In 2015, APC’s Women’s Rights Programme did advocacy work with the members of the Committee on the Elimination of Discrimination against Women (CEDAW) who are leading the development of the new general recommendations. One of these is the General Recommendation on Access to Justice. Influencing the language of the document in terms of how to incorporate ICTs in the draft was one of the main outcomes of this advocacy effort.
The specific sections in which these contributions are reflected read as follows:
D.2. Awareness-raising through civil society, media and Information and Communication Technologies (ICTs)
34. Civil society, the media and ICTs play an important role in both reaffirming and reproducing gender stereotypes as well as overcoming them.
35. The Committee recommends that States parties:
a) Emphasize the role that the media and ICTs can play in dismantling cultural stereotypes about women in connection with their right to access justice. Particular attention should be paid 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 on women’s right to access justice, in close collaboration with communities and civil society organizations. Such measures should be multidimensional and directed to girls and women, boys and men and should take account of the relevance and potential of ICTs to transform cultural and social stereotypes;
c) Support and involve media bodies and people working with ICTs in an ongoing public dialogue about women’s human rights in general and within the context of access to justice in particular; and
d) Take steps to promote a culture and a social environment whereby justice-seeking by women is viewed as both legitimate and acceptable rather than as cause for additional discrimination and/or stigmatization.
Recommendations for state parties:
15. d) Ensure access to Internet and other information and communication technologies (ICTs) to improve women’s access to justice systems at all levels. Give consideration to the development of internet infrastructure, including video conferencing, to facilitate the holding of court hearings, and sharing, collection and support of data and information among stakeholders.
51. f) Take measures, including adoption of legislation, to protect women against internet crimes and misdemeanours;
Also, in the section on administrative, labour and social law which are of particular importance for women, it reads: “i) governance of Internet resources and policy.”
Introduction and scope of the report
1. The right of 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 and accountability of justice systems, and provision of remedies for victims. 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 this 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 law.
3. In practice, the Committee has observed a number of obstacles and restrictions that impede women from realizing their right of access to justice on a basis of equality. They include a lack of effective jurisdictional protection offered by the States Parties in relation to all dimensions of access to justice. These obstacles occur in a structural context of discrimination and inequality, due 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 of 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 conducted by the judiciary, which have legal effects and may affect legal rights, duties and privileges.
5. The scope of the right of 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 one hand, and of religious, customary, indigenous or community laws and practices on the other hand. Therefore, plural justice systems include multiple sources of law, whether formal or informal – State, non-State and mixed – that women may encounter when seeking to exercise their right of access to justice. Religious, customary, indigenous and community justice systems – called traditional justice systems in this general recommendation – may be formally recognized by the State, operate with the State’s acquiescence 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 an obligation to ensure that everyone benefits from equal protection of the law.
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 biological differences, which are constantly reproduced amongst 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 particularly affect women, have 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 a different degree or in different ways than men and other women. Grounds for intersectional or compounded discrimination may include ethnicity/race, indigenous or minority status, colour, socio-economic 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 being lesbian, bisexual, transgender women or intersex persons. These intersecting factors make it more difficult for women from those groups to gain access to justice.
9. Other factors also making it harder for women to access justice include: illiteracy, trafficking of women, armed conflict, seeking asylum, internal displacement, statelessness, migration, women heading households, widowhood, living with HIV/AIDS, deprivation of liberty, criminalization of prostitution, geographical remoteness, and stigmatization of women fighting for their rights. The fact that human rights defenders and organizations are frequently targeted because of their work must be emphasized and their own right to access 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 ©, 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 remedies available, and how to access these, and 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 the consideration of States parties’ reports, 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
Contents
I. Introduction and scope
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
B. Discriminatory laws, procedures and practices
C. Stereotyping and gender bias in the justice system and the importance of capacity building
D. Education and awareness-raising on impact of stereotypes
D.1. Education in a gender perspective
D.2. Awareness-raising through civil society, media and Information and
Communication Technologies (ICTs)
E. Legal aid and public defense
F. Resources
III. Recommendations for specific areas of law
A. Constitutional law
B. Civil law
C. Family law
D. Criminal law
E. Administrative, social and labour law
IV. Recommendations for specific mechanisms
A. Specialized judicial and quasi-judicial systems, and international and regional justice
B. Alternative dispute resolution processes
C. National human rights institutions and ombuds offices
D. Plural justice systems
V. Withdrawal of reservations to the Convention
VI. Ratification of the Optional Protocol to the Convention
Image by Edwin Pachon used under Creative Commons license.
