal domestic violence perpetrated by the complainant’s husband over a twelve-year span. Ultimately, the abusive husband shot and killed the complainant’s mother. The complainant brought the case after fruitless attempts to pursue justice within Turkey’s courts. The Court noted that although Turkey has laws against domestic violence, the laws are not being implemented by police and prosecutors and the judicial system is for the most part unresponsive to reports of domestic violence. In this landmark ruling, the Court ruled that Turkey was liable for failing to protect the deceased victim and her daughter. Additionally, for the first time the Court held that Turkey’s failure to respond to domestic violence amounted to a violation of the right to non-discrimination on the basis of sex (Article 14) under the European Convention. This is considered to be a major development in the Council of Europe’s legal framework for women’s rights issues. The Court also found that Turkey had violated the European Convention’s right to life (Article 2) and the right to be free from torture and ill-treatment (Article 3).

 

Example: In Branko Tomasic v. Croatia (2009), the European Court of Human Rights reiterated the state’s obligation to prevent, suppress, and punish breaches of the criminal law put in place to secure the right to life protected by Article 2 of the European Convention on Human Rights, as articulated in the 2007 case of Kontrova v. Slovakia described above. The Court found that the authorities failed to fulfill this obligation. Despite the complainant’s allegations that the father of her child had made repeated threats of violence and a psychiatric opinion that the man had a severe personality disorder, he was released after a serving a short sentence. After being released, the man murdered his wife and daughter and then killed himself. The Court found that the steps taken by the Croatian authorities were insufficient in that they failed to search his home or vehicle, despite his having threatened to throw a bomb at the complainant and their daughter. Additionally, the Court stated that the psychiatric treatment ordered was too brief, that there was no evidence it had been actually and properly administered while he was in prison, and that there was no assessment prior to the man’s release from prison in order to determine the risk he continued to pose to others.

 

Example: In 2010, the Inter-American Court of Human Rights (IACHR) issued rulings in two cases involving the rape of indigenous Tlapanec women by Mexican soldiers, Rosendo Cantú y Otra v. México (Spanish only) and Fernández Ortega y Otros v. México (Spanish only). The Court stated that Mexico failed to uphold “the rights to personal integrity, dignity and legal protection” of the two victims. Both women were raped in 2002 after being approached and questioned by a group of soldiers. The women first sought justice from local authorities, but effective investigation and prosecution of the crimes was prevented by indifference and discrimination towards the victims. The cases were eventually turned over to Mexico’s military courts, which ruled there was not enough evidence to convict the soldiers. The two victims next brought their cases to the Inter-American Commission of Human Rights, which referred them to the IACHR. The IACHR’s decision awarded damages of more than $100,000 to each of the victims, and ordered that Mexico amend its legal system so that human rights violations such as these will no longer fall under the jurisdiction of military courts.

 

Example: In the case of Rantseva v. Cyprus and Russia (2010), the European Court of Human Rights held that the government of Cyprus violated the Convention for the Protection of Human Rights and Fundamental Freedoms by failing to protect Oxana Rantseva, a Russian citizen, from trafficking and exploitation in Cyprus. The Court found that Cyprus violated Article 2 (guaranteeing right to life), Article 4 (prohibiting slavery, servitude, and forced labor), and Article 5 (guaranteeing the right to liberty and security) of the Convention. Ms. Rantseva obtained an “artiste” visa to work in a cabaret in Cyprus, however, she worked at the cabaret for only a few days. Thereafter, her employer requested that Cypriot law enforcement and immigration authorities arrest her for remaining in Cyprus illegally after abandoning her place of work. Instead, the authorities returned Ms. Rantseva to her employer. Soon after, she was found to have died under mysterious circumstances. This case is significant because the Court held that human trafficking falls within the scope of Article 4 of the Convention, and that Cyprus violated its obligations under this provision because its “artiste” visa regime rendered employees so dependent on their employers that an environment was created where exploitation was likely to occur. The Court also found that Cyprus failed to adequately train law enforcement officials to investigate when there is an indication that trafficking is taking place. The Court also held Russia responsible for failing to comply with Article 4 of the Convention by not investigating the recruitment aspect of international trafficking, such as the possibility that individual agents or networks operating in Russia were involved in trafficking Ms. Rantseva to Cyprus. The governments of Cyprus and Russia were each ordered to pay damages to Ms. Rantseva’s father.

 

Example: In the 2010 case of Hajduova v. Slovakia, the European Court of Human Rights found that Slovakian authorities violated the Convention for the Protection of Human Rights and Fundamental Freedoms by failing to comply with their statutory obligation to order that the applicant’s former husband be detained in an institution for psychiatric treatment immediately following his criminal conviction for having abused and threatened her.

