Opinions of the UN Committee on the Elimination of Discrimination against Women dated February 26, 2018 in the case of H. v. Timor-Leste (communication No. 88/2015).
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Timor-Leste.
The author of the communication is Ms. H., a citizen of Timor-Leste born in 1987. She claims to be a victim of a violation by the authorities of Timor-Leste of her rights under articles 2 (c), (d), (f) and 15 of the Convention. In 2012, the author was convicted of the aggravated murder of her partner and was sentenced to 15 years in prison. In 2013, her case was re-examined in court, and the previous court decision and sentence were upheld. Following the decision of the President of Timor-Leste on 20 May 2015 to grant a partial pardon, the author was released on parole on 17 September 2015.
Legal positions of the Committee: The Committee refers to its general recommendation No. 28 (2010) concerning the basic obligations of States parties under article 2 of the Convention, which states that "States parties should take into account all aspects of their legal obligations arising from the Convention in terms of respect, protection and implementation of women's rights the right to non-discrimination and the opportunity to enjoy equality" and that "they also have an obligation to actively respond to discrimination against women, regardless of, whether such actions or inaction originate from the State or private actors" (paragraph 6.5 of the Opinion).
The Committee recalls 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, arguments and testimony as parties and witnesses in court. The existence of certain stereotypes can lead to misinterpretation or application of laws by judges [...] In all areas of law, stereotypes threaten the impartiality and integrity of the judicial system, which, in turn, can cause 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 when considering cases involving gender-based violence; however, such stereotypes sometimes undermine the arguments of the injured party [...] As a result, stereotypes can determine the course of the investigation and trial, as well as the nature of court decisions" (paragraph 6.6 of the Opinions).
The Committee recalls its general recommendation No. 19 (1992) on violence against women and its general recommendation No. 35 (2017) on gender-based violence against women, which updates general recommendation No. 19, according to which violence against women that complicates or reduces Women's enjoyment of human rights and fundamental freedoms in accordance with general international law or the provisions of human rights conventions constitutes 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 their support from all public officials ensuring proper compliance with the laws persons and bodies. 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/victims, it thereby gives tacit consent to and encourages acts of gender-based violence against women. Such passivity and inaction constitute a violation of human rights (paragraph 6.7 of the Opinion).
The Committee recalls that, in accordance with articles 2 (f) and 5 (a) of the Convention, States parties are obliged to take the necessary measures to amend or repeal not only existing laws and regulations, but also customs and practices that discriminate against women. In accordance with article 16 (1), States parties are also obliged to take all necessary measures to eliminate discrimination against women in all matters relating to marriage and family relations. In this regard, the Committee notes that stereotypes undermine women's right to an impartial trial and that the judiciary should not apply strict standards based on preconceived ideas about what actions fall under the definition of domestic violence (paragraph 6.8 of the Opinion).
The Committee's assessment of the factual circumstances of the case: The Committee considers the following questions: first, whether the State party has fulfilled its obligations under the Convention, in particular with regard to the obligation to exercise due diligence in ensuring the protection of the author from domestic violence..... and the State's actions against the author in connection with with these events; and secondly, whether the judicial and other authorities of the State party carried out their mandates without any discrimination on the basis of sex, so that the author could exercise his right to a fair trial, free from the presence of prejudice, discriminatory practices and gender stereotypes (paragraph 6.2 of the Opinions).
With regard to the first aspect, namely, the State party's compliance with its obligation to exercise due diligence, the Committee notes the author's allegations that her complaints addressed to village elders and representatives of the defence forces regarding her being subjected to domestic violence were not brought to the attention of the police; that, despite the existence of a protocol and photographs of her injuries, which testified to numerous examples of domestic violence, she was not taken to a hospital for medical treatment and her case was not forwarded to law enforcement or prosecuting authorities; and that, it appears, she was not provided with relevant materials which she could use as evidence in her defense (paragraph 6.3 of the Opinion).
With regard to the author's complaint that her allegations of domestic violence were not brought to the attention of the relevant authorities, the Committee notes that the village elders did not report her complaints to the authorities and that, moreover, the defense forces, being a State structure, did not forward the author's complaint to the Prosecutor's Office. The Committee therefore concludes that the defence forces, which, being a public authority and following procedures similar to those used in the investigation of criminal offences (as evidenced by the registration of the protocol and photography), apparently ignored the author's testimony (despite the fact that as a result of her testimony, the offender had to sign a confession) and Thus, they failed to fulfill their duty of due diligence, since they did not take any measures to ensure the protection of the author (paragraph 6.4 of the Opinions).
