Women’s access to justice is not only about the law

Access to justice is critical to a full enjoyment of women’s human rights and to an effective struggle with discrimination that they experience in all spheres of life. However the scale of violations that women suffer worldwide gives an idea of the limitations of the justice systems’ mechanisms, including those provide under UN treaties such as Optional Protocol to CEDAW (OP CEDAW), and of how much yet has to be done in this area. Aleksandra Solik, KARAT Coalition, a WIDE+ platform, reports.

The CEDAW Committee, during its 48^th session that was held in February 2011, decided to develop a general recommendation (GR) on access to justice. The document will provide the State Parties with comprehensive guidelines on how to fulfil their international obligation and ensure that women have the capacity to use the justice system to protect and claim the rights that are guaranteed under the CEDAW convention.

Currently, the Optional Protocol to CEDAW provides two procedures allowing the CEDAW Committee to review specific cases of discrimination against women: the communication procedure – designed for individual complaints, and inquiry procedure for addressing the grave and systematic violations of the rights protected under CEDAW in the state-parties which recognized the Committee’s competence to do so upon ratifying the treaty.

For the past 5 years KARAT has focused on the promotion of Optional Protocol to CEDAW (OP CEDAW) in Central and Eastern Europe and Central Asia recognizing the great potential of this mechanism for advancing gender equality. At the same time we have been aware of its limitations when it comes to applying it in practice.

While working together with our partner organizations we learned a lot about the reality of women’s access to justice in the region and how it affects their ability to benefit from international justice system mechanisms, including OP CEDAW. Access to these mechanisms is limited by certain criteria. Among these criteria is the requirement to exhaust the domestic legal remedies. Although OP CEDAW allows for some exceptions from this rule, it is necessary for potential applicants to at least try to seek justice at the national level. Unfortunately women suffering from severe rights violations (often extremely common in the region) in fact never do this. The form of violations they are suffering from are usually deeply rooted in everyday life, strongly intertwined with so called traditional and religious values and seldom approached from a human rights perspective. Hence women who decide to question the widely accepted values in order to claim their rights have to consider the risk of social ostracism, and losing family support, livelihood, custody of children, etc. No wonder that the fear of such consequences often prevents them from addressing law enforcement institutions and/or taking further legal steps.

In 2011-2012 KARAT together with its partner organisations[1] conducted a pilot study in Azerbaijan, Kirgizstan, Poland, Tajikistan and Uzbekistan. The study focused on specific types of women’s rights violations: domestic violence in Azerbaijan and Tajikistan, bride kidnapping in Kyrgyzstan, denial of lawful abortion in Poland, and discrimination against women-victims of trafficking in Uzbekistan. It explored women’s real ability to use laws and procedures within domestic justice system. It improved our knowledge about the obstacles that hamper women’s access to justice and about measures that should be taken to remove them. Thus, it allowed us to define women’s needs in this area.

The study proved that in all five countries the problems with women’s access to justice go far beyond the legislative frameworks. In general, despite the constitutional guarantees of gender equality, the justice systems fail when it comes to addressing the most common, gender-specific violations of women’s human rights. Even though some reasons for that are of legal nature, the majority are related to the roles that tradition and religion attribute to women. The gender-biased approach, so common in the society, is further perpetuated by the law enforcement officers who ignore their testimonies, openly discourage them from bringing cases and let the perpetrators remain unprosecuted. In Poland, where barriers to lawful abortion were explored, the medical staff openly ignore the law and deny them the service that they are eligible for.

Though in all studied countries the observance of the rule of law is problematic, women’s access to justice will never improve without the political will to modify the sociocultural patterns of gender roles and eliminate prejudices against women and without proactive involvement of the law enforcement institutions. Therefore we find it so important for the upcoming CEDAW general recommendation to emphasize the need for holistic approach to women’s access to justice.

The large gap between de jure and de facto shall never be bridged if the social, economic and cultural factors preventing women from seeking justice will not be given the same attention as the legislative issues. Hence it is recommended that the CEDAW Committee in its GR addresses the need for empowering women’s rights advocates to be heard and to play an active role in the policymaking processes in their countries. It is also recommended that the realization of the rule of equal access to justice by the State Parties  is assessed by the Committee (and the States themselves) through monitoring the number of lawsuits and reported cases of gender-specific rights violations identified by women’s NGOs as common practices within their societies.

Aleksandra Solik, KARAT Coalition.