Women and Justice: Keywords

Domestic and intimate partner violence. The claimant, a married women with two children, filed a criminal complaint against her husband, accusing him of assaulting and beating her with an electric cord. In her complaint, she mentioned the long history of physical and psychological abuse by her husband and submitted a medical report indicating that her latest injuries would prevent her from working for at least seven days. This statement was later modified upon the advice of a police officer, so that it could have been treated as a minor offence and the police decided to take no further action. One month later, the Police Department received two night emergency calls reporting that the claimant's husband had a shotgun and was threatening to kill himself and the children. Despite the fact that the following morning the claimant went to the police station and inquired about her criminal complaint from the previous month as well as the incident of the previous night, the police took no further action and no new criminal complaint was filed. Four days later, the claimant's husband shot and killed their two children and himself. Criminal proceedings initiated against the police officers involved in the case on the grounds of dereliction of duty produced no tangible results, and the claimant's complaints lodged in the Constitutional Court were dismissed twice on the grounds that they were inadmissible. The claimant filed a claim with the European Court of Human Rights alleging a breach of the protection of her rights to life, privacy, a fair trial and right for an effective remedy. The local police department knew all about the claimant and her family, which triggered various specific obligations, such as registering the complaint, launching a criminal investigation and commencing criminal proceedings against the claimant's husband, which the police failed to do. The direct consequence of this was the death of the claimant's children and husband. The European Court further held that the Slovak Republic failed to fulfill its obligation to achieve an 'effective' remedy and the claimant's compensation. The only action available to the claimant related to the protection of her personal integrity and this provided her with no such remedy. This amounted to a breach of right to an effective remedy , in connection with a breach right to life. The European Court held that an examination of the other Articles was not necessary and awarded her EUR 25,000 in damages.

G.N., a mother, brought the action on behalf of her nine-year-old daughter, C.N. A friend of the family, Captain D.K., was conducting night patrols and he stopped by the family home. G.N.’s husband was not at home, so the Captain said he was going to leave and wanted to take C.N. with him home. G.N. declined saying it was late, but when she returned to the kitchen to finish cooking the meal and then called for her daughter, she was no longer there. Neighbors informed G.N. that she had left with D.K. She looked for C.N., but did not see her. The serviceman was a friend of the family. She thought C.N. would soon return. When G.N.’s husband returned home, she informed him that C.N. had not returned and he reassured her so they decided to wait. C.N. returned home the next day. G.N. eventually learned from C.N. that D.K. had taken her to his house, raped her, and, when she cried, threatened her with his firearm if she made any more noise. He sent her to sleep with his own children and the next day gave her 500 Burundian francs (USD 0.30). He told her never to speak about the rape and threatened her and her mother if she revealed their secret. However, a week after the incident, her mother persisted in asking C.N. because she could not stand up and said she had a stomach ache. The victim’s father raised the issue with Captain D.K., who proposed an out of court settlement, which was rejected by G.N. G.N. took C.N. for a medical examination, which confirmed the rape and she reported the rape to the military prosecutor’s department. G.N. appealed to the domestic courts, which dismissed the case because of the ten-day period between the incident and reporting of it and the calmness and availability of the Captain. After seeking domestic remedies with no action taken, G.N. appealed to the Committee submitting that her daughter was the victim of a violation of articles 2(1), 12, 13 and 14, read in conjunction with article 1 and, alternatively, with article 16 of the Convention. The Committee found that the sexual abuse to which C.N. was subjected by an official of the State acting in his official capacity and the associated acts of intimidation fall within the scope of article 1 of the Convention. The Committee also determined the investigation was not impartial, effective and prompt, contrary to articles 12 and 13 of the Convention. It relied on the fact it was closed quickly and prosecutors did not seek additional evidence to pursue the case or arrest any other suspects, meaning the perpetrator of the rape has gone unpunished even though Burundi law provides that rape is punishable by life imprisonment when committed against a child under the age of 12. As the child received no redress, the Committee also found that Burundi violated its obligations under article 14 of the Convention. Finally, the Committee urged Burundi to: (1) promptly reopen an investigation; (2) provide reparation including compensation for the material and moral harm caused, restitution, rehabilitation, measures of satisfaction and a guarantee of non-repetition; (3) prevent threats/acts of violence against G.N. and C.N. for lodging the complaint; and (4) advise the Committee within 90 days of the steps taken.

