Opinions of the UN Committee on the Elimination of Discrimination against Women dated March 5, 2018 in the case of J.I. v. Finland (communication No. 103/2016).
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Finland.
Legal positions of the Committee: The Committee recalled that, in accordance with article 2 (a) of the Convention, States parties are obliged to ensure, through law and other appropriate means, the practical implementation of the principle of equality between men and women and that, in accordance with articles 2 (f) and 5 (a), States parties are obliged to take all appropriate measures to change or the abolition of not only existing laws and regulations, but also customs and practices that discriminate against women. In addition, in accordance with article 16 (paragraph 1), States parties undertake to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. In this regard, the Committee emphasizes that following stereotypes affects women's right to a fair trial and that judicial authorities should avoid setting rigid standards based on preconceived notions of what constitutes domestic or gender-based violence (paragraph 6.15 of the Opinions) (See "V. K. v. Bulgaria" (CEDAW/C/49/D/20/2008), paragraph 9.11.).
The Committee recalls that interim measures, as provided for in article 5 of the Optional Protocol and rule 63 of its rules of procedure, are essential for the work on individual communications submitted under the Optional Protocol. Disregard for this rule, especially in the form of failure to protect women and children when there is a risk of serious harm to them, which occurred in this case, prevents the protection of the rights provided for by the Convention through the Optional Protocol (paragraph 8.4 of the Opinions).
The Committee refers to paragraphs 26 and 27 of its general recommendation No. 33 (2015) on women's access to justice, which states the following:
Judges often set strict requirements regarding what they consider to be the appropriate standard of behavior for a woman, and punish those who do not conform to these stereotypes. Stereotypes also negatively affect the credibility of women's statements, their arguments and testimony as parties and witnesses in court. The existence of certain stereotypes can lead to misinterpretation or application of laws by judges. It is fraught with serious consequences, for example in the field of criminal law, where criminals may as a result escape the punishment prescribed by law for violations of women's rights, which leads to the promotion of a culture of impunity. In all areas of law, stereotypes threaten the impartiality and integrity of the judicial system, which, in turn, can lead to judicial errors, including repeated victimization of the plaintiff.
Judges, magistrates and arbitrators are not the only actors in the justice system who apply, maintain and perpetuate stereotypes. Prosecutors, law enforcement officers and other participants in the process are often influenced by stereotypes during the investigation and trial, especially in cases involving gender-based violence; however, such stereotypes sometimes discredit the arguments of the injured party/victim and at the same time support the arguments put forward by the defense of the accused party. As a result, stereotypes can determine the course of investigations and court proceedings, as well as the nature of court decisions (paragraph 8.6 of the Opinions).
The Committee considers that the word "predominant" referred to in article 16 (paragraph 1) (d) and (f)) The Convention means that the best interests of the child cannot be considered on an equal basis with other considerations. The Committee also believes that, in order to demonstrate respect for the child's right to assess his or her best interests and to give them primary or predominant importance, any decision concerning the child must be weighed, justified and explained (paragraph 8.7 of the Opinions).
The Committee recalls its general recommendations No. 19 and No. 35 (2017) on gender-based violence against women, introducing a new version of general recommendation No. 19, according to which gender-based violence that prevents or does not allow women to enjoy human rights and fundamental freedoms in accordance with general international standards the rights or provisions of human rights conventions constitute discrimination within the meaning of article 1 of the Convention. As part of the obligation to exercise due diligence, States parties should develop and implement various measures to combat gender-based violence against women committed by non-State actors, including the adoption of laws and the establishment of institutions and systems to combat such violence, as well as ensuring their real effectiveness and support from all public officials and bodies ensuring proper compliance with the laws. The rights or demands of criminals or suspects of crimes during and after the trial, including in relation to property, privacy, custody of children, access rights, contacts and visits, should be determined taking into account the rights of women and children to life and to physical, sexual and psychological integrity; this should be guided by the principle of ensuring the best interests of the child (See Yildirim v. Austria (CEDAW/C/39/D/6/2005); Gokce v. Austria (CEDAW/C/39/D/5/2005); "Gonzalez Carreno v. Spain" (CEDAW/C/58/D/47/2012); "MV v. Denmark" (CEDAW/C/63/D/46/2012) and "Jallow v. Bulgaria" (CEDAW/C/52/D/32/2011).). If the State party does not take all necessary measures to prevent acts of gender-based violence against women in cases where its authorities know or should know about the risk of such violence, or does not investigate, prosecute and punish the perpetrators and does not compensate the victims and victims of such actions, then it thereby gives tacit consent to the commission of acts of gender-based violence against women or encourages them. Such passivity and inaction constitute a violation of human rights (paragraph 8.8 of the Opinion).
The Committee recalls that, in accordance with article 2 (a) of the Convention, States parties are obliged to ensure, through law and other appropriate means, the practical implementation of the principle of equality between men and women; in accordance with article 2 (a), they may be held responsible for the actions of individuals, organizations or enterprises if they fail to comply with their obligation to exercise due diligence discretion; In accordance with articles 2 (f) and 5 (a) of the Convention, the State party is obliged to take all appropriate measures to amend or repeal not only existing laws and regulations, but also customs and practices that discriminate against women. In addition, in accordance with article 16 (paragraph 1), States parties undertake to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations. In this regard, the Committee emphasizes that stereotypes affect women's right to judicial impartiality and that judicial authorities should not apply strict standards based on preconceived notions of what should be considered domestic violence (paragraph 8.9 of the Opinion).
