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Avon Global Center for Women and Justice at Cornell Law School
Gender Justice in the Argentine Context: Justice Highton de Nolasco Shares Her Views

Justice Elena Inés Highton de Nolasco is the Vice President of the Supreme Court of Argentina. The Avon Global Center is honored to welcome Justice Highton to its Steering Committee.

Justice Highton

Justice Highton

Justice Highton recently shared with the Avon Global Center some insights and thoughts regarding advances to improve access to justice for survivors of gender violence in the Argentine context, her motivations for joining the Avon Global Center's Steering Committee, and her advice to advocates:

Q: What are the main obstacles that gender-based violence victims face in Argentina?

A: Especially thinking in my country and from personal experience, I believe that there are two main kinds of obstacles, legal and institutional.

First, gender-based violence victims face legal obstacles in accessing justice throughout the country. For example, there is a lack of legal coordination among the agencies working in the field (police, judiciary, health and education). In addition, there is little integration between civil and criminal justice in the judicial system.

Moreover, although the existing legal framework is appropriate, particularly the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem do Pará), and the Convention against Transnational Organized Crime and its Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol), and in Argentina some recent legislation advancing women’s rights in cases of gender violence, legislative gaps remain. These gaps include: 1) a lack of specificity in gender violence-related issues, 2) an inadequate definition of "violence," 3) a limited scheme of protection orders available both to victims and witnesses, and, most of all, 4) difficulties in prosecution. The big challenge is to put written text into practice and, most especially, to ensure the funding to do so.

Finally, access to justice becomes illusory, as women lack the basic resources to file a judicial or administrative complaint, although several of these obstacles are undoubtedly shared by the general public of the region as well.

Second, institutional obstacles exist for gender-based violence survivors. For instance, there is no consolidated budget or comprehensive scheme for the provision of legal, medical, psychological and social assistance. Consequently, women lack information regarding their possibilities of access to justice and the employees engaged in the issue lack institutional commitment, which in turn raises victims’ distrust of the system. Ensuring access to justice requires the availability of adequate free legal services.

Additionally, some women do not trust judicial fairness and effectiveness and they are afraid of suffering additional violence. Moreover, in the course of these proceedings involving gender violence, women must often undergo uncomfortable questioning and (in most sexual violence cases) medical examinations that are frequently conducted in inadequate and even inappropriate ways, possibly re-victimizing and/or re-traumatizing women.

Q: What sparked your interest in and concern for women's issues and how did you become involved with the Avon Global Center?

A: My first contact with the Avon Foundation and now the Avon Global Center for Women and Justice occurred when I was invited to Washington for the Senior Roundtable for Women’s Justice, hosted by the United States Department of State, in March 2008. I was again invited for the meeting in 2009, and I have now gladly accepted the honor of being a member of the Steering Committee.

From its inception I have also been involved in the International Association of Women Judges and then in the Argentine Association of Women Judges. I have also established a Domestic Violence Office directly dependent of the Supreme Court of Argentina, tribunal in which I am the Vice-President or Deputy Chief Justice.

Having been a Public Defender and then a Judge for more than 30 years, in 2004, I was nominated to serve in the Supreme Court of the country, taking my seat as the first woman Justice appointed under a democratic government.
As soon as I arrived, I was put in charge of a very challenging Project by the then Chief Justice: the creation of a Domestic Violence Office, directly supervised by the Supreme Court. More recently, a new Women’s Office has also been created under the charge of Justice Carmen Argibay.

Q: Please tell us more about the creation of the Supreme Court's Domestic Violence Office.

A: In 2004, after considering all the difficulties faced by a certain sector of the population affected by domestic violence, the Supreme Court of Argentina, under my direction, decided to take the initiative in changing this situation.

To design and implement this Office, a group of the most experienced and knowledgeable judges and experts in the issue (civil, family, criminal and juvenile judges, a forensic doctor, a representative from the prosecution and the public defense offices) was chosen. The Court also selected a young and enthusiastic woman who organized the meetings and agenda of this committee and is now the Director of the Office.

