The author of the communication is Susana (pseudonym), a national of Nicaragua born on 25 September 2000. She claims that the State Party has violated her rights under article 2 (3) of the Covenant, read in conjunction with articles 3, 6 (1), 7, 9, 17, 19, 24 (1) and 26; article 6, read alone and in conjunction with article 24 (1); article 7, read alone and in conjunction with article 24 (1); article 9; article 17, read alone and in conjunction with article 24 (1); article 19; and articles 3 and 26 of the Covenant. The author is represented by counsel. The Optional Protocol entered into force for the State Party on 12 June 1980.
On 4 July 2019, the Committee, acting through its Special Rapporteurs on new communications, requested the State Party to take protective measures to ensure the life and physical integrity of the author while the communication was being considered by the Committee.
On 19 and 26 April 2021, the Committee received two third-party submissions (see paras. 4 and 5 below). A summary of the submissions can be found in annexes I and II of document CCPR/C/142/D/3627/2019.
Facts as submitted by the complainant
The State Party has the highest rate of births among girls (28.1 per cent) in Latin America.4 Between 2000 and 2010, the number of pregnancies among girls aged between 10 and 14 years increased by 47 per cent.5 Between 2010 and 2015, an average of 1,500 girls between the ages of 9 and 14 years became pregnant each year, representing 5 per cent of all births.
- Jorge Rodríguez Vignoli, Fecundidad no deseada entre las adolescentes latinoamericanas: un aumento que desafía la salud sexual y reproductiva y el ejercicio de derechos (Unwanted fertility among Latin American adolescent girls: an increase that poses challenges for sexual and reproductive health and the exercise of rights), Economic Commission for Latin America and the Caribbean, 2017. ↩
- Planned Parenthood Global, Stolen Lives (2015). ↩
On 26 October 2006, pursuant to Act No. 603, article 165 of the Criminal Code of Nicaragua, which established an exception for therapeutic abortion in cases of girls who were victims of sexual crimes, was repealed. This reform to the Criminal Code introduced full criminalization of abortion, with penalties of up to two years’ imprisonment for pregnant women and up to six years’ imprisonment and disqualification from practising medicine for health professionals who perform abortions with a woman’s consent. Since the adoption of this reform, numerous remedies of unconstitutionality have been filed, but to date, the Supreme Court has not ruled on the matter. On 15 July 2008, 46 partial remedies for unconstitutionality were filed against articles 143, 144, 148 and 149 of the Criminal Code. Although some of these remedies have been admitted, the Supreme Court has not yet issued a decision.
With regard to sexual violence, despite the introduction, in 2012, of the Comprehensive Care Model for women who are victims of gender-based violence,6 which aims to contribute to effective access to justice for women, children and adolescents, impunity remains high, with only approximately 10 per cent of assailants reported to the authorities having faced criminal charges.7
The author was born in Waslala and grew up in the district of El Romero, in the municipality of San José de Bocay, a hard-to-reach area where armed groups operate outside the law. She lived in a house with a roof made of banana leaves, a dirt floor and walls and doors made of bamboo. When she was 1 year old, her mother left her in the care of her maternal grandparents and never returned. Her grandparents were illiterate subsistence farmers who lived in extreme poverty and practised evangelism. The author never had access to education and worked as a domestic worker and farmer since childhood. During her childhood, both she and her grandmother were victims of physical, psychological, sexual and patrimonial violence by her grandfather, who belong to armed groups.
In 2006, when the author was 6 years old, her grandfather began to sexually abuse her on a regular basis. He also prevented her from leaving the house and prohibited anyone from visiting their home. In mid-2014, her grandfather started to become more violent towards both the author and her grandmother. He forced them to kneel and tied them with rope. Sometimes he would put a machete to their necks, other times he would point a gun at them while insulting and humiliating them and threatening to kill them.
