Inquiry into access to contraception in Manila: CEDAW Committee finds that the Philippines violated CEDAW

In 2008, the Committee on the Elimination of Discrimination against Women (CEDAW Committee or Committee) received a joint submission from three non-governmental organisations requesting an inquiry into the Philippines under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The request alleged that the implementation of Executive Order No. 003 (2000), which regulated access to contraceptives in Manila, violated the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

In 2008, the CEDAW Committee determined that the information submitted to it was reliable and indicated grave or systematic violations of CEDAW. In 2010, it decided to establish an inquiry and appointed two Committee members to conduct the inquiry. In 2012, the members visited the State Party, with its consent.

In 2015, the CEDAW Committee issued a summary of its findings and its recommendations. It concluded that the State Party had failed to fulfil its obligations under CEDAW and is responsible for grave and systematic violations of the rights under: article 12, read alone; article 12, read in conjunction with articles 2(c), 2(d), 2(f), 5 and 10(h); and article 16(1)(e), read alone.

Findings of fact

Executive Order No. 003 states that the City of Manila promotes responsible parenthood and upholds natural family planning “not just as a method but as a way of self-awareness in promoting the culture of life while discouraging the use of artificial methods of contraception like condoms, pills, intrauterine devices, surgical sterilization, and other.” Among other things, the Order declares that the City of Manila takes an “affirmative stand on pro-life issues and responsible parenthood.” The constitutionality of the order was challenged in the Osil case, but all attempts have been unsuccessful and inconclusive.

The CEDAW Committee found that although contraceptives are not explicitly prohibited by Executive Order No. 003, its implementation has led to:

  • health facilities, funded by the local government, withdrawing contraceptives
  • women being refused family planning information and counselling, unless related to so-called “natural family planning
  • misinformation about modern methods of contraception
  • the discontinuation of supplies, information and training on modern contraceptives.

This, it concluded, demonstrated a ban on modern contraception in local government-run public health facilities, which denied women access to the full range of reproductive and sexual health services, commodities and information, with devastating consequences for their lives and health. It also concluded that national policies condoned and even reinforced the order and the lack of any government response to its implementation was because order aligned with the Government’s own position on contraception.

In 2011, the Mayor adopted Executive Order No. 030, which permitted couples to “exercise full and absolute discretion in deciding on which form of family planning to use conformably with their religious beliefs and practices.” Nevertheless, it provided that the City of Manila was not to “disburse and appropriate funds or finance any program or purchase materials, medicines for artificial birth control.” It did this despite acknowledging the unavailability of reproductive services and commodities and the adverse impact of its policy on financially disadvantaged women.

The Committee found that Order No. 030 did not address the flaws and weaknesses of the health system resulting from Order No. 003. This was because women were not afforded a real choice between modern or natural family planning in practice, since the order was not accompanied by the means necessary to make those choices available and affordable. According to the Committee, the order was therefore an inadequate response to the problem.

The CEDAW Committee took the view that the implementation of both orders negatively affected economically disadvantaged women in particular and drove them further into poverty, by denying them the opportunity to control the number and spacing of children. It also recalled testimonies that revealed the pervasive impact of the orders on the lives and health of women in Manila, particularly the economic, social, physical and psychological consequences for women from low-income groups. This included risks of domestic violence, mental and physical health resulting from multiple pregnancies and increased exposure to HIV/AIDS and other STIs.

Legal findings

The CEDAW Committee found that the State Party failed to fulfil its obligations under CEDAW and is responsible for grave and systematic violations of rights under the Convention. According to the Committee, the State Party failed to address the effects of the orders’ implementation and that, between 2004 and 2010, either supported or condoned Manila’s policies. In those circumstances, it concluded, the State Party is responsible for the violations of CEDAW described below. It affirmed that “[d]ecentralization of power through devolution in no way negates or reduces the direct responsibility of the State party to fulfil its obligation to respect and ensure the rights of all women within its jurisdiction.”

Regarding the gravity of the violations, the CEDAW Committee stressed: the high number of people affected by the orders; higher rates of unwanted pregnancies and unsafe abortions; increased maternal morbidity and mortality and increased exposure to HIV and STIs; and the significant consequences for women’s health, personal development and economic security, in particular for economically disadvantaged women. It also noted the potentially life-threatening consequences of resorting to unsafe abortion as a method of contraception and recalled the direct link between high maternal mortality rates resulting from unsafe abortion and lack of access to modern methods of contraception.