With regard to the second aspect of the author's complaint, namely gender discrimination and gender stereotypes within the judicial system and other organs of the State party, the defense forces believed the promise of the author's partner and considered that, indeed, he would no longer beat the author. The Committee further notes that the State party's law enforcement authorities did not provide the author with medical assistance after her arrest, did not inform her of her rights, did not provide a lawyer at the first interview, and did not take measures to collect evidence that could help protect the author's interests; They kept the author in custody for much longer than required by law, despite her position as a nursing mother; they did not provide the author with psychological support after arrest, corresponding to the condition in which a person who claims that he was attacked and committed murder in self-defense remains; they failed to ensure that the appointed lawyer took the necessary actions to effectively protect the author (for example, objected to the pre-trial detention of a nursing mother, advised the author on legal protection issues or helped her prepare a defense during court proceedings); and finally, that the judges, despite the fact that a retrial was ordered on the grounds that the author's claim that she acted in self-defense was not given due attention during the first trial, allowed gender stereotypes and prejudices to prevail in the evaluation of evidence during the second trial, as evidenced by In particular, it is evidenced by the fact that the judges considered the author's testimony to be less credible than the testimony of her nephew, who witnessed only part of the events that took place. At present, the Committee is not engaged in a detailed study of the circumstances of the first trial, however, given that the decision taken as a result of it was overturned by the Court of Appeal, it becomes obvious that, since self-defense under the conditions in which the author was, is absolutely justified and the author's actions cannot be qualified as premeditated murder, a retrial is not it eliminated previous violations, and information about the first hearing, during which the author was told that "the wife is obliged to protect her husband", Indicates the existence of systematic and deep-rooted prejudices, which also manifested themselves during the retrial and had extremely detrimental consequences for the lives of the author and her son. The seriousness of such violations of the principles of due process cannot be overestimated (paragraph 6.5 of the Opinions).
The Committee considers that the State party's authorities, by failing to address the problem of ongoing domestic violence, collect the necessary evidence, ensure proper treatment of the author, provide support and counselling services to the author, take due account of her testimony and question the fairness of the sentence imposed on a vulnerable nursing mother, violated their obligations under Articles of the Convention 2 (c), (d), (f) and 15 (paragraph 6.9 of the Opinions).
The Committee considers that the State party has violated the author's rights under articles 2 (c), (d), (f) and 15 of the Convention, which should be read in conjunction with article 1 of the Convention and the contents of the Committee's General Recommendations Nos. 19, 28, 33 and 35 (paragraph 7 of the Opinions).
Opinions of the UN Committee on the Elimination of Discrimination against Women dated November 6, 2017 in the case of O.G. v. the Russian Federation (Communication No. 91/2015).
The author of the communication is O.G., a citizen of the Russian Federation, born in 1985. She claims to be a victim of a violation by the Russian Federation of her rights under articles 1, 2 (b) - (g), which are considered in conjunction with the Committee's General recommendation No. 19 (1992) on violence against women and the Committee's General Recommendation No. 28 (2010) on the basic obligations of Member Statesparties under article 2 of the Convention, and articles 3 and 5 (a) of the Convention.
The Committee's legal position is that the Convention imposes obligations on all public authorities and that States parties may be responsible for judicial decisions that violate the provisions of the Convention (See V.K. v. Bulgaria (CEDAW/C/49/D/20/2008), para. 9.11, and L.R. v. Republic of Moldova, para. 13.6.). The Committee also emphasizes that the full implementation of the Convention requires States parties not only to take measures to eliminate direct and indirect discrimination and improve the de facto situation of women, but also to change and transform gender stereotypes and eliminate erroneous gender stereotyping - the root cause and consequence of discrimination against women (See Belousova v. Kazakhstan (CEDAW/C/61/D/45/2012), para. 10.10.). Gender stereotypes are perpetuated through various means and institutions, including laws and legal systems, and can be perpetuated by both State actors in all branches and at all levels of government, as well as private actors (paragraph 7.2 of the Opinions) (See R.K.B. v. Turkey (CEDAW/C/51/D/28/2010), para. 8.8.).
