Women and Justice: Keywords

The Human Trafficking Prevention Act (the “HTPA”) was enacted to prevent human trafficking and to safeguard the rights of victims. The HTPA defines “human trafficking” and related offenses, including “improper debt bondage,” specifies the responsibilities of the competent authorities at the central government, city, county, and municipal levels (including for cooperation among such competent authorities and with international governmental bodies and NGOs to eradicate human trafficking). It also governs matters including the prevention and identification of offenses; the protection and sheltering of victims as well as protection of witnesses; the treatment of victims who are not Taiwanese citizens and do not have valid resident or visitor permits (including the issuance of temporary visitor permits as well as the timing and conditions for repatriation); the confidentiality of victims’ identities (with financial penalties for unauthorized disclosures); and criminal procedure (including use as evidence of victim statements made outside of judicial proceedings). Persons found to have committed criminal offenses under the HTPA are subject to imprisonment for up to seven years or (for certain offenses) for periods in excess of seven years as well as to fines up to N.T. seven million, depending on the nature of the offense. The HTPA further provides that any property or profit from assets acquired from human trafficking is to be confiscated regardless of its ownership except the part to be returned to victims. Additionally, the HTPA provides for suspension or revocation of the licensing of any Taiwanese vessel, aircraft or other means of transportation whose owner, operator, captain, pilot, or driver has been engaged in transporting trafficked persons, as well as revocation of the professional licenses or qualifications of the captain, pilot or driver. The HTPA applies on an extraterritorial basis outside of Taiwan for the crimes specified in the legislation. English translation available here.

An amendment to the Swedish Aliens Act allows for the potential issuance of residence permits to victims of human trafficking crimes. The permit is issued for the duration of the investigation or hearing into the crime. During the duration of the permit the victims are eligible for health care, financial aid, and medical attention.

Article 66a provides that a foreign national shall be expelled from Switzerland for a period of five to 15 years if they are convicted of, among other things, female genital mutilation (Penal Code Art. 124, para. 1), forced marriage or forced registered partnership (Penal Code Art. 181a), trafficking in human beings (Penal Art. 182), sexual acts with children (Penal Code Art. 187, para. 1), sexual coercion (Art. 189), rape (Art. 190), sexual acts with persons incapable of judgement or resistance (Art. 191), encouraging prostitution (Art. 195), aggravated pornography (Art. 197, para. 4, second sentence – pornography containing genuine sexual acts with minors), genocide (Art. 264), crimes against humanity (Art. 264a), serious violations of the Geneva Convention of 1949 (Art. 264c), and other war crimes (Art. 264d and 264h). Unofficial English translation available here.

A Belarusian citizen and a Lithuanian registered their same-sex marriage in Denmark. In the same year, the Belarusian citizen applied for a Residency Permit on grounds of Family Reunification in Lithuania. However, it was denied by the Migration Department because neither same-sex marriage nor same-sex partnership is legal in Lithuania. The District Court affirmed the Migration Department’s decision; however, upon appeal, the Supreme Administrative Court decided to refer the case to the Constitutional Court. The Constitutional Court reiterated their 2011 decision that a family is formed on the basis of “continuous emotional affection, mutual understanding, responsibility, respect, co-parenting, and the like” rather than solely by the institution of marriage. Therefore, the Court concluded that the State must not discriminate based on gender and/or sexual orientation in granting Residence Permits to foreign nationals reuniting with their spouses in Lithuania (see case No. 21/2008). English translation available here.

Danijoje tos pačios lyties asmenų santuoką įregistravo Baltarusijos pilietis ir lietuvis. Tais pačiais metais šis sutuoktinis iš Baltarusijos kreipėsi dėl leidimo gyventi Lietuvos Respublikoje šeimos susijungimo pagrindu. Tačiau, Migracijos departamentas prašymą atmetė, nes Lietuvoje nėra įteisintos nei tos pačios lyties asmenų santuoka, nei tos pačios lyties asmenų partnerystė. Apygardos teismas patvirtino Migracijos departamento sprendimą, tačiau Vyriausiasis administracinis teismas nusprendė perduoti bylą Konstituciniam Teismui, kuris pakartojo savo 2011 metų sprendimą, kad šeima kuriama remiantis „nuolatine emocine meile, tarpusavio supratimu, atsakomybe, pagarba, bendru auklėjimu ir panašiais dalykais“, o ne vien santuokos institucija. Todėl Teismas padarė išvadą, kad valstybė negali diskriminuoti dėl lyties ir (ar) seksualinės orientacijos, atsisakydama suteikti leidimą gyventi Lietuvoje užsienio piliečiams, kurie siekia šeimos susijungimo su savo sutuoktiniais.

