%0 Legal Rule or Regulation %D 2013 %T Case of Valiuliene v. Lithuania %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Valiuliene%20v.%20Lithuania"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

Facts – In February 2001 the applicant applied to a district court to bring a private prosecution after allegedly being beaten by her partner on five separate occasions in January and February 2001. In January 2002 the court forwarded her complaint to the public prosecutor, ordering him to start his own pre-trial criminal investigation; the applicant’s partner was then charged with systematically causing the applicant minor bodily harm. The investigation was twice halted by police investigators for lack of evidence, but on each occasion was reopened on appeal on the grounds that it had not been sufficiently thorough. The public prosecutor discontinued the investigation in June 2005 as a legislative reform in May 2003 meant that prosecutions in respect of minor bodily harm now had to be brought by the victim privately unless the case was of public interest or the victim could not protect her rights through a private prosecution. The district court upheld that decision. When the applicant lodged a new request to bring a private prosecution, this was refused without examination of the merits as the prosecution had become time-barred.

 

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Valiuliene%20v.%20Lithuania"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2013 %T Case of B v. The Republic of Moldova %X

http://hudoc.echr.coe.int/eng?i=001-122372

1. The case originated in an application (no. 61382/09) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Moldovan nationals, Ms O. B., Mr V. B. and Mr I. B. (“the applicants”), on 19 November 2009.

2. The applicants were represented by Mr A. Bivol, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

3. The applicants alleged, in particular, that Mrs O. B. (‘the first applicant’) had been subjected to violence from her ex-husband and that the other applicants had witnessed such violence and been affected by it, while the State authorities had done little to stop such violence and prevent it from happening again. 

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/eng?i=001-122372 %0 Legal Rule or Regulation %D 2013 %T Case of Eremia v. The Republic of Moldova %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Eremia%20v.%20The%20Republic%20of%20Moldova"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

In the decision Eremia and Others v. the Republic of Moldova, the European Court of Human Rights held that the Republic of Moldova has violated Articles 3, 8 and Article 14 in conjunction with Article 3 of the European Convention of Human Rights for failing to prevent a husband (working as a police officer) from repeatedly beating his wife in front of their two teenage daughters. The applicants in this case were three Moldovan national women; the first applicant, Lilia Eremia, and her two daughters (second and third applicants, Doina and Mariana Eremia). The mother was repeatedly beaten by her husband, a police officer, in front of their two daughters. In addition to the physical and mental suffering of the mother, the two girls’ psychological well-being was adversely affected. 

The facts: 
On the first applicant’s request, a protection order had been issued against the violent husband, who did however not respect the order. Finally, the Moldovan Courts stood on the husband’s side by upholding his appeal and partly revoking the protection order.  The first applicant had filed a criminal complaint and had claimed that she has been pressured by other police officers to withdraw the complaint. Although a criminal investigation had been finally launched, and substantive evidence of the husband’s guilt has been found, the prosecutor decided to suspend the investigation for one year subject to the condition that the investigation would be reopened if the husband committed another offence during that time. The prosecutor based his decision on the consideration that, the husband had committed “a less serious offence” and “did not represent a danger to society.”

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Eremia%20v.%20The%20Republic%20of%20Moldova"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2012 %T Case of Irene Wilson v. the U.K. %X

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114397#{"itemid":["001-114397"]}

Summary

The European Court of Human Rights found that the Northern Ireland authorities had not failed in their duty to respond to domestic violence perpetrated against the applicant, Ms Irene Wilson, and her complaint was deemed inadmissible.

Facts

On 20 October 2007 the applicant was assaulted by her husband, Scott Wilson. She suffered a severed artery on the right side of her head and multiple bruising.

Mr Wilson was arrested and charged with causing grievous bodily harm with intent to do grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. After considering the available evidence, the Public Prosecution Service of Northern Ireland (PPS) decided that there was insufficient evidence of intention to do grievous bodily harm and the charge was reduced to one of grievous bodily harm contrary to section 20 of the same Act.

Mr Wilson pleaded guilty to the section 20 charge and was sentenced to eighteen months’ imprisonment, which was suspended for three years.

The applicant alleged violations of her human rights under the European Convention on Human Rights and made several complaints regarding the criminal proceedings, including that the sentence was unduly lenient and was much lower than would have been delivered had the offence occurred outside marriage.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114397#{"itemid":["001-114397"]} %0 Legal Rule or Regulation %D 2012 %T Case of Kalucza v. Hungary %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Kalucza%20v.%20Hungary"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

1. The case originated in an application (no. 57693/10) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms Matild Kalucza (“the applicant”), on 25 September 2010.

2. The applicant was represented by Ms G. Zsemlye, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.

3. The applicant complained that the authorities had failed to respect her rights under Articles 2, 3 and 8 of the Convention insofar as they did not comply with their positive obligations, as a result of which she was forced to live with a person who constantly abused her physically and psychologically. 

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Kalucza%20v.%20Hungary"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2012 %T Case of M and Others v. Italy and Bulgaria %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["M%20and%20Others%20v.%20Italy%20and%20Bulgaria"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

1.  The case originated in an application (no. 40020/03) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Bulgarian nationals, L.M., S.M., I.I., and K.L. (“the applicants”), on 11 December 2003

2.  The applicants were represented by Mr S.S. Marinov, manager of Civil Association Regional Future, Vidin. The Italian Government were represented initially by their Co-Agent, Mr N. Lettieri, and subsequently by their Co-Agent, Ms P. Accardo. The Bulgarian Government were represented initially by their Agent, Ms N. Nikolova, and subsequently by their Agent, Ms M. Dimova.

3.  The applicants alleged, in particular, that there had been a violation of Article 3 in respect of the lack of adequate steps to prevent the first applicant’s ill-treatment by a Serbian family by securing her swift release and the lack of an effective investigation into that alleged ill-treatment.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["M%20and%20Others%20v.%20Italy%20and%20Bulgaria"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2012 %T Case of P and S v. Poland %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["P%20and%20S%20v.%20Poland"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

Facts – The applicants were a daughter and her mother. In 2008, at the age of fourteen, the first applicant, P., became pregnant after being raped. In order to have an abortion in accordance with the 1993 Law on Family Planning, she obtained a certificate from the public prosecutor that her pregnancy had resulted from unlawful sexual intercourse. However, on contacting public hospitals in Lublin, the applicants received contradictory information as to the procedure to be followed. Without asking whether she wished to see him one of the doctors took P. to see a Catholic priest who tried to convince her to carry the pregnancy to term and got her to give him her mobile phone number. The second applicant was asked to sign a consent form warning that the abortion could lead to her daughter’s death. Ultimately, following an argument with the second applicant, the head of gynaecology in the Lublin hospital refused to allow an abortion, citing her personal views, and the hospital issued a press release confirming. Articles were published in local and national newspapers and the case was the subject of discussions on the internet.

P. was subsequently admitted to a hospital in Warsaw, where she was informed that the hospital was facing pressure not to perform the abortion and had received numerous e-mails criticising the applicants for their decision. P. also received unsolicited text messages from the priest and others trying to convince her to change her mind. Feeling manipulated and helpless, the applicants left the hospital two days later. They were harassed by anti-abortion activists and eventually taken to a police station, where they were questioned for several hours. On the same day, the police were informed that the Lublin Family Court had ordered P.’s placement in a juvenile shelter as an interim measure in proceedings issued to divest her mother of her parental rights on the grounds that she was pressurising P. into having the abortion. In making that order the court had regard to text messages P. had sent to her friend saying she did not know what to do. Later that day, the police drove P. to Lublin, where she was placed in a juvenile shelter. Suffering from pain, she was taken to hospital the following day, where she stayed for a week. A number of journalists came to see her and tried to talk to her. After complaining to the Ministry of Health, the applicants were eventually taken in secret to Gdańsk, some 500 kilometres from their home, where the abortion was carried out.

The family court proceedings were discontinued eight months later after P. testified that she had not been forced by her mother to have an abortion. Criminal proceedings that had been brought against P. for suspected sexual intercourse with a minor were also discontinued as was the criminal investigation against the alleged perpetrator of the rape.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["P%20and%20S%20v.%20Poland"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2012 %T Case of P.M. v. Bulgaria %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["P.M.%20v.%20Bulgaria%2049669/07"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

1.  The case originated in an application (no. 49669/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Bulgarian national, Ms P.M. (“the applicant”), on 25 October 2007.

2.  The applicant was represented by Mr V. Vasilev, a lawyer practising in SofiaThe Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.