O.G. was in a civil partnership with K. who used drugs and alcohol and had a gambling addiction. After O.G. left him, he sent her harassing texts, attempted to visit her, and when she refused to let him in her building, he hit her. She reported the events to a Crisis Center for Women. K. was sentenced to four months of labor which was suspended to a six-month probation and ordered to pay $50. After his release, he continued to send texts to O.G. threatening to kill her. She filed seven criminal complaints with the police, who took no action claiming there was nothing they could do because K. would not come to the police station and he was not acting on his threats. O.G. filed a complaint with CEDAW alleging that the Russian Federation failed to fully implement the Convention by not introducing legislation on domestic violence, and that the authorities had violated her rights under the Convention by not responding adequately to her claims or implementing protective orders to ensure her safety, not providing any effective remedy or psychological support, not conducting meaningful investigation, and allowing prosecution to be time barred due to a two-year statute of limitation. The Committee decided in O.G.’s favor, rejecting the Russian authority’s argument that O.G.’s claim to be a domestic violence victim was unsubstantiated because he was not a member of her family at the time of the alleged violence, finding that there is no statutory time limit on how long after the end of a relationship a partner can claim that violence falls within this definition. The Committee determined that Russia had not adopted comprehensive legislation to prevent and address violence against women, and noted recent amendments to national legislation that decriminalized battery under which many domestic violence cases are prosecuted due to the absence of a definition of “domestic violence.” This failure to amend legislation relating to domestic violence directly affected O.G.’s access to remedies and protection. The Committee determined Russia violated O.G.’s rights under articles 1, 2 (b)-(g), 3 and 5 (a) of the Convention. It recommended that Russia provide financial compensation to O.G., adopt comprehensive legislation to prevent and address violence against women, including domestic violence, reinstate criminal prosecution of domestic violence, introduce a protocol for handling domestic violence complaints at the police station level to ensure adequate protection, renounce private prosecution in domestic violence cases, ratify the Istanbul Convention, provide mandatory training for judges, lawyers and law enforcement personnel on the Convention and related documents, investigate allegations of gender-based violence against women promptly and provide safe and prompt access to justice, provide rehabilitation programs to offenders, and develop and implement effective measures with relevant stakeholders such as women’s organizations, to address stereotypes and practices that condone or promote domestic violence. A written response and report on actions taken was due to the Committee within six months. (Available in English, Russian, Arabic, Chinese, French, Spanish.)

In 1990 at age 18, W. was raped by a group of seven men. Three other men aided and abetted the rape. Seven months later, the court acquitted the men of all charges, finding that the victim had not “seriously resisted sexual intercourse.” The Public Prosecutor appealed the judgement and in 1991, a year after the assault, the appellate court overturned the acquittal. The Slovenian authorities attempted to locate the perpetrators, but two defendants had emigrated to Austria and could not be found. Between 1995 and 2001, the victim wrote eight letters to the court urging the proceedings to continue and five hearings were adjourned for failure of some of the defendants to appear. Various excuses, such as frequent changes in the presiding judges, were offered to the victim as excuses for the stalled proceedings. Finally, in May 2001, the authorities issued an international arrest warrant for the defendants located abroad. In June 2002, six defendants were found guilty of rape and aggravated rape. However, due to the passage of time, they were only sentenced to eight months to one year of prison. The last defendant was extradited in 2004, convicted of aiding and abetting the rape, and sentenced to eight months in prison. The victim received €5,000 from the Slovenian government in recognition of delay in prosecuting the defendants; however, the European Court of Human Rights (ECtHR) found that this amount (while the statutory maximum in Slovenia) was insufficient redress. The ECtHR noted that Slovenian authorities failed to proceed with the case in a diligent manner and that the defendants received prison sentences of less than the minimum sentences prescribed by law. Thus, the domestic authorities failed to comply with their obligations under Article 3 of the European Convention of Human Rights. The ECHR, deciding in equity, awarded the victim €15,000 in addition to the €5,000 she received from the domestic authorities.

