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CEDAW (2013): General recommendation No. 33 on women’s access to justice

I. Introduction and scope

1. The right to access to justice for women is essential to the realization of all the rights protected under the Convention on the Elimination of All Forms of Discrimination against Women. It is a fundamental element of the rule of law and good governance, together with the independence, impartiality, integrity and credibility of the judiciary, the fight against impunity and corruption, and the equal participation of women in the judiciary and other law implementation mechanisms. The right to access to justice is multidimensional. It encompasses justiciability, availability, accessibility, good quality, the provision of remedies for victims and the accountability of justice systems. For the purposes of the present general recommendation, all references to "women" should be understood to include women and girls, unless otherwise specifically noted.

2. In the present general recommendation, the Committee examines the obligations of States parties to ensure that women have access to justice. These obligations encompass the protection of women’s rights against all forms of discrimination with a view to empowering them as individuals and as rights holders. Effective access to justice optimizes the emancipatory and transformative potential of the law.

3. In practice, the Committee has observed a number of obstacles and restrictions that impede women from realizing their right to access to justice on a basis of equality, including a lack of effective jurisdictional protection offered by States parties in relation to all dimensions of access to justice. These obstacles occur in a structural context of discrimination and inequality owing to factors such as gender stereotyping, discriminatory laws, intersecting or compounded discrimination, procedural and evidentiary requirements and practices, and a failure to systematically ensure that judicial mechanisms are physically, economically, socially and culturally accessible to all women. All these obstacles constitute persistent violations of women’s human rights.

4. The scope of the present general recommendation includes the procedures and quality of justice for women at all levels of justice systems, including specialized and quasi-judicial mechanisms. Quasi-judicial mechanisms encompass all actions of public administrative agencies or bodies, similar to those carried out by the judiciary, which have legal effects and may affect legal rights, duties and privileges.

5. The scope of the right to access to justice also includes plural justice systems. The term "plural justice systems" refers to the coexistence within a State party of State laws, regulations, procedures and decisions on the one hand, and religious, customary, indigenous or community laws and practices on the other. Therefore, plural justice systems include multiple sources of law, whether formal or informal, whether State, non-State or mixed, that women may encounter when seeking to exercise their right to access to justice. Religious, customary, indigenous and community justice systems — referred to as traditional justice systems in the present general recommendation — may be formally recognized by the State, operate with the acquiescence of the State, with or without any explicit status, or function outside of the State’s regulatory framework.

6. International and regional human rights treaties and declarations and most national constitutions contain guarantees relating to sex and/or gender equality before the law and obligations to ensure that everyone benefits from the equal protection of the law. Article 15 of the Convention provides that women and men must have equality before the law and benefit from equal protection of the law. Article 2 stipulates that States parties must take all appropriate measures to guarantee the substantive equality of men and women in all areas of life, including through the establishment of competent national tribunals and other public institutions, to ensure the effective protection of women against any act of discrimination. The content and scope of that provision are further detailed in the Committee’s general recommendation No. 28 on the core obligations of States parties under article 2 of the Convention. Article 3 mentions the need for appropriate measures to ensure that women can exercise and enjoy their human rights and fundamental freedoms on a basis of equality with men.

7. Discrimination may be directed against women on the basis of their sex and gender. Gender refers to socially constructed identities, attributes and roles for women and men and the cultural meaning imposed by society on to biological differences, which are consistently reflected within the justice system and its institutions. Under article 5 (a) of the Convention, States parties have an obligation to expose and remove the underlying social and cultural barriers, including gender stereotypes, that prevent women from exercising and claiming their rights and impede their access to effective remedies.

8. Discrimination against women, based on gender stereotypes, stigma, harmful and patriarchal cultural norms and gender-based violence, which affects women in particular, has an adverse impact on the ability of women to gain access to justice on an equal basis with men. In addition, discrimination against women is compounded by intersecting factors that affect some women to degrees or in ways that differ from those affecting men or other women. Grounds for intersecting or compounded discrimination may include ethnicity/race, indigenous or minority status, colour, socioeconomic status and/or caste, language, religion or belief, political opinion, national origin, marital and/or maternal status, age, urban/rural location, health status, disability, property ownership and identity as a lesbian, bisexual or transgender woman or intersex person. These intersecting factors make it more difficult for women from those groups to gain access to justice.

9. Other factors that make it more difficult for women to gain access to justice include illiteracy, trafficking, armed conflict, status as an asylum seeker, internal displacement, statelessness, migration, being a female head of household, widowhood, living with HIV, deprivation of liberty, criminalization of prostitution, geographical remoteness and stigmatization of women fighting for their rights. That human rights defenders and organizations are frequently targeted because of their work must be emphasized and their own right to access to justice protected.

10. The Committee has documented many examples of the negative impact of intersecting forms of discrimination on access to justice, including ineffective remedies, for specific groups of women. Women belonging to such groups often do not report violations of their rights to the authorities for fear that they will be humiliated, stigmatized, arrested, deported, tortured or have other forms of violence inflicted upon them, including by law enforcement officials. The Committee has also noted that, when women from those groups lodge complaints, the authorities frequently fail to act with due diligence to investigate, prosecute and punish perpetrators and/or provide remedies.

11. In addition to articles 2 (c), 3, 5 (a) and 15 of the Convention, States parties have further treaty-based obligations to ensure that all women have access to education and information about their rights and the remedies that are available and how to gain access to them, and access to competent, gender-sensitive dispute resolution systems, as well as equal access to effective and timely remedies.