In July and August 2014, the grandmother noticed that the author’s belly was growing and that she would sometimes go to the hallway to cry, in a distressed and pensive state. She realized that her granddaughter was pregnant. Her grandmother knew that there was nothing she could do due to her deep fear of her husband and the ban on leaving the house, and also because they lived 7 hours’ walk from the nearest village, El Romero, from where the nearest hospital was a 10-hour journey by road. During her pregnancy, the author continued to be raped and she attempted suicide by taking Gramoxone8 because she did not want to have her grandfather’s baby.9 On 5 September 2014, when the author’s pregnancy was showing, her grandmother pretended to be unwell so that her husband would allow her to leave the house to get help. After walking a long distance, the grandmother arrived at her relatives’ house in Waslala. She later asked the Waslala police for help, telling them that her husband was subjecting her granddaughter to sexual violence, that he kept her locked up and that the girl was pregnant. However, the authorities never took any action.
At the end of September 2014, the author’s grandfather took her to Waslala, where her grandmother was staying, to be “cured”. He warned her that if anyone asked her about the child’s father, he would beat her if she said it was him.
On 11 October 2014, the author experienced labour pains and went with her grandmother to the Fidel Ventura General Hospital in Waslala. Upon arrival, she was examined first by a midwife and then by the doctor who was to deliver the baby. The author was not given any information on delivery options or the related risks. The nearest healthcare facility that could accommodate a caesarean section was 10 hours away by road and was therefore out of reach. During labour, the author felt embarrassed and mistreated when the doctor said to her: “How is it possible for such a little girl to be pregnant?” Her grandmother replied: “She is not pregnant because she wanted to be – she was raped.” Despite knowing the circumstances of the pregnancy and that the author had not had any medical check-ups prior to going into labour, medical staff did not order any tests to check for sexually transmitted infections, nor did they request a consultation with mental health specialists or social workers to ensure that the author received comprehensive care. In addition, the author was not informed that she could report her assailant or seek assistance in having her violated rights restored. Although the healthcare professionals knew that she was a victim of sexual violence, they did not inform the authorities.
The author delivered the baby vaginally. During the delivery, she was subjected to mistreatment and was not provided with healthcare appropriate to her status as an illiterate child victim of sexual violence. There were no psychologists to help assuage her fears and sadness and the anguish of not knowing what to do about a pregnancy and a child she did not want. Despite the fact that the author stated that she wanted to “give the child away,” the hospital staff ignored her and denied her any relevant information regarding her options, such as adoption. After the birth, the author did not accept the baby and did not want any contact with him because he reminded her of the repeated sexual violence her assailant had inflicted on her. Nevertheless, the nurses forced her to breastfeed the baby. The day after the birth, the author was discharged from the hospital with only general breastfeeding instructions and a follow-up appointment at the clinic in El Guayabo, which is located six hours away from Waslala and 10 hours away from El Romero.
On 12 October 2014, when they left the hospital, the author’s grandmother sought help from the Waslala Association of Women Entrepreneurs, where they were able to spend the night. In the early hours of 13 October 2014, the author’s grandfather arrived at the Association’s shelter with a group of armed men. He demanded that his granddaughter be handed over to him and threatened to kill her grandmother and the staff. Consequently, the author and her grandmother were transferred urgently to the “Acción Ya” shelter for victims of domestic and sexual violence in the Department of Estelí, where they remained for nine months.
On 6 September 2014, the author’s grandmother went to see the police in Waslala and filed a complaint of rape against her husband. In the complaint, she indicated that her granddaughter was pregnant and was being held against her will by her assailant, who also prevented her from attending medical check-ups. She further noted that her husband was a very violent person and that her granddaughter was therefore in grave danger. The police told her that they had registered the complaint, but did not give her any record of it because she could not read. Nor was she given any information about what actions would be taken to guarantee the life and integrity of her granddaughter. On 9 September 2014, in the face of police inaction, the author’s grandmother visited the Waslala Chief of Police, who told her that his officers could not arrest her husband or remove her granddaughter from her home because they might be attacked by armed groups and did not have the capacity to respond to such an attack. He also told her that the case did not fall under his territorial jurisdiction but under that of the police in Siuna and that as a result, even if the assailant was arrested, he would have to be released within 24 hours. He gave her a reference note for her to take to the police in Siuna.