Regarding the systematic nature of the violations, the CEDAW Committee noted that “the systematic character of each of the violations found is evident from the prevalent pattern of violations that occurred as a result of policies disproportionately affecting women and discriminating against them.” It further noted that the lack of access to contraception is particularly egregious in Manila “as a result of an official and deliberate policy that places a certain ideology above the well-being of women and that was designed and implemented by the local government to deny access to the full range of modern contraceptive methods, information and services.” It continued by outlining its expert view that:

the violations are not isolated cases, given that the continued implementation of Executive Order No. 003 over a decade resulted in the health system’s incapacity to deliver sexual and reproductive health services other than so-called “natural family planning” and caused women to continuously face significant barriers to gaining access to affordable sexual and reproductive health services, commodities and information. The above factual findings demonstrate that the State party condoned a situation that lasted for more than 12 years, during the successive terms of two different mayors.

Violations of articles 2(d), 2(f) and 12

In finding that the State Party had violated articles 2(d), 2(f) and 12 of CEDAW, the Committee affirmed that all levels and organs of government must refrain from discriminating against women and must abolish laws, policies or actions that have the effect or result of so discriminating. According to the Committee, the adoption and implementation of the orders by the local government of Manila were attributable to the State Party, which had failed to ensure the local government refrained from discriminating against women. It explained that the State Party was aware of the adverse effects of the orders on women in Manila, especially among economically disadvantaged women, but had failed to: take any action against local public authorities; review the orders; and take sufficient and adequate measures to address the flaws of Manila’s health system. Furthermore, the Committee concluded that the strict application of the State Party’s criminal law further intensified the harmful effects of the orders.

Violations of articles 10(h) and 12

In finding that the State Party had violated articles 10(h) and 12 of CEDAW, the Committee affirmed that lack of access to contraceptives affects women’s health disproportionately because only women can become pregnant. In its expert opinion, women in Manila were discriminated against because they were disproportionately disadvantaged by the lack of access to, and use of, the full range of reproductive and sexual health services, including contraceptives. According to the Committee, the orders severely affected women’s lives and health over a number of years and resulted in unplanned pregnancies, unsafe abortions and unnecessary and preventable maternal deaths. It also

particularly harmed disadvantaged groups of women, including poor women, adolescent girls and women in abusive relationships. For example, adolescent girls were exposed to an increased risk of unwanted pregnancies and pregnancy-related injuries or death following unprotected or coerced sex, to which they are particularly vulnerable. Furthermore, the inability of women with little or no income to control their fertility is directly linked to high poverty levels in Manila. … The Committee also stresse[d] … an increasing exposure of women to HIV/AIDS and other sexually transmitted diseases.

The Committee concluded that the State Party had failed to take appropriate and effective measures to ensure access to the full range of reproductive and sexual health services, commodities and information for women in Manila.

It further concluded that the State Party had failed to ensure that women receive appropriate information and advice about modern contraceptives to enable them to make fully informed choices about their reproductive and sexual health. In so doing, it recalled that

women in Manila, especially young women and teenage girls, have not had access to adequate information about modern methods of contraception as a result of the implementation of Executive Orders Nos. 003 and 030 and/or have been consistently misinformed about the risks, side effects and benefits of modern contraception.

It found that

women’s practical access to reproductive health services was therefore compromised by their lack of knowledge or awareness for informed decision-making, such as information on the legal permissibility of being provided with modern contraceptives in public health facilities, their effectiveness, their risks and their benefits.

It also found that “many women in Manila have been making their choices on the basis of misinformation received, for example on the adverse effects of oral contraception or of ligation procedures.”

Violations of article 16(1)(e)

The CEDAW Committee affirmed that article 16(1)(e) affords women the right to decide on the number and spacing of their children and found that the State Party had violated this right by:

  • advocating and providing only natural methods of family planning and denying women in Manila access to information and services on modern contraception
  • depriving those women of the ability and autonomy to make fundamental and intimate decisions affecting their bodies and lives in an informed and safe manner.