12. The Committee’s views and recommendations concerning the steps that need to be taken to overcome obstacles encountered by women in gaining access to justice are informed by its experience in considering the reports of States parties, its analysis of individual communications and its conduct of inquiries under the Optional Protocol to the Convention. In addition, reference is made to work on access to justice by other United Nations human rights mechanisms, national human rights institutions, civil society organizations, including community-based women’s associations, and academic researchers.

II. General issues and recommendations on women’s access to justice

A. Justiciability, availability, accessibility, good quality, provision of remedies and accountability of justice systems

13. The Committee has observed that the concentration of courts and quasi-judicial bodies in the main cities, their non-availability in rural and remote regions, the time and money needed to gain access to them, the complexity of proceedings, the physical barriers for women with disabilities, the lack of access to high-quality, gender-competent legal advice, including legal aid, as well as the often-noted deficiencies in the quality of justice systems (e.g., gender-insensitive judgements or decisions owing to a lack of training, delays and excessive length of proceedings, corruption) all prevent women from gaining access to justice.

14. Six interrelated and essential components — justiciability, availability, accessibility, good quality, provision of remedies for victims and accountability of justice systems — are therefore necessary to ensure access to justice. While differences in prevailing legal, social, cultural, political and economic conditions will necessitate a differentiated application of these features in each State party, the basic elements of the approach are universally relevant and immediately applicable. Accordingly:

(a) Justiciability requires the unhindered access by women to justice and their ability and empowerment to claim their rights as legal entitlements under the Convention;

(b) Availability requires the establishment of courts, quasi-judicial bodies or other bodies throughout the State party in urban, rural and remote areas, as well as their maintenance and funding;

(c) Accessibility requires that all justice systems, both formal and quasi-judicial, be secure, affordable and physically accessible to women, and be adapted and appropriate to the needs of women, including those who face intersecting or compounded forms of discrimination;

(d) Good quality of justice systems requires that all components of the system adhere to international standards of competence, efficiency, independence and impartiality and provide, in a timely fashion, appropriate and effective remedies that are enforced and that lead to sustainable gender-sensitive dispute resolution for all women. It also requires that justice systems be contextualized, dynamic, participatory, open to innovative practical measures, gender-sensitive and take account of the increasing demands by women for justice;

(e) Provision of remedies requires that justice systems provide women with viable protection and meaningful redress for any harm that they may suffer (see art. 2); and

(f) Accountability of justice systems is ensured through monitoring to guarantee that they function in accordance with the principles of justiciability, availability, accessibility, good quality and provision of remedies. The accountability of justice systems also refers to the monitoring of the actions of justice system professionals and of their legal responsibility when they violate the law.

15. With regard to justiciability, the Committee recommends that States parties:

(a) Ensure that rights and correlative legal protections are recognized and incorporated into the law, improving the gender responsiveness of the justice system;

(b) Improve women ’ s unhindered access to justice systems and thereby empower them to achieve de jure and de facto equality;

(c) Ensure that justice system professionals handle cases in a gender-sensitive manner;

(d) Ensure the independence, impartiality, integrity and credibility of the judiciary and the fight against impunity;

(e) Tackle corruption in justice systems as an important element of eliminating discrimination against women in gaining access to justice;

(f) Confront and remove barriers to women’s participation as professionals within all bodies and levels of judicial and quasi-judicial systems and providers of justice-related services, and take steps, including temporary special measures, to ensure that women are equally represented in the judiciary and other law implementation mechanisms as magistrates, judges, prosecutors, public defenders, lawyers, administrators, mediators, law enforcement officials, judicial and penal officials and expert practitioners, as well as in other professional capacities;

(g) Revise the rules on the burden of proof in order to ensure equality between the parties in all fields where power relationships deprive women of fair treatment of their cases by the judiciary;

(h) Cooperate with civil society and community-based organizations to develop sustainable mechanisms to support women’s access to justice and encourage non-governmental organizations and civil society entities to take part in litigation relating to women’s rights;

(i) Ensure that women human rights defenders are able to gain access to justice and receive protection from harassment, threats, retaliation and violence.

16. With regard to the availability of justice systems, the Committee recommends that States parties:

(a) Ensure the creation, maintenance and development of courts, tribunals and other entities, as needed, that guarantee women’s right to access to justice without discrimination throughout the entire territory of the State party, including in remote, rural and isolated areas, giving consideration to the establishment of mobile courts, especially to serve women living in remote, rural and isolated areas, and to the creative use of modern information technology solutions, when feasible;

(b) In cases of violence against women, ensure access to financial aid, crisis centres, shelters, hotlines and medical, psychosocial and counselling services;

(c) Ensure that rules on standing allow groups and civil society organizations with an interest in a given case to lodge petitions and participate in the proceedings;

(d) Establish an oversight mechanism by independent inspectors to ensure the proper functioning of the justice system and address any discrimination against women committed by justice system professionals.

17. With regard to accessibility of justice systems, the Committee recommends that States parties:

(a) Remove economic barriers to justice by providing legal aid and ensure that fees for issuing and filing documents, as well as court costs, are reduced for women with low incomes and waived for women living in poverty;

(b) Remove linguistic barriers by providing independent and professional translation and interpretation services, when needed, and provide individualized assistance for illiterate women in order to guarantee their full understanding of judicial and quasi-judicial processes;

(c) Develop targeted outreach activities and distribute through, for example, specific units or desks dedicated to women, information about the justice mechanisms, procedures and remedies that are available, in various formats and also in community languages. Such activities and information should be appropriate for all ethnic and minority groups in the population and designed in close cooperation with women from those groups and, especially, from women’s and other relevant organizations;

(d) Ensure access to the Internet and other information and communications technology (ICT) to improve women’s access to justice systems at all levels, and give consideration to the development of Internet infrastructure, including videoconferencing, to facilitate the holding of court hearings and the sharing, collection and support of data and information among stakeholders;

(e) Ensure that the physical environment and location of judicial and quasi-judicial institutions and other services are welcoming, secure and accessible to all women, with consideration given to the creation of gender units as components of justice institutions and special attention given to covering the costs of transportation to judicial and quasi-judicial institutions and other services for women without sufficient means;

(f) Establish justice access centres, such as “one-stop centres”, which include a range of legal and social services, in order to reduce the number of steps that a woman has to take to gain access to justice. Such centres could provide legal advice and aid, begin the legal proceedings and coordinate support services for women in areas such as violence against women, family matters, health, social security, employment, property and immigration. Such centres must be accessible to all women, including those living in poverty and/or in rural and remote areas;

(g) Pay special attention to access to justice systems for women with disabilities.

