The case of J.I. v. Finland. Opinions of the Committee on the Elimination of Discrimination against Women dated March 5, 2018. Communication No. 103/2016.
In 2016, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to Finland.
The Committee considered 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 did not ensure proper monitoring in accordance with their obligations under articles 2, 15, and 16 of the Convention on the Elimination of All Forms of Discrimination against Women in the aspects studied.
As seen from the text of the Opinions, according to the author, the failure of the State party to take measures to prevent domestic violence affected women more than men, which constituted a violation of article 1 of the Convention. She stated that the State party did not consider domestic violence to be a real and serious threat. The legislation and practice of State bodies, including the judicial system, did not recognize the existence of gender-based violence and its consequences (paragraph 3.1 of the Opinions).
The Committee's assessment of the factual circumstances of the case: The Committee was faced with the question of whether the State party had fulfilled its duty of 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 was, in the light of the provisions of the Convention, to analyze the decisions taken by national authorities within their competence and determine whether they took into account the obligations arising from the Convention in making these decisions. Consequently, in this case, the decisive factor was 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 took 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 took note of the State party's statement that the author's allegations were of a general nature. The Committee further took into account 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 often turn out to be women and children, when comparing these testimonies with the words of the perpetrators of crimes; In addition, the author's statement was 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 considered that the author's comments on national legislation and on the practice of its application were relevant to her personal case (paragraph 8.3 of the Opinions).
The Committee noted with concern that the application for interim measures that it had accepted and then repeated had not been forwarded to the local authorities and that no measures had been taken to protect E.A. from alleged violence by his father (paragraph 8.4 of the Opinion).
The Committee found that the 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 the child. The Committee pointed out that almost immediately after the decision was made to transfer custody, 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 noted that in connection with the consideration of the custody case and the granting of the right of communication, the child's mother underwent a psychiatric examination, which did not reveal any reason for concern; however, no such check was carried out against the father, despite the fact that he was convicted in a criminal case. The Committee drew attention to the fact that in the final decision on the custody case, adopted on October 14, 2013, there was practically or even completely no 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 explained 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. In the Committee's opinion, there was also 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 behavior (paragraph 8.5 of the Opinion).
The Committee noted 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 considered 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 did not ensure proper control in accordance with their obligations under articles 2, 15, and 16 of the Convention in the aspects studied (paragraph 8.9 of the Opinions).
The Committee noted that the State party has adopted a broad-based model of combating domestic violence, including legislative measures, awareness-raising, education and capacity-building. Nevertheless, the Committee referred 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 noted that in order for a woman who is 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 the fulfillment of the obligations assumed by the State party 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 concluded that in the present case this obligation had 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's conclusions: The State party violated the rights of the author and her son under articles 2, 15, and 16 of the Convention in the aspects examined (paragraph 9 of the Opinions).