The Committee explained that: “[t]he rights of women to family planning and to exercise their choice and independence in making decisions with regard to the number and spacing of their children were thereby rendered futile and their denial exacerbated inequalities between men and women in marriage and family relations.”

Violations of articles 5 and 12

The CEDAW Committee found that the State Party had violated articles 5 and 12 of CEDAW, since the orders reinforced discriminatory gender stereotypes by perpetuating the view that women’s primary role is as child bearers and child rearers and making it acceptable to deny women access to contraception because of that role. In so finding, it affirmed that:

  • stereotypes can undermine women’s capacity to make free and informed decisions about healthcare, sexuality and reproduction and, in turn, their autonomy to determine their own roles in society
  • article 5, read in conjunction with articles 12 and 16, requires States Parties to eliminate gender stereotypes that impede equality in the health sector and marriage and family relations
  • articles 5(b) and 12 require States Parties to ensure that family education includes a proper understanding of maternity as a social function.

Violations of article 2(c) and 12

The CEDAW Committee found that the State Party had violated articles 2(c) and 12 of CEDAW, through its failure to ensure effective judicial action and protection. In particular, it condemned the State Party’s failure to put in place a system to ensure effective judicial protection and provide effective judicial remedies for the violations experienced by women in Manila as a result of Order No. 003, as evidenced by the failure and unwillingness of the judiciary to adjudicate without undue delay the Osil case concerning the revocation of the disputed executive order.

Recommendations

The CEDAW Committee made extensive recommendations to the State Party. Recommendations related to the institutional and legal framework included:

  • fully enforcing the Magna Carta of Women, including its rules and regulations guaranteeing women’s access to effective methods of family planning;
  • ensuring the Executive Orders are revoked, as a matter of urgency;
  • amending the Criminal Code to legalise abortion in cases of rape, incest, threats to the life and/or health of the mother or serious malformation of the foetus, and to decriminalize all other cases in which women undergo abortion;
  • establishing effective monitoring and oversight mechanisms, to ensure that reproductive health laws, strategies and policies strictly comply CEDAW
  • ensuring effective legal remedies for women seeking redress for violations of their right of access to reproductive and sexual health services
  • prioritising protection of women’s health rights over religious postulates that could discriminate against women and negatively affect their access to reproductive and sexual health services, commodities and information.

Recommendations related to the State Party’s reproductive and sexual health rights and services included:

  • addressing the unmet need for contraception, especially in Manila, by ensuring universal and affordable access to the full range of reproductive and sexual health services, commodities and related information, including the safest and most technologically advanced contraception methods
  • removing all economic and structural barriers resulting in unequal access to reproductive and sexual health services
  • ensuring non-biased, scientifically sound and rights-based counselling and information on reproductive and sexual health services are provided in all governmental, provincial and municipal health facilities
  • reintroducing emergency contraception
  • addressing the loss of institutional capacity and knowledge and the erosion of skills resulting from the enforcement of the orders, through systematic training on reproductive and sexual rights, services and commodities
  • providing women with access to high-quality post-abortion care in all public health facilities
  • integrating age-appropriate education on reproductive and sexual health into school curricula.

UN Doc. CEDAW/C/OP.8/PHL/1 (2015)

Acknowledgment 

Thanks and acknowledgement is due to photographer Allen Sarol for generously allowing use of the accompanying photo.   

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CEDAW inquiry into grave violence against Aboriginal women in Canada

This post, authored by Meghan Campbell, was first published on the Oxford Human Rights Hub on 25 March 2015 and is republished here with the permission of the author. 

On March 6, 2015 the CEDAW Committee released its second inquiry into grave and systemic violations of CEDAW under the Article 8 of the OP-CEDAW. This inquiry was initiated by the Feminist Alliance for International Action and the Native Women’s Association of Canada. These two organisations alleged grave and systematic violations of CEDAW in relation to the disproportionately high levels of violence experienced by Aboriginal women and girls in Canada. Particularly, they argued Canada was in breach of CEDAW because (i) there was no co-ordinated national action plan to address the root causes of violence; (ii) the failures of law enforcement to protect and prevent violence against Aboriginal women and (iii) there was no national public inquiry into missing and murdered Aboriginal women.