18. With regard to the good quality of justice systems, the Committee recommends that States parties:

(a) Ensure that justice systems are of good quality and adhere to international standards of competence, efficiency, independence and impartiality, as well as to international jurisprudence;

(b) Adopt indicators to measure women’s access to justice;

(c) Ensure an innovative and transformative justice approach and framework, including, when necessary, investing in broader institutional reforms;

(d) Provide, in a timely fashion, appropriate and effective remedies that are enforced and that lead to sustainable gender-sensitive dispute resolution for all women;

(e) Implement mechanisms to ensure that evidentiary rules, investigations and other legal and quasi-judicial procedures are impartial and not influenced by gender stereotypes or prejudice;

(f) When necessary to protect women’s privacy, safety and other human rights, ensure that, in a manner consistent with due process and fair proceedings, legal proceedings can be held privately in whole or in part or that testimony can be given remotely or using communications equipment, such that only the parties concerned are able to gain access to their content. The use of pseudonyms or other measures to protect the identities of such women during all stages of the judicial process should be permitted. States parties should guarantee the possibility of taking measures to protect the privacy and image of victims through the prohibition of image capturing and broadcasting in cases where doing so may violate the dignity, emotional condition and security of girls and women;

(g) Protect women complainants, witnesses, defendants and prisoners from threats, harassment and other forms of harm before, during and after legal proceedings and provide the budgets, resources, guidelines and monitoring and legislative frameworks necessary to ensure that protective measures function effectively.

19. With regard to the provision of remedies, the Committee recommends that States parties:

(a) Provide and enforce appropriate and timely remedies for discrimination against women and ensure that women have access to all available judicial and non-judicial remedies;

(b) Ensure that remedies are adequate, effective, promptly attributed, holistic and proportional to the gravity of the harm suffered. Remedies should include, as appropriate, restitution (reinstatement), compensation (whether provided in the form of money, goods or services) and rehabilitation (medical and psychological care and other social services). Remedies for civil damages and criminal sanctions should not be mutually exclusive;

(c) Take full account of the unremunerated domestic and caregiving activities of women in assessments of damages for the purposes of determining appropriate compensation for harm in all civil, criminal, administrative or other proceedings;

(d) Create women-specific funds to ensure that women receive adequate reparation in situations in which the individuals or entities responsible for violating their human rights are unable or unwilling to provide such reparation;

(e) In cases of sexual violence in conflict or post-conflict situations, mandate institutional reforms, repeal discriminatory legislation and enact legislation providing for adequate sanctions, in accordance with international human rights standards, and determine reparation measures, in close cooperation with women’s organizations and civil society, to help to overcome the discrimination that preceded the conflict;

(f) Ensure that non - judicial remedies, such as public apologies, public memorials and guarantees of non-repetition granted by truth, justice and reconciliation commissions, are not used as substitutes for investigations and prosecutions of perpetrators when human rights violations occur in conflict or post-conflict contexts; reject amnesties for gender-based human rights violations, such as sexual violence against women, and reject statutory limitations for the prosecution of such violations (see general recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations);

(g) Provide effective and timely remedies and ensure that they respond to the different types of violations experienced by women, as well as adequate reparation, and ensure women’s participation in the design of all reparation programmes, as indicated in general recommendation No. 30.

20. With regard to the accountability of justice systems, the Committee recommends that States parties:

(a) Develop effective and independent mechanisms to observe and monitor women’s access to justice in order to ensure that justice systems are in accordance with the principles of justiciability, availability, accessibility, good quality and effectiveness of remedies, including the periodic auditing/review of the autonomy, efficiency and transparency of the judicial, quasi-judicial and administrative bodies that take decisions affecting women’s rights;

(b) Ensure that cases of identified discriminatory practices and acts by justice professionals are effectively addressed through disciplinary and other measures;

(c) Create a specific entity to receive complaints, petitions and suggestions with regard to all personnel supporting the work of the justice system, including social, welfare and health workers as well as technical experts;

(d) Data should include but need not be limited to:

(i) The number and geographical distribution of judicial and quasi-judicial bodies;

(ii) The number of men and women working in law enforcement bodies and judicial and quasi-judicial institutions at all levels;

(iii) The number and geographical distribution of men and women lawyers, including legal-aid lawyers;

(iv) The nature and number of cases and complaints lodged with judicial, quasi-judicial and administrative bodies, disaggregated by the sex of the complainant;

(v) The nature and number of cases dealt with by the formal and informal justice systems, disaggregated by the sex of the complainant;

(vi) The nature and number of cases in which legal aid and/or public defence were required, accepted and provided, disaggregated by the sex of the complainant;

(vii) The length of the procedures and their outcomes, disaggregated by the sex of the complainant;

(e) Conduct and facilitate qualitative studies and critical gender analyses of all justice systems, in collaboration with civil society organizations and academic institutions, in order to highlight practices, procedures and jurisprudence that promote or limit women’s full access to justice;

(f) Systematically apply the findings of those analyses in order to develop priorities, policies, legislation and procedures to ensure that all components of the justice system are gender-sensitive, user-friendly and accountable.

