Message: M.V. v. Denmark. Message No. 46/2012. Opinions adopted by the Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee) February 22, 2016
In 2012, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
The Committee's legal position: The Committee recalls that it does not substitute itself for State authorities when examining facts and evidence, unless such examination was manifestly arbitrary or amounted to a denial of justice (paragraph 5.3 of the Opinions) (See Communications No. 37/2012, T.N. v. Denmark, decision on inadmissibility of 3 November 2014, paragraph 12.7, and No. 34/2011, R.P.B. v. the Philippines, Opinions adopted on February 21, 2014, paragraph 7.5.).
In accordance with paragraphs 6 and 9 of its General Recommendation No. 19 (1992) on violence against women, the definition of discrimination in article 1 of the Convention includes the concept of gender-based violence, and, moreover, States may also be responsible for acts committed by private individuals if these States do not due care to prevent violations of rights or to investigate and punish acts of violence (paragraph 5.4 of the Opinion) (See Communication No. 6/2005, Vienna Center for Protection against Domestic Violence and the Association for Women's Access to Legal Remedies on behalf of Banu Akbak, Gulen Khan and Melissa Yeze, Opinions adopted on August 6, 2007, paragraph 12.1.1.).
The Committee recalls the obligation of States parties not to discriminate against women through actions or omissions, as well as their obligation to actively respond to discrimination against women, regardless of whether such actions or omissions are committed by the State or private individuals. Similarly, States parties have an obligation to ensure that women are protected from discrimination by the judicial system and public authorities... The Committee... Recalls that discrimination against women on the basis of gender and gender identity is inextricably linked to other factors affecting women, such as nationality, and that States parties have an obligation to legally recognize and prohibit all interrelated forms of discrimination and their overall negative impact on affected women (paragraph 5.8 of the Opinions).
According to paragraph "a" of article 5 of the Convention, States parties are obliged to change the social and cultural patterns of behavior of men and women in order, inter alia, to eliminate prejudice and actions based on ideas of inferiority or superiority based on gender or stereotypical roles of men and women. According to subparagraph d of paragraph 1 of article 16 [of the Convention], States parties are obliged to take all appropriate measures to eliminate discrimination against women in all matters relating to family relations and to guarantee men and women the same parental rights and responsibilities with regard to their children, bearing in mind that in all cases the interests of children (paragraph 5.9 of the Opinion).
The Committee considers that the word "paramount" mentioned in 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 be assessed and given primary/primary importance to his best interests, any decision concerning the child must be weighed, justified and explained (paragraph 5.13 of the Opinions).
By virtue of article 5 of the Convention on the Elimination of All Forms of Discrimination against Women of December 18, 1979, "States Parties shall take all appropriate measures to: (a) Change the social and cultural patterns of behavior of men and women in order to achieve the eradication of prejudice and the abolition of customs and all other practices based on the idea of inferiority or superiority. one of the sexes or the stereotypical roles of men and women; (b) Ensure that family education includes a proper understanding of motherhood as a social function and recognition of the shared responsibility of men and women for the upbringing and development of their children, provided that in all cases the interests of the children are paramount."
The Committee's assessment of the factual circumstances of the case: The Committee notes that the author's complaints under articles 1 and 2, paragraph d, of the Convention are based on alleged acts of gender-based violence committed by S. against her and her son, biased judicial proceedings conducted by the Danish authorities and courts, and discrimination against the author based on gender her religious affiliation and foreign citizenship, as well as the failure of the State party to take appropriate and urgent measures to protect her and her son O.V. and to end the alleged discrimination against them (paragraph 5.2 of the Opinion).
