- Karen Tayag Vertido v. The Philippines, Committee on the Elimination of Discrimination against Women, 2008. Gender discrimination, sexual violence and rape, CEDAW, international law. Karen Tayag Vertido, an employee of the Davao City Chamber of Commerce and Industry in the Philippines, was raped by a former President of the Chamber in 1996. The case remained at the trial court level for eight years before the Regional Court of Davao City acquitted the defendant in 2005. The Court scrutinized Vertido’s testimony with “extreme caution,” and challenged her credibility on the ground that “an accusation of rape can be made with facility.” The Court specifically declined to apply Filipino Supreme Court precedent cases establishing that failure to escape does not negate the existence of rape, stating that Vertido had ample opportunities to escape her attacker. In her complaint to the Committee on the Elimination of Discrimination Against Women, Vertido argued that the Court’s actions subjected her to revictimization and violated articles 2(c), 2(f), and 5(a) of the Convention on the Elimination of All Forms of Discrimination Against Women and CEDAW General Recommendation 19, which obliges a State to modify or abolish existing laws, regulations, and practices that constitute discrimination against women. The Committee held that the State Court erred in relying on gender-based myths and stereotypes about rape and rape victims in Vertido’s case, and stressed that there should be no assumption in law or practice that a woman gives her consent where she had not physically resisted unwanted sexual conduct. The Committee recommended that the State provide Vertido with appropriate compensation, review the definition of rape under existing law to ensure that lack of consent is a essential element of the crime of rape, remove any requirement that sexual violence be committed by violence or force, and require appropriate training for judges, lawyers, and law enforcement officers in understanding crimes of rape and other sexual offenses.
- N. S. F. v. United Kingdom, Committee on the Elimination of Discrimination against Women, 2007. CEDAW, international law, marital rape, domestic and intimate partner violence, divorce, asylum. N. S. F., a Pakistani national, experienced repeated ill-treatment from her husband, including marital rape, until they divorced in 2002. Although N. S. F.’s husband continued to harass her after she moved to a nearby village, the police did not offer her any protection. When her ex-husband came to her new home with other armed men and threatened to kill her, N. S. F. fled to the United Kingdom and applied for asylum, claiming that her forced return to Pakistan would constitute violations of the 1951 Convention on the Status of Refugees and article 3 of the European Convention on Human Rights and Fundamental Freedoms. N. S. F. appealed the dismissal of her application for asylum by the Immigration and Nationality Directorate of the Home Office, and on appeal the Adjudicator denied N. S. F.’s application on the grounds that N. S. F. could relocate further away from her husband within the country, and that she would receive protection in Pakistan on account of her being divorced from her husband. The Immigration Appeal Tribunal rejected N. S. F.’s application for permission to appeal, and the High Court of Justice, Queens Bench Division, Administrative Court affirmed the decision upon challenge. Her complaint alleged that the asylum and human rights-based procedures were not fair, and that if deported back to Pakistan, N. S. F.’s husband would kill her and put her children’s education at risk. Although the Committee found the complaint inadmissible because N. S. F. did not exhaust all domestic remedies, the Committee noted that the complaint raised concern for women who have fled their country because of fear of domestic violence. It recalled its General Recommendation No. 19 on violence against women, and concluded that Pakistan’s assertion that N. S. F.’s claims do not amount to an allegation of sex discrimination needed to be reconsidered in light of this Recommendation. The Committee suggested that N. S. F. apply to the High Court for judicial review of her application for asylum, and that the Court take her allegations of sex discrimination under consideration.
- A.S. v. Hungary, Committee on the Elimination of Discrimination Against Women, 2006. CEDAW, forced sterilization, international law. Andrea Szijjarto was sterilized without her informed consent by a Hungarian hospital during an emergency cesarean section procedure. While in a state of shock due to blood loss, Szijjarto was asked to provide her written consent to tubal ligation by signing an illegible hand-written note describing the procedure in terms she did not understand. Szijjarto charged the hospital with negligence in failing to obtain her full and informed consent to the coerced sterilization. Both the town and county courts held that the hospital was at least partially negligent in its legal duties to Szijjarto, but rejected her claim and appeal for failure to prove a lasting handicap and causal relationship between permanent loss of reproductive capacity and the conduct of the hospital’s doctors. The Committee on the Elimination of Discrimination Against Women held that Hungary violated Szijjarto’s rights under article 10(h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on access to information on family planning, article 12 guaranteeing women appropriate medical services in connection with pregnancy, and paragraph 1(e) of article 16 on a woman’s right to freely choose the number and spacing of her children. The Committee recognized the serious consequences of coercive practices including forced sterilization under its General Recommendation No. 21, and held that the Hungary had violated Szijjarto’s right to information on family planning and the sterilization procedure. The Committee also held that lack of informed consent constituted a breach of the obligation under article 12 and General Recommendation No. 24 to ensure the delivery of acceptable medical services in a manner that respects a woman’s dignity. Accordingly, the Committee recommended the State provide compensation to Szijjarto and amend its Public Health Act allowing doctors’ discretion to administer sterilization procedures when “appropriate in given circumstances.”