B. Discriminatory laws, procedures and practices

21. Frequently, States parties have constitutional provisions, laws, regulations, procedures, customs and practices that are based on traditional gender stereotypes and norms and are, therefore, discriminatory and deny women full enjoyment of their rights under the Convention. The Committee, therefore, consistently calls upon States parties, in its concluding observations, to review their legislative frameworks and to amend and/or repeal provisions that discriminate against women. This is consistent with article 2 of the Convention, which enshrines obligations for States parties to adopt appropriate legal and other measures to eliminate all forms of discrimination against women by public authorities and non-State actors, be they individuals, organizations or enterprises.

22. Women, nonetheless, face many difficulties in gaining access to justice as a result of direct and indirect discrimination, as defined in paragraph 16 of general recommendation No. 28. Such inequality is apparent not only in the discriminatory content and/or impact of laws, regulations, procedures, customs and practices, but also in the lack of capacity and awareness on the part of judicial and quasi-judicial institutions to adequately address violations of women’s human rights. In its general recommendation No. 28, the Committee, therefore, notes that judicial institutions must apply the principle of substantive or de facto equality, as embodied in the Convention, and interpret laws, including national, religious and customary laws, in line with that obligation. Article 15 encompasses obligations for States parties to ensure that women enjoy substantive equality with men in all areas of the law.

23. Many of the Committee’s concluding observations and views under the Optional Protocol, however, demonstrate that discriminatory procedural and evidentiary rules and a lack of due diligence in the prevention, investigation, prosecution, punishment and provision of remedies for violations of women’s rights result in contempt of obligations to ensure that women have equal access to justice.

24. Special consideration is to be given to girls (including the girl child and adolescent girls, where appropriate) because they face specific barriers to gaining access to justice. They often lack the social or legal capacity to make significant decisions about their lives in areas relating to education, health and sexual and reproductive rights. They may be forced into marriage or subjected to other harmful practices and various forms of violence.

25. The Committee recommends that States parties:

(a) Ensure that the principle of equality before the law is given effect by taking steps to abolish any existing laws, procedures, regulations, jurisprudence, customs and practices that directly or indirectly discriminate against women, especially with regard to their access to justice, and to abolish discriminatory barriers to access to justice, including:

(i) The obligation or need for women to seek permission from family or community members before beginning legal action;

(ii) Stigmatization of women who are fighting for their rights by active participants in the justice system;

(iii) Corroboration rules that discriminate against women as witnesses, complainants and defendants by requiring them to discharge a higher burden of proof than men in order to establish an offence or seek a remedy;

(iv) Procedures that exclude or accord inferior status to the testimony of women;

(v) Lack of measures to ensure equal conditions between women and men during the preparation, conduct and aftermath of cases;

(vi) Inadequate case management and evidence collection in cases brought by women, resulting in systematic failures in the investigation of cases;

(vii) Obstacles faced in the collection of evidence relating to emerging violations of women’s rights occurring online and through the use of ICT and new social media;

(b) Ensure that independent, safe, effective, accessible and child-sensitive complaint and reporting mechanisms are available to girls. Such mechanisms should be established in conformity with international norms, especially the Convention on the Rights of the Child, and staffed by appropriately trained officials, working in an effective and gender-sensitive manner, in accordance with general comment No. 14 of the Committee on the Rights of the Child, so that the best interests of the girls concerned is taken as a primary consideration;

(c) Take measures to avoid the marginalization of girls owing to conflicts and disempowerment within their families and the resulting lack of support for their rights, and abolish rules and practices that require parental or spousal authorization for access to services such as education and health, including sexual and reproductive health, as well as to legal services and justice systems;

(d) Protect women and girls from interpretations of religious texts and traditional norms that create barriers to their access to justice and result in discrimination against them.

C. Stereotyping and gender bias in the justice system and the importance of capacity-building

26. Stereotyping and gender bias in the justice system have far-reaching consequences for women’s full enjoyment of their human rights. They impede women’s access to justice in all areas of law, and may have a particularly negative impact on women victims and survivors of violence. Stereotyping distorts perceptions and results in decisions based on preconceived beliefs and myths rather than relevant facts. Often, judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to those stereotypes. Stereotyping also affects the credibility given to women’s voices, arguments and testimony as parties and witnesses. Such stereotyping can cause judges to misinterpret or misapply laws. This has far-reaching consequences, for example, in criminal law, where it results in perpetrators not being held legally accountable for violations of women’s rights, thereby upholding a culture of impunity. In all areas of law, stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the revictimization of complainants.

27. Judges, magistrates and adjudicators are not the only actors in the justice system who apply, reinforce and perpetuate stereotypes. Prosecutors, law enforcement officials and other actors often allow stereotypes to influence investigations and trials, especially in cases of gender-based violence, with stereotypes undermining the claims of the victim/survivor and simultaneously supporting the defence advanced by the alleged perpetrator. Stereotyping can, therefore, permeate both the investigation and trial phases and shape the final judgement.

28. Women should be able to rely on a justice system free of myths and stereotypes, and on a judiciary whose impartiality is not compromised by those biased assumptions. Eliminating stereotyping in the justice system is a crucial step in ensuring equality and justice for victims and survivors.