The Committee recalls that, in accordance with paragraph 6 of its general recommendation No. 19, discrimination within the meaning of article 1 of the Convention includes gender-based violence against women. Such discrimination is not limited to acts committed by or on behalf of States parties. On the contrary, in accordance with article 2 (e) of the Convention, States parties may also be held responsible for the actions of private individuals if they fail to exercise due diligence to prevent violations of rights or to investigate and punish acts of violence, as well as to provide compensation... This is confirmed by the Committee in paragraph 24 of its general recommendation No. 35 (2017) on gender-based violence against women, adopted as an update to General Recommendation No. 19, and in its legal practice (paragraph 7.3 of the Opinions) (See Goekce v. Austria (CEDAW/C/39/D/5/2005) and Yildirim v. Austria (CEDAW/C/39/D/6/2005).).
The Committee considers that if violence against an ex-spouse or partner is related to the fact that this person was previously in a relationship with the offender, as is the case in the present case, then the time that has elapsed since the termination of the relationship does not matter, nor does the fact that the persons about whom live together There is a speech. The Committee recalls... that, in accordance with the Istanbul Convention, domestic violence is understood as "any acts of physical, sexual, psychological or economic violence that occur within the family or in everyday life or between former or current spouses or partners, regardless of whether the person who commits them lives or does not live in the same the same place as the victim" (article 3 (b)). The Convention does not provide for a legal time limit on how long after the termination of the relationship a spouse or partner can claim that violence by a former partner falls under the definition of "domestic violence". In this regard, the Committee considers that K.'s actions towards the author of the communication fall within the definition of domestic violence (paragraph 7.4 of the Opinion).
The Committee also recalls that, in accordance with articles 2 (a), (c), (d) and (e) and 5 (a) of the Convention, the State party is obliged to amend or repeal not only existing laws and regulations, but also customs and practices that discriminate against women. In this regard, the Committee emphasizes that the use of stereotypes affects women's right to a fair trial and that judicial authorities should avoid setting strict standards based on preconceived notions of what constitutes domestic or gender-based violence, as noted in [O] General recommendation No. 33 (2015) on women's access to justice justice (paragraph 7.5 of the Opinions) (See L.R. v. Republic of Moldova, para. 13.6.).
In accordance with article 3 of the Convention, States parties "shall take in all fields, and in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and progress of women in order to guarantee them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men." The Committee also recalls its concluding observations on the eighth periodic report of the State party, in which it recommended that the State party urgently enact comprehensive legislation to prevent and combat violence against women, including domestic violence; provide for ex officio prosecution of domestic and sexual violence; guarantee women and girls, victims of violence, immediate access to redress and protection; and ensure that the perpetrators are brought to justice and punished appropriately (CEDAW/C/RUS/CO/8). In the Committee's view, the fact that a victim of domestic violence has to bring charges in private, according to which the burden of proof rests entirely on her, deprives the victim of access to justice, as noted in paragraph 15 (g) of its [O]b recommendation No. 33. The Committee notes that recent amendments to national legislation (article 116 of the Criminal Code), which abolish criminal liability for battery and according to which many cases of domestic violence are prosecuted due to the lack of a definition of "domestic violence" in Russian legislation, are going in the wrong direction and lead to impunity for those who commit these acts of domestic violence (paragraph 7.7 of the Opinion). As of February 7, 2017, beating "close people" without causing bodily harm was classified as an administrative offense, not a criminal offense.
The Committee's assessment of the factual circumstances of the case: the State party's compliance with its obligations to eliminate gender stereotypes in accordance with articles 2 (a), (c), (d) and (e) and 5 (a) of the Convention must be assessed on the basis of the extent to which the author's trial took into account gender aspects. In this regard, the Committee notes that it took the District Court 22 days instead of the 3 required by law to rule on the author's application to be granted protective measures. The Committee also notes with concern that between February and August 2013, the author filed formal complaints with the police four times and that all her complaints ended in a refusal to initiate criminal proceedings, despite the direct order of the District Prosecutor's Office and the district court to interrogate K. and carry out all other necessary investigative procedures. To protect the author from violence by her former partner, the authorities have not taken any other measures, and more than three years after the events in question, the authorities still have not even interrogated K.. When the court eventually ruled on the above-mentioned petition, it cited the refusal of the police to initiate criminal proceedings against K. and the absence of a "real threat" as the basis for refusing to provide protective measures, although a month earlier the same court had found the same refusal illegal and unfounded. The Committee notes that none of these facts are disputed by the State party and that, in general, they indicate that, by failing to investigate the author's complaint about death threats and threats of violence in a prompt, appropriate and effective manner and by failing to consider her case from a gender perspective, the authorities allowed the course of their reasoning when making decisions was influenced by stereotypical ideas. In this regard, the Committee concludes that the authorities of the State party did not take timely and adequate measures and did not protect the author from violence and intimidation in violation of their obligations under the Convention (paragraph 7.6 of the Opinion).