In the course of criminal proceedings for the abuse and threats, it was established that the applicant’s former husband suffered from a serious mental illness and required treatment as an in-patient at a psychiatric hospital. The court decided not to impose a prison sentence and held that he should instead undergo psychiatric treatment. Although the applicant’s former husband was transported to a hospital, the institution did not carry out the treatment he required, and the court did not order such treatment to be carried out. The applicant’s former husband was released from the hospital, and he commenced threatening the applicant, her attorney, and others. The applicant then brought the case, alleging violations of her rights under the Convention. The Court held that, under the circumstances of the case, the Slovakian government had failed to take sufficient action to protect the applicant by immediately detaining her husband for psychiatric treatment. In coming to this conclusion, the Court noted the particular vulnerability of victims of domestic violence and the need for state action to protect them.

Although it will not be a complaint-based mechanism, at the European level, GRIEVO (Group of experts on action against violence against women and domestic violence) was established by the Council of Europe convention on preventing and combating violence against women and domestic violence.

Regional forums include the African Court on Human and Peoples’ Rights which hears cases of human rights violations in African Union states and the Court of Justice of the Economic Community of West African States  (ECOWAS Court of Justice) which can, according to its Additional Protocol, hear cases from individuals on violations of their human rights.

Selected regional decisions follow:

Example: In Doebbler v. Sudan, the African Commission on Human and People’s Rights held that the lashing of eight female students violated Article 5 of the African Charter, and requested that Sudan abolish the punishment of lashing and compensate the women for their injuries.  The women, students of the Nubia Association of Ahilia University, were arrested for engaging in immoral activities that violated the public order, in contravention of Sudan’s Criminal Code, which incorporates Islamic Sharia law.  The immoral activities the women committed consisted of “girls kissing, wearing trousers, dancing with men, crossing legs with men, sitting with boys, and sitting and talking with boys.”  The women were punished with fines and between 25 and 40 lashes. The lashing took place in public by use of a wire and plastic whip. The wire and plastic whip were unclean, the lashing was not under the supervision of a doctor, and the women were bareback in public while they were lashed. The Commission found that the lashing violated Article 5 of the African Charter on Human and Peoples’ Rights. It requested that Sudan abolish the punishment of lashing and compensate the women for their injuries.

 

 

Example: In Koraou v. Niger (2008), the Court of Justice of the Economic Community of West African States (ECOWAS Court of Justice) held that the Republic of Niger was responsible for the experienced by Hadijatou Mani Koraou.  When she was twelve years old, Koraou’s tribe leader sold her as a domestic servant and concubine to a forty-six-year-old man, El Hadji Souleymane Naroua of Hausa.  For nine years, Ms. Koraou spent her days performing domestic duties for Mr. Naroua while being subjected to forced sexual acts.  Nine years after Ms. Koraou was sold, Mr. Naroua presented Ms. Koraou with a document of emancipation.  However, he refused to let her leave the house and claimed that Ms. Koraou was his wife. 

 

Ms. Koraou began legal action, but prior to a final determination on the proceedings, she married another man.  After he learned of this other marriage, Mr. Naroua brought a charge of bigamy against Ms. Koraou in the criminal division of the Konni High Court.  Ms. Koraou, her brother, and the man she married were all sentenced to six months in prison.  While Ms. Koraou was detained, her counsel filed a complaint with the public prosecutor against Mr. Naroua on grounds of slavery.  The Konni High Court that previously adjourned found for Ms. Koraou on the “divorce action” and held that she must “observe a minimum legal period of three months of widowhood before any remarriage.”  Ms. Koraou was released from prison and submitted a case to the ECOWAS Community Court of Justice.  The Court found that Ms. Koraou was a victim of slavery in violation of Article 5 of the African Charter on Human and Peoples’ Rights and other international instruments, and that the Republic of Niger was responsible due to the inaction of its administrative and judicial authorities.  It ordered the Republic of Niger to pay Ms. Koraou 10,000,000 CFA (Central African Francs) plus costs as reparation for the harm that she suffered.

Tools for Submitting Cases to Regional Mechanisms

For information on how to bring a case to the European Court of Human Rights, click here. (Instructions provided in many languages.)

Questions and Answers (Registry of Court, European Court of Human Rights). Available in English and French.

A Practical Guide on Admissibility Criteria (Council of Europe and European Court of Human Rights, 2010). Available in English and French.

For information on how to bring a case to the Inter-American Court of Human Rights, see Petitions and Consultations Before the Inter-American System in Spanish and English.

For information on how to bring a case to the African Court on Human and People’s Rights, click here.

For information on how to bring a case to the ECOWAS Court of Justice, click here.

The Avon Global Center for Women and Justice at Cornell Law School provides access to regional instruments and case law relating to gender violence from around the world. Available in English.

The Avon Global Center for Women and Justice’s Legal Resources Collection.  Vetted, searchable database that includes summaries and full-text decisions by regional human rights bodies relating to gender-based violence.  Summaries available in English, decisions available in multiple languages.

CEJIL, Summaries of Jurisprudence, Gender-Based Violence (2011).  Collection of decisions from international and regional human rights bodies addressing gender-based violence.  Available in English and Spanish.

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