Women and Justice: Keywords

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

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

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

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

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

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

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