29. The Committee recommends that States parties:

(a) Take measures, including awareness-raising and capacity-building programmes for all justice system personnel and law students, to eliminate gender stereotyping and incorporate a gender perspective into all aspects of the justice system;

(b) Include other professionals, in particular health-care providers and social workers, who potentially play an important role in cases of violence against women and in family matters, in the awareness-raising and capacity-building programmes;

(c) Ensure that capacity-building programmes address, in particular:

(i) The issue of the credibility and weight given to women’s voices, arguments and testimony, as parties and witnesses;

(ii) The inflexible standards often developed by judges and prosecutors for what they consider to be appropriate behaviour for women;

(d) Consider promoting a dialogue on the negative impact of stereotyping and gender bias in the justice system and the need for improved justice outcomes for women who are victims and survivors of violence;

(e) Raise awareness of the negative impact of stereotyping and gender bias and encourage advocacy to address stereotyping and gender bias in justice systems, especially in gender-based violence cases;

(f) Provide capacity-building programmes for judges, prosecutors, lawyers and law enforcement officials on the application of international legal instruments relating to human rights, including the Convention and the jurisprudence of the Committee, and on the application of legislation prohibiting discrimination against women.

D. Education and raising awareness of the impact of stereotypes

30. The provision of education from a gender perspective and raising public awareness through civil society, the media and the use of ICT are essential to overcoming the multiple forms of discrimination and stereotyping that have an impact on access to justice and to ensuring the effectiveness and efficiency of justice for all women.

31. Article 5 (a) of the Convention provides that States parties must take all appropriate measures to modify social and cultural patterns of conduct, with a view to eliminating prejudices and customary and all other practices that are based on the idea of the inferiority or the superiority of either sex. In its general recommendation No. 28, the Committee emphasized that all provisions of the Convention must be read jointly in order to ensure that all forms of gender-based discrimination are condemned and eliminated.

1. Education from a gender perspective

32. Women who are unaware of their human rights are unable to make claims for the fulfilment of those rights. The Committee has observed, especially during its consideration of periodic reports submitted by States parties, that they often fail to guarantee that women have equal access to education, information and legal literacy programmes. Furthermore, awareness on the part of men of women’s human rights is also indispensable to guaranteeing non-discrimination and equality, and to guaranteeing women’s access to justice in particular.

33. The Committee recommends that States parties:

(a) Develop gender expertise, including by increasing the number of gender advisers, with the participation of civil society organizations, academic institutions and the media;

(b) Disseminate multi-format materials to inform women of their human rights and the availability of mechanisms for access to justice, and inform women of their eligibility for support, legal aid and social services that interface with justice systems;

(c) Integrate, into curricula at all levels of education, educational programmes on women’s rights and gender equality, including legal literacy programmes, that emphasize the crucial role of women’s access to justice and the role of men and boys as advocates and stakeholders.

2. Raising awareness through civil society, the media and information and communications technology

34. Civil society, the media and ICT play an important role in both reinforcing and reproducing gender stereotypes as well as in overcoming them.

35. The Committee recommends that States parties:

(a) Emphasize the role that the media and ICT can play in dismantling cultural stereotypes about women in connection with their right to access to justice, paying particular attention to challenging cultural stereotypes concerning gender-based discrimination and violence, including domestic violence, rape and other forms of sexual violence;

(b) Develop and implement measures to raise awareness among the media and the population, in close collaboration with communities and civil society organizations, of the right of women to have access to justice. Such measures should be multidimensional and directed at girls and women, as well as boys and men, and should take account of the relevance and potential of ICT to transform cultural and social stereotypes;

(c) Support and involve media bodies and people working with ICT in a continuing public dialogue about women’s human rights in general and within the context of access to justice in particular;

(d) Take steps to promote a culture and a social environment in which justice-seeking by women is viewed as both legitimate and acceptable rather than as cause for additional discrimination and/or stigmatization.

E. Legal aid and public defence

36. A crucial element in guaranteeing that justice systems are economically accessible to women is the provision of free or low-cost legal aid, advice and representation in judicial and quasi-judicial processes in all fields of law.

37. The Committee recommends that States parties:

(a) Institutionalize systems of legal aid and public defence that are accessible, sustainable and responsive to the needs of women, ensure that such services are provided in a timely, continuous and effective manner at all stages of judicial or quasi-judicial proceedings, including alternative dispute resolution mechanisms and restorative justice processes, and ensure the unhindered access of legal aid and public defence providers to all relevant documentation and other information, including witness statements;

(b) Ensure that legal aid and public defence providers are competent and gender-sensitive, respect confidentiality and are granted adequate time to defend their clients;

(c) Conduct information and awareness-raising programmes for women about the existence of legal aid and public defence services and the conditions for obtaining them using ICT effectively to facilitate such programmes;

(d) Develop partnerships with competent non-governmental providers of legal aid and/or train paralegals to provide women with information and assistance in navigating judicial and quasi-judicial processes and traditional justice systems;

(e) In cases of family conflict or when a woman lacks equal access to family income, the use of means testing to determine eligibility for legal aid and public defence services should be based on the real income or disposable assets of the woman.

F. Resources

38. Highly qualified human resources, combined with adequate technical and financial resources, are essential to ensure the justiciability, availability, accessibility, good quality, provision of remedies for victims and accountability of justice systems.

39. The Committee recommends that States parties:

(a) Provide adequate budgetary and technical assistance and allocate highly qualified human resources to all parts of justice systems, including specialized judicial, quasi-judicial and administrative bodies, alternative dispute resolution mechanisms, national human rights institutions and ombudsperson offices;

(b) Seek support from external sources, such as the specialized agencies of the United Nations system, the international community and civil society, when national resources are limited, while ensuring that, in the medium and long term, adequate State resources are allocated to justice systems to ensure their sustainability.

III.Recommendations for specific areas of law

40. Given the diversity of institutions and judicial arrangements around the world, some elements placed under one field of law in one country may be placed elsewhere in another. For example, the definition of discrimination may or may not be included in the Constitution; protection orders may appear under family law and/or under criminal law; and asylum and refugee issues may be dealt with by administrative courts or by quasi-judicial bodies. States parties are asked to consider the paragraphs below in that light.