The Committee considers that the State party's failure to amend its legislation on domestic violence has had a direct impact on the author's ability to seek justice and access effective remedies and protective measures. He also considers that the case demonstrates that the State party has failed to comply with its obligation to take all appropriate measures to change the social and cultural patterns of behavior of men and women in order to achieve the elimination of prejudice and the abolition of customs and all other practices that are based on the idea of inferiority or superiority of one of the sexes or stereotypical roles men and women (paragraph 7.8 of the Opinions).
In the light of the above, the Committee considers that the manner in which the author's case is handled by the police, the Prosecutor's Office and the judicial authorities of the State party violates her rights under articles 1, 2 (a), (c), (d) and (e), 3 and 5 (a) of the Convention. In particular, the Committee notes that the author suffered moral damage and became a victim of prejudice. Left without the protection of the State, being periodically harassed by her abuser, she experienced fear and suffering and was re-traumatized when the State bodies that were supposed to act as her defender, especially the police, refused to provide her protection and did not recognize her as a victim (paragraph 7.7 of the Opinions).
The Committee considers that the State party has failed to comply with its obligations and thereby violated the author's rights under articles 1, 2 (b)- (g), 3 and 5 (a) of the Convention (paragraph 8 of the Views).
The Committee makes the following recommendations to the State party:
(a) With regard to the author of the communication: provide the author with adequate financial compensation commensurate with the severity of the violations of her rights;
(b) General provisions:
(i) Adopt comprehensive legislation to prevent and combat violence against women, including domestic violence, provide for ex officio prosecution of domestic and sexual violence, and guarantee women and girls who are victims of violence immediate access to redress and protection, as well as bringing perpetrators to justice and punishment their proper way;
(ii) To restore criminal prosecution in cases of domestic violence within the meaning of article 116 of the Criminal Code;
(iii) Develop a gender-sensitive protocol for dealing with complaints of domestic violence at the police station level to ensure that urgent or substantiated complaints of domestic violence are not delayed in summary proceedings and that victims are provided with appropriate protection in due course;
(iv) To abandon the practice of bringing charges in private in cases of domestic violence, given that the judicial process unreasonably places the burden of proof solely on victims of domestic violence, in order to ensure equality of the parties during the trial;
(v) To ratify the Istanbul Convention;
(vi) Ensure mandatory professional training for judges, lawyers and law enforcement officials, including prosecutors, on issues related to the Convention, its Optional Protocol and the Committee's general recommendations, in particular [On] general recommendations No. 19, No. 28, No. 33 and No. 35;
(vii) To fulfill their obligations to ensure respect, protection and realization of women's human rights, including the right to protection from all manifestations of gender-based violence, including domestic violence, intimidation and threats of violence;
(viii) Promptly, thoroughly, impartially and seriously investigate all reports of gender-based violence against women, ensure that criminal proceedings are initiated in all such cases, promptly and promptly bring alleged offenders to justice and apply appropriate penalties to them, guided by the principles of justice and impartiality;
- ix) provide victims of violence with safe and prompt access to justice, including, where necessary, free legal assistance, in order to provide them with accessible, effective and sufficient remedies and rehabilitation in accordance with the methodological guidelines set out in [O] the Committee's general recommendation No. 33;
(x) To offer rehabilitation and non-violent conflict resolution programmes to offenders;
(xi) Develop and adopt, with the active participation of all stakeholders, such as women's organizations, effective measures to eliminate stereotypes, prejudices, customs and practices that justify or encourage domestic violence (paragraph 9 of the Opinions).
In accordance with article 7 (4) of the Optional Protocol, the State party must give due consideration to the Committee's views, together with its recommendations, and provide the Committee with a written response within six months, including information on any measures taken to take into account the Committee's views and recommendations (paragraph 10 of the Views).