3.  The applicant alleged, in particular, that the investigation into sexual offences of which she had been a victim had been ineffective, and that she had not had an effective domestic remedy in this respect.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["P.M.%20v.%20Bulgaria%2049669/07"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2012 %T Case of R. K. B. v. Turkey %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/51/D/28/2010

R.K.B.’s employer accused her of having an affair with a male colleague and dismissed her from the position but did not dismiss the male colleague, and threatened to “spread rumours about her relationships with other men” to pressure her to sign a document, attesting that she had been paid all her benefits upon termination. R.K.B. presented a claim to the Committee, alleging that her employer, a hairdressing salon, had unfairly terminated her contract of employment based on gender stereotypes. The Kocaeli 3rd Labour Court did not agree with the petitioner that dismissing her but not her male colleague was discriminatory. The court simply decided that the termination of her contract had not been justified.  R.K.B. appealed to the Court of Cassation, which dismissed the appeal without reference to gender discrimination.

The Committee concluded that the Turkish courts based their decisions on gender stereotypes, tolerating allegations of extramarital relationships by male employees but not by female employees. The Committee decided that there had been a violation of articles 5(a), 11(1a) and 11(1d) of CEDAW.  The Committee also responded to the State argument that laws on women’s rights had been adopted since the 1990s, hence meeting the due diligence standard, by explaining that the State has the obligation to actually improve women’s position in society and to eliminate wrongful stereotypes.  The Committee decided that adequate compensation should be paid to the author; that the State should take measures to implement laws on gender equality in the work environment; and that the State should provide training to judges, lawyers and law enforcement personnel on women’s rights and gender-based stereotypes.

 

%B C/51/D/28/2010; Communication No. 28/2010 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2012 %T Case of Jallow v. Bulgaria %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/52/D/32/2011

In 2012, the Committee on the Elimination of all forms of Discrimination Against Women considered Jallow v. Bulgaria (C/52/D/32/2011). Isatou Jallow moved from the Gambia to Bulgaria after marrying A.P., a Bulgarian national. Once in Bulgaria, A.P. allegedly became abusive toward Jallow and subjected her to physical and psychological violence, including sexual abuse, and attempted to force her to take part in pornographic films and photographs. Even after social workers and police became involved, authorities took no measures to protect Jallow from further domestic violence and sexual abuse. In March 2009, prosecutors—without interviewing Jallow—refused to continue investigating the alleged domestic violence due to insufficient evidence. An order granting A.P. custody of the couple’s daughter was issued solely on the basis of A.P.’s statement and the Court did not consider Jallow’s allegations of domestic violence. In November 2010, Jallow submitted a communication to the Committee on behalf of her daughter and herself claiming that Bulgarian authorities failed to provide adequate protection against domestic violence and that the state’s actions relative to her situation amounted to gender-based discrimination.

The Committee concluded that Bulgaria had violated Articles 2(b)-2(f), 5(a), 16(1)(c), 16(1)(d) and 16(1)(f) of CEDAW, read in conjunction with Articles 1 and 3, when it failed to investigate allegations that A.P. had committed domestic violence against Jallow and her daughter. In the Committee’s view, these actions, together with the State’s failure to inform Jallow properly about her daughter’s whereabouts and her condition, violated Articles 2(b) and 2(c). The Committee determined that Bulgaria had also failed to protect Jallow’s rights to equality within marriage and as a parent, and to treat her daughter’s interests as paramount, in violation of Articles 5(a), 16(1)(c), 16(1)(d) and 16(1)(f). The Committee explained that Bulgaria’s actions were based on stereotypes concerning the roles of women and men within marriage, according to which men are perceived to be superior to women. The authorities’ reliance on these stereotypes caused them to act on the statements and actions of A.P. and to disregard Jallow’s allegations of violence. It also meant that they ignored Jallow’s vulnerable position and disregarded evidence concerning the disproportionate impact of domestic violence on women. The Committee urged Bulgaria to compensate Jallow and her daughter for violating their rights under CEDAW.It also recommended that the State Party adopt measures to ensure that women victims/survivors of domestic violence, including migrant women, have effective access to justice and other services (e.g., translation services). It also called on Bulgaria 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 the determination of custody and visitation rights of children.

%B C/52/D/32/2011 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2012 %T Case of J.S. v. the U.K %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/53/D/38/2012

In 2012, the Committee on the Elimination of all forms of Discrimination Against Women considered J.S. v. the U.K. (C/53/D/38/2012 ). J.S. (“the author”) claims that he is a victim of discrimination of a continuous nature, because the revision of the 1948 British Nationality Act in 1981 and 2002 did not eliminate the discrimination against women. He claims that if he had been born of a father with United Kingdom and Colonies’ citizenship, or after 1983, he could have applied for a British passport.

The author claims that the Convention recognizes women’s autonomy and equality in the transfer and acquisition of nationality, and permits either spouse to confer nationality on their children. On the issue of nationality, the granting of equal rights to women requires having an independent nationality, regardless of the nationality of one’s husband, and granting equal rights regarding the nationality of children. States parties are also expected to uphold equal rights with regard to laws relating to the movement of persons and the freedom to choose one’s residence and domicile. They must also take measures to eliminate discrimination against women in matters relating to marriage and family relations, and ensure that overall equality between men and women exists. Any State which does not respect these provisions in practice and law fails in its duties under articles 1 and 2 of the Convention.

The author claims to be a victim of a violation of article 9 of the Convention. In substantiation, he refers to the Committee’s general recommendation No. 21 (1994) on equality in marriage and family relations (which emphasizes the importance of granting equal rights to women concerning acquisition and retention of citizenship. The author notes in particular that paragraph 6 of general recommendation No. 21 reads as follow: “Nationality is critical to full participation in society [...]. Without status as nationals or citizens, women are deprived of the right to vote or to stand for public office and may be denied access to public benefits and a choice of residence. Nationality should be capable of change by an adult woman and should not be arbitrarily removed because of marriage or dissolution of marriage or because her husband or father changes his nationality.”

%B C/53/D/38/2012 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2012 %T Case of Kell v. Canada %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/51/D/19/2008

In 2012, the Committee on the Elimination of all forms of Discrimination Against Women considered Kell v. Canada (CEDAW/C/51/D/19/2008). In 1990, William Senych applied for housing without the knowledge of his common law partner, Cecilia Kell, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (NWT) of Canada. Senych’s application was denied because he was not a member of the Rae-Edzo community for which the housing was earmarked. On the advice of a Tenant Relations officer at the Rae-Edzo Housing Authority, Kell then applied for housing, listing Senych as her spouse. In 1991, the NWT Housing Corporation issued an Agreement for Purchase and Sale to Kell and Senych as co-owners of the property. Senych subjected Kell to domestic violence, including economic abuse, over the subsequent three-year period. In 1993, following a request from Senych and without Kell’s knowledge, the NWT Housing Corporation (on instruction from the Rae-Edzo Housing Authority) removed Kell’s name from the Assignment of Lease, the document that certified co-ownership. The removal had the effect of making Senych the sole owner of the property. Senych was a board member of the Housing Authority at the time of his request

In 1995, Senych changed the locks and denied Kell access to the property. He subsequently sought to evict her while she sought protection in a shelter Kell filed proceedings against Senych in the NWT Supreme Court seeking compensation for assault, battery, sexual assault, intimidation, trespass to chattels, loss of use of her home and consequential payment of rent and attendant expenses. She also filed a declaration that Senych had obtained the property fraudulently, aided and abetted by the NWT Government. Kell was assigned a legal aid lawyer, who advised her to comply with the letter of eviction and did not challenge the letter’s validity. Shortly thereafter, Senych was diagnosed with cancer at which time Kell’s lawyer advised her to delay proceedings. Senych later died, following which Kell’s lawyer initiated proceedings against his estate, the NWT Housing Corporation and another. A replacement legal aid lawyer added a claim for damages for assault and intimidation. In 1999, Senych’s estate and the Housing Corporation offered Kell a monetary settlement. During negotiations, Kell’s case was twice reassigned to new lawyers. Both insisted that Kell settle. She refused, however, as her key concern was regaining the property. Following her refusal, Kell’s lawyer ceased acting on her behalf. Kell’s case was only re-assigned to a new lawyer after she appealed to the Legal Services Board. The Supreme Court dismissed both proceedings for “want of prosecution”. Costs were imposed against Kell and subsequent appeals were unsuccessful. In 2004, Kell filed a third action related to her interest in and right to the leasehold title and possession of the property. The property had then been sold and the Court dismissed the matter.

