A/HRC/17/30
effective remedy and fair trial guarantees. Laws, plans, policies or programmes that do not
give women and men the right to a fair and public hearing within a reasonable time by an
independent and impartial court or tribunal previously established by the law are
discriminatory.
39.
Remedies should be available and adequate, and therefore, gender-sensitive. These
are basic conditions for the effective realization of women's right to access to justice.
Women should therefore be knowledgeable of their rights and of all mechanisms that are
available to them to seek redress. The State is under the obligation to ensure that those
mechanisms are accessible to women and that redress is provided with impartiality and
without discrimination, in particular on the ground of gender. States are therefore obliged
not to obstruct the right of access to judicial and other remedies against violations of human
rights, and to remove all obstacles (be they legal, social, cultural, economic or other) that
prevent or hinder the possibility of access to justice by women.
40.
Affirmative action, including temporary special measures,26 by States should aim to
guarantee access to justice on an equal footing by means, for example, of the granting of
legal aid and assistance for the purposes of securing the effectiveness of this right. Women
should therefore receive adequate legal aid and counsel as may be required according to
their specific situation.
41.
In this regard, the Special Rapporteur wishes to insist on the need to establish within
the State a system to provide adequate legal aid and counsel, with specific focus on women
from vulnerable backgrounds. In specific circumstances, this system may include for
example, free public defence for facilitating access to justice by the poor. Adequate legal
aid and counsel impact positively on other fair trial rights, including the right of equality of
arms, as the unequal economic or social status of the litigants is usually translated into the
unequal possibility of defence in trial.27
42.
The judicial system should enjoy independence and impartiality in the adjudication
and determination of the most adequate type of redress or compensation to violations of
women's rights and the State apparatus should have the capacity to enforce orders, judicial
decisions and other agreements and settlements that advance gender equality and ensure
women's rights protection. Moreover, the judiciary should enjoy the full cooperation of law
enforcement officials specially trained on gender issues and women’s human rights so as to
uphold accountability.
43.
States should show their serious resolve, commitment and political will to empower
women, put an end to discrimination and violence against women, and achieve gender
equality and advance women’s protection. Some of the indicators of the State commitment
to take all steps that are necessary to achieve gender equality include the creation of an
environment where the rule of law can flourish, together with gender-oriented policy
analysis, mainstreaming gender in the planning of courses of action to follow in line with
the international obligations of the State, gender-sensitive justice reform initiatives, and
marshalling of resources for ensuring gender-sensitive administration of justice. Where
capacity gaps remain (e.g. lack of human, financial or other resources), the Special
Rapporteur encourages international cooperation and technical assistance to help in
building the capacities of Governments, and other stakeholders to identify and address
gender-specific barriers for the full enjoyment of human rights, filling in protection gaps
and providing effective remedies and mechanisms for reparation and redress.
26
27
See Convention on the Elimination of All Forms of Discrimination against Women, art. 4.1.
See A/HRC/8/4, para. 21.
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