Remedies & Access to Justice
Updated: Jan 6, 2019
Domestic violence have often been classified by the State as a ‘private’ issue, i.e. outside the realms of criminal law. As such, law enforcement authorities have traditionally been unwilling to interfere.
1. The CEDAW Committee made General Recommendations on women's access to justice CEDAW/C/GC/33 in July 2015. Paragraph 19 on page 9 referred to recommendations to State parties on provision of remedies to victims. I have elaborated on these recommendations. Here is my checklist on some of the aspects a law on violence against women (such as the EVAW Decree, Afghanistan), protocols and practice directions should address:
Appropriate remedies: Remedies are appropriate when they:
(1) Address specific needs of victims;
(2) Restore or reinstate victims to their original position [e.g. restoration of title to property or reinstatement of victim to position at place of employment]; (3) Compensate victims whether in the form of money or in kind;
(4) Rehabilitate victims through medical, psychological care or other social services.
Adequate: The remedy is satisfactory, appropriate or acceptable in terms of quality and quantity.
Effective: The remedy does the job or in other words the remedy is "outcomes-oriented". For instance, if courts order compensation without determining the mechanism of payment of compensation, victims may be left with just a paper judgment. Similarly, if courts order reinstatement of the victim, the order should set out exactly how that reinstatement is to be effected: what, how, who, when, for how long? To follow an outcomes-oriented approach, anticipate potential impediments beforehand and ask the Courts to fix a solution in the orders to ensure that the remedy is effective, i.e. it achieves its intended outcomes.
Prompt: Remedies should be timely. Some remedies have to be ordered pending investigation or determination of case at trial (e.g. restraining orders, reinstatement of position, interim payment of maintenance). Legislation, policy or Practice Directions should empower courts to order remedies pending investigation and trial.
Holistic: Remedies should address victims' financial/economic, social, psychological and physical needs. To ensure that remedies are holistic, advocates and courts should conduct a thorough and comprehensive assessment of victims' needs at regular intervals of the process.
Proportional to the harm suffered: All remedies should be reasonably necessary to avoid a future harm and/or should be proportional to the harm suffered. In terms of compensation, victims should be reasonably compensated for every minor and major harm suffered as a result of violence committed against them, including psychological harm.
2. In order to achieve the above, legal aid, court services and NGOs should write comprehensive reports and address the courts on victims' needs, highlighting immediate and urgent needs which require time-sensitive measures. Reports can be supported by documentation by other agencies.
3. On the issue of compensation, the Recommendations state that unremunerated domestic and caring activities must be fully accounted for in assessment of damages. In countries like Afghanistan where legislation does not account for domestic work in assessment of damages, an option would be to introduce an amendment into the EVAW Decree or seek specific clarification from the Supreme Court and obtain a Practice Direction on criminal courts competence to issue interim and final maintenance orders.
4. The Recommendations remind States that criminal punishment and civil damages should not be mutually exclusive.
5. What if perpetrators cannot pay compensation? In many cases of violence, perpetrators are unemployed, drug abusers or otherwise, imprisoned. Enforcement of debt may not always be easy. As such, the Recommendations call upon States to create women specific funds to ensure that women receive adequate compensation in situations in which the individuals or entities responsible for violating their human rights are unable or unwilling to provide compensation.
6. Lastly, the Recommendations refer to non-judicial remedies. This comprise: public apology, public memorials and guarantee of non-repetition.