The CEDAW inquiry found a firm factual basis for these allegations. Between 1960 and 2013, 663 Aboriginal women have gone missing or being murdered (para 4). In the period 2000-2008 the murders of Aboriginal women represent 10 per cent of the total number of female homicides, despite the fact that Aboriginal women make up only 3 per cent of the total female population (para 7). Aboriginal women are 3.5 times more likely to experience domestic violence and sexual assault than non-Aboriginal women and 5 times more likely to die of violence (para 3).

Canada did not deny the factual claims but argued that its response to violence against women was sufficient to discharge its obligations under CEDAW. The government provided extensive evidence of the funding, programmes and government studies undertaken to prevent further violence against Aboriginal women (para 32-81).

The main focus of the inquiry was the appropriateness of the Canada’s response. After a country visit, the inquiry concluded that Canada’s efforts to address violence against Aboriginal women and girls were inadequate in light of the gravity of the situation. To meet the due diligence standard under Article 2 of CEDAW the formal framework established by Canada must be in practice be effective and available.

The report provides numerous examples of where Canada has failed Aboriginal women and this post highlights a just a few of the findings from the inquiry. First, the Committee concluded that the federal and provincial studies on violence against Aboriginal often had a limited mandate; the recommendations were at times general or ignored and never implemented (para 100-104). Second, the high incidence of poverty, inadequate housing, lack of education and employment opportunities increases Aboriginal women’s vulnerability to violence (para 112). Although Canada has taken step, the measures ‘have not gone far enough’ (para 117). For example, when asked for information on anti-poverty programmes, Canada it did not provide any specific reference to the needs of Aboriginal women and girls (para 118-19). Third, Aboriginal women are reluctant to report violence to the police ‘mainly due to police behaviour and bias’ (para 138). Stereotypical attitudes of Aboriginal women as prostitutes or runaways engaging in high-risk lifestyles often negatively impacted the quality of the police investigation. (para 136-37, 205). While Canada has taken steps to provide gender sensitivity training for police and has developed protocols on investigating cases of missing and murdered Aboriginal women, these are of limited efficiency due to their non-binding nature and lack of oversight and enforcement mechanisms (para 144).

The inquiry also made important contributions to the development of CEDAW. It re-emphasises the importance of substantive equality by holding that it is not sufficient for Canada to apply the same standards to Aboriginal women as have been applied to others. Aboriginal women are particularly vulnerable and Canada’s response needs to account for their disadvantaged position in society. The Committee also highlighted the importance of addressing poverty in protecting Aboriginal women from violence. While there are no substantive obligations in CEDAW on poverty, the Committee is employing a rich interpreting of the treaty to address an underlying cause of violence against Aboriginal women. The inquiry noted that achieving equality before the law (Article 15) is ‘necessarily related to positive obligations…to fulfil economic and social rights enshrined in CEDAW’ (para 199). At the same time, the full development and advancement of women (Article 3) requires Canada to take positive measures to ensure access to education, housing, transportation and support to families and children.

The inquiry offers a series of recommendations to combat violence, improve socio-economic conditions and eliminate discrimination against Aboriginal women and called for a national public inquiry and plan of action. Canada accepted 34 of the 38 recommendations, but unfortunately it still resists holding a national inquiry and plan of action. Notwithstanding this, the CEDAW inquiry is an important contribution to understanding intersectional discrimination and gender inequality. Hopefully it can form the basis for continued dialogue between government officials and the Aboriginal community so as to end violence against Aboriginal women and girls.

Committee declares asylum communication inadmissible, clarifies extraterritorial effect of CEDAW (Y.W. v. Denmark)

In 2010, Y.W., a Chinese national, sought asylum in Denmark. Y.W. claimed that, if deported to China, she would be killed or subjected to violence by organised criminals, who, as a result of a large gambling debt her former husband raised in her name, had previously threatened and raped her, burned her with hot oil and forced her to work as a prostitute. Y.W. further claimed that Chinese authorities would not protect her effectively because they do not acknowledge gender-based violence against women.

In May 2010, the Danish Immigration Service rejected Y.W.’s asylum claim as manifestly unfounded. It concluded that the acts against her were criminal offences irrelevant to asylum law and she could seek protection from the Chinese authorities.

