A/HRC/14/22
American Convention on the Prevention, Punishment, and Eradication of Violence against
Women. This decision is seminal in that it is the first time that the Court has embraced the
concept of gender-sensitive reparations with a transformative aspiration. The State of
Mexico has been mandated to provide a variety of reparation measures to the victims,
including monetary compensation, symbolic redress, and a wide set of future looking
guarantees of non-repetition. Family members and closely affiliated persons of the
deceased who can be considered as having been harmed and hence deserving of reparations
(who in this case included all those who had self-identified as injured parties including the
mothers, sisters-in-laws and nieces of the deceased) received reparations.
78.
The Court’s sensitivity in capturing the systemic nature of the problem of violence
against women is also reflected in its reparations approach. It recognized for the first time
that in a situation of structural discrimination reparations should aim at transforming such
situation, thus aspiring not only to restitution but also to correction. The Court spelled out
the criteria to be applied for the assessment of reparations, which include the following: (i)
reparations should have a direct connection with the violations found by the Court; (ii) they
should repair in a proportional manner pecuniary and non-pecuniary damages; (iii) they
cannot be a source of enrichment or impoverishment; (iv) restitution is an aim but without
breaching the principle of non-discrimination; (v) reparations should be “oriented to
identify and eliminate the structural factors of discrimination”; (vi) they should take into
account a gender perspective; and (vii) take into account all the measures alleged by the
State to have been taken to repair the harm. Rather than remaining open-ended and with a
view to ensuring the implementation of the decision, Mexico was ordered to report to the
Court on the implementation of these guarantees of non-repetition for a period of three
years on an annual basis. The Court also distinguished between the concepts of reparations,
humanitarian assistance and social services by addressing and rejecting the claim of
Mexico, which attempted to deduct from the reparations granted any monetary and housing
assistance already provided to the family members.
(b)
The European Court of Human Rights
79.
The European Court’s case law has proven increasingly sensitive to the seriousness
of violence against women, the importance of due diligence standards when it comes to
framing State responsibility and the challenges surrounding evidence. The reparations
framework traditionally embraced by the Court is rather narrow and has not allowed full
recognition of the moral and material harm that women subjected to violence experience.
No measures of satisfaction, symbolic recognition, rehabilitation or guarantees of nonrepetition have been granted and the treatment of pecuniary damages has been very narrow,
as it requires high standards of proof and fails to include future expenses, even in cases
where they are foreseeable. This approach does not reflect an understanding of either the
true material harm following a violation, or its sex-specific dimension.
80.
In the 2009 case of Opuz v. Turkey,14 the Court found Turkey in violation of its due
diligence obligations to protect women from domestic violence and — for the first time —
held that gender-based violence is a form of discrimination under the European Convention.
The case was brought by Ms. Opuz who, along with her mother, suffered years of brutal
violence at the hands of her husband. Despite their complaints, the police and prosecuting
authorities did not adequately protect the women and, ultimately, Ms. Opuz’s mother was
killed by the former husband. The Court found that there had been a violation of right to
life with respect to the applicant’s mother, a violation of the prohibition of torture and of
inhuman and degrading treatment on account of the authorities’ failure to protect the
14
20
European Court of Human Rights, Opuz v. Turkey, 9 June 2009.
GE.10-13109
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