This working group has been meeting nearly every week in my chambers for five years, working on, among other things, the design, the needs, the professional profile for a public selection process of experts, training, monitoring and supervision of the Office. After a month of intensive training, in September 2008 the Office was opened to the community and is accessible as an expert service to the judges.

The Domestic Violence Office of the Supreme Court of Argentina (Oficina de Violencia Doméstica, or OVD) is a court department which operates 24 hours per day, 365 days per year offering access to justice to citizens with information and guidance concerning domestic violence issues. Specifically, the OVD receives allegations as a basis to proceed on domestic violence charges or obtain remedies (especially immediate injunctions) and also helps judges, prosecutors, and lawyers providing expert opinion on such matters.

It has an interdisciplinary team consisting of professionals in the fields of law, medicine, psychology and social work, representatives from all professions on duty around the clock. It is precisely this interdisciplinary work that makes it possible to prepare not only a document which will provide a basis for initiating legal proceedings, but also a risk assessment report on the situation, as well as a medical report on injuries.

Q: How does the Domestic Violence Office function?

A: There are 85 staff members working in eight teams. In the Office, there are 25 lawyers, 17 psychologists, 17 social workers and 8 physicians, plus the administrative and auxiliary staff.

The person who comes to the OVD will be assisted by a unit team consisting of a lawyer, a psychologist and a social worker. During the interview, a written statement is issued, all paperwork being completed for it to be a formal complaint, and a risk assessment report is drawn up. In addition, the victim–if necessary-is examined by a physician, who determines whether there are injuries, and whether photographs should be taken.

After the person communicates her or his story, she or he is given complete and detailed information about her or his options, whether juridical or not, related to the problem posed. Then, the victim expresses her or his will as to which course of action to pursue.

In those cases where the situation is extremely serious and the victim cannot leave home, she or he can count on the help of mobile squads belonging to the Ministry of Justice and Human Rights program Victims against Violence. These squads, with a simple call from the victim, can take the person to the OVD headquarters to initiate proceedings. The Court has also signed an agreement with the Mayor of the City of Buenos Aires, so as to make available hospital services and shelters if necessary.

The Office has improved efficiency, as evidenced by the courts making a decision on injunctions on the same day, or the following day at the latest. This has meant a great step forward, as before establishment of the OVD, the risk report required to determine whether it was appropriate to order a remedy used to take up to 4 months, which in turn resulted in a serious–and sometimes irreparable-delay in deciding on issues of victim protection.

Likewise, when cases are referred to criminal courts, judges are provided with adequate documentation. According to judges, significant progress has been shown because there are no more delays in determining whether there are bodily injuries (before, if injuries were not very serious, they had healed by the time checks were made), and victims are now informed about the eventual existence of civil actions, simultaneously with criminal proceedings.

Cases may be submitted either to judicial or non-judicial authorities. In non-legal referrals, victims are provided with free legal advice services, psychological or psychiatric services.

Victims can come directly to the office (doors are open around the clock in a separate building with direct access from the street for intake). Once ascertained that there is a domestic violence report to be made, the victim is interviewed by the professional team, which elaborates a risk assessment for the case. This evaluation is sent to the criminal or family judge to whom the case is referred. Eventually, no judge will intervene immediately, as medical or psychological attention in hospitals or lawyers’ counsel will be needed.

The Supreme Court included the Domestic Violence Office in the budget. This means that the office is funded by the public, employees are on the Court´s payroll, and the building belongs to the Supreme Court.

Q: How many cases are handled by the OVD?

A: Work done by the OVD since its opening on September 2008 through last February 2010 shows that approximately 8500 cases have been admitted. Of these, only 40% come during Court hours, which confirms the need to have the office open 24 hours.