- Salgado v. United Kingdom, Committee on the Elimination of Discrimination against Women, 2007. CEDAW, gender discrimination, international law, citizenship. Constance Ragan Salgado, a British citizen, moved to Colombia with her husband, a Colombian, and gave birth to a son. Salgado attempted to obtain British nationality for her son, but the British Consul in Bogotá stated that British nationality passed only though the paternal line. Although the British Nationality Act of 1981 amended British law to confer equal rights to men and women, Salgado’s son did not qualify because he was over 18. The Legislation again changed in 2002 with the passage of the Nationality, Immigration and Asylum Act which allowed children born to British mothers between 1961 and 1983 to register as British nationals if they satisfied certain other conditions. Salgado’s complaint alleged sex-based discrimination under the British Nationality Act of 1948 which restricted nationality descent to British fathers. Salgado raised issues under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, which calls for the elimination of all discriminatory laws, regulations and customs that discriminate against women, and article 9 paragraph 2 under which State parties must grant women equal rights with men with respect to the nationality of their children. She claimed that the discrimination was ongoing because her son failed to qualify for citizenship under the various amendments to the Act. Although the Committee held that the complaint was inadmissible ratione temporis because the events occurred before the Covention’s entry into force in the United Kingdom, it based its decision on the fact that Salgado’s son had reached the age of majority, at which time he could have applied for British nationality on his own. The Committee noted that the United Kingdom had enacted the challenged legislation prior to the Optional Protocol’s entry into force. The Committee also recommended that Salgado challenge the legislation by way of judicial review in the British High Court before turning to the Committee for further redress.
- A.T. v. Hungary, Committee on the Elimination of Discrimination Against Women, 2005. CEDAW, domestic and intimate partner violence, international law, gender discrimination. A.T. is a Hungarian woman whose husband subjected her to continued domestic violence resulting in her hospitalization and ten medical certificates documenting separate incidents of abuse. Hungarian law did not provide a mechanism for A.T. to obtain a protection order against her husband, and accordingly, A.T. submitted a motion for injunctive relief for her exclusive right to the family apartment. The Budapest Regional Court denied the motion and held that A.T.’s husband had a right to return and use the apartment, stating that A.T.’s battery claims against him lacked substantiation and that the court could not infringe on her husband’s right to property. Her complaint to the Committee called for the introduction of effective and immediate protection for victims of domestic violence in Hungary, as well as effective interim measures to prevent irreparable damage to A.T.’s person in accordance with article 5, paragraph 1 of CEDAW’s Optional Protocol. The Committee held that Hungary’s domestic violence jurisprudence was deeply entrenched in gender stereotypes which constituted a violation of Hungary’s obligation under article 2 of CEDAW to promote gender equality through appropriate legislation. Hungary’s lack of specific legislation to combat domestic and sexual violence led the Committee to conclude that the State had violated its article 5 obligation to eliminate prejudices and customs grounded in female inferiority, and article 16 obligation to end discrimination against women in matters relating to marriage and the family. The Committee recommended that Hungary enact domestic and sexual violence legislation and allow victims to apply for protection and exclusion orders which forbid the abuser from entering or occupying the family home.
- Goekce v. Austria, Committee on the Elimination of Discrimination against Women, 2007. CEDAW, domestic and intimate partner violence, international law. Sahide Goekce’s husband shot and killed her in front of their two daughters in 2002. Before her death, Ms. Goekce had obtained three expulsion and prohibition-to-return orders against her husband in response to repeated episodes of domestic violence. The Vienna Public Prosecutor denied police requests to detain Mr. Goekce, and stopped the prosecution against him on the basis of insufficient grounds of prosecution two days before Ms. Goekce’s death. Police reports show that the law enforcement failed to respond in a timely fashion to the dispute that resulted in Ms. Goekce’s death. The complaint to the Committee on behalf of the decedent stated that Austria’s Federal Act for the Protection against Violence within the Family provides ineffective protection for victims of repeated, severe spousal abuse and that women are disproportionately affected by the State’s failure to prosecute and take seriously reports of domestic violence. The Committee found that although Austria has established a comprehensive model to address domestic violence, it is necessary for State actors to investigate reports of this crime with due diligence to effectively provide redress and protection. The Committee concluded that the police knew or should have know that Ms. Goekce was in serious danger, and were therefore accountable for failing to exercise due diligence in protecting her. By allowing the perpetrator’s rights to supersede Ms. Goekce’s human rights to life and to physical and mental integrity, Austrian law enforcement violated it obligations under article 2 to end gender discrimination through the modification or enactment of appropriate legislation, and its article 3 obligation to guarantee women’s exercise and enjoyment of human rights and fundamental freedom on a basis of equality with men. The Committee recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Protection against Violence within the Family, respond to complaints of domestic violence with due diligence, and provide adequate sanctions for failure to do so.