On 12 September 2014, after a journey of more than 12 hours, the author’s grandmother visited the police in Siuna. There, an officer told her that El Romero was not part of that municipality and that the police in Siuna therefore had no jurisdiction to investigate the case. For this reason, the complaint was not received or registered, and the officer referred the author’s grandmother to the police in Matagalpa, who he said had jurisdiction to take action in the case. On 16 September 2014, the author’s grandmother travelled seven hours by bus to visit the Special Police Unit for Women and Children in Matagalpa. However, an officer there told her that the Unit could not receive the complaint or investigate the case and referred her to the police in the municipality of El Cuá, in the Department of Jinotega.
On 23 September 2014, the author’s grandmother travelled 10 hours by bus to the municipality of El Cuá. An officer there told her that the case fell under the jurisdiction of the municipality of San José de Bocay. On 27 September 2014, she travelled more than 11 hours by bus from Waslala to visit the police in San José de Bocay. There she was informed that the case had been referred to the “departmental chief in Jinotega” because it should be investigated by the Special Police Unit for Women and Children.
On 1 October 2014, the author’s grandmother travelled nine hours by bus to the Special Police Unit for Women and Children in Jinotega, where an officer told her that the complaint could not be filed and that the victim must go to the police station herself. She explained that she was seeking help because her husband was holding her granddaughter against her will, that her granddaughter was heavily pregnant as a result of sexual violence and that her life was in danger. Nevertheless, the police took no action.
On 14 October 2014, two days after giving birth, the author travelled nine hours by bus with her grandmother to visit the Special Police Unit in Jinotega and give her testimony in person. They told the police that they were being pursued by the assailant, who had visited the shelter run by the Waslala Association of Women Entrepreneurs with a group of armed men, threatened to kill them and the shelter’s staff and abducted the author. On 16 October 2014, the author was examined at the Institute of Forensic Medicine by forensic specialists and psychologists. They found that she displayed signs of psychological harm and sexual abuse accommodation syndrome and recommended that she undergo psychotherapy.10 The author was not, however, referred to any institution for the recommended treatment or provided with any guidance on the investigation process. The author and her grandmother spent nine months at the “Acción Ya” shelter in Estelí. During this time, they were not contacted by the Special Police Unit in Jinotega.
- Special Police Unit for Women and Children in Jinotega, forensic psychological report. ↩
On 25 January 2018, the author and her grandmother, accompanied by a private lawyer, returned to the Special Police Unit in Jinotega to inquire about the legal status of the complaint they had filed on 14 October 2014. The Chief of the Unit said that she had no knowledge of the complaint, but an officer who had met Susana’s grandmother in 2014 at the San José de Bocay police station informed them that the proceedings had been closed due to “the victim’s lack of interest in shedding light on the facts” and there was no longer any record of her complaint, despite the fact that the file should have been kept. The Chief of the Unit gave orders for the complaint to be registered and for the victim’s statement to be taken again. On 13 February 2018, the author’s counsel was informed that a copy of the psychological assessment conducted in respect of the author in 2014 had been requested and that the Unit would coordinate with the Institute of Forensic Medicine to obtain the results of the forensic medical assessment.