Kell subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women in which she claimed that Canada had violated articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of the Convention on the Elimination of All Forms of Discrimination against Women. Kell claimed that Canada had allowed its agents – the NWT Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and had failed to ensure that its agents provide equal treatment to female housing applicants. Kell noted, in particular, Canada’s failure to prevent and remedy the fraudulent removal of her name from the Assignment of Lease and the failure to ensure that its agents afford women and men equal rights in respect of ownership, acquisition, management, administration and enjoyment of property.DV, sexual abuse

%B CEDAW/C/51/D/19/2008 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2012 %T Case of M. P. M. v. Canada %A Stewart Istvanffy %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/51/D/25/2010

M.P.M., a Mexican national, sought asylum in Canada in 2006.  M.P.M. claimed that she was entitled to asylum because she is a victim/survivor of domestic violence and was seeking to escape her abusive ex-husband, a Mexican police officer.

Canadian authorities dismissed M.P.M.’s claim on the basis that she had failed to establish that she was a refugee, within the meaning of the Convention relating to the Status of Refugees.  Authorities concluded that M.P.M. had falsely claimed to be a victim/survivor of domestic violence in order to obtain asylum in Canada and failed to provide credible and consistent evidence to support a claim of asylum.  An application for judicial review and a separate application for a pre-removal risk assessment were also dismissed. M.P.M. did not file an application to prevent her deportation on humanitarian and compassionate grounds because of the low success and cost of such applications.  In addition, she believed that Canadian authorities would dismiss such an application, since it would be based on the same arguments included in her previous unsuccessful applications. M.P.M. subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (Committee) in which she claimed, inter alia, that there were substantial grounds for believing that her life and safety were at real risk if deported to Mexico.  M.P.M. submitted that Canada had violated articles 2(c), 2(d) and 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by discriminating against her in her asylum claim and failing to ensure equal protection of her rights.  In addition, she submitted that the failure of Canadian authorities to take her vulnerable situation fully into account constituted a violation of article 15 concerning equality in legal and civil matters.  M.P.M. also claimed that Canada had violated article 16 of equality in marriage and family relations, but she failed to identify the basis of that claim.

The Committee concluded that the communication was ill-founded and not sufficiently substantiated and, thus, declared it inadmissible under article 4(2)(c) of the Optional Protocol.  In doing so, it noted the voluntary return of M.P.M. to Mexico, her failure to explain her return to the Committee or follow-up her communication, the absence of any reports of violence since her return to Mexico, and her failure to provide new evidence to the Committee to substantiate her claim.  Having declared the communication inadmissible on this basis, the Committee declined to consider Canada’s other objections to the admissibility of the communication.

%B CEDAW/C/51/D/25/2010 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2012 %T Kell v. Canada %A CEDAW %X

http://www.bayefsky.com/docs.php/area/jurisprudence/treaty/cedaw/opt/0/node/4/filename/canada_t5_cedaw_19_2008

Kell submitted a communication to the Committee on the Elimination of Discrimination against Women in which she claimed that Canada had violated articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of the Convention on the Elimination of All Forms of Discrimination against Women. Kell claimed that Canada had allowed its agents – the NWT Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and had failed to ensure that its agents provide equal treatment to female housing applicants. Kell noted, in particular, Canada’s failure to prevent and remedy the fraudulent removal of her name from the Assignment of Lease and the failure to ensure that its agents afford women and men equal rights in respect of ownership, acquisition, management, administration and enjoyment of property.

%B C/52/D/32/2011 %I Committee on the Elimination of Discrimination against Women %G eng %U http://www.bayefsky.com/docs.php/area/jurisprudence/treaty/cedaw/opt/0/node/4/filename/canada_t5_cedaw_19_2008 %0 Legal Rule or Regulation %D 2011 %T Case of Izevbekhai and Others v. Ireland %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["IZEVBEKHAI"],"documentcollectionid2":["JUDGMENTS","DECISIONS"]}

The Applicants were a mother and two daughters who arrived in Ireland in January 2005. Mrs. Izevbekhai applied for declarations of refugee status on her own behalf and on behalf of her daughters. The basis of her claim for refugee status was that she was in fear for her own life and the lives of her daughters if they were returned to Nigeria, as a result of threats from the family of her husband to carry out female genital mutilation on her daughters. She claimed that an elder daughter had died in Nigeria as a result of complications arising from female genital mutilation. The Applicants’ applications for refugee status in Ireland were refused, and they made representations to the Minister for leave to remain temporarily in the State. These representations were rejected and the Minister made deportation orders in respect of all three Applicants in November 2005. Mrs. Izevbekhai went into hiding and her children were taken into care by the HSE. She was later apprehended by Gardaí and placed in detention. The Applicants obtained the leave of the High Court (McKechnie J.) to challenge the deportation orders by way of judicial review but the substantive applications were refused by the High Court (Feeney J.) in January 2008. In March 2008, the Applicants made applications to the Minister for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations (S.I. No. 518) 2006. The Minister refused to consider their applications for subsidiary protection because the deportation orders had been made before the coming into force of the Regulations. In an earlier case (N.H and T.D. v. Minister for Justice and Law Reform [2007] IEHC 277) the courts had identified a discretion on the part of the Minister to accept such late applications, but the Minister refused to exercise this discretion in favour of the Applicants. In March 2008 the High Court (Edwards J.) granted to the Applicants leave to apply for judicial review of the Minister's decision. In January 2009, the High Court (McGovern J.) delivered judgment on the substantive application for judicial review, and held that the Minister had acted properly. The Applicants appealed this decision to the Supreme Court.

In the meantime, the Minister’s officials reopened their investigations into Ms Izevbekhai’s claims about the death of her eldest daughter in Nigeria. The Minister concluded that the documents relied upon by Ms Izevbekhai in support of her claim were forgeries and that no such child had ever existed. Affidavits to this effect were filed in the Supreme Court.

Following the hearing on the preliminary issue of whether the Minister had jurisdiction to entertain the application for subsidiary protection, the Supreme Court found that he had no discretion to do so. Consequently, the substantive appeal did not proceed and thus no findings were made by the Supreme Court as regards the Minister’s allegations of forgery.

The Applicants took their case to the ECHR and complained under Article 3 that there was a real risk that the minor Applicants would be exposed to FGM if they were expelled to Nigeria. They also invoked Articles 6, 13 and 14 of the Convention about the domestic remedies available to them in that respect. The ECHR found that the information presented by the Government with respect to the documents relied upon by Ms Izevbekhai gave strong reasons to question the veracity of the Applicants’ core factual submission concerning the death of a child in Nigeria as a result of FGM. The Court considered the Applicants’ response to the core issue of credibility to be unsatisfactory.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["IZEVBEKHAI"],"documentcollectionid2":["JUDGMENTS","DECISIONS"]} %0 Legal Rule or Regulation %D 2011 %T Case of Omeredo v. Austria %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["OMEREDO%20v.%20AUSTRIA"],"documentcollectionid2":["JUDGMENTS","DECISIONS"]}

Facts – The applicant fled Nigeria in May 2003 and applied for asylum in Austria on the grounds that she was at risk of female genital mutilation (FGM) in her own country. The Federal Asylum Office rejected her request after finding that, even though her statements were credible, she had the alternative of living in another province of Nigeria where FGM was prohibited by law. The applicant lodged a complaint against that decision with the asylum court, but it was ultimately rejected. The Constitutional Court declined to examine the question after finding that it did not raise any issue of constitutional law. In her application to the European Court, the applicant complained under Article 3 of the Convention that she ran the risk of being subjected to FGM if expelled to Nigeria and that relying on an internal flight alternative and moving to another part of Nigeria as a single woman without her family to help her would also violate her rights under that provision.

Law – Article 3: It was not in dispute that subjecting any person, child or adult, to FGM would amount to ill-treatment contrary to Article 3 (see also Izevbekhai and Others v. Ireland (dec.), no. 43408/08, 17 May 2011). The Court noted, however, that while the domestic authorities had found that the applicant’s fear of being forced to undergo FGM in Nigeria was well-founded they considered that she disposed of an internal flight alternative within the country. The Court therefore had to assess the applicant’s personal situation in Nigeria. The applicant, who was thirty-seven years old, had obtained school education for at least thirteen years and had worked as a seamstress for eight years. While it might be difficult for her to live in Nigeria as an unmarried woman without the support of her family, the fact that her circumstances there would be less favourable than those she enjoyed in Austria could not be regarded as decisive. Owing to her education and work experience as a seamstress, there was reason to believe that she would be able to build up her life in Nigeria without having to rely on the support of family members.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["OMEREDO%20v.%20AUSTRIA"],"documentcollectionid2":["JUDGMENTS","DECISIONS"]} %0 Legal Rule or Regulation %D 2011 %T Case of Mukhina v. Italy %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/50/D/27/2010

In 2001, Ms. Zhanna Mukhina, a Russian national currently residing and working in Italy, gave birth.  The father of the child, the author’s employer, refused to admit paternity and died shortly after the child’s birth.  In 2005, the author lost custody of her son ‘owing to the deterioration of her mental state and her inability to support the child.’  Subsequent appeals to regain custody of her son proved unsuccessful and, in 2009, the European Court of Human Rights declared a complaint from the author inadmissible.