The Committee's assessment of the factual circumstances of the case: The Committee is faced with the question of whether the State party has fulfilled its obligation to exercise due diligence in connection with the protection of the author from domestic violence by Y.A. and with the investigation of cases of such violence. The task of the Committee is to review, in the light of the provisions of the Convention, the decisions taken by national authorities within their competence and to determine whether they took into account the obligations arising from the Convention in making these decisions. Consequently, in this case, the decisive factor is to determine whether these authorities applied the principles of due diligence and whether they took reasonable measures to ensure that the author and her son were protected from possible risks in the context of ongoing domestic violence without discrimination on the basis of gender (paragraph 8.2 of the Opinions).
The Committee takes note of the State party's argument that it has a strict and comprehensive legislative framework designed to ensure equality between men and women and maximize the protection of the interests of the child, as well as that it was within the framework of this legislation that decisions were made on the right to custody of E.A. and to communicate with him. The Committee also takes note of the State party's statement that the author's allegations are of a general nature. Furthermore, the Committee takes note of the author's claim that relevant laws exist, but that de facto decision-makers in national authorities and law enforcement officials do not apply them properly: gender stereotypes influence the importance attached to the testimony of victims and vulnerable persons, who are often women and children turn out to be, when comparing these testimonies with the words of the perpetrators of crimes; In addition, the author's statement is taken into account that the authorities of the State party did not provide protection to her and her son due to gender stereotypes in making decisions based on belittling the risk of violence emanating from the father. The Committee considers that the author's comments on national legislation and on the practice of its application are relevant to her personal case (paragraph 8.3 of the Opinions).
The Committee notes with concern that the application for interim measures submitted by him and then repeated was never forwarded to the local authorities and that no measures were taken to protect E.A. from alleged violence by his father (paragraph 8.4 of the Opinion).
The Committee notes that the Varsinais-Suomi District Court questioned the mental health of the victim of domestic violence and her hostility towards the alleged offender, but did not doubt the mental stability of the person accused of violent crimes and did not assess his condition before granting him sole custody of a child. The Committee notes that almost immediately after the decision to transfer custody was made, the prosecutor brought charges of assault with violence against Y.A., but two weeks later E.A. He was handed over to his father without additional checks. The Committee also notes that in connection with the custody and communication case, the child's mother underwent a psychiatric examination, which did not reveal any cause for concern; however, no such examination was carried out against the father, despite the fact that he was convicted in a criminal case. The Committee also notes that the final decision in the custody case, adopted on October 14, 2013, practically or even completely lacks justification for the transfer of custody from the mother to the father of the child; That neither the decision of the Court of Appeal nor the decision on the application for leave to appeal to the Supreme Court explains why the issue of domestic violence was not given priority in the decision-making process, even after Y.A. was convicted of assaulting the author in the interval between investigations; That no investigations have been conducted into the allegations filed with the police; and that, despite a number of reports received from the guardianship authorities and the conviction of the child's father, neither an investigation nor an assessment of his ability to perform parental duties were carried out. The Committee is also convinced that there has been a violation of the obligation to exercise due diligence, since it took more than a year for Y.A. to be brought in for questioning in connection with complaints about his criminal conduct (paragraph 8.5 of the Opinions).
The Committee notes that the State party's failure to comply with the obligation to exercise due diligence, expressed in relation to the police and various courts to the author's complaints, led to damage to the best interests of E.A. and to the infringement of his right to equal treatment of his mother during the custody review under article 16 of the Convention (paragraph 8.7 of the Opinions).
The Committee considers that when deciding on custody of E.A., the authorities acted under the influence of stereotypical and, consequently, discriminatory ideas about domestic violence; this was expressed in the fact that repeated facts of unilateral violence on the part of Y.A. were regarded as disagreements between parents, indicating that both parents they committed violent acts; however, there is no evidence in favor of such an interpretation, except for the statement made by the author the day after she was brutally attacked; Without attaching importance to the criminal sentence against Y.A., the authorities assigned custody of the child to a person prone to violence. Thus, the authorities failed to ensure proper control in accordance with their obligations under articles 2 (a), (c), (d), (e) and (f), 15 (a) and 16 (paragraph 1) (d) and (f)) The Convention (paragraph 8.9 of the Opinions).
The Committee notes with satisfaction that the State party has adopted a broad-based model to combat domestic violence, including legislative measures, awareness-raising, education and capacity-building. Nevertheless, the Committee refers to the concerns raised in its concluding observations to the periodic report submitted to it by the State party in 2014, in particular with regard to violence against women. He notes that in order for a woman who has been a victim of domestic violence to be able to take advantage of the principle of non-discrimination and de facto equality in practice, as well as to exercise her human rights and fundamental freedoms, the political will expressed in the adopted model must be supported by all State actors involved in fulfilling the obligations assumed by the State party to due diligence. Such obligations include the investigation of failures, neglect and omissions by public authorities, as a result of which victims may be left without protection. The Committee considers that in the present case this obligation has not been fulfilled in relation to the author's complaints against Y.A., her treatment in the courts, as well as in relation to the Committee's request for interim measures (paragraph 8.10 of the Opinions).
The Committee considers that the State party has violated the rights of the author and her son under articles 2 (a), (c), (d), (e) and (f), 15 (a) and 16 (paragraph 1) (d) and (f)) The Convention, as well as the Committee's general recommendation No. 35 (paragraph 9 of the Opinions).