A. Constitutional law

41. The Committee has observed that, in practice, States parties that have adopted constitutional guarantees relating to substantive equality between men and women and incorporated international human rights law, including the Convention, into their national legal orders are better equipped to secure gender equality in access to justice. Under articles 2 (a) and 15 of the Convention, States parties are to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation, including through the establishment of competent national tribunals and other public institutions, and to take measures to ensure the realization of that principle in all areas of public and private life as well as in all fields of law.

42. The Committee recommends that States parties:

(a) Provide explicit constitutional protection for formal and substantive equality and for non-discrimination in the public and private spheres, including with regard to all matters of personal status, family, marriage and inheritance law, and across all areas of law;

(b) When provisions of international law do not directly apply, fully incorporate international human rights law into their constitutional and legislative frameworks in order to effectively guarantee women’s access to justice;

(c) Create the structures necessary to ensure the availability and accessibility of judicial review and monitoring mechanisms to oversee the implementation of all fundamental rights, including the right to substantive gender equality.

B. Civil law

43. In some communities, women are unable to approach justice systems without the assistance of a male relative, and social norms hinder their ability to exercise autonomy outside the household. Article 15 of the Convention provides that women and men are to be equal before the law and that States parties must accord to women a legal capacity in civil matters identical to that of men and the same opportunities to exercise that capacity. The civil law procedures and remedies to which women are to have access include those in the fields of contracts, private employment, personal injury, consumer protection, inheritance, land and property rights.

44. The Committee recommends that States parties:

(a) Eliminate all gender-based barriers to access to civil law procedures, such as requiring that women obtain permission from judicial or administrative authorities or family members before beginning legal action, or that they furnish documents relating to identity or title to property;

(b) Enforce the provisions set out in article 15 (3) of the Convention that all contracts and all other private instruments of any kind with a legal effect directed at restricting the legal capacity of women shall be deemed null and void;

(c) Adopt positive measures to ensure that the freedom of women to enter into contracts and other private law agreements is enforced.

C. Family law

45. Inequality in the family underlies all other aspects of discrimination against women and is often justified in the name of ideology, tradition and culture. The Committee has repeatedly emphasized that family laws and the mechanisms of their application must comply with the principle of equality enshrined in articles 2, 15 and 16 of the Convention.

46. The Committee recommends that States parties:

(a) Adopt written family codes or personal status laws that provide for equal access to justice between spouses or partners irrespective of their religious or ethnic identity or community, in accordance with the Convention and the Committee’s general recommendations;13

(b) Consider the creation, within the same institutional framework, of gender-sensitive family judicial or quasi-judicial mechanisms to deal with issues such as property settlement, land rights, inheritance, dissolution of marriage and child custody; and

(c) In settings in which there is no unified family code and in which there exist multiple family law systems, such as civil, indigenous, religious and customary law systems, ensure that personal status laws provide for individual choice as to the applicable family law at any stage of the relationship. State courts should review the decisions taken by all other bodies in that regard.

D. Criminal law

47. Criminal laws are particularly important in ensuring that women are able to exercise their human rights, including their right to access to justice, on the basis of equality. States parties are obliged, under articles 2 and 15 of the Convention, to ensure that women have access to the protection and remedies offered through criminal law, and that they are not exposed to discrimination within the context of those mechanisms, either as victims or as perpetrators of criminal acts. Some criminal codes or acts and/or criminal procedure codes discriminate against women by:

(a) Criminalizing forms of behaviour that are not criminalized or punished as harshly if they are performed by men;

(b) Criminalizing forms of behaviour that can be performed only by women, such as abortion;

(c) Failing to criminalize or to act with due diligence to prevent and provide redress for crimes that disproportionately or solely affect women;

(d) Jailing women for petty offences and/or inability to pay bail in such cases.

48. The Committee has also highlighted the fact that women suffer from discrimination in criminal cases owing to a lack of gender-sensitive, non-custodial alternatives to detention, a failure to meet the specific needs of women in detention and an absence of gender-sensitive monitoring and independent review mechanisms. The secondary victimization of women by the criminal justice system has an impact on their access to justice, owing to their heightened vulnerability to mental and physical abuse and threats during arrest, questioning and detention.

49. Women are also disproportionately criminalized owing to their situation or status, such as being involved in prostitution, being a migrant, having been accused of adultery, identity as a lesbian, bisexual or transgender woman or intersex person, having undergone an abortion or belonging to other groups that face discrimination.

50. The Committee notes that many countries have critical shortages of trained police and legal and forensic staff capable of dealing with the requirements of criminal investigations.

51. The Committee recommends that States parties:

(a) Exercise due diligence to prevent, investigate, punish and provide reparation for all crimes committed against women, whether by State or non ‑ State actors;

(b) Ensure that statutory limitations are in conformity with the interests of the victims;

(c) Take effective measures to protect women against secondary victimization in their interactions with law enforcement and judicial authorities, and consider establishing specialized gender units within law enforcement, penal and prosecution systems;

(d) Take appropriate measures to create supportive environments that encourage women to claim their rights, report crimes committed against them and actively participate in criminal justice processes, and take measures to prevent retaliation against women seeking recourse in the justice system. Consultations with women’s groups and civil society organizations should be sought to develop legislation, policies and programmes in those areas;

(e) Take measures, including the adoption of legislation, to protect women from Internet crimes and misdemeanours;

(f) Refrain from conditioning the provision of support and assistance to women, including the granting of residency permits, upon cooperation with judicial authorities in cases of trafficking in human beings and organized crime;