The appellant, a 22-year-old Somali woman, applied to the Austrian government for asylum and international protection, stating that she was abducted by the Al-Shabaab Militia and her uncle arranged a forced marriage for her. Her application for asylum and international protection was rejected by the relevant asylum authorities and the Austrian Federal Administrative Court on the grounds that the reasons stated by the appellant were not credible, too vague, and contradictory. In addition, the fact that she still had family (including her uncle) in Somalia was deemed as sufficient proof that she could lead a life without undue hardship. However, the Austrian Constitutional Court ultimately revoked this judgment, finding (among other conclusions) that the circumstances of this case were not given sufficient consideration, particularly, the fact that it would be unreasonable for the plaintiff to return to her family. The court did not sufficiently investigate and consider that the appellant’s uncle appeared to have beaten her several times, robbed her, locked her up, forced genital mutilation upon her and arranged for a forced wedding. The Court found the appellant’s right to equal treatment violated.

Die Beschwerdeführerin, eine 22-jährige Somalierin, beantragte bei der österreichischen Regierung Asyl und internationalen Schutz mit der Begründung, sie sei von der Al-Shabaab-Miliz entführt und von ihrem Onkel zwangsverheiratet worden. Ihr Antrag auf Asyl und internationalen Schutz wurde von den zuständigen Asylbehörden und dem österreichischen Bundesverwaltungsgericht mit der Begründung abgelehnt, die von der Beschwerdeführerin angegebenen Gründe seien nicht glaubwürdig, zu vage und widersprüchlich. Darüber hinaus wurde die Tatsache, dass sie noch Familie (einschließlich ihres Onkels) in Somalia hatte, als ausreichender Beweis dafür angesehen, dass sie ein Leben ohne unzumutbare Härten führen konnte. Der österreichische Verfassungsgerichtshof hob dieses Urteil jedoch schließlich auf, weil er (neben anderen Schlussfolgerungen) feststellte, dass die Umstände dieses Falles nicht ausreichend berücksichtigt worden waren, insbesondere die Tatsache, dass es für die Klägerin unzumutbar wäre, zu ihrer Familie zurückzukehren. Das Gericht hat nicht ausreichend untersucht und berücksichtigt, dass der Onkel der Rechtsmittelführerin sie offenbar mehrfach geschlagen, ausgeraubt, eingesperrt, ihr eine Genitalverstümmelung aufgezwungen und eine Zwangshochzeit arrangiert hat. Das Gericht stellte fest, dass das Recht der Beschwerdeführerin auf Gleichbehandlung verletzt wurde.

The appellant advertised in Korea for families to come to Australia to attend a missionary school. The appellant was responsible for settling those families’ affairs, and they were dependent on him to organize the necessary extensions of visas. Most of the time, the parents spoke no English and their children spoke little English. The appellant organized accommodation for the parents of the complainant among other families, and at the same time he arranged for separate accommodation for their daughter with children of other families. The accommodation for the daughter was close to the appellant’s house, but an hour’s drive from her parents’ house. The appellant was the only individual who had the keys to the children’s rooms. The appellant advised the father of the complainant to return to Korea to seek more families, and he did. One night, the appellant returned around 1:00 AM to the children’s accommodation and entered the complainant’s room where another girl was with her. That girl left after certain remarks by the appellant. The appellant took the complaint in his van to a remote place where he proceeded to touch her, took off her pyjamas, and then had sexual intercourse with her, despite her resistance. During this resistance, they both fell to the floor of the van and the appellant injured his arm. The appellant threatened the complainant not to inform anyone about this incident, reminding her that her family needed him to renew their visas. The complainant immediately told her friends at the accommodation of the sexual assault. In the morning, the complainant walked to a public telephone where she called her father in Korea and told him about the incident, and then called her mother to inform her of the same. In fear with respect to their visas, the family went with the appellant to Brisbane where they had their visas renewed, acting as if nothing happened. Later, the father flew back to Australia and immediately lodged a complaint with the police. Through investigation, the police found physical evidence of rape, including injuries to her genitals consistent with rape, the appellant’s DNA, and wounds consistent with complainant’s statement of the rape. Based on the evidence, the District Court sentenced the appellant to eight years for two counts of rape and one count of indecent dealing with a circumstance of aggravation. Relying on older cases, the appellant filed this appeal to lower his sentence, claiming it was too high for someone his age, considering he had no previous convictions and that there were no violence or weapon used. The Queensland Court of Appeal dismissed these arguments, stating that the older cases referenced by the appellant were dated before the implementation of new rules that increased the sentences for rape. In addition, even though no violence was used against the complainant, the court found that the appellant took advantage of her because of her visa situation, and this was an aggravating factor. Therefore, the appeal was dismissed.