In 2010, the author submitted a communication to the Committee on the Elimination of Discrimination against Women claiming, without further substantiation, that Italy had violated her rights under article 16(f) of the Convention on the Elimination of All Forms of Discrimination against Women to ensure women and men ‘[t]he same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children ….’

%B C/50/D/27/2010; Communication No. 27/2010 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2011 %T Case of Rivera v. Canada %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/50/D/26/2010

In 2011, the Committee on the Elimination of all forms of Discrimination Against Women considered Rivera v. Canada (CEDAW/C/50/D/26/2010). In 2006, Guadalupe Herrera Rivera (GHR), a Mexican national, claimed asylum in Canada, along with her then husband and their two minor children.  Canadian authorities denied the claim on the basis that it lacked credibility.

In October 2008, ‘Assistance aux femmes’, acting on behalf of GHR, filed applications with Immigration Canada for a pre-removal risk assessment (PRRA) and on humanitarian and compassionate (H&C) grounds.  The H&C grounds application included information about GHR’s experiences of domestic violence, the inadequate protection in Mexico against such violence, and the risk of GHR experiencing further violence if deported to Mexico.

In September 2010, GHR submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) claiming that, if Canada deported her to Mexico, it would violate her rights under articles 1, 2(a)-2(d), 5(a) and 24 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  GHR requested interim measures to prevent Canada from deporting her to Mexico while her communication was pending before the CEDAW Committee.

%B CEDAW/C/50/D/26/2010; Communication No. 26/2010 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2011 %T Case of Teixeira v. Brazil %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/49/D/17/2008 

On August 10 2001, the Committee on the Elimination of Discrimination against Women (CEDAW) issued its landmark decision on the Communication No. 17/2008. The case was filed by the organization Advocaci – Advocacia Cidada pelos Direitos Humanos and the Center for Reproductive Rights against the state of Brazil on November 30th 2007. This is the first decision establishing states’  international responsibility on preventable maternal death case within the UN Human Rights System.

%B C/49/D/17/2008; Communication No. 17/2008 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2011 %T Case of V.K. v. Bulgaria %A CEDAW %X

http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Jurisprudence.aspx

CEDAW/C/49/D/20/2008

The author of the complaint, VK, alleged that she had been a persistent victim of domestic abuse at the hands of her husband, and petitioned the Bulgarian courts to issue a protection order against him. VK was issued an interim order, but at the full hearing, the court refused to make a permanent order in accordance with its interpretation of national law on the basis that no domestic violence had taken place in the month prior to the initial hearing. The ruling was upheld on appeal. VK specifically alleged that the State had neglected its positive obligation under the Convention on the Elimination of All Forms of Discrimination against Women to protect her from domestic violence, and that it had not acted to ensure the necessary protection to avoid irreparable damage to her and her two children.

%B C/49/D/20/2008; Communication No. 20/2008 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/Jurisprudence.aspx %0 Legal Rule or Regulation %D 2011 %T Case of V.P.P. v. Bulgaria %A CEDAW %X

http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/JurisprudenceSession53.aspx

CEDAW/C/53/D/31/2011

In 2011, the Committee on the Elimination of all forms of Discrimination Against Women considered V.P.P v. Bulgaria (C/53/D/31/2011). V.P.P., a minor, was sexually assaulted by B.G., an adult man who lived in a neighbouring apartment building.  Bulgarian authorities waited two years before indicting B.G. for “sexual molestation of a minor”.  The District Court approved a plea bargain agreement that B.G. receive a three-year suspended sentence for pleading guilty.  B.G. continued to live next door to V.P.P. following the assault and no action was taken to ensure the ongoing safety of V.P.P.

The District Court rejected a request to file a civil claim for moral damages and a separate successful tort suit for 15,000 euros could not be executed with the mechanisms available under Bulgarian law.

 S.V.P. submitted a communication under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) on behalf of her daughter claiming that Bulgaria had violated articles 1, 2(a)-2(c), 2(e)-2(g), 3, 5, 12 and 15 of CEDAW.  She claimed that Bulgaria had failed to:

 

%B C/53/D/31/2011; Communication No. 31/2011 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www.ohchr.org/EN/HRBodies/CEDAW/Pages/JurisprudenceSession53.aspx %0 Legal Rule or Regulation %D 2011 %T Case of Abramova v. Belarus %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/49/D/23/2009

The Committee on the Elimination of Discrimination against Women has found in Abramova v. Belarus (C/49/D/23/2009) that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with article 1 and the Committee’s General Recommendation No. 19 on violence against women.

%B C/49/D/23/2009 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2011 %T Case of L. C. v. Peru %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/50/D/22/2009

L.C. was 13 years old when she was repeatedly raped by a 34-year-old man who lived in her neighborhood in an impoverished region near Peru’s capital city of Lima.  Her ordeal started in 2006, and by 2007 she learned that she was pregnant.  Desperate, L.C. attempted to commit suicide by jumping off the roof of a building next door to her house.  Neighbors discovered her and rushed her to the hospital.  But even though doctors concluded that her spine needed to be realigned immediately—and even though abortion in Peru is legal where the mother’s health and life are at risk--they refused to operate on L.C. because she was pregnant. L.C. eventually suffered a miscarriage because of the severity of her injuries. Several weeks after the miscarriage, four months after she was told she needed surgery, L.C. underwent the spinal procedure. She was told shortly thereafter, however, that the surgery would have little to no effect and that she would remain paralyzed. On June 18, 2009, 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 L.C. against Peru before the United Nations Committee on the Elimination of Discrimination against Women. The petition charges that Peru’s failure to implement measures that guarantee a woman’s ability to obtain essential reproductive health services in a timely manner, particularly legal abortion, not only violates the Peruvian Constitution, but international treaty obligations. Among other remedies, L.C. is asking that the Peruvian government acknowledge the human rights violation; provide L.C. with reparations, including physical and mental rehabilitation; and issue necessary measures so that no other woman is denied her right to comprehensive healthcare and therapeutic abortion.

%B CEDAW/C/50/D/22/2009 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2010 %T Case of A. v. Croatia %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["A%20v.%20Croatia%2055164/08"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

Facts – Between November 2003 and June 2006, the applicant’s husband, who has been diagnosed as suffering from severe mental disorders with a tendency towards violent and impulsive behaviour, subjected the applicant to repeated psychological and physical violence including death threats and blows and kicks to the head, face and body. She was often abused in front of their daughter, who was herself the subject of violence on several occasions. The marriage ended in divorce in 2006. Between 2004 and 2009 various sets of criminal and minor-offences proceedings were brought against the husband and a number of protective measures were ordered. However, only some were implemented. For example, an eight-month prison sentence handed down in October 2006 following death threats was not served and the husband failed to undergo psycho-social treatment that had been ordered. He is currently serving a three-year prison sentence for making death threats against a judge.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["A%20v.%20Croatia%2055164/08"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2010 %T Case of Rantsev v. Cyprus and Russia %X

http://hudoc.echr.coe.int/eng#{"fulltext":["Case%20of%20Rantsev%20v%20Cyprus%20and%20Russia"],"respondent":["CYP"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

Facts – The applicant’s daughter Ms Rantseva, a Russian national, died in unexplained circumstances after falling from a window of a private property in Cyprus in March 2001. She had arrived in Cyprus a few days earlier on a “cabaret-artiste” visa, but had abandoned her work and lodging shortly after starting and had left a note to say she wanted to return to Russia. After locating her in a discotheque some days later, the manager of the cabaret had taken her to the central police station at around 4 a.m. and asked them to detain her as an illegal immigrant. The police had contacted the immigration authorities, who gave instructions that Ms Rantseva was not to be detained and that her employer, who was responsible for her, was to pick her up and bring her to the immigration office at 7 a.m. The manager had collected Ms Rantseva at around 5.20 a.m. and taken her to private premises, where he had also remained. Her body had been found in the street below the apartment at about 6.30 a.m. A bedspread had been looped through the railing of the balcony.

