Failure to provide effective protection against domestic violence violated CEDAW (Isatou Jallow v. Bulgaria)

 

Isatou Jallow moved from the Gambia to Bulgaria after marrying A.P., a Bulgarian national.  Once in Bulgaria, A.P. allegedly became abusive toward Jallow and subjected her to physical and psychological violence, including sexual abuse, and attempted to force her to take part in pornographic films and photographs.  He reportedly also abused their daughter, M.A.P.

In November 2008, A.P. called the Child Protection Department in an attempt to stop Jallow from breastfeeding M.A.P.  Social workers learned of A.P’s abuse and his practice of keeping pornographic photos all around the family home during their onsite visit.  They called the police and advised Jallow to seek refuge but provided no guidance about where or how to do so.  Authorities took no measures to protect Jallow and M.A.P. from further domestic violence and sexual abuse.  Jallow found refuge for several days in an NGO-run shelter, but A.P. later found her and forced her to return to the family home.

In March 2009, prosecutors refused to continue investigating the alleged domestic violence due to insufficient evidence.  At no time did the authorities interview Jallow.  Despite being called to the family home on numerous occasions and evident risks to Jallow and M.A.P, police only issued oral warnings to A.P.   

In July 2009, A.P. filed an application with the Sofia Regional Court alleging that he was a victim of domestic violence and requesting an emergency protection order.  The Court refused the application.  A.P. filed a second application for an order, which the Court granted, along with temporary custody of M.A.P.  The order was granted solely on the basis of A.P.’s statement.  In granting the application, the Court did not consider the allegations of domestic violence that Jallow had made against A.P.  Authorities did not provide Jallow with information about M.A.P’s whereabouts or her condition, despite repeated requests.

In December 2009, the Court dismissed A.P.’s application for a permanent protection order due to a lack of evidence.  However, the emergency order remained effective owing to an appeal filed by A.P.  Authorities again refused Jallow access to her daughter and did not provide her with information about M.A.P.’s whereabouts or condition.

Jallow later agreed to a divorce by mutual agreement, including to numerous unfavourable conditions, because she thought it was the only way to regain custody of her daughter.

In November 2010, Jallow submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) on behalf of M.A.P. and herself in which she alleged violations by Bulgaria of articles 1, 2, 3, 5 and 16(1)(c), 16(1)(d), 16(1)(f) and 16(1)(g) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  Jallow claimed that Bulgaria had failed to provide effective protection against domestic violence and sanction A.P. for his behaviour.  Jallow also claimed that the State party did not consider domestic violence to “be a real and serious threat”, had failed to adopt effective measures to address gender-based violence against women, and had discriminated against her on the basis of sex/gender.  In addition, Jallow claimed inter alia that her ability as an illiterate migrant woman to access justice and other necessary services was limited in Bulgaria.

Bulgaria’s observations on admissibility

Bulgaria contested the admissibility of the communication on two grounds. 

First, it claimed that Jallow had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  According to Bulgaria, there remained several avenues of redress available to Jallow under its Penal Code and Protection against Discrimination Act.      

Second, Bulgaria claimed that Jallow’s allegations were ill-founded and not sufficiently substantiated, contrary to article 4(2)(c) of the Optional Protocol.  

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible.

It determined that Jallow had exhausted domestic remedies, for the purposes of the Optional Protocol.  It explained that Bulgaria had failed to provide information about the remedies it claimed were still available to Jallow and how they would protect the rights of Jallow and M.A.P.  It also noted that any such remedies would be unlikely to bring Jallow and her daughter effective relief considering the State Party’s failure to take steps to “address the author’s concerns with regard to reported domestic violence and concerns of child protection.”

The CEDAW Committee also determined that Jallow’s allegations were not ill-founded and had been sufficiently substantiated.  It did not, however, provide reasons for this finding.   

Bulgaria’s observations on the merits

Bulgaria submitted that its actions were not in violation of CEDAW.  According to the State Party, it had acted within its authority in its treatment of Jallow’s case and provided her with the necessary assistance.  It also claimed that it had adopted numerous measures to address domestic violence and raise awareness of the issue.  Bulgaria rejected Jallow’s claim that it had discriminated against her on the basis of her sex/gender. 

CEDAW Committee’s views

The CEDAW Committee concluded that Bulgaria had violated articles 2(b)-2(f), 5(a), 16(1)(c), 16(1)(d) and 16(1)(f) of CEDAW, read in conjunction with articles 1 and 3.

Failure to investigate allegations of domestic violence

The CEDAW Committee determined that Bulgaria violated articles 2(d) and 2(e) of CEDAW, read in conjunction with articles 1 and 3, when it failed to investigate allegations that A.P. had committed domestic violence against Jallow and her daughter.  The CEDAW Committee condemned the authorities’ actions in limiting their investigation to A.P.’s pornography collection and their failure to interview Jallow about the alleged domestic violence.

Failure to take violence allegations into account in awarding emergency protection order and temporary custody and failure to provide information about child’s whereabouts and condition

The CEDAW Committee found that the Sofia Regional Court had failed to take allegations of domestic violence into account in awarding an emergency protection order and temporary custody to A.P.  The Court had also failed to remove the emergency order even after A.P.’s application for a permanent order was rejected.  In the Committee’s view, these actions, together with the State’s failure to inform Jallow properly about M.A.P.’s whereabouts and her condition, violated articles 2(b) and 2(c) of CEDAW, read in conjunction with articles 1 and 3.   

Gender stereotyping and equal rights within marriage and family relations

The CEDAW Committee determined that Bulgaria had failed to protect Jallow’s rights to equality within marriage and as a parent and to treat her daughter’s interests as paramount, in violation of articles 5(a), 16(1)(c), 16(1)(d) and 16(1)(f) of CEDAW. 

The CEDAW Committee explained that Bulgaria’s actions, including issuing A.P. an emergency order, were based on stereotypes concerning the roles of women and men within marriage, according to which men are perceived to be superior to women.  The authorities’ reliance on these stereotypes caused them to base their actions on the statements and actions of A.P. and to disregard Jallow’s allegations of violence.  It also meant that they ignored Jallow’s vulnerable position and disregarded evidence concerning the disproportionate impact of domestic violence on women.  

Recommendations

The CEDAW Committee urged Bulgaria to compensate Jallow and M.A.P. for violating their rights under CEDAW.  It also recommended that the State Party adopt measures to ensure that women victims / survivors of domestic violence, including migrant women, have effective access to justice and other services (e.g., translation services).  It also called on the State Party to provide regular training on CEDAW and the Optional Protocol and to adopt legislative and other measures to ensure that domestic violence is taken into account in the determination of custody and visitation rights of children.

Communication No. 32/2011, UN Doc. CEDAW/C/52/D/32/2011 (28 August 2012)

Decision

 

Advertisements