The Committee notes the author's detailed complaints that during her cohabitation with S., after their separation, and even after her move to Austria, she was subjected to verbal and physical violence, harassment, and harassment by S., and O.V. was brutally abducted in Austria... The Committee draws attention to the author's statement that the law enforcement authorities were not only unable to protect her from threats, harassment, harassment and physical violence from S., but also discriminated against her as a foreigner; for example, when she reported S.'s intrusion. On September 6, 2010, the police came to her house, and the police ignored her version of events, arresting her and unlawfully detaining her without due process for allegedly illegally taking O.V. out of the country, even though she had sole custody rights, and when the police refused to investigate her claim of S.'s encroachment on her property and threats against her. his side in her house. The Committee also takes note of the detailed information provided by the author about the inhuman and degrading treatment she faced during her arrest on 6 September 2010, such as forced exposure and a full body search performed by a prison guard, as well as the denial of the right to consult with her lawyer. The Committee... Duly reviewed the actions of the Danish authorities, such as the adoption by the North Zealand Police of only version C. and the charges brought against the author under section 215 of the Criminal Code, the prosecutor's demand for her detention on September 7, 2010 during a hearing in the Helsingeri District Court, as well as the fact that, although the District Court found no grounds for her detention and she was released, the North Zealand Police later demanded three times in absentia detention the author for the purpose of issuing a European arrest warrant (paragraph 5.5 of the Opinion).
Given the violent abduction of O.V. in Austria, the partiality of the Danish authorities, including their judicial system, and the lack of an effective response to O.V.'s abduction, the Committee takes note of the author's statement that the Danish authorities completely ignore the international arrest warrant for S. issued by the Austrian authorities, according to which he is charged with serious assault. and the abduction of O.V., to her demands for access to the child and for O.V.'s safety. after his abduction, and the fact that in the course of the case they had harmed a previously perfectly healthy and well-developed child in order to conceal the fact that they had violated international norms and Danish law by depriving her of custody of the child and granting this right to S. in 2010 ... the Committee notes that, although 16 On April 22, 2012, the National Social Appeals Council did require the Helsingeri Court of First Instance to consider the author's request for the transfer of O.V. to her in Austria, the latter issued a ruling on September 21, 2012, in which the author's request for the transfer of O.V. to her. The decision was rejected, the said decision was upheld on appeal to the High Court of Eastern Denmark, and the author's subsequent applications to the Appeals Review Board to appeal the decision by the Supreme Court were systematically rejected (paragraph 5.6 of the Opinions).
The Committee notes the State party's allegations that the author's complaints about S.'s ill-treatment of her are unfounded, as she has not provided evidence or documents to substantiate her claim that S. ill-treated her, threatened her, intimidated and harassed her and O.V. The Committee notes that the author was It is difficult to submit such documents while in Austria, especially after all her requests for documents from the Danish authorities were ignored and/or rejected. In addition, the Committee notes that the State party has not provided detailed information and documents on the actions and omissions of the police, in particular the unlawful arrest and detention of the author from 6 to 7 September 2010, as well as the failure of law enforcement agencies to take action against S.'s encroachment on her property and his threatening behavior. The Committee considers that, under the circumstances, the Danish authorities, especially the police, the prosecutor and the courts, were not only unable to provide effective protection to the author and O.V., of whom the author had a legitimate right to custody, but also committed a number of unlawful acts, namely, transferring (even temporarily) custody of O.V. from the author to S. as a result of one-sided legal proceedings, during which the district State administration relied only on the version of events presented by S.; transfer of custody rights to S. by the Helsingeri District Court on December 22, 2010. again, on the basis of S.'s statement, which contained such false facts as the claim that S. had assumed the bulk of O.V.'s care responsibilities, as well as the apparent failure on the part of both authorities to take into account O.V.'s best interests; the unlawful arrest and detention of the author in September 2010; and bringing her to justice under section 215 (2) of the Danish Criminal Code, as well as the dismissal of charges against her, two On December 20, 2012, as a result, she was unable to attend custody proceedings for fear of detention, and thus had no access to justice. With regard to the abduction of O.V. by S. in Austria, the Committee also notes the State party's lack of cooperation with the Austrian Central Office, as well as its refusal to extradite S. to the Austrian authorities in accordance with an international arrest warrant issued on 3 April 2012. The Committee recalls that, in accordance with the Hague Convention, central administrations are required to cooperate with each other and ensure the prompt return of illegally abducted children, as well as to ensure effective respect for custody and access rights under the legislation of one Contracting State in the territory of the other Contracting State. The Committee is also concerned about the insufficient justification provided by the Ministry of Justice, acting as the Danish Central Authority, for its refusal to extradite S. Austria, following the issuance by the Austrian authorities of an arrest warrant on 3 April 2012 in connection with the abduction of O.V. by S. on the grounds that, firstly, since O.V. was under the custody of S. in Denmark, the offence for which the arrest warrant was issued was partly committed in Denmark, and secondly, in Denmark, the act in question is not considered a criminal offense, because according to Danish law, S. has custody of O.V. (paragraph 5.7 of the Opinion).