In January 2013, Y.W. submitted an individual communication to the Committee on the Elimination of Discrimination against Women. She claimed that her deportation to China would constitute a violation by Denmark of articles 1 to 3, 12 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women, read in conjunction with the Committee’s General Recommendation No. 19. Among other things, Y.W. submitted that:

  • she had been discriminated against as a woman in seeking to access to justice because more females than males are denied asylum in Denmark under the “manifestly unfounded” procedure and deported, without the right to appeal
  • she would be subjected to gender-based violence by organised crime elements, if deported to China, and that Chinese authorities would not protect her effectively
  • the State Party, by rejecting her asylum claim, failed to protect her against discrimination against women and violence that would put her life and health at risk
  • while in prison, the State Party failed to provide her treatment for the trauma she suffered as a result of the violence
  • the State Party failed to provide her effective remedies for the violations she experienced.

State Party’s observations on admissibility

The State Party submitted that the Committee should declare the communication inadmissible, as Y.W. had failed to:

The State Party further submitted that the communication should be declared inadmissible ratione loci and ratione materiae, as Denmark’s obligations under CEDAW apply only to people under its jurisdiction and do not extend to violations that another State Party is expected to commit (ie CEDAW lacks extraterritorial effect). It further claimed that, unlike other human rights treaties, CEDAW does not deal with removal to torture or other serious threats to life and the security of a person.

Committee’s decision on admissibility

The CEDAW Committee determined that Y.W. had failed to substantiate her claim sufficiently and declared the communication inadmissible under article 4(2)(c) of the Optional Protocol.

Gender-based violence / non-refoulement

The Committee recalled its General Recommendation No. 28 in which it noted that CEDAW applies both to citizens and non-citizens, including asylum seekers, within a State Party’s territory or control. It also recalled its General Recommendation No. 19, in which it noted that gender-based violence is a form of discrimination against women and violates other human rights, including the right to life and the freedom from torture and other cruel, inhuman or degrading treatment or punishment. It also re-affirmed that, under international human rights law, States Parties must refrain from returning people to a jurisdiction in which he or she may face serious rights violations, including arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment, or gender or other forms of persecution.

The Committee rejected the State Party’s claim that CEDAW does not have extraterritorial effect and recalled that article 2(d) imposes an obligation to refrain from discriminating against women and to ensure public authorities and institutions act accordingly. This positive duty, the Committee explained,

encompasses the obligation … to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party: if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention.

The Committee further explained that ‘[t]he foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later’. It clarified that

[w]hat amounts to serious forms of gender-based violence will depend on the circumstances of each case and would need to be determined by the Committee on a case-by-case basis at the merits stage, provided that the author had made a prima facie case before the Committee by sufficiently substantiating such allegations.

Ultimately, however, the Committee concluded that Y.W. had not sufficiently substantiated her claim that she would be subjected to gender-based violence, if deported to China, and would not receive adequate protection from Chinese authorities. It also emphasised that Y.W. had never sought protection from Chinese authorities.

Access to justice in relation to asylum claim

The Committee recalled its General Recommendation No. 32, in which it affirmed that articles 1-3, 5(a) and 15 of CEDAW require States Parties to ensure women are not discriminated against during any aspect of the asylum process. It further recalled that States Parties should apply a gender-sensitive approach at every stage of the asylum process and ensure women denied asylum are subjected to dignified and non-discriminatory return processes.

Ultimately, however, the Committee concluded that Y.W. had not sufficiently substantiated her claim that she had been discriminated against in seeking access to justice. In this connection, it noted that Y.W. had not informed it of her whereabouts and whether or not she had been deported to China. It further noted the absence of any other pertinent information on file.

Communication No. 51/2013, UN Doc. CEDAW/C/60/D/51/2013 (2015)

Decision

CEDAW Committee finds violations of CEDAW concerning domestic violence, child visitation rights and child support (Angela González Carreño v. Spain)

In 1999, Angela González Carreño left her husband, F.R.C., because he had subjected her to domestic violence over several years. She reported the violence to the authorities. A trial separation was ordered between Angela and F.R.C. Angela was given custody and guardianship of Andrea, their daughter, and F.R.C was ordered to pay child support. A limited regime of supervised visits between F.R.C. and Andrea was ordered.

