Saturday, October 11, 2014

Two decisions on women's discrimination issued by CEDAW

Two decisions were issued by the UN Committee on Women’s Discrimination (CEDAW) at its July session in Geneva.  In the first case, involving Spain, the Committee concluded that gender-based stereotypes had caused the authorities to fail to protect a woman and her daughter from the violence of the husband.  In the second case, from the Philippines, a similar argument that gender-based stereotypes led to a miscarriage of justice in a workplace harassment claim, the Committee concluded the evidence was not sufficient to substantiate a claim and therefore dismissed it on admissibility grounds.  However, in a dissenting opinion, one Committee member concludes there was credible evidence of discrimination and argues that the case should have been decided differently. 

Here is a brief summary of each decision:


Gonzalez Carreno v. Spain, CEDAW/C/58/D/47/2012 (July 18, 2014), decided 17 February 2014.  Represented by counsel (Women’s Link Worldwide). Gender stereotypes; appropriate measures to eliminate discrimination in all matters relating to marriage and family relations. VIOLATION. Articles 2(a)-(f); 5(a), and 16(1)(d), read in conjunction with article 1.

Mrs. Gonzalez Carreno was married in 1996 and had a daughter born the same year. During their time together, before and after the marriage, she was subjected to physical and psychological violence by her husband. She left the marital residence several times during 1999 as a consequence.  In September 1999 after her husband had a knife and threatened to kill her, she sought protection from the police and filed a court complaint asking for separation.  A trial separation was granted by the court in November.  She was continually subject to harassment and intimidation from her husband after this, including death threats in the street and by telephone.  Her daughter became fearful of her father in visitations due to threats and insults of the mother. In one incident he tried to physically remove the child from the mother’s car; the police were called and had to intervene. He threatened to kidnap the girl, and physically grabbed Mrs. Gonzalez Carreno’s hair and threw her to the ground while she had her daughter in her arms.  Several similar incidents are also noted in the complaint. 

Mrs. Gonzalez Carreno filed more than 30 complaints with the civil guard and the courts, repeatedly seeking protective orders against her husband.  She also sought a regime of monitored child visits and payment of child support.  Her husband systematically failed to comply with these court orders.  Because she had very little money or means of support, she sought possession of the marital residence even though she had voluntarily left it earlier.  Spanish civil law provides that the use and enjoyment of the family dwelling is granted to the spouse in a divorce proceeding who has the guardianship and custody of a minor.

Her husband was convicted on one occasion, in October 2000, of stalking and harassing her, but the other complaints did not lead to any punishment.  In other cases protective orders were routinely violated by the husband or not enforced by the courts and police, all without legal consequences to the husband.  In November 2001 the court ordered the final divorce, which disregarded the numerous complaints of abuse and did not refer to habitual ill-treatment as being the cause of separation. Child visits were ordered initially to be monitored and supervised, but only for one month, after which the visits would be gradually expanded.

Despite numerous incidents of violence by her husband during the year and a half of supervised visits, the court authorized unsupervised visits in a May 2002 order.  Mrs. Gonzalez Carreno appealed this decision but lost.  In April 2003 her husband picked up the child for visitation and failed to return her. When the police were notified they found both the daughter and father dead in the father’s dwelling, apparently a murder-suicide.

In April 2004 Mrs. Gonzalez Carreno filed a claim with the Ministry of Justice for compensation for miscarriage of justice, alleging negligence by the administrative and judicial authorities.  She maintained that both the judicial organs and social services had failed in their obligation to protect the life of her daughter, despite the many occasions when she had informed the courts and police about the danger the girl faced with her father.  The Ministry of Justice denied the claim. She made several appeals but was not successful.

The Committee concludes that violations have occurred.  The record is replete with many examples of violent incidents and the failure to include the child in protective orders and other protections sought.  A psychological report in September 2001 had concluded the husband had “an obsessive-compulsive disorder with aspects of pathological jealousy and a tendency to distort reality which could degenerate into a disorder similar to paranoia.”  All of these elements reflect a pattern of action which responds to a stereotyped conception of visiting rights which in the present case gave clear advantages to the father despite his abusive conduct and minimized the situation of mother and daughter as victims of violence, placing them in a vulnerable position.  The Committee notes in this regard that in matters of child custody and visiting rights, the best interests of the child must be a central concern and that when national authorities adopt decisions in that regard they must take into account the existence of a context of domestic violence.