Of these 8500 cases, 81% are female and 19% are male. Of the male victims, more than 60% are boys. For alleged perpetrators, 86% are men and 14% are women. Of total cases submitted, 83% have been referred to civil family courts, 57% to criminal courts (courts which hear preliminary criminal proceedings, correctional courts, juvenile courts, and the Attorney’s General Office), 38% to free legal advice services, and 25% to health services (psychological or psychiatric treatment). Finally, in 7% of the cases, victims were given information, but decided not to act. Obviously, many cases were simultaneously sent through more than one tract. And, to illustrate that we are talking about when we talk about the nature of the violence, 70% of our reports include physical aggression.

Q:
What challenges have you faced in implementing the OVD?

A: The most important challenge, once the Domestic Violence Office was set up and working, was to replicate the model throughout the rest of the country.
Many of the Supreme Court Justices of the Provinces (in particular female Justices) started inquiring about the office and began to think in establishing similar provincial offices. Soon, all Provincial Courts were asking for the Supreme Court’s help to replicate this model in their provinces. In a year’s work, inclusion of all 23 provinces was completed and they are all preparing to start with similar offices, adapted to their contexts and realities.

To this end, the Supreme Court has convened a Committee on Access to Justice, within which one of its working teams is the Domestic Violence Group, comprising representatives of provincial high courts, federal judges and court officers who took part in the drafting of the project to create the OVD.

One of the most important aims is to bring together all information gathered by the system, in order to have a nationwide register of cases of domestic abuse presented in the different judicial intake offices. What still remains to be done is to insist on training and raising awareness of the population and, especially all those working in the Judiciary.

This Office secures access to justice for those confronting domestic violence issues and who are currently unaware of the ways in which their cases can enter the judicial system. Professional assistance offered by the Office promptly provides victims with all available information about different courses of action depending on the particular difficult situation they are going through, as well as with immediate support. At the same time, it rationalizes resources because of the undoubtedly greater efficiency entailed when one department is common to various courts. It is a tool for civil and criminal courts to coordinate their work and have, at the very moment victims file their claim, all necessary information to make immediate decisions.

Q: How will the information collected by the OVD be evaluated?

A: The United Nations is very interested in the project, which in their view meets standards and means real, effective access to justice for any victim of domestic violence. That is why, though software was prepared by our specialists, it was revised and validated by the UN, as there is absolute interest in preparing instruments to collect statistical data that can be compared in diverse countries in the world.

After the case is referred, there is a monitoring process in order to keep a record of the proceedings, which helps in gathering the statistics necessary to later make an analysis of the performance of the Office, the judicial system, and those public and private sectors with which there has been established some sort of connection. Furthermore, the collection and analysis of data contributes to a deeper appreciation of the true magnitude of this phenomenon, which will help in subsequent drawing up of improved policies concerning domestic violence.

Q: Should the Supreme Court of Argentina be serving this function?

highton_holden-smith

Justice Highton and Vice Dean and
Professor of Law Holden-Smith visit
at the Argentina Supreme Court.

This is an open and controversial question.

In Argentina, Supreme Court Justices believe the judiciary has a new and growing role in society. With problems and conflicts unknown in previous times, judges are called to solve those social problems that other branches of government have not resolved or have resolved inefficiently. Because of these changes, the role of judges has become especially important. And Access to Justice is not reduced to adjudicating cases which evolve along many years in the Courts, but also entails making available many alternatives and creating new solutions.

Q: Do you have any advice for advocates in the field of gender justice?

A: My advice for advocates in the field of gender justice would be to work hard to educate and create greater awareness, most of all in governments and governmental agencies (police officers, prosecutors, judges and court clerks), teachers and school personnel, as well as civil society.

Helping advance victims’ understanding of their rights and existing remedies is a must.

The media should not be neglected as it is a cultural tool and one of the most direct ways to reach the largest part of the population. Inadequate communication serves as a bad influence that leads to more injustice and discrimination. Changing the language with which we refer to gender based violence is most relevant to create proper public perception of the problems involved.