An inquest held in Cyprus concluded that Ms Rantseva had died in circumstances resembling an accident while attempting to escape from an apartment in which she was a guest, but that there was no evidence of foul play. Although the Russian authorities considered, in the light of a further autopsy that was carried out following the repatriation of the body to Russia, that the verdict of the inquest was unsatisfactory, the Cypriot authorities stated that it was final and refused to carry out any additional investigations unless the Russian authorities had evidence of criminal activity. No steps were taken by either the Russian or Cypriot authorities to interview two young women living in Russia whom the applicant said had worked with his daughter at the cabaret and could testify to sexual exploitation taking place there.

In April 2009 the Cypriot authorities made a unilateral declaration acknowledging violations of Articles 2, 3, 4, 5 and 6 of the Convention, offering to pay compensation to the applicant and advising that independent experts had been appointed to investigate the circumstances of Ms Rantseva’s death, employment and stay in Cyprus.

The Cypriot Ombudsman, the Council of Europe Commissioner for Human Rights and the United States State Department have published reports which refer to the prevalence of trafficking in human beings for commercial sexual exploitation in Cyprus and the role of the cabaret industry and “artiste” visas in facilitating trafficking in Cyprus.

Law – Article 37 § 1: The Court refused the Cypriot Government’s request for the application to be struck out. It found that, despite the unilateral declaration acknowledging violations of the Convention, respect for human rights in general required it to continue its examination of the case in view of the serious nature of the allegations, the acute nature of the problem of trafficking and sexual exploitation in Cyprus and the paucity of case-law on the question of the interpretation and application of Article 4 of the Convention to trafficking in human beings.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/eng#{"fulltext":["Case%20of%20Rantsev%20v%20Cyprus%20and%20Russia"],"respondent":["CYP"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2010 %T Case of A, B, and C v. Ireland %X

http://hudoc.echr.coe.int/eng?i=001-102332

A., B. and C. v. Ireland concerned three Irish applicants who, in their first trimester of pregnancy, had travelled to England to have an abortion because they believed they would not be allowed to have one in Ireland.

The Irish Constitution, unlike the European Convention on Human Rights, explicitly extends the right to life to the unborn foetus. Abortion is moreover prohibited under the criminal law by section 58 of the Offences Against the Person Act 1861 (“the 1861 Act”) providing as penalty “penal servitude for life”. However, this does not mean that abortion constitutes a criminal act in all circumstances in Ireland. The 1861 legislation needs to be read in light of the amended Irish Constitution, which states in Article 40.3.3: “3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right; This subsection shall not limit freedom to travel between the State and another state; This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

However, no legislation or other regulatory measures have been adopted to clarify what is meant by the “equal right to life of the mother” and in which situations there is a real and substantial risk to that right to life such as to outweigh the right to life of the unborn foetus.

In A., B. and C. v. Ireland the Grand Chamber of the Court first distinguished between the circumstances of the first and the second applicant on the one hand and the third applicant on the other. It found that the first and second applicant travelled for an abortion for reasons of health and/or well-being, while the third applicant travelled for an abortion as she mainly feared her pregnancy constituted a risk to her life. Moreover, the third applicant complained that she required a regulatory framework by which any risk to her life and her entitlement to a lawful abortion in Ireland could be established, so that any information provided outside such a framework was insufficient. The Court consequently treated the complaint of the third applicant separately.

 

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/eng?i=001-102332 %0 Legal Rule or Regulation %D 2010 %T Case of A, B, and C v. Ireland %A European Court %X

http://strasbourgobservers.com/2010/12/17/a-b-and-c-v-ireland-abortion-and-the-margin-of-appreciation/

A., B. and C. v. Ireland concerned three Irish applicants who, in their first trimester of pregnancy, had travelled to England to have an abortion because they believed they would not be allowed to have one in Ireland.

The Irish Constitution, unlike the European Convention on Human Rights, explicitly extends the right to life to the unborn foetus. Abortion is moreover prohibited under the criminal law by section 58 of the Offences Against the Person Act 1861 (“the 1861 Act”) providing as penalty “penal servitude for life”. However, this does not mean that abortion constitutes a criminal act in all circumstances in Ireland. The 1861 legislation needs to be read in light of the amended Irish Constitution, which states in Article 40.3.3: “3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right; This subsection shall not limit freedom to travel between the State and another state; This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

However, no legislation or other regulatory measures have been adopted to clarify what is meant by the “equal right to life of the mother” and in which situations there is a real and substantial risk to that right to life such as to outweigh the right to life of the unborn foetus.

In A., B. and C. v. Ireland the Grand Chamber of the Court first distinguished between the circumstances of the first and the second applicant on the one hand and the third applicant on the other. It found that the first and second applicant travelled for an abortion for reasons of health and/or well-being, while the third applicant travelled for an abortion as she mainly feared her pregnancy constituted a risk to her life. Moreover, the third applicant complained that she required a regulatory framework by which any risk to her life and her entitlement to a lawful abortion in Ireland could be established, so that any information provided outside such a framework was insufficient. The Court consequently treated the complaint of the third applicant separately.

%G eng %U http://strasbourgobservers.com/2010/12/17/a-b-and-c-v-ireland-abortion-and-the-margin-of-appreciation/ %0 Legal Rule or Regulation %D 2010 %T Case of Hajduova v. Slovakia %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Hajduova%20v.%20Slovakia"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

The husband repeatedly attacked and threatened his wife. She moved to a refuge with the children. The husband was diagnosed as suffering from a serious personality disorder and recommended treatment as in-patient in a psychiatric hospital. On conviction, the court held that he should undergo psychiatric treatment instead of a prison sentence. The husband was released from the hospital and immediately verbally threatened the wife and her lawyer. The wife alleged a violation of her Convention rights for the failure to detain and treat the husband following the first conviction.

Held that the state's failure to order the husband's detention enabled him to make further threats against the wife and was a breach of the state's positive obligations under Article 8 to secure respect for the wife's private life.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Hajduova%20v.%20Slovakia"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2010 %T Case of Neulinger and Shuruk v. Switzerland %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Neulinger%20and%20Shuruk%20v.%20Switzerland"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

Facts – The first applicant, a Swiss national, settled in Israel, where she got married and the couple had a son. When she feared that the child (the second applicant) would be taken by his father to an ultra-orthodox community abroad, known for its zealous proselytising, the Family Court imposed a ban on the child’s removal from Israel until he attained his majority. The first applicant was awarded temporary custody, and parental authority was to be exercised by both parents jointly. The father’s access rights were subsequently restricted on account of his threatening behaviour. The parents divorced and the first applicant secretly left Israel for Switzerland with her son. At last instance, the Swiss Federal Court ordered the first applicant to return the child to Israel.

In a Chamber judgment of 8 January 2009, the European Court held, by four votes to three, that there had been no violation of Article 8 of the Convention (see Information Note no. 120).

Law – Article 8: In the opinion of the national courts and experts, the child’s return to Israel could be envisaged only if he was accompanied by his mother. The measure in question remained within the margin of appreciation afforded to national authorities in such matters. Nevertheless, in order to assess compliance with Article 8, it was also necessary to take into account any developments since the Federal Court’s judgment ordering the child’s return. The Court took the view that it could be guided on this point, mutatis mutandis, by its case-law on the expulsion of aliens and the criteria on which to assess the proportionality of an expulsion order against a minor who had settled in the host State. In the present case, the child was a Swiss national and had settled very well in the country where he had been living continuously for about four years. Even though he was at an age (seven years old) where he still had a significant capacity for adaptation, the fact of being uprooted again would probably have serious consequences for him and had to be weighed against any benefit that he was likely to gain from it. In this connection, it was noteworthy that restrictions had been imposed on the father’s right of access before the child’s abduction. Moreover, the father had remarried twice since then and was now a father again but had failed to pay maintenance for his daughter. The Court doubted that such circumstances would be conducive to the child’s well-being and development. As to the mother, her return to Israel could expose her to a risk of criminal sanctions, such as a prison sentence. It was clear that such a situation would not be in the child’s best interests, his mother probably being the only person to whom he related. The mother’s refusal to return to Israel was not therefore totally unjustified. Even supposing that she agreed to return to Israel, the father’s capacity to take care of the child in the event of criminal proceedings against her and of her subsequent imprisonment could be called into question, in view of his past conduct and limited means. Moreover, the father had never lived alone with the child and had not seen him since the child’s departure at the age of two. The Court was thus not convinced that it would be in the child’s best interests for him to return to Israel. As to the mother, she would sustain a disproportionate interference with her right to respect for her family life. Consequently, there would be a violation of Article 8 in respect of both applicants if the decision ordering the second applicant’s return to Israel were to be enforced.

Conclusion: violation (sixteen votes to one).