On 21 March 2018, the author’s lawyer filed a brief with the Special Police Unit in Jinotega requesting copies of the complaint and the psychological assessment but was told that photocopies of documents relating to investigations were issued only with the Chief’s approval. Regarding the progress made in investigating the case, the Chief of the Unit reported that a visual survey would be conducted at the crime scene and that the officers would take the opportunity to arrest the assailant. She explained to the lawyer that because the police station was so far from the assailant’s place of residence (10 hours by car to El Romero and then 7 hours on foot from El Romero to the house), the complainants would need to cover the costs of the trip. The Chief of the Unit said that the complainants would need to pay food and fuel costs for 10 officers, amounting to approximately 1,500 córdobas (C$) (about US$ 50).11 The author and her grandmother were also supposed to go on this journey and were told that the officers would collect them on the way, but that they would need to cover their own food costs because they “already knew what life was like in El Romero” and could manage for themselves. Although the lawyer agreed to these terms, the survey was not scheduled and never took place.
- The minimum monthly wage for farmers in Nicaragua at the time was C$ 2,705.11 (about US$ 80). ↩
On 15 August 2018, the author’s lawyer went back to the Special Police Unit in Jinotega and this time met with the Chief of Legal Cooperation, who said that nothing could be done “at the moment, for security reasons” because the political situation in the country and the presence of armed groups in the area where the events occurred prevented the police from acting.
Since 2014, when it became apparent that she was pregnant, the author has faced stigmatization from her family and community. In that area, once a girl has been raped, she is considered to be “accustomed to violence” and is seen as an adult because she has “already had a taste of a man”. As a consequence of these gender stereotypes, the author faced recriminations, jealousy and rivalries from women in her family. When she left the “Acción Ya” shelter, the author went to live with her son at an aunt’s house. After a few weeks, her aunt became suspicious of her husband’s relationship with the author. On one occasion, the aunt followed her with a machete because she thought she was seducing her husband. As a result, the author had to hide in the mountains with her son for five days. In 2015, after her escape, a young man who was a family friend helped her get away from the mountains and secure a job looking after children. He later asked her to become his partner. The author agreed, and the couple moved in together. They are still together and have a child who is two years old. The author earns a living washing and ironing clothes for her neighbours. As the author was not able to bond with her first child, her grandmother has taken care of him.
The author’s pregnancy and forced motherhood harmed her physical and mental health and left her with social issues. Although she escaped from her grandfather who had held her captive, becoming a mother meant she was unable to continue her studies and keep up with her peers, leaving her with limited employment options. She remains in contact with her grandmother, but the family situation is very difficult, as neither of them can read or write. The author lives in constant fear of being found by her grandfather, who belongs to the armed groups operating in the Departments of Jinotega and Matagalpa, so she has become forcibly displaced to escape from him. She dreams of studying, but her place of residence is two days’ walk from the nearest school, meaning that it is still impossible for her to receive regular education.
Complaint
The author alleges that the available domestic remedies were unreasonably prolonged and rendered ineffective, as she has not been able to obtain justice since the complaint was filed in October 2014. Despite the fact that an indictment and an arrest warrant were issued in 2015, to date no steps have been taken to locate and arrest the assailant.
The author claims that despite the fact that the justice authorities were aware of the sexual violence she had suffered from her grandfather and of her pregnancy, they never took any action to locate her, protect her and guarantee her access to comprehensive healthcare, meaning that there was no effective domestic remedy available to her to guarantee her life and integrity.
The author also claims that she had no effective remedy in the form of access to reproductive health services such as abortion or termination of pregnancy. Despite the fact that the pregnancy posed a risk to her life and health given her young age, there was no mechanism that would have enabled her to obtain a legal abortion because the procedure is criminalized in all circumstances under article 143 of the Criminal Code. Even if, in spite of her limited access to health facilities and services, she had attempted to file an action, the only appropriate judicial route would have been to attempt an amparo appeal on the ground that the applicable rule was unconstitutional. However, since the Criminal Code was revised, more than 50 remedies of unconstitutionality have been filed, none of which have been settled to date. She points out that the State Party does not have an adequate or efficient remedy. The only possible course of legal action would have been unsuccessful in the present case, since the highest national court that could have resolved the violations suffered by the author as a result of her forced pregnancy has refused for years to rule on the merits of the case.