The violence against Angela continued, some of which Andrea witnessed, and included repeated death threats. During his visits with Andrea, F.R.C. questioned Andrea about her Angela’s private life, spoke ill of Angela and made accusations about her. As a result, Andrea became afraid of her father and did not want to spend time with him outside the visitation regime. He then accused Angela of manipulating Andrea. Despite many complaints, F.R.C. was only convicted once on a charge of harassment and then fined only 45 euros.

Angela repeatedly sought protective orders before local courts to keep F.R.C. away from her and Andrea, a regime of supervised visits and child support payments. The courts issued protective orders for Angela, but F.R.C. violated them without legal consequence to him. Only one order included Andrea, but the court left this order unenforced following an appeal by F.R.C., since it considered the order hampered the visit regime and could harm relations between F.R.C and Andrea.

In January 2001, the Court of First Instance No. 1 of Navalcarnero drew up a provisional schedule of supervised visits monitored by social services. In September 2001, a psychological evaluation report proposed that visits between F.R.C. and Andrea should be normalised gradually.

In November 2001, the court entered the order of marital separation. The order did not take the domestic violence into account or identify it as the cause of the separation. The order maintained the supervised visit regime for one month, gradually expanding it in line with F.R.C.’s behaviour. It did not address F.R.C.’s continued non-payment of child support.

In May 2002, Court No. 1 of Navalcarnero authorised unsupervised visits between F.R.C. and Andrea, despite many violent incidents by F.R.C. during the period of supervised visits. Angela appealed the decision without success.

In April 2003, F.R.C. murdered Andrea and committed suicide. In June 2003, Investigative Court No. 3 of Navalcarnero declared F.R.C.’s criminal liability for Andrea’s death extinguished on account of his suicide.

In April 2004, Angela filed with the Ministry of Justice a claim for compensation for miscarriage of justice. Angela claimed that the authorities were negligent and failed in their obligation to protect the life of Andrea, despite being repeatedly informed of the danger she faced. The Ministry denied the claim, concluding that the authorities acted properly regarding the visitation regime. It noted that Angela could pursue her claim for compensation only if the Supreme Court found judicial error. An appeal, filed by Angela, was denied. In June 2007, Angela lodged an administrative appeal before the High Court, alleging improper functioning of the administration of justice. This and subsequent appeals, including to the Constitutional Court, were also denied.

Angela’s subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed to be a victim of a violation by Spain of articles 2(a)-2(f), 5(a) and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Among other things, she asserted that:

  • the authorities failed to act with due diligence to prevent, investigate, prosecute and punish the known violence experienced by Angela and Andrea and the murder of Andrea
  • the authorities failed to provide an effective judicial response to Andrea’s murder and appropriate redress for the damages Angela suffered through the State Party’s negligence
  • the State Party had inadequate protections against domestic violence at the relevant time and that victims continued to experience discrimination
  • stereotyping by the authorities meant that, inter alia, they: did not investigate Andrea’s situation as a direct and indirect victim of violence; prioritised F.R.C.’s wishes over Andrea’s rights and best interests; and questioned Angela’s creditability
  • the authorities discriminated against Angela in the decisions on her separation and divorce, including by not taking the violence into account and ensuring F.R.C. paid child support.

State Party’s observations on admissibility

The State Party contested the admissibility of the communication on several grounds. First, it claimed that the Committee should declare the communication inadmissible because Angela had failed to exhaust domestic remedies, specifically by alleging judicial error before the Supreme Court. Second, it claimed that Angela’s complaint was not sufficiently substantiated. Specifically, it asserted that F.R.C., and not Spanish authorities, committed the acts of which Angela complained and, further, that its authorities did not act negligently. Third, it claimed that the Committee was unable to consider a communication concerning events that occurred prior to the entry into force of the Optional Protocol for the State Party and which were not continuing.

Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol or Protocol).

Ratione temporis

In declaring the communication admissible ratione temporis, the Committee acknowledged that some of the abuses and complaints occurred prior to the Protocol’s entry into force for the State Party. However, it determined that key facts and decisions leading up to the murder of Andrea, including judicial decisions authorising the regime of unsupervised visits and refusing Angela’s appeal, occurred after the relevant entry into force date. It explained that it would take the prior abuses and complaints into account only insofar as they explained the context of events occurring after the Protocol’s entry into force for Spain.