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Neulinger%20and%20Shuruk%20v.%20Switzerland"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2010 %T Case of Neulinger and Shuruk v. Switzerland %X

hudoc.echr.coe.int/

Facts – The first applicant, a Swiss national, settled in Israel, where she got married and the couple had a son. When she feared that the child (the second applicant) would be taken by his father to an ultra-orthodox community abroad, known for its zealous proselytising, the Family Court imposed a ban on the child’s removal from Israel until he attained his majority. The first applicant was awarded temporary custody, and parental authority was to be exercised by both parents jointly. The father’s access rights were subsequently restricted on account of his threatening behaviour. The parents divorced and the first applicant secretly left Israel for Switzerland with her son. At last instance, the Swiss Federal Court ordered the first applicant to return the child to Israel.

In a Chamber judgment of 8 January 2009, the European Court held, by four votes to three, that there had been no violation of Article 8 of the Convention (see Information Note no. 120).

Law – Article 8: In the opinion of the national courts and experts, the child’s return to Israel could be envisaged only if he was accompanied by his mother. The measure in question remained within the margin of appreciation afforded to national authorities in such matters. Nevertheless, in order to assess compliance with Article 8, it was also necessary to take into account any developments since the Federal Court’s judgment ordering the child’s return. The Court took the view that it could be guided on this point, mutatis mutandis, by its case-law on the expulsion of aliens and the criteria on which to assess the proportionality of an expulsion order against a minor who had settled in the host State. In the present case, the child was a Swiss national and had settled very well in the country where he had been living continuously for about four years. Even though he was at an age (seven years old) where he still had a significant capacity for adaptation, the fact of being uprooted again would probably have serious consequences for him and had to be weighed against any benefit that he was likely to gain from it. In this connection, it was noteworthy that restrictions had been imposed on the father’s right of access before the child’s abduction. Moreover, the father had remarried twice since then and was now a father again but had failed to pay maintenance for his daughter. The Court doubted that such circumstances would be conducive to the child’s well-being and development. As to the mother, her return to Israel could expose her to a risk of criminal sanctions, such as a prison sentence. It was clear that such a situation would not be in the child’s best interests, his mother probably being the only person to whom he related. The mother’s refusal to return to Israel was not therefore totally unjustified. Even supposing that she agreed to return to Israel, the father’s capacity to take care of the child in the event of criminal proceedings against her and of her subsequent imprisonment could be called into question, in view of his past conduct and limited means. Moreover, the father had never lived alone with the child and had not seen him since the child’s departure at the age of two. The Court was thus not convinced that it would be in the child’s best interests for him to return to Israel. As to the mother, she would sustain a disproportionate interference with her right to respect for her family life. Consequently, there would be a violation of Article 8 in respect of both applicants if the decision ordering the second applicant’s return to Israel were to be enforced.

Conclusion: violation (sixteen votes to one).

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

%B European Court of Human Rights %G eng %U hudoc.echr.coe.int/ %0 Legal Rule or Regulation %D 2010 %T Case of Vertido v. Philippines %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/46/D/18/2008

In 1996, Karen Tayag Vertido worked as Executive Director of the Davao City Chamber of Commerce and Industry in the Philippines.  She filed a complaint against the then President of the Chamber, Jose B. Custodio, accusing him of raping her.  She alleged that the accused offered her a lift home following a business meeting one evening and that, instead, raped her in a nearby hotel.

Ms Vertido subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee).  She alleged that the acquittal of Mr Custodio breached the right to non-discrimination, the right to an effective remedy, and the freedom from wrongful gender stereotyping, in violation of articles 2(c), 2(d), 2(f) and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

 

%B C/46/D/18/2008; Communication No. 18/2008 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2009 %T Inter-American Court of Human Rights, Case of González et al. (“Cotton Field”) v. Mexico %X

http://www.oas.org/en/iachr/women/decisions/ia_court_hr.asp

1. On November 4, 2007, under Articles 51 and 61 of the Convention, the Inter- American Commission on Human Rights (hereinafter “the Commission” or “the Inter- American Commission”) presented an application against the United Mexican States (hereinafter “the State” or “Mexico”), which gave rise to the instant case. The initial petition was presented to the Commission on March 6, 2002. On February 24, 2005, the Commission approved Reports Nos. 16/05, 17/05 and 18/05, declaring the respective petitions admissible. On January 30, 2007, the Commission notified the parties of its decision to joinder the three cases. Subsequently, on March 9, 2007, it approved the Report on merits No. 28/07, in accordance with Article 50 of the Convention, with specific recommendations for the State. This report was notified to the State on April 4, 2007. Upon considering that Mexico had not adopted its recommendations, the Commission decided to submit the case to the jurisdiction of the Court. The Commission appointed Commissioner Florentín Meléndez and Executive Secretary Santiago A. Canton, as delegates, and Elizabeth Abi-Mershed, Deputy Executive Secretary, and Juan Pablo Albán, Marisol Blanchard, Rosa Celorio and Fiorella Melzi, Executive Secretariat specialists, as legal advisers.

2. The application relates to the State’s alleged international responsibility for “the disappearance and subsequent death” of the Mss. Claudia Ivette González, Esmeralda Herrera Monreal and Laura Berenice Ramos Monárrez (hereinafter “Mss. González, Herrera and Ramos”), whose bodies were found in a cotton field in Ciudad Juárez on November 6, 2001. The State is considered responsible for “the lack of measures for the protection of the victims, two of whom were minor children, the lack of prevention of these crimes, in spite of full awareness of the existence of a pattern of gender- related violence that had resulted in hundreds of women and girls murdered, the lack of response of the authorities to the disappearance [...]; the lack of due diligence in the investigation of the homicides [...], as well as the denial of justice and the lack of an adequate reparation.” 

%B Organization of American States %I Organization of American States %G eng %U http://www.oas.org/en/iachr/women/decisions/ia_court_hr.asp %0 Legal Rule or Regulation %D 2009 %T Case of Opuz v. Turkey %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Opuz%20v.%20Turkey"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

Facts: The applicant’s mother was shot and killed by the applicant’s husband in 2002 as she attempted to help the applicant flee the matrimonial home. In the years preceding the shooting the husband had subjected both the applicant and her mother to a series of violent assaults, some of which had resulted in injuries which doctors had certified as life-threatening. The incidents had included beatings, an attempt to run the two women down with a car that had left the mother seriously injured and an assault in which the applicant was stabbed seven times. The incidents and the women’s fears for their lives had been repeatedly brought to the authorities’ attention. Although criminal proceedings had been brought against the husband for a range of offences, including death threats, serious assault and attempted murder, in at least two instances they were discontinued after the women withdrew their complaints, allegedly under pressure from the husband. However, in view of the seriousness of the injuries, the proceedings in respect of the running down and stabbing incidents continued to trial. The husband was convicted in both cases. For the first offence, he received a three-month prison sentence, which was later commuted to a fine, and for the second, a fine payable in instalments. The violence culminated in the fatal shooting of the applicant’s mother, an act the husband said he carried out to protect his honour. For that offence, he was convicted of murder in 2008 and sentenced to life imprisonment. He was, however, released pending appeal and renewed his threats against the applicant, who sought the authorities’ protection. It was not until seven months later, following a request for information from the European Court, that measures were taken to protect her.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Opuz%20v.%20Turkey"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2009 %T Inter-American Court of Human Rights Case of González et al. (“Cotton Field”) v. Mexico %X

http://www.oas.org/en/iachr/women/decisions/ia_court_hr.asp

In its 2009 judgment in the Case of González et al. (“Cotton Field”) v. Mexico, the Court held Mexico to be responsible for human rights violations based on the handling of investigations into disappearances and deaths of women and girls in Ciudad Juárez. The state's actions, the court opined, contributed to the atmosphere of impunity surrounding the maltreatment of women in the city.

%B Inter-American Court of Human Rights %G eng %U http://www.oas.org/en/iachr/women/decisions/ia_court_hr.asp %0 Legal Rule or Regulation %D 2009 %T Case of Dayras, et al. v. France %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/44/D/13/2007

The parties to Dayras, et al. v. France (C/44/D/13/2007) are Michèle Dayras, Nelly Campo-Trumel, Sylvie Delange, Frédérique Remy-Cremieu, Micheline Zeghouani, Hélène Muzard-Fekkar and Adèle Daufrene-Levrard, seven French nationals who are represented by SOS Sexisme, an organization based in Issy-les- Moulineaux, France. They claim to be victims of a violation by France of the Convention on the Elimination of All Forms of Discrimination against Women. The Convention and its Optional Protocol entered into force for the State party on 13 January 1984 and 9 September 2000, respectively. A reservation was entered by France on ratification to article 16, paragraph 1 (g), of the Convention. 