(g) Use a confidential and gender-sensitive approach to avoid stigmatization, including secondary victimization in cases of violence, during all legal proceedings, including during questioning, evidence collection and other procedures relating to the investigation;

(h) Review rules of evidence and their implementation, especially in cases of violence against women, and adopt measures with due regard to the fair trial rights of victims and defendants in criminal proceedings, to ensure that the evidentiary requirements are not overly restrictive, inflexible or influenced by gender stereotypes;

(i) Improve the criminal justice response to domestic violence, including through recording of emergency calls taking photographic evidence of destruction of property and signs of violence and considering reports from doctors or social workers, which can show how violence, even if committed without witnesses, has material effects on the physical, mental and social well ‑ being of victims;

(j) Take steps to guarantee that women are not subjected to undue delays in applications for protection orders and that all cases of gender-based discrimination subject to criminal law, including cases involving violence, are heard in a timely and impartial manner;

(k) Develop protocols for police and health-care providers for the collection and preservation of forensic evidence in cases of violence against women, and train sufficient numbers of police and legal and forensic staff to competently conduct criminal investigations;

(l) Abolish discriminatory criminalization and review and monitor all criminal procedures to ensure that they do not directly or indirectly discriminate against women; decriminalize forms of behaviour that are not criminalized or punished as harshly if they are performed by men; decriminalize forms of behaviour that can be performed only by women, such as abortion; and act with due diligence to prevent and provide redress for crimes that disproportionately or solely affect women, whether perpetrated by State or non-State actors;

(m) Closely monitor sentencing procedures and eliminate any discrimination against women in the penalties provided for particular crimes and misdemeanours and in determining eligibility for parole or early release from detention;

(n) Ensure that mechanisms are in place to monitor places of detention, pay special attention to the situation of women prisoners and apply international guidance and standards on the treatment of women in detention;

(o) Keep accurate data and statistics regarding the number of women in each place of detention, the reasons for and duration of their detention, whether they are pregnant or accompanied by a baby or child, their access to legal, health and social services and their eligibility for and use of available case review processes, non-custodial alternatives and training possibilities;

(p) Use preventive detention as a last resort and for as short a time as possible, and avoid preventive or post-trial detention for petty offences and for the inability to pay bail in such cases.

E. Administrative, social and labour law

52. In accordance with articles 2 and 15 of the Convention, the availability and accessibility of judicial and quasi-judicial mechanisms and remedies under administrative, social and labour law should be guaranteed to women on a basis of equality. The subject areas that tend to fall within the ambit of administrative, social and labour law, and are of particular importance for women, include health services, social security entitlements, labour relations, including equal remuneration, equality of opportunities to be hired and promoted, equality of remuneration for civil servants, housing and land zoning, grants, subsidies and scholarships, compensation funds, governance of Internet resources and policy and migration and asylum.

53. The Committee recommends that States parties:

(a) Ensure that independent review, carried out in accordance with international standards, is available for all decisions by administrative bodies;

(b) Ensure that a decision rejecting an application is reasoned and that the claimant is able to appeal to a competent body against the decision, and that the implementation of any prior administrative decisions is suspended pending further judicial review. This is of particular importance in the area of asylum and migration law, where appellants may be deported before having the chance to have their cases heard;

(c) Use administrative detention only exceptionally, as a last resort, for a limited time, when necessary and reasonable in the individual case, proportionate to a legitimate purpose and in accordance with national law and international standards; ensure that all appropriate measures, including effective legal aid and procedures, are in place to enable women to challenge the legality of their detention; ensure regular reviews of such detention in the presence of the detainee; and ensure that the conditions of administrative detention comply with relevant international standards for the protection of the rights of women deprived of their liberty.

IV. Recommendations for specific mechanisms

A. Specialized judicial/quasi-judicial systems and international/ regional justice systems

54. Other specialized judicial and quasi-judicial mechanisms, including labour, land claims, electoral and military courts, inspectorates and administrative bodies, also have obligations to comply with international standards of independence, impartiality and efficiency and the provisions of international human rights law, including articles 2, 5 (a) and 15 of the Convention.

55. Transitional and post-conflict situations may result in increased challenges for women seeking to assert their right to access to justice. In its general recommendation No. 30, the Committee highlighted the specific obligations of States parties in connection with access to justice for women in such situations.

56. The Committee recommends that States parties:

(a) Take all appropriate steps to ensure that all specialized judicial and quasi-judicial mechanisms are available and accessible to women and exercise their mandates under the same requirements as the regular courts;

(b) Provide for independent monitoring and review of the decisions of specialized judicial and quasi-judicial mechanisms;

(c) Put in place programmes, policies and strategies to facilitate and guarantee the equal participation of women at all levels in those specialized judicial and quasi-judicial mechanisms;

(d) Implement the recommendations on women’s access to justice in transitional and post-conflict situations that are set out in paragraph 81 of general recommendation No. 30, taking a comprehensive, inclusive and participatory approach to transitional justice mechanisms;

(e) Ensure the national implementation of international instruments and decisions of international and regional justice systems relating to women’s rights, and establish monitoring mechanisms for the implementation of international law.

B. Alternative dispute resolution processes

57. Many jurisdictions have adopted mandatory or optional systems for mediation, conciliation, arbitration and collaborative resolutions of disputes, as well as for facilitation and interest-based negotiations. This applies, in particular, in the areas of family law, domestic violence, juvenile justice and labour law. Alternative dispute resolution processes are sometimes referred to as informal justice, which are linked to, but function outside of, formal court litigation processes. Informal alternative dispute resolution processes also include non-formal indigenous courts and chieftancy-based alternative dispute resolution, where chiefs and other community leaders resolve interpersonal disputes, including divorce, child custody and land disputes. While such processes may provide greater flexibility and reduce costs and delays for women seeking justice, they may also lead to further violations of their rights and impunity for perpetrators because they often operate on the basis of patriarchal values, thereby having a negative impact on women’s access to judicial review and remedies.