The author alleges a violation of article 2 (3) of the Covenant, read in conjunction with articles 3, 6, 7, 9, 17, 19, 24 (1) and 26, in relation to the criminal proceedings and forced motherhood.
The author claims that despite the fact that she and her grandmother filed a complaint, the State Party failed in its duty to ensure that an effective investigation was carried out. The authorities in charge of the investigation did not act with the required enhanced due diligence because, despite knowing that the author and her grandmother were in a shelter for victims of gender-based violence, they decided to close the investigation “due to the victims’ lack of interest”. Later, once the investigation was reopened, the police officers asserted that, due to the unsafe security situation in the area and the presence of armed groups, they could not arrest the assailant. In addition, the author was denied access to any legal means that would have allowed her to obtain a legal abortion.
The author recalls that the procedural component of the right to an effective remedy means that States Parties have an obligation to take appropriate measures to investigate the facts, even when the perpetrators of violations are private persons. She further recalls that a State Party’s failure to investigate may, in itself, be a violation of the Covenant and that remedies must be tailored to the particular vulnerability of children.
The author argues that the procedural component of States Parties’ obligation under article 2 (3) of the Covenant includes the duty to provide mechanisms for women to obtain a legal abortion when required and, at a minimum, when the life and/or health of the woman or girl is at risk. However, once the police became aware of the facts, they refused to look for the author and provide her with the comprehensive care she needed. In addition, despite the fact that the author’s life and physical and mental health were at risk, she reportedly would not have been able to request an abortion owing to legal provisions criminalizing all forms of abortion,12 and because the available avenues for challenging those provisions were not accessible or effective.13 Even if the author had been “rescued” in time, the current legal framework would not have allowed her to obtain an abortion. There was no effective remedy that would have allowed the author access to a safe abortion, making the State Party responsible for a violation of article 2 of the Covenant.
The author also recalls that the substantive component of the right to an effective remedy means that States Parties have an obligation to ensure access to an appropriate remedy and to provide reparation, including restitution, rehabilitation, satisfaction and guarantees of non-repetition. She states that special measures must be guaranteed to achieve recovery, rehabilitation and social reintegration of the child “taking into account [his or her] right to survival and integral development”.14
- Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, Judgment, 8 March 2018, paras. 170 and 171. ↩
The author also argues that the State Party violated her right to life by failing to ensure that she could obtain sexual and reproductive health services, resulting in: (a) a risk of maternal mortality; (b) an impact on her mental health; and (c) an impact on her right to a dignified life.
The author recalls that article 6 of the Covenant is violated when the authorities fail to take measures to mitigate reasonably foreseeable threats that can result in loss of life.15 She argues that failure to provide healthcare can generate just such a risk to life, in violation of article 6 of the Covenant. In particular, the Committee has previously requested States Parties to remove restrictive abortion regulations or practices that put women’s lives at risk.16 The Committee also established that restrictions on access to abortion must not jeopardize the lives of women or girls or subject them to physical or mental pain or suffering.17 The Committee on the Rights of the Child has recognized that those risks are higher for pregnant girls and has urged States to guarantee them access to abortion to protect their lives.18 The author was 13 years old when she became pregnant, exposing her to a high risk of maternal mortality because of her age.