The complainant worked at the Club Resort Holdings Pty Ltd., the respondent. She was working in a cold larder preparing food when a colleague sexually harassed her. The complainant sought an investigation by their employer. The complainant alleged that the employer improperly conducted this investigation, resulting in further distress for the complainant and her needing to take several months of work. Ultimately, she resigned. The complainant also alleged that their mutual employer was vicariously liable for these acts as a result of a failure to take “reasonable steps” to prevent such acts. The Tribunal awarded damages to the complainant, finding that: (i) the complainant was sexually harassed by her colleague; (ii) the sexual harassment constituted sex discrimination; (iii) the harassment constituted age discrimination; (iv) that the complainant was not victimized by her employers because she brought a sexual harassment complaint; and (v) respondent did not take reasonable steps to prevent the sexual harassment.

The plaintiff alleged that she was raped several times by a police officer who had been assigned to help her deal with her son’s behavioral issues. The plaintiff reported the rapes to municipal mental health and domestic abuse entities, and she alleged that these entities violated their statutory duty to report these incidents or take further action. Consequently, the plaintiff sued the Alexandria Police Department for intentional tort and negligent hiring. The issue before the Court was whether the sovereign immunity doctrine barred the plaintiff from suing municipal entities for both intentional torts and negligence in failing to act upon plaintiff’s reports and in hiring and retaining the offending officer. The Virginia Supreme Court affirmed the lower court’s dismissal of the action as barred by sovereign immunity, explaining that a municipality is immune from liability for negligence associated with the performance of “governmental” functions, which include maintaining a police force and the decision to retain a specific police officer. It declined to adopt an exception to sovereign immunity for the tort of negligent retention, as it had done in the context of charitable immunity. The Court observed that whether a municipality is liable for an employee’s intentional torts was an issue of first impression in Virginia, but the Court relied on Fourth Circuit precedent to conclude that sovereign immunity applies in this context. Finally, the Court held that the then-applicable statute requiring officials to make a report whenever they have “reason to suspect that an adult” has been “abused, neglected, or exploited” imposed a discretionary duty and not a ministerial duty upon the individuals subject to the reporting requirements and thus dismissed the claim. (i.e., ministerial duties make actions necessary when conditions for their performance arise while discretionary duties make actions optional, subject to the official’s judgment.)

The applicant, Ms. Kaya, applied to the Office of Public Prosecutor (the “OPP”), claiming that she had been the victim of domestic violence. After investigating, the OPP charged the applicant’s husband with domestic violence and went to trial. However, during the trial, the applicant withdrew her claim and said that the bruises she had submitted as evidence were actually the result of an accident at the couple’s home. The OPP dropped the charges against the applicant’s husband. Two years later, the applicant filed another claim with the OPP alleging that her husband stole her jewellery and again subjected her to domestic violence. The OPP notified the proper Court of First Instance for Family Affairs (the “Court of First Instance”). The Court issued a restraining order against the husband that prevented him from approaching the applicant and ordered that he pay alimony to her for four months. The government offered the applicant state housing for the victims of domestic violence, but she rejected the offer. The applicant was subjected to several more incidents of domestic violence. During that time, the OPP requested the Court of First Instance to issue a warrant for the arrest of the applicant’s husband. The Court of First Instance rejected the OPP’s request. The applicant appealed, but her appeal was dismissed because Ms. Kaya’s statements alone were not adequate evidence of domestic abuse. After Ms. Kaya appealed, the Constitutional Court ruled that Turkey had a duty to take affirmative steps to prevent further acts of domestic violence against the appellant and effectively investigate her claims in this case. However, after applying the legal framework addressing victims of domestic violence, the Constitutional Court ruled that Ms. Kaya’s fundamental rights under the framework had not been infringed. This decision is important because it demonstrates that even though there is a legal framework available for women affected by domestic violence, claims against state officials for failing to act on their duties under that framework need to be specific and supported by substantial evidence.