Buenos Aires, 21 November 2016—Dubravka Šimonović, the UN Special Rapporteur on violence against women, its causes and consequences, issued the following statement today following her visit to Argentina from 14 to 21 November 2016.
“First of all, I would like to thank the Government of Argentina for inviting me to conduct this official visit and for its excellent cooperation before and during my stay.
This is the first visit to the country by the Special Rapporteur on violence against women, its causes and consequences, and it took place at a time when the issue of violence against women is the focus of the society’s attention. This visit is happening almost at the same time as the examination of the 7th periodic report of Argentina before the CEDAW committee. I hope that the CEDAW recommendations and the recommendations resulting from this visit will jointly help the government to strengthen its efforts to eliminate violence against women and to uphold women's rights in the public and especially in the private sphere to life free form violence, in line with Argentina’s international human rights commitments made under the Convention on the Elimination of Discrimination against Women, the Declaration on the Elimination of Violence against Women, the Belém do Pará Convention.
Between 14 and 21 November 2016 I have been able to gather first-hand information on the situation of violence against women and to meet with a large number of authorities’ representatives, both at federal and at provincial level, civil society organizations, victims as well as with United Nations officials. I visited Buenos Aires and the provinces of Buenos Aires, Tucuman and Corrientes. I would like to thank all of them for an excellent cooperation.
I would like to thank in particular the women and girls who shared with me their personal stories placing their trust and some of their hopes in my hands. Despite unique contextual complexities related to federal and provincial competencies in this area, I humbly believe that I have been able to get a good understanding of the reality of women’s and girls’ lives and some systematic problems they face when it comes to their right to live a life free from violence and gender inequality.
I will present my preliminary findings and a set of concrete and action-oriented recommendations in the report that I will present at the 32nd session of the Human Rights Council, in June 2017.
Preliminary findings on my visit to Argentina
Let me turn now to some of my preliminary findings.
Violence against women is rooted in inequalities and discrimination against women and its prevention and eradication must be grounded in achieving gender equality and empowerment of women through prevention, protection and prosecution of violence against women done in holistic manner throughout the State and its provinces, which is not yet the case.
Argentina has ratified CEDAW, its Optional Protocol and the Belém do Pará convention and adopted a number of important laws on women’s rights and gender based violence - Law 26.485, adopted in 2009, to provide comprehensive protection as a means of preventing, punishing and eradicating violence against women within the scope of interpersonal relations; Law 26.842, adopted on 19 December 2012 providing for the prevention and punishment of trafficking in persons and assistance to victims; the Gender Identity Act, adopted on 9 May 2012, recognizing the right to one’s self-perceived gender identity, to name but a few. I also welcome the adoption of the National Action Plan for the Prevention and Eradication of Violence against Women and Assistance to Victims (2017-2019), which provides an institutional and policy framework aimed at accelerating the elimination of discrimination against women and promoting gender equality at federal level.
Despite these positive developments, however, women victims of violence in the country are faced with a systemic and overarching problem – namely, the lack of implementation of international and national standards with significant variation between the provinces, resulting in differing level of protection of women and girls against gender based violence.
With respect to international standards - article 75 of the Constitution gives international treaties like CEDAW and Belém do Pará conventions precedence over national laws, but there is lack of their direct implementation by judiciary. There is also a gap with respect to implementation of national standards on violence against women caused by lack of full endorsement and absence of effective implementation of federal comprehensive law on violence against women at provincial level some of which still use a provincial domestic violence law.
Furthermore I am especially concerned that under the federal Criminal Procedure Code, prosecution of sexual offences is not conducted ex officio which signifies that no action to prosecute and punish rape, even in a case on a minor victim, can be taken without private instance action by the victim. This type of regulation sends the wrong message that rape and sexual violence are a private matter and not a public concern that requires ex officio prosecution. Furtehrmore, the definition of rape is not based on lack of consent, but is connected with use of force and, under article 119 of the Criminal Code, the minimum age of consent is only 13. I recommend bringing the criminal provisions on rape in line with international human rights standards as elaborated in CEDAW committee jurisprudence in several cases.
I welcome the fact that the statute of limitations was removed for sexual crimes committed against children before they were 14 years old. Recent development of international standards in this area require States to ensure that the statute of limitation for initiating legal proceedings with regard to rape and other sexual violence shall allow initiation of proceedings after the victim has reached the age of majority(18 years of age).
Further, some article of the Criminal Code that are not self-executing, such as article 86 that establishes exceptions for criminalization of abortion in cases where the abortion is allowed in order to avoid a danger to the life or health of the mother, if this danger could not be avoided by other means and if the pregnancy resulted from a rape. The Supreme Court of Justice issued a decision on 13 March 2012, reaffirming women's right to interrupt pregnancy in all circumstances allowed by law, that is when her life or health are at risk or when the pregnancy is a result of rape. In June 2015 the Federal Ministry of Health published a "Protocol for the comprehensive care of persons with the right to the legal interruption of pregnancy” but this protocol lacks legal status and to date only 8 of the 24 provincial jurisdictions have issued care protocols on non- punishable abortions compliant with the national Protocol.