The respondent, a German national, was denied permanent residence in Namibia despite being in a committed relationship with a Namibian woman, residing in Namibia for many years, and having a highly skilled job in Namibia. The respondent claims that the only reason her application was denied is because she was a lesbian woman in a homosexual relationship. She therefore filed suit against the Immigration Selection Board (“ISB”), arguing that it had discriminated against her in denying her application. The lower court found in favor of the respondent and ordered the ISB to grant the respondent’s application. On appeal, the Supreme Court reversed the decision, finding that the respondent had not proven discrimination and that the ISB had wide discretion to deny applications. However, the Supreme Court judge explicitly stated: “I must emphasize in conclusion: Nothing in this judgment justifies discrimination against homosexuals as individuals, or deprive [sic] them of the protection of other provisions of the Namibian Constitution.”

In 1991 Lesly Yajayra Perdomo (“Perdomo”), a citizen and native of Guatemala, joined her mother in the United States. In April 2003 the Immigration and Naturalization Service charged her as removable because she unlawfully entered the United States in 1991. Perdomo conceded removability but requested asylum, withholding of removal, and relief under the United Nations Convention Against Torture. Perdomo sought asylum because of her fear of future persecution as a member of a particular social group of “women in Guatemala between the ages of fourteen and forty.” Perdomo explained she was fearful because of: (1) the large number of women killed in Guatemala; (2) the failure of the Guatemalan government to respond appropriately; and (3) the lack of explanation for the killings. The immigration judge denied Perdomo’s requests. The Board of Immigration Appeals (the “BIA”) affirmed the denials and rejected the particular social group definition, “women in Guatemala between the ages of fourteen and forty” and Perdomo’s revised group definition, “all women in Guatemala,” as too broad to qualify for protection. The Ninth Circuit granted Perdomo’s petition for review and held that prior case law established that, “women in a particular country, regardless of ethnicity or clan membership, could form a particular social group.” The court noted that the size and breadth of the group, “all women in Guatemala,” did not preclude it from qualifying as a protected social group and that the BIA erred when it held to the contrary. The court remanded the case to the BIA to determine whether “all women in Guatemala” is a particular social group and, if so, whether Perdomo qualified for asylum.

The detention pending deportation of a woman who had recently given birth found to be unlawful and violated Article 5 §1(f) and Article 5 §5 (right to liberty and security) of the European Convention on Human Rights. In September 2000, the applicant, a woman from Bosnia and Herzegovina, applied to the Italian authorities for refugee status. The application was not forwarded to the competent commission because it contained formal defects. On September 26, 2003, the applicant gave birth to a child, who died a few days later at the hospital. Then, on November 11, 2003, the police served her with a deportation order and transferred her to a holding center. The European Court of Human Rights declared that the deportation order and the applicant's detention were in breach of Italian immigration law no. 286 of 1998, which provided that her deportation should have been suspended until six months after she had given birth (March 26, 2004), regardless of the fact that the baby had died. In March 2006, the Rome Civil Court granted the applicant refugee status. In addition, by way of just satisfaction, the government was required to pay the applicant 7,500 euros (EUR) for non-pecuniary damage for her unlawful detention as there was no redress available under Italian law.

La detenzione di una donna che aveva da poco partorito, in attesa della sua deportazione, è stata ritenuta illegale e in violazione dell’articolo 5 § 1 (f) e dell’articolo 5 § 5 (diritto alla libertà e alla sicurezza) della Convenzione europea dei diritti dell’uomo. Nel settembre del 2000, la ricorrente, una donna della Bosnia-Erzegovina, richiedeva alle autorità italiane lo status di rifugiato. La richiesta non veniva inoltrata alla commissione competente in quanto conteneva delle irregolarità formali. Il 26 settembre 2003, la ricorrente dava alla luce un figlio, che moriva pochi giorni dopo in ospedale. In seguito, l’11 novembre 2003, la polizia emetteva nei confronti della donna un decreto di espulsione e la trasferiva in un centro di soggiorno temporaneo. La Corte europea dei diritti dell’uomo dichiarava che il decreto di espulsione e la detenzione fossero stati emessi in violazione della legge italiana n. 286 del 1998, che prevede che l’espulsione avrebbe dovuto essere stata sospesa fino a sei mesi dopo il parto (26 marzo 2004), indipendentemente dal fatto che il figlio fosse morto. Nel marzo 2006, il Tribunale civile di Roma accordava alla Sig.ra Seferovic lo status di rifugiato. Inoltre, come giusta compensazione, poiché la legge italiana non prevedeva alcun risarcimento, al Governo veniva imposto di pagare alla ricorrente 7,500 euro come danno non patrimoniale per la sua detenzione illegale.