58. The Committee recommends that States parties:

(a) Inform women of their rights to use mediation, conciliation, arbitration and collaborative dispute resolution;

(b) Guarantee that alternative dispute settlement procedures do not restrict access by women to judicial or other remedies in any area of the law and do not lead to further violations of their rights;

(c) Ensure that cases of violence against women, including domestic violence, are under no circumstances referred to any alternative dispute resolution procedure.

C. National human rights institutions and ombudsperson offices

59. The development of national human rights institutions and ombudsperson offices may open up further possibilities for women to gain access to justice.

60. The Committee recommends that States parties:

(a) Take steps:

(i) To provide adequate resources for the creation and sustainable operation of independent national human rights institutions, in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles);

(ii) To ensure that the composition and activities of those institutions are gender-sensitive;

(b) Provide national human rights institutions with a broad mandate and the authority to consider complaints regarding women’s human rights;

(c) Facilitate women’s access to individual petition processes within ombudsperson offices and national human rights institutions on a basis of equality and provide the possibility for women to lodge claims involving multiple and intersecting forms of discrimination; and

(d) Provide national human rights institutions and ombudsperson offices with adequate resources and support to conduct research.

D. Plural justice systems

61. The Committee notes that State laws, regulations, procedures and decisions can sometimes coexist, within a given State party, with religious, customary, indigenous or community laws and practices. This results in the existence of plural justice systems. There are, therefore, multiple sources of law that may be formally recognized as part of the national legal order or operate without an explicit legal basis. States parties have obligations under articles 2, 5 (a) and 15 of the Convention and under other international human rights instruments to ensure that women’s rights are equally respected and that women are protected against violations of their human rights by all components of plural justice systems.

62. The presence of plural justice systems can, in itself, limit women’s access to justice by perpetuating and reinforcing discriminatory social norms. In many contexts, the availability of multiple avenues for gaining access to justice within plural justice systems notwithstanding, women are unable to effectively exercise a choice of forum. The Committee has observed that, in some States parties in which systems of family and/or personal law based on customs, religion or community norms coexist alongside civil law systems, individual women may not be as familiar with both systems or at liberty to decide which regime applies to them.

63. The Committee has observed a range of models through which practices embedded in plural justice systems can be harmonized with the Convention in order to minimize conflicts of laws and guarantee that women have access to justice. They include the adoption of legislation that clearly defines the relationship between existing plural justice systems, the creation of State review mechanisms and the formal recognition and codification of religious, customary, indigenous, community and other systems. Joint efforts by States parties and non-State actors will be necessary to examine ways in which plural justice systems can work together to reinforce protection for women’s rights.

64. The Committee recommends that, in cooperation with non-State actors, States parties:

(a) Take immediate steps, including capacity-building and training programmes on the Convention and women’s rights, for justice system personnel, to ensure that religious, customary, indigenous and community justice systems harmonize their norms, procedures and practices with the human rights standards enshrined in the Convention and other international human rights instruments;

(b) Enact legislation to regulate the relationships between the mechanisms within plural justice systems in order to reduce the potential for conflict;

(c) Provide safeguards against violations of women’s human rights by enabling review by State courts or administrative bodies of the activities of all components of plural justice systems, with special attention to village courts and traditional courts;

(d) Ensure that women have a real and informed choice concerning the applicable law and the judicial forum within which they would prefer their claims to be heard;

(e) Ensure the availability of legal aid services for women to enable them to claim their rights within the various plural justice systems by engaging qualified local support staff to provide that assistance;

(f) Ensure the equal participation of women at all levels in the bodies established to monitor, evaluate and report on the operations of plural justice systems;

(g) Foster constructive dialogue and formalize links between plural justice systems, including through the adoption of procedures for sharing information among them.

V. Withdrawal of reservations to the Convention

65. Many countries have made reservations to:

(a) Article 2 (c), which indicates that States parties undertake to establish legal protection of the rights of women on an equal basis with men and to ensure, through competent national tribunals and other public institutions, the effective protection of women against any act of discrimination;

(b) Article 5 (a), which indicates that States parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either sex or on stereotyped roles for men and women;

(c) Article 15, which indicates that States parties shall accord to women a legal capacity in civil matters identical to that of men and the same opportunities to exercise that capacity, and that they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals;

(d) Article 16, which indicates that States parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations.

66. In view of the fundamental importance of women’s access to justice, the Committee recommends that States parties withdraw their reservations to the Convention, in particular to articles 2 (c), 5 (a), 15 and 16.

VI. Ratification of the Optional Protocol to the Convention

67. The Optional Protocol to the Convention creates an additional international legal mechanism to enable women to bring complaints in relation to alleged violations of the rights set forth in the Convention and to enable the Committee to conduct inquiries into alleged grave or systematic violations of the rights set forth in the Convention, thereby reinforcing women’s right to access to justice. Through its decisions on individual communications issued under the Optional Protocol, the Committee has produced noteworthy jurisprudence in relation to women’s access to justice, including in relation to violence against women, women in detention, health and employment.

68. The Committee recommends that States parties:

(a) Ratify the Optional Protocol;

(b) Conduct and encourage the creation and dissemination of outreach and educational programmes, resources and activities, in various languages and formats, to inform women, civil society organizations and institutions of the procedures available for furthering women’s access to justice through the Optional Protocol.

Veröffentlichungsdatum
03. August 2015

Aktenzeichen
CEDAW/C/GC/33

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