%B C/44/D/13/2007 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2009 %T Case of G.D. and S.F. v. France %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/44/D/12/2007

The plaintiffs in G.D. and S.F. v. France (C/44/D/12/2007) who were automatically given their fathers’ last names pursuant to a customary law, despite being raised exclusively by their mothers, challenged the law as discriminating between the rights of husband and wife guaranteed under Article 16 of the Convention; the Committee held that the authors had no basis for invoking Article 16, because they themselves were not married and had no children. 

%B C/44/D/12/2007 %I The Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2009 %T G.D. and S.F. v. France %X

http://www2.ohchr.org/english/law/jurisprudence.htm

The authors are two French women who are unmarried and have no children. Both authors were automatically given their father’s last name pursuant to a customary rule in force at the time of their birth.

Although the authors were abandoned by their fathers by an early age, raised exclusively by their mothers, and used their mother’s family name unofficially, they continue to be officially registered under their father’s family name. On 26 May 2006, after unsuccessfully pursuing a number of administrative procedures at the domestic level, the authors appealed to the Committee under Article 16(1), which requires non-discrimination between the rights of husband and wife, including the right to choose a family name and to transmit the family name to children.

The Committee, while acknowledging the hardship encountered by the authors, held the communication inadmissible because the authors did not qualify as victims under the meaning of Article 2 of the Optional Protocol. Since both women were unmarried, did not live in husband-and-wife relationships, and did not have children, they could not assert their rights under Article 16 of the Convention, whose beneficiaries are only married women, women living in de facto union, or mothers.

%B C/44/D/12/2007 %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2008 %T Case of Zheng v. The Netherlands %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/42/D/15/2007

Zhen Zhen Zheng (ZZZ), a Chinese national, was trafficked to the Netherlands for the purposes prostitution.  In April 2003, after escaping and after being put out on the street by a woman who took her in and forced her to do heavy housework, ZZZ applied for asylum in the Netherlands.   ZZZ was pregnant at the time of her asylum application.    

In May 2003, Dutch authorities dismissed ZZZ’s asylum claim because ‘she could not give details about her trip from China to the Netherlands, did not have identity documents and waited for eight months before applying for asylum.’  Subsequent appeals proved unsuccessful.

In January 2007, ZZZ submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that the Netherlands had violated her rights in article 6 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 

%B C/42/D/15/2007; Communication No. 15/2007 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2007 %T Case of Muñoz Vargas y Sainz de Vicuña v. Spain %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/39/D/7/2005

Following the death of the Count of Bulnes, Cristina Muñoz-Vargas y Sainz de Vicuña (CMV), the Count’s first-born child, instituted legal proceedings in Spain challenging the succession of her younger brother to the title of nobility.  Under the Decree on the Order of Succession to Titles of Nobility, which was then in effect in Spain, a woman was entitled to inherit a title of nobility only if she was the first-born child and did not have a younger brother.  Male children were given primacy over female children in the ordinary line of succession in all other situations. 

CMV claimed that male primacy in the order of succession to titles of nobility was discriminatory and, therefore, unconstitutional.  Domestic courts dismissed her claim on the ground that the primacy afforded to male children was compatible with the constitutional rights to non-discrimination and equality, owing to the honorary and historic nature of titles and because the brother’s succession to the title of Count of Bulnes occurred prior to the commencement of the Spanish Constitution.  

The author subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (Committee) in which she claimed that male primacy in the order of succession to titles of nobility constituted discrimination on the basis of sex, in violation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in general, and articles 2(c) and 2(f) in particular.  She further claimed that Spain was required by CEDAW to amend or revise its laws establishing male primacy in the order of succession to titles of nobility.

 

%B C/39/D/7/2005; Communication No. 7/2005 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U https://opcedaw.wordpress.com/tag/n-s-f-v-u-k/ %0 Legal Rule or Regulation %D 2007 %T Case of N.S.F. v. the U.K. %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/38/D/10/2005

Ms. N.S.F. was a Pakistani asylum seeker living in the UK with her two children. In 1996 she married and had two sons resulting from this union. Shortly after, her husband began subjecting her to domestic violence. She endured marital rape and eventually divorced her husband in August 2002. She subsequently fled to a nearby village with her two sons where she continued to be harassed by her ex-husband after the divorce causing her to move two more times. She reported him to the police but did not receive any protection. In January 2003, the author’s ex-husband came to her home with other men armed with knives and threatened to kill her. After this incident, the author decided to flee the country and arrived in the United Kingdom, transiting through Cairo, Egypt, on 14 January 2003 with her two children, and applied for asylum the same day. In February the Immigration and Nationality Directorate of the Home Office rejected the author’s asylum application. The author appealed, claiming that her removal would be a violation of the 1951 Convention on the Status of Refugees and the European Convention on Human Rights and Fundamental Freedoms. She asserted that she had a well-founded fear of persecution by a non-state agent, under the 1951 Convention, due to her membership in a particular social group (women in Pakistan); that Pakistan did not offer her sufficient protection; that there was no real option of internal flight; and that article 3 of the European Convention on Human Rights and Fundamental Freedoms was violated. 

%B CEDAW/C/38/D/10/2005; Communication No. 10/2005 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2007 %T Case of Salgado v. the U.K. %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/37/D/11/2006

The author of the communication, Constance Ragan Salgado, was a British citizen born who resided in Bogotá, Colombia, at the time of the communication’s submission. Her eldest son, Alvaro John Salgado, was born in Colombia in 1954 of a Colombian father. At that time, the author made an application to the UK Consulate to obtain British nationality for her son and was told that the entitlement to British nationality came through the paternal line; as his father was Colombian, her son was considered an alien.

The British Nationality Act 1981 (“the 1981 Act”), which entered into force in 1983, amended previous nationality legislation and conferred equal rights to women and men in respect of the nationality of their children under the age of 18. The author was told that her son still did not qualify for British citizenship under the 1981 Act. The author protested by letter to the British Consul and to the Home Office, claiming that, had her son claimed British nationality through a British father instead of through her, no age limit would have applied to him.

British nationality legislation again changed when the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) entered into force on 30 April 2003 and added s. 4C to the 1981 Act (“Acquisition by Registration: Certain persons born between 1961 and 1983”). Children — by now adults — born abroad between 7 February 1961 and 1 January 1983 of British mothers would now be eligible to register as British nationals if they satisfied certain other conditions. In early 2003, the British Consul in Bogotá contacted the author to enquire as to whether she had any children born after 7 February 1961. She replied that her youngest son was born in 1966 and had acquired British nationality, but that her eldest son still had not. She was told that he did not qualify due to the fact that he was born before the cut-off date established under the 2002 Act. 

%B C/37/D/11/2006; Communication No. 11/2006 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2007 %T Case of Yildirim v. Austria %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/39/D/6/2005 

The authors of the communication were the Vienna Intervention Centre against Domestic Violence and the Association for Women’s Access to Justice, two organizations in Vienna, Austria, that protect and support women victims of gender-based violence. From July 2003 Fatma Yildirim was subject to repeated death threats from her husband Ifran Yildrim, who also threatened to kill her children. On 6 August 2003 the police issued an expulsion and prohibition to return order against Irfan Yildirim. The police also reported to the Vienna Public Prosecutor that Irfan Yildirim had made a dangerous criminal threat against Fatma Yildirim and requested that Irfan Yildirim be detained. The Public Prosecutor rejected the request. On 14 August 2003, Fatma Yildirim gave a formal statement about the threats made to her life to the police, who in turn reported to the Vienna Public Prosecutor, requesting that Irfan Yildirim be detained. Again, this request was refused. On 11 September 2003, Irfan Yildirim fatally stabbed Fatma Yildirim near the family’s apartment.

Irfan Yildirim was arrested and convicted of killing Fatma Yildirim. At the time of the application he was serving a sentence of life imprisonment. 

%B C/39/D/6/2005; Communication No. 6/2005 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2007 %T Case of Goekce v. Austria %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/39/D/5/2005

In 2007, the Committee on the Elimination of Discrimination Against Women considered Goekce v. Austria (C/39/D/5/2005 ). In 2002, the author's (Goekce's) husband shot and killed her in front of their two daughters. Before her death, the author had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The local prosecutor denied requests to detain the husband and terminated proceedings against him two days prior the author’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in the author’s death. Representatives of the author submitted a complaint to the Committee, alleging that Austria’s Federal Act for the Protection against Violence within the Family provided inadequate protection for victims of spousal abuse, and stating that women are disproportionately affected by the State’s failure to effectively respond to domestic violence.