The Committee reiterates that gender-based violence which impairs or mollifies the enjoyment by women of human rights under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention.  This discrimination is not limited to acts committed by or on behalf of Governments.  States may also be responsible for acts of private persons if they do not act with due diligence to prevent violations of rights or to investigate and punish acts of violence and to compensate victims. 

In this case the Committee decides that the authorities, in deciding on the establishment of an unsupervised scheme of visits, applied stereotyped and therefore discriminatory notions in a context of domestic violence and failed to provide due supervision, infringing their obligations under articles 2(a), (d), (e) and (f); 5(a); and 16, paragraph 1(d) of the Convention.  In addition, the failure to pay reparations to Ms. Gonzalez Carreno was a violation of article 2(b) and (c) of the Convention.  The Committee orders the government to pay appropriate reparations to her and to conduct an exhaustive and impartial investigation to determine where there are failures in the government’s structures and practices that have caused Mrs. Gonzalez Carreno and her daughter to be deprived of protection.  In addition, they are ordered to take appropriate and effective measures generally to address prior acts of domestic violence in cases of custody or visiting rights so that the safety of the children are not endangered, and to strengthen the legal framework addressing situations of domestic violence, and finally to provide mandatory training for judges and administrative personnel on combating domestic violence.  VIOLATIONS FOUND. The government is ordered to respond within six months.


M.S. v. The Philippines, CEDAW/C/58/D/30/2011 (August 15, 2014), decided 16 July 2014.  Represented by counsel (H. Harry L. Roque Jr.).  Employment/right to protection of health and to safety in working conditions.  INADMISSIBLE.  Dissenting opinion of Ms. Schulz (4 pages). [2 members abstained]

Ms. M.S. worked for a telecommunications corporation in the Philippines from August 1998 to June 2000.  She had been praised for her job performance on numerous occasions by her superiors.  In May 1999 she began receiving unwanted sexual advances from one of her superiors at company social events and in the office.  She complained to her immediate supervisor and said she was going to file a complaint. Her supervisor discouraged her from doing so.  The unwanted advances continued, causing her stress and anxiety, eventually leading to a leave of absence by her in April 2000.  She believed her job performance continued to be at an optimal level, but was shocked to suddenly begin receiving unfavorable evaluations from her superiors.  Efforts to get an explanation were stonewalled. She resigned from her job in June 2000.

She initiated criminal proceedings against the two superiors, but the case was ultimately dismissed for lack of probable cause.  She asked for reconsideration and was granted a new opportunity to file charges. The respondents, her two former superiors, then filed for reconsideration but lost. The charges against one of the defendants was dismissed eventually because he died.  She also filed a labor case but lost, the arbiter concluding she had voluntarily resigned. She appealed but lost again.  She then appealed to the next level and won, the Court of Appeals having concluded that the various circumstances of the sexual harassment against her had been “conveniently ignored” by the labor arbiter.  The defendants appealed to the Supreme Court and won, dismissing her claim again.

The Committee concludes that the case is not admissible. The facts were assessed by the national authorities in a thorough fashion.  The Committee does not normally replace the national authorities in matters of this nature, unless it can be established that the evaluation was biased or based on gender harmful stereotypes that constitute discrimination against women, or was clearly arbitrary or amounted to a denial of justice.  Nothing in the record before the Committee establishes any of these grounds to overturn the national courts’ final findings.

In a dissenting opinion, Committee member Patricia Schulz argues that the claims of gender stereotyping by the complainant are credible and that the government fails to respond to them in a convincing manner. She highlights in italics specific factual allegations that go unchallenged by the government and that she feels establish a finding of harmful gender stereotypes used in a discriminatory manner.  However, she also views the five year delay before the complainant brought this complaint to the Committee as too long, and as an alternative grounds for dismissing the claim, and finding it inadmissible.

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