Exhaustion of domestic remedies

The Committee determined that Angela had exerted reasonable efforts to exhaust domestic remedies. In this connection, it noted that Angela had filed several appeals, including before the Constitutional Court, all of which were rejected by national authorities. The Committee also noted the State Party’s failure to identify other remedies that it believed could respond effectively to Angela’s complaint about the establishment of unsupervised visits between F.R.C and Andrea and the lack of redress for Andrea’s death.

Sufficiently substantiated

In the Committee’s expert view, Angela had sufficiently substantiated her complaints, for the purposes of admissibility.

State Party’s observations on merits

The State Party asserted that it had not violated CEDAW. Among other things, it claimed that: F.R.C.’s behaviour was unforeseeable and nothing could lead it to predict a danger to the life or physical or mental health of Andrea; its authorities had not acted negligently; and the acts of which Angela complained were committed by F.R.C. It further claimed that Angela had wrongly asserted that Spain had no protections against gender-based violence at the time and provided the Committee with a list of actions undertaken to eradicate discrimination against women.

Committee’s decision on the merits

The CEDAW Committee determined that the State Party had violated articles 2(a)-2(f), 5(a) and 16(1)(d) of CEDAW, read with article 1 and its General Recommendation No. 19.

Gender-based violence against women

In reaching its determination, the Committee recalled its General Recommendation No. 19, in which it defined gender-based violence as a form of discrimination, within the meaning of article 1 of CEDAW. It also reiterated that States Parties have a due diligence obligation to take all appropriate measures to prevent, investigate, punish and provide reparations for gender-based violence perpetrated by non-state actors. According to the Committee, public officials must respect the due diligence obligation, if women are to enjoy substantive equality and protections against violence in practice. This obligation, the Committee explained, includes investigating the existence of failures, negligence or omissions on the part of public authorities that may have deprived victims of protection against such violence.

Turning to the facts, the Committee concluded that the violence committed by F.R.C. against Angela and the murder of Andrea was foreseeable. It noted, for instance, that F.R.C.: committed numerous acts of violence against Angela, which Andrea often witnessed; was not held legally liable for ignoring court protective orders; and had been diagnosed with an “obsessive-compulsive disorder with aspects of pathological jealousy and a tendency to distort reality which could degenerate into a disorder similar to paranoia”. It also noted a social services report regarding the need for continuous monitoring of visits between F.R.C. and Andrea. According to the Committee, the State Party’s due diligence obligations were not meet, since no reasonable steps were taken to protect Angela and Andrea against the violence and, in Andrea’s case, murder. Moreover, the State Party had not investigated whether its authorities failed to protect, or were negligent in protecting, Angela and Andrea against violence.

Unsupervised visits

In reaching its determination, the Committee affirmed that child custody and visitation decisions should be based on the best interests of the child, not on stereotypes, with domestic violence being a relevant consideration. In addition, it stressed that stereotypes affect women’s right to an impartial judicial process and the judiciary must not apply inflexible standards based on preconceived notions about what constitutes domestic violence.

Turning to the facts, the Committee concluded that the decision to grant F.R.C. unsupervised visits with Andrea: was based on stereotypes about domestic violence that prioritised his (male) interests and minimised his abusive behaviour, over the safety of Andrea and Angela; did not take into account the long-term pattern of domestic violence; and did not specify necessary safeguards.

Lack of reparation

The Committee determined that Angela’s efforts to obtain redress for the serious and irreparable harm she had suffered had been futile, resulting in further violations of her rights under CEDAW.

Recommendations 

The Committee recommended that the State Party provide Angela reparations and investigate whether failures in its structures and practices led to Angela and Andrea being denied appropriate protection. Other recommendations included: ensuring domestic violence is taken into account in custody and visitation matters and that the best interests of the child prevail in related decisions; ensuring that its authorities exercise due diligence and respond appropriately to domestic violence; and providing mandatory training for judges and administrative personnel on the legal framework concerning domestic violence and gender stereotyping.

Communication No. 47/20 12, UN Doc. CEDAW/C/58/D/47/2012 (2014)

Decision