The specific sections in which these contributions are reflected read as follows:
D.2. Awareness-raising through civil society, media and Information and Communication Technologies (ICTs)
34. Civil society, the media and ICTs play an important role in both reaffirming and reproducing gender stereotypes as well as overcoming them.
35. The Committee recommends that States parties:
a) Emphasize the role that the media and ICTs can play in dismantling cultural stereotypes about women in connection with their right to access justice. Particular attention should be paid 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 on women’s right to access justice, in close collaboration with communities and civil society organizations. Such measures should be multidimensional and directed to girls and women, boys and men and should take account of the relevance and potential of ICTs to transform cultural and social stereotypes;
c) Support and involve media bodies and people working with ICTs in an ongoing public dialogue about women’s human rights in general and within the context of access to justice in particular; and
d) Take steps to promote a culture and a social environment whereby justice-seeking by women is viewed as both legitimate and acceptable rather than as cause for additional discrimination and/or stigmatization.
Recommendations for state parties:
15. d) Ensure access to Internet and other information and communication technologies (ICTs) to improve women’s access to justice systems at all levels. Give consideration to the development of internet infrastructure, including video conferencing, to facilitate the holding of court hearings, and sharing, collection and support of data and information among stakeholders.
51. f) Take measures, including adoption of legislation, to protect women against internet crimes and misdemeanours;
Also, in the section on administrative, labour and social law which are of particular importance for women, it reads: “i) governance of Internet resources and policy.”
Introduction and scope of the report
1. The right of 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 and accountability of justice systems, and provision of remedies for victims. 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 this 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 law.
3. In practice, the Committee has observed a number of obstacles and restrictions that impede women from realizing their right of access to justice on a basis of equality. They include a lack of effective jurisdictional protection offered by the States Parties in relation to all dimensions of access to justice. These obstacles occur in a structural context of discrimination and inequality, due 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 of 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 conducted by the judiciary, which have legal effects and may affect legal rights, duties and privileges.
5. The scope of the right of 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 one hand, and of religious, customary, indigenous or community laws and practices on the other hand. Therefore, plural justice systems include multiple sources of law, whether formal or informal – State, non-State and mixed – that women may encounter when seeking to exercise their right of access to justice. Religious, customary, indigenous and community justice systems – called traditional justice systems in this general recommendation – may be formally recognized by the State, operate with the State’s acquiescence 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 an obligation to ensure that everyone benefits from equal protection of the law.
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 biological differences, which are constantly reproduced amongst 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 particularly affect women, have 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 a different degree or in different ways than men and other women. Grounds for intersectional or compounded discrimination may include ethnicity/race, indigenous or minority status, colour, socio-economic 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 being lesbian, bisexual, transgender women or intersex persons. These intersecting factors make it more difficult for women from those groups to gain access to justice.
9. Other factors also making it harder for women to access justice include: illiteracy, trafficking of women, armed conflict, seeking asylum, internal displacement, statelessness, migration, women heading households, widowhood, living with HIV/AIDS, deprivation of liberty, criminalization of prostitution, geographical remoteness, and stigmatization of women fighting for their rights. The fact that human rights defenders and organizations are frequently targeted because of their work must be emphasized and their own right to access 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 ©, 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 remedies available, and how to access these, and 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 the consideration of States parties’ reports, 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
Contents
I. Introduction and scope
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
B. Discriminatory laws, procedures and practices
C. Stereotyping and gender bias in the justice system and the importance of capacity building
D. Education and awareness-raising on impact of stereotypes
D.1. Education in a gender perspective
D.2. Awareness-raising through civil society, media and Information and
Communication Technologies (ICTs)
E. Legal aid and public defense
F. Resources
III. Recommendations for specific areas of law
A. Constitutional law
B. Civil law
C. Family law
D. Criminal law
E. Administrative, social and labour law
IV. Recommendations for specific mechanisms
A. Specialized judicial and quasi-judicial systems, and international and regional justice
B. Alternative dispute resolution processes
C. National human rights institutions and ombuds offices
D. Plural justice systems
V. Withdrawal of reservations to the Convention
VI. Ratification of the Optional Protocol to the Convention
Image by Edwin Pachon used under Creative Commons license.
Year of publication
2015
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