The absence of such protocols coupled with the frequent refusal of doctors to perform an abortion based on conscientious objection, according to reports I received, results in high number of unsafe abortions and contributes to the high maternal mortality rate in Argentina. I call on the responsible provincial authorities to adopt the necessary protocols as a matter of urgency. I also call on the Federal and Provincial Ministries of health to collect and disseminate information regarding public health facilities throughout the country that provide access to safe legal abortion and to post-abortion services.
The general criminalization of abortion together with the obstacles to accessing legal abortion has resulted in women seeking care in cases of miscarriage been denounced by health professionals and having to face criminal charges.
I endorse the recommendations of the CEDAW committee calling for women to have access to safe legal abortion and post-abortion services and define and apply strict justification requirements to prevent the blanket use of conscientious objection by doctors refusing to perform abortions, considering in particular the situation of early pregnancies as a result of rape and incest that may amount to torture. In addition, the government should accelerate the adoption of the draft law for the voluntary interruption of pregnancy increasing legal access to abortion.
Having received numerous reports of the alarmingly high rate of pregnancies and births of girls between 13 and 18 years of age, I would strongly encourage the Federal and Provincial governments to provide adequate budgets for the implementation of Law 26.150 of 2006 that creates the National Comprehensive Sex Education Programme. In addition I would recommend that sexual and reproductive rights education is included in the curricula of all schools throughout the country and efforts to disseminate free of charge contraceptives are intensified, in particular in informal settlements and low income areas. In that connection, I am concerned that not all provinces have adhered to the Law on the National Comprehensive Sex Education Programme.
National Council of Women
I welcome the efforts of the National Council of Women to promote and monitor the implementation of the international obligations on gender equality and violence against women and to coordinate its work with the efforts of the Provincial Women’s Offices and the Municipal Women’s Offices, with a view to implement national plans in the area of gender equality and the National Action Plan for the Prevention and Eradication of Violence against Women and Assistance to Victims (2017-2019). I am however concerned regarding the lack of a systematic and institutionalized coordination between the federal and provincial governments, in particular the National Council of Women and the provincial and municipal women’s areas across the territory. I call on the government to provide the National Council of Women with adequate budgetary resources for the effective implementation of the National Action Plan for the Prevention and Eradication of Violence against Women and Assistance to Victims. I also endorse the recommendation of the CEDAW Committee to give it ministerial rank, in order to make it more visible and enhance its capacity to promote and monitor the implementation of gender equality policies.
Femicide and data on violence against women
Preventing and combating femicide and other forms of violence against women requires evidence based policy making.
During my visit, I received information regarding various gender observatories, which collect data through various methodologies, both by government authorities, the Ombudsman’s Office and non-governmental organisations. I commend the Supreme Court of Justice’ Office of Women. According to their data, in 2014 there have been 225 and in 2015 there have been 235 femicide, (70 % of which were family related). I recognize the efforts made in the area of collection of data on femicide, but note that the information gathered by the Supreme Court includes only the cases where judicial proceedings have taken place, and leaves out an important number of other cases, for example those in which the perpetrator committed a suicide or when the victims were transgender persons. I am also concerned that no such disaggregated data exist regarding rapes and hate crimes against lesbian, bisexual, transgender and intersex persons (LBTI), investigations, prosecutions and convictions of perpetrators, as well as on redress provided to victims.
I would like to mention that last year I called on all UN Members States to establish a “femicide observatory " or “gender-relating killings” watch and establish interdisciplinary panels or designate national bodies in line with modalities provided in my report to the UN General Assembly(A /71/389). These observatories would collect and analyze the number of femicides or gender-motivated killings of women per year, disaggregated by age and sex of the perpetrators, as well as the relationship between that perpetrator and the victim or victims.
I welcome the decision of the Ombudsman’s Office (Defensoria del Pueblo de la Nacion) to establish a femicide observatory in line with my recommendations contained in this mandate’s report A/71/398. Taking into consideration the numerous ongoing NGOs and governmental initiatives to collect and analyze femicide data, I would like to encourage all of them to come together and cooperate and further improve collection of data and analysis of cases. Each case of femicide should be carefully analyzed in order to identify any failure or gap of protection in view of improving legislation or its implementation.