In such a situation, based on the above information, the Committee concludes that the State party failed to take due care to prevent, investigate and punish acts of violence, as well as to protect the author and O.V. before and after the abduction (paragraph 5.8 of the Opinion).
The Committee... Takes note of the author's complaints, in accordance with article 5, paragraphs a and b, and article 16, paragraph 1, subparagraph d, of the Convention, that the State party failed to take into account O.V.'s best interests when transferring custody to S. and discriminated against the author as a foreign mother during custody and visitation proceedings (para. 5.9 Opinions).
The Committee notes the author's allegations that by depriving her of custody of O.V. and transferring this right to S., the Danish authorities, acting through the District State Administration and the Helsingeri District Court, did not prioritize O.V.'s best interests and did not take into account the author's legitimate rights as a full-fledged guardian, thus discriminating in relation to her as a woman and a foreign mother. In particular, the Committee notes the author's complaints of unlawful acts on the part of the Danish authorities, which did not properly consider the following facts: O.V. holds only Austrian citizenship, S. did not even recognize O.V. after his birth; despite S.'s recognition of the child on May 22, 2007, this did not lead to a change in O.V.'s citizenship.; the author, being an unmarried mother, has sole custody of O.V. in accordance with both Danish and Austrian law; the author and S. have never reached any agreements regarding S.'s visitation rights; the author and O.V. You have never applied for Danish citizenship. The Committee also notes the author's statement that, although S. withdrew his application to the district State administration for joint custody on July 19, 2010, and on July 22, 2010, submitted a new application for sole custody, the Danish authorities did not take into account the fact that the State administration It had no jurisdiction over an Austrian child born to an Austrian mother who has sole custody of him. More importantly, the Committee takes note of the author's claim that the District State Administration and the Helsingeri District Court failed to consider O.V.'s best interests. and they relied only on the biased version of events presented by S., as well as the fact that the decision of the Helsingeri District Court was based on the principle of the child's contact with both parents, but was openly biased towards the author as a foreigner, so much so that, since she did not meet or talk with the junior assistant judge who conducted the proceedings. The latter accused her of thinking only of herself and not being able to empathize, and as a result did not even grant her the right to see O.V. The Committee also takes note of the author's claim that on October 1, 2014, the district State Administration deprived her of all maternal rights, based on S.'s statement under section 23 of the Danish Parental Responsibilities Act (paragraph 5.10 of the Opinion).
The Committee takes note of the information provided by the State party on its compliance with the Law on Parental Responsibilities, its international obligations, including those set out in the Convention and the Convention on the Rights of the Child, as well as its claim that in the present case the district State administration decided that during the judicial proceedings it was in the best interests of O.V. his status quo should not be changed so that he remains in his usual environment and goes to school in Denmark (paragraph 5.11 of the Opinion).