Decision. The Committee found that although Austria had adopted progressive legislation to address domestic violence, State authorities needed to investigate and respond to such complaints with increased diligence. Accordingly, the Committee concluded that the police knew or should have known that the author was in serious danger; thus, they were accountable for failing to protect her. By allowing the perpetrator’s rights to supersede the victim’s right to life and to physical and mental integrity, Austrian law enforcement violated its obligations under Article 2 to end sex-based discrimination through appropriate legislation, and its Article 3 duty to guarantee women’s equal access to human rights. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for the failure of authorities to do so.

%B C/39/D/5/2005 %I Committee on the Elimination of Discrimination Against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2006 %T Case of Devrim Turan v. Turkey %X

http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Devrim%20Turan%20v.%20Turkey"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]}

In 1999 the applicant was taken into police custody on suspicion of being a member of an illegal organisation, the DHKP/C (Revolutionary People’s Liberation Party-Front). Two hours after her arrest she was taken to hospital to be examined. A medical report indicated the presence of an abrasion under one eye but no signs of ill-treatment on her body. Further medical examinations were carried out which also concluded that her body showed no signs of ill-treatment. The applicant refused to undergo a gynaecological examination on the first and the last day of her arrest and no such examination was carried out. Before a public prosecutor she denied the allegations against her and maintained that the statement she had made to the police shortly after her arrest had been taken under duress. She stated that she had been hosed with cold water, subjected to electric shocks and Palestinian hanging. She repeated her allegations before an investigating judge. Criminal proceedings were initiated against her before a state security court. She wrote to the court retracting her statement which she maintained had been made under duress. She also described in more detail her ill-treatment in police custody. She was found guilty as charged and sentenced to 12 years and six months’ imprisonment. She appealed to the Court of Cassation, referring in particular to her ill-treatment in custody, but her appeal was rejected.

%I European Court of Human Rights %G eng %U http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"fulltext":["Devrim%20Turan%20v.%20Turkey"],"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} %0 Legal Rule or Regulation %D 2006 %T Case of Nguyen v. The Netherlands %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/36/D/3/2004 

The author was a resident of the Netherlands, and worked as a part-time salaried employee as well as a co-working spouse in her husband’s enterprise. She took maternity leave in 1999 and in 2002. She was insured under the Sickness Benefits Act (Ziektewet – “ZW”) for her salaried employment and received benefits to compensate for her loss of income. She was also insured under the Invalidity Insurance (Self- Employed Persons) Act (“WAZ”) for her work in her husband’s enterprise but was denied benefits under this scheme by the “LISV”, the benefits agency, as s. 59(4) (the “anti-accumulation clause”) of the WAZ allowed payment of benefits only insofar as they exceeded benefits payable under the ZW.

She therefore received only partial compensation for loss of income during her maternity leave. The author lodged an objection to the decision, which was rejected. Her appeals were rejected by the District Court and the Central Appeals Tribunal which found that s. 59(4) of the WAZ did not result in unfavourable treatment of women as compared to men. 

%B CEDAW/C/36/D/3/2004; Communication No. 3/2004 %I The Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www.bayefsky.com/docs.php/area/jurisprudence/treaty/cedaw/opt/0/node/4/filename/netherlands_t5_cedaw_3_2004 %0 Legal Rule or Regulation %D 2006 %T Case of Szijjarto v. Hungary %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/36/D/4/2004 

Andrea Szijjarto was sterilized without her informed consent by a Hungarian hospital during an emergency cesarean section procedure. While in a state of shock due to blood loss, Szijjarto was asked to provide her written consent to tubal ligation by signing an illegible hand-written note describing the procedure in terms she did not understand. Szijjarto charged the hospital with negligence in failing to obtain her full and informed consent to the coerced sterilization. Both the town and county courts held that the hospital was at least partially negligent in its legal duties to Szijjarto, but rejected her claim and appeal for failure to prove a lasting handicap and causal relationship between permanent loss of reproductive capacity and the conduct of the hospital’s doctors. The Committee on the Elimination of Discrimination Against Women held that Hungary violated Szijjarto’s rights under article 10(h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on access to information on family planning, article 12 guaranteeing women appropriate medical services in connection with pregnancy, and paragraph 1(e) of article 16 on a woman’s right to freely choose the number and spacing of her children. The Committee recognized the serious consequences of coercive practices including forced sterilization under its General Recommendation No. 21, and held that the Hungary had violated Szijjarto’s right to information on family planning and the sterilization procedure. The Committee also held that lack of informed consent constituted a breach of the obligation under article 12 and General Recommendation No. 24 to ensure the delivery of acceptable medical services in a manner that respects a woman’s dignity. Accordingly, the Committee recommended the State provide compensation to Szijjarto and amend its Public Health Act allowing doctors’ discretion to administer sterilization procedures when “appropriate in given circumstances.”

%B CEDAW/C/36/D/4/2004; Communication No. 4/2004 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2006 %T Case of A.S. v. Hungary %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/36/D/4/2004

The A.S. v. Hungary (C/36/D/4/2004) complaint was filed under the Optional Protocol to CEDAW on behalf of a Hungarian woman of Roma origin who was coercively sterilized in a public hospital. The complaint was filed jointly by the Budapest-based Legal Defense Bureau for National and Ethnic Minorities (NEKI) and the European Roma Rights Center (ERRC), and charges the Hungarian government with violating A.S.’s rights to appropriate health care, family planning information, and free and informed decision-making over the number and spacing of her children as guaranteed under CEDAW. In November 2005, the Center submitted supplementary information to the CEDAW Committee in support of A.S. v. Hungary. The Center’s submission provided information from UN treaty monitoring bodies and international health and medical organizations underscoring women’s rights to receive accurate information on sterilization and other family planning services, and to informed consent to health care. In September 2006, CEDAW ruled in favor of A.S.

%B C/36/D/4/2004 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2006 %T Case of Kayhan v. Turkey %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/34/D/8/2005

In 2006, the Committee on the Elimination of all forms of Discrimination Against Women considered Kayhan v. Turkey (C/34/D/8/2005). The author, a teacher in Turkey, was charged with the crime of “breaking the peace, silence and working order of the institutions with ideological and political reasons” for wearing a headscarf to her place of employment. On 9 June 2000, she was expelled from the civil service and her teaching position. On 23 October 2000, the author challenged her termination in an Administrative Court; the Court found the author’s termination lawful and dismissed her complaint, as well as her subsequent appeal. On 20 August 2004, the author submitted a complaint to the Committee, arguing that by terminating her status as a civil servant for wearing a headscarf, the State had violated Article 11 (discrimination against women in the field of employment) of the Convention.

Decision: Although the author’s employment was terminated before the entry into force of the Optional Protocol, the effects of this termination continued, thus eliminating any issue of temporal jurisdiction. However, the Committee still found the communication inadmissible, noting that the author failed to raise her claims of sex and employment discrimination in domestic courts before bringing these claims to the Committee. Thus, the author had not properly exhausted domestic remedies.

%B C/34/D/8/2005 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2005 %T Case of A.T. v. Hungary %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/36/D/2/2003

The Committee on the Elimination of Discrimination against women held that State party's obligations extend to prevention of, and protection from, violence against women and remain unfulfilled in the instant case and constitute a violation of the author's human rights and fundamental freedoms, particularly her right to security of person; Violation of articles 5(a) and 16, traditional attitudes contribute to violence against women; facts of the communication reveal aspects of the relationships between the sexes and attitudes towards women; impossibility to ask for a restraining or protection order or to flee to a shelter.

%B CEDAW/C/36/D/2/2003 %I Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm %0 Legal Rule or Regulation %D 2004 %T Case of B. J. v. Germany %A CEDAW %X

http://www2.ohchr.org/english/law/jurisprudence.htm

CEDAW/C/36/D/1/2003

In B.J. v. Germany (1/2003), Ms. B.J., a German citizen, submitted an individual complaint to the Committee alleging that she was subjected to gender-based discrimination under the statutory regulations regarding the law on the legal consequences of divorce. She claimed that the law relating to reallocation of pension entitlements and provisions governing the question of maintenance are similarly discriminatory. The author claimed more generally that women are subjected to procedural discrimination because the risks and stress of court proceedings to resolve the consequences of divorce are carried unilaterally by women, who are also prevented from enjoying equality of arms. She also claimed that all divorced women in situations similar to hers are victims of systematic discrimination. 

The Committee decided that the communication was inadmissible under article 4, paragraph 1, for the author’s failure to exhaust domestic remedies, and paragraph 2(e), because the disputed facts occurred prior to the entry into force of the Optional Protocol for the State party and did not continue after that date. 

%B CEDAW/C/36/D/1/2003 %I The Committee on the Elimination of Discrimination against Women (CEDAW) %G eng %U http://www2.ohchr.org/english/law/jurisprudence.htm