- Akbak v. Austria, Committee on the Elimination of Discrimination against Women, 2007. CEDAW, domestic and intimate partner violence, divorce, international law. Fatma Yildirim sought to divorce her husband who threatened to kill her and her children if she ever initiated divorce proceedings. In response to Yildirim’s numerous reports of assault and dangerous criminal threats, the Austrian police issued an expulsion and prohibition-to-return order against her husband. The police also recommended that her husband be detained, but the Vienna Public Prosecutor twice denied the request. Yildirim appealed to the Vienna Intervention Center after her husband repeatedly came to her workplace to harass and threaten her; the Center asked the police to pay more attention to Yildirim’s case. When Yildirim finally filed a petition for divorce at the Vienna District Court of Hernals, her husband followed her home from work and fatally stabbed her. The complaint stated that the State’s action violated article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) because the Austrian criminal justice system negatively impacts women through the public prosecutors’ failure to treat cases of domestic violence seriously. The complaint also cited the failure of judicial officials and law enforcement to collect data and maintain statistics on domestic violence instances denied Yildirim the enjoyment of her human rights in violation of article 2 and 3 of CEDAW on eliminating laws, regulations, and customs that adversely effect women . Finally, the complaint stated a violation of article 5 of the Convention on eliminating social and cultural attitudes towards women in the State’s continual treatment of domestic violence as a social or domestic problem rather than a serious crime. The Committee held that the Austrian police force’s failure to detain Yildirim’s husband was in breach of the State’s due diligence obligation to protect Yildirim, noting that a perpetrator’s rights cannot superseded women’s human rights to life and to physical and mental integrity. The Committee also took note of the correlation between lenient attitudes towards women’s cultural subordination and domestic violence. Although Austria prosecuted Yildirim’s husband to the fullest extent for her death, the Committee found violations of articles 2, 3, and 5 and recommended that Austria strengthen its implementation and monitoring of the Federal Act for the Prevention against Violence within the Family, and ensure enhanced coordination between police and judicial officers to protect women victims of gender-based violence.
- Dung Thi Thuy Nguyen v. The Netherlands, Committee on the Elimination of Discrimination Against Women, 2006. CEDAW, international law, employment discrimination. Dung Thi Thuy Nguyen worked part-time as a salaried employment agency worker as well as together with her husband as a co-working spouse in his enterprise. For her salaried employment, Nguyen was insured under the Sickness Benefits Act (ZW), and for work at her husband’s enterprise she was insured under the Invalidity Insurance (Self-Employed Person) Act (WAZ). When Nguyen applied for maternity leave in 1999, she received benefits from her ZW insurance, but her WAZ insurance denied her coverage because of an “anti-accumulation clause” which allowed payment of benefits only insofar as they exceed benefits payable under the ZW policy. Nguyen objected to the withholding of her benefits and applied for review with the Breda District Court, who dismissed the complaint. The Central Appeals Tribunal upheld the lower judgment on appeal, stating that the WAZ insurance policy did not result in unfavorable treatment of women as compared to men. Nguyen’s complaint to the Committee cited a violation of article 11, paragraph 2 (b) of the Convention on the Elimination of All Forms of Discrimination against Women under which the State party is obligated to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority, or social allowance. The Committee held that it is state’s discretion to determine the appropriate maternity benefits within the meaning of article 11 for employed women, and separate rules for self-employed women accounting for fluctuated income and related contributions did not amount to a violation. The dissent, however, argued that the law of the Netherlands which provides for a financially compensated maternity leave for women who are both salaried and self-employed does not take into account the situation of these women who work more hours per week than a full-time salaried employee entitled to full maternity benefits. The anti-accumulation clause, therefore, constitutes indirect sex-discrimination because the policy assumes that mainly women work as part-time salaried employees in addition to working as family helpers in their husband’s enterprises.