The Committee draws attention to a copy of the decision provided by the State party, in which the district State administration noted that it had not made an assessment on what would be in O.V.'s best interests in the long term. Taking into account the Law on Parental Responsibilities, the Committee notes that, while all decisions are based on the primary principle of respecting the best interests of the child, Danish law is also based on the principle that the child should communicate with both parents, and this consideration had great weight in the decision of the Helsingeri District Court, which concluded that, since the author's actions had resulted in O.V. being unable to see his father for more than four months, it would be in O.V.'s best interests to grant full custody to S. in order to ensure constant contact between O.V. and both parents. The Committee considers that in both decisions the courts failed to prioritize O.V.'s best interests and failed to find a balanced approach, which led to discriminatory treatment of the author. The Committee notes that the Helsingeri District Court in its decision refers to the need for constant contact with both parents, although it is fully aware that the author lives in Austria, but he did not even grant her visitation rights. The Committee recalls the implementation of the interim measures on 9 July 2013. and on 4 April 2014, in which he requested the State party to provide the author with reasonable access to O.V. in Denmark, and ensure that all relevant authorities facilitate the implementation of such access, and notes with concern that the State party did not comply with this request, allegedly on the grounds that the author should have applied for visitation rights to the District State Administration, which, according to Danish law, is the only authority that has The right to make decisions regarding access, which implies that the author has not had contact with her child since February 13, 2013. The Committee is also concerned that since October 1, 2014 the author's situation worsened further due to the decision of the district State administration, which acted on the basis of another statement from S., according to which the author no longer had the right to receive information about her son O.V., despite the fact that according to section 23 of the Law on Parental Responsibilities, a parent who does not participate in joint custody has the right to demand and receive information about the child from schools, kindergartens and nurseries, social and health sector institutions, private hospitals, general practitioners and dentists (paragraph 5.12 of the Opinions).
The Committee takes note of the State party's observations that during the custody proceedings, the author had every opportunity to present her version of events, but was unable to do so, and that the author would not have been arrested if she had attended the court hearings in Denmark, as the Public Prosecutor had stopped to demand the author's detention after the Vostochny High Court issued a ruling on December 23, 2011.... The Committee takes note of the circumstances in which, in September 2010, The author was arrested and detained without sufficient grounds, as well as the inhuman and degrading treatment she faced during her detention, and believes that the author had every reason not to return to Denmark for custody proceedings, as she had lost faith in the impartiality and fairness of the State party's authorities. The Committee recalls a letter dated 18 April 2011 sent to the Austrian Central Office of the Department of Family Affairs at the Ministry of Justice (Danish Central Office) confirming that criminal proceedings were pending against the author, that child abduction was a criminal offence with a maximum sentence of 4 years in prison, and that the author risked arrest. if he arrives in Denmark, and that a European arrest warrant may be issued for the author in the near future. The Committee also took into account the author's indisputable claim that intimidation tactics were used against her, in particular in the form of several phone calls to the Austrian Department of Family Affairs made by a social worker from the Danish Central Office/Department of Family Affairs, threatening the author and demanding that her request for O.V.'s return be withdrawn. to Austria. The Committee considers that all these circumstances combined not only explain the author's reluctance to return to Denmark for the proceedings, but also constitute an obstacle to the author's access to justice (paragraph 5.14 of the Opinion).
In addition, the Committee is deeply concerned about the systematic rejection of the author's application to the Appeals Review Board, which also constitutes an obstacle to the author's access to justice. In applying the "rule of universal public importance", the State party's authorities should have given due consideration to the nature of the case, in particular the issue of custody of a minor child, the international scope of the case and the opposing decisions rendered by two different justice systems, as well as the serious and comprehensive implications of the issue.; All aspects of the appeal case that go beyond the judicial interests of the author, O.V. and S. should have been fully examined, taking into account the author's repeated allegations that she was discriminated against on the basis of her gender and foreign nationality, and the fact that there are many foreign citizens in a similar situation and there are many complaints. concerning foreign parents who find themselves in the same situation as the author (paragraph 5.15 of the Opinion).
The Committee's conclusions: The Committee concludes that the Danish authorities did not treat the author equally in the case concerning her son. In the light of the above, the Committee considers that the State party has violated the rights of the author and O.V. in accordance with article 2, paragraph d, article 5, paragraphs a and b, and article 16, paragraph 1, subparagraph d, of the Convention (paragraph 5.16 of the Opinions).
The text of the Opinions also provided for individual and general measures to be taken by the respondent State.