Shelters, protection orders and help line
During my visit I saw several shelters, some of which were established by the government authorities, others run by civil society organisations, all run by employees devoted to their work and delivering much needed assistance and services. I welcome the plans of the National Council of Women to construct 36 additional shelters, in addition to the 25 that are already in operation. I believe it important to stress that there is an urgent need for more shelters throughout the country, in particular in rural areas, areas inhabited by indigenous communities, but also for women who live in unofficial settlements in the cities. I also note with concern that there are only few shelters available throughout the country for victims of trafficking. In addition, while in many places there were multidisciplinary teams working to assist domestic violence victims, I note that there is a protection gap related to the lack of long term integration and protection services.
I call on the federal and provincial governments to urgently assess the needs for shelters and to ensure that shelters are available in each and every province and that these are easily accessible for all, including for older women, women belonging to indigenous communities, migrant and refugee women and women with disabilities.
Protection orders enforcement should be strengthened and breach of protection orders should be effectively prosecuted.
I also recommend that the national help line for victims of violence 144 be adequately staffed and funded, so that it could cover all provinces, cooperate, connect and jointly work with provincial helplines to provide assistance to victims, including those in remote locations and in indigenous languages.
During my visit I received information that legal aid is provided to victims by different governmental and non-governmental bodies and organisations. I also received reports that the needs are much greater than the capacity of the services that are available. This is particularly alarming taking into consideration the fact that one third of the country’s population lives below the poverty line and women in impoverished communities are the most likely victims and the least likely to be able to afford legal assistance.
I welcome the adoption on 4 November 2015 of Law 27.210, establishing the Attorneys for victims of Gender base violence Unit at the Ministry of Justice and Access to justice centers as a body of attorneys to provide free legal counseling to victims of gender-based violence. I endorse the recommendations of CEDAW that the government should ensure that information on legal remedies is available to women victims of gender-based violence, including in indigenous languages and in formats accessible to women with disabilities and that the new unit of attorneys for victims of gender violence, the access to justice centres and the specialized units at the Public Legal Aid Service (ATAJOS) of the Public Prosecutor’s Office should provide free legal aid to all women without sufficient means across the territory of the State party, and provide interpretation services to indigenous women and women with disabilities, including deaf women.
Training of professionals
During my visit I received information that there are some training programmes for judges and police officers on women’s rights and violence against women. I did note, however, a serious need for dedicated training programmes for all officials, whose responsibilities might bring them into contact with victims- judges, prosecutors, police officers, lawyers, social and health workers and teachers. The training of police officers and judges appears to be of crucial importance, in light of the numerous reports I received of police officers refusing to take reports from victims of domestic violence and judges in family proceedings trying to mediate between victims of domestic violence and perpetrators with the aim to “save” the family. I recommend that all legislative acts, civil or criminal, requiring mandatory participation in dispute resolution processes should be amended to exclude such proceedings in cases of violence against women and that judges should be trained to identify such cases. This is particularly important in order to prevent secondary victimization.
I also received numerous allegations of violence committed by police officers targeting transgender persons. I also consider appropriate reminding the importance of training the members of the judiciary, including judges and prosecutors, on the international and regional women’s rights instruments, including the CEDAW Convention and good practices to ensure at the domestic level that laws are applied in accordance with international standards and norms.
Gender Stereotypes and awareness raising
The implementation of laws and the protection of women from violence are challenged by entrenched patriarchal attitudes and gender stereotypes, “machismo culture”, making gender-based violence tolerated, and domestic violence a “private” matter rather than a public concern, in most parts of the country. I endorse the recommendation of the CEDAW committee that the government should adopt a comprehensive strategy targeting women, men, girls and boys to overcome machismo culture and discriminatory stereotypes on the roles and responsibilities of women and men in the family and in society.
During my visit I became aware of the huge lack of awareness about the fact that violence against women constitutes a violation of human rights and form of discrimination against women. There is an urgent need to promote or conduct awareness raising campaigns in cooperation with civil society to increase awareness among the general public on different forms of violence against women.
During my visit numerous stakeholders stressed the crucial role of education and need to include education on equality between women and man and gender based violence in school programmes at all levels of education. I was pleased to learn that several law faculties around the country have included mandatory courses on gender in their curricula.
In conclusion I call on the federal and provincial authorities in Argentina to fully integrate international and regional women’s rights standards into its legal system and to strengthen, and implement its comprehensive legal framework on violence against women as well as enhance coordination among the mechanisms aimed at preventing and combating violence against women.
Furthermore is an urgent need to uphold the principle that sexual violence is not a private matter, but a public concern and in that respect to amend the Criminal Procedure Code and to provide ex officio prosecution of rape and other forms of sexual violence.
The “Ni Una Menos” movement in Argentina did put the issue of femicide in the “lime light” and attracted the world attention to it and challenged the government to intensify its efforts on ending and preventing such violence.
The Government supported the movement, but this commitment should be now translated into concrete actions based on its due diligence obligation to prevent and combat femicide and other forms violence in order to secure the right of each and every woman and girl to the right to live a life free from violence.“