- Human Rights Committee, general comment No. 36 (2018), para. 7. ↩
- CCPR/C/CHL/CO/5, para. 8; and CCPR/CO/78/SLV, para. 14. ↩
- General comment No. 36 (2018), para. 8. ↩
- General comment No. 20 (2016) on the implementation of the rights of the child during adolescence. See also Latin American Federation of Obstetrics and Gynaecology Societies, Factores relacionados con el embarazo y la maternidad en menores de 15 años en América Latina y el Caribe (Factors related to pregnancy and motherhood in girls under 15 years of age in Latin America and the Caribbean), Lima, January 2011; and International Planned Parenthood Federation and Women’s Link Worldwide, Pautas para la toma de decisiones clínicas cuando el embarazo pone en riesgo la vida de la mujer (Guidelines for clinical decision-making when pregnancy puts a woman’s life at risk), 2018. ↩
The forced pregnancy had serious consequences for the author’s mental health. According to the psychiatric report,19 she became pregnant in conditions that put her life in grave danger, as the pregnancy was the product of incest by rape and she was subjected to forced labour while being held captive by an armed man who restricted her food intake and threatened to kill her. However, despite being aware of the author’s vulnerability and the risks she faced, no authority protected her or provided her with access to the health system. In this regard, the State Party failed to act with due diligence and did not comply with its obligation to protect life, as it left the author at the mercy of her assailant despite the fact that he was known to be dangerous.
- Psychological assessment conducted at the Special Police Unit for Women and Children in Jinotega on 21 March 2018. ↩
With regard to the right to a dignified life (article 6 of the Covenant), the author recalls that this means that States Parties must take measures to ensure the enjoyment of economic, social and cultural rights.20 They should not interfere with a child’s life goals, but should nurture and encourage them.21 The author maintains that the State Party not only failed to provide her with access to abortion after preventable rape, resulting in pregnancy and forced motherhood without the necessary psychological support, but also failed to provide her with support following the change in her life circumstances as a consequence of her forced motherhood, which further worsened her precarious socioeconomic situation.
- Human Rights Committee, general comment No. 36 (2018), para. 8. ↩
- Inter-American Court of Human Rights, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala, Judgment, 19 November 1999, paras. 144 and 191; Case of the Gómez-Paquiyauri Brothers v. Peru, Judgment of 8 July 2004, para. 128; and Case of Myrna Mack Chang v. Guatemala, Judgment, 27 November 2003, para. 152. ↩
Lastly, the author alleges a violation of the right to life, as protected by article 6 of the Covenant, read in conjunction with article 24 (1), because, as a child victim of rape living in poverty in a dysfunctional family situation, the State Party should have taken special measures to protect her.
The author also claims that the State Party violated her right not to be subjected to torture or inhuman or degrading treatment. She argues that such treatment took the form of sexual violence committed by a private individual who went unpunished.22 She recalls that, in the case of child victims, the impact of sexual violence “can be exacerbated and they may suffer emotional trauma that differs from that suffered by an adult, with extremely profound effects, in particular when the victim’s relationship with the perpetrator is based on trust and authority”.23 She also recalls that article 7 is violated when the authorities fail to investigate effectively, thus depriving victims of their right to reparation, and that when the victim is a minor, the obligation of due diligence is enhanced.24 The author recalls that, in her case, not only is the State Party responsible for the violence by omission, in that it did not prevent the situation despite knowing that her assailant was dangerous, but it also failed to investigate the case.
- Committee against Torture, general comment No. 2 (2007), para. 22; V.L. v. Switzerland (CAT/C/37/D/262/2005); Human Rights Committee, general comment No. 31 (2004), para. 8. A/HRC/31/57; Inter-American Court of Human Rights, Miguel Castro-Castro Prison v. Peru, Judgment, 25 November 2006, paras. 306 and 311; and Inter-American Court of Human Rights, Fernández Ortega et al. v. Mexico, Judgment, 30 August 2010, para. 119. ↩
- Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, para. 163. ↩
- Purna v. Nepal (CCPR/C/119/D/2245/2013); X. v. Sri Lanka (CCPR/C/120/D/2256/2013); and Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, para. 156. ↩
The author argues that the inhuman or degrading treatment also resulted from the lack of access to abortion, which led to forced pregnancy and forced motherhood. She recalls that the treaty bodies have already found that the denial of access to abortion constitutes a violation of article 7 when a woman’s physical or mental health is at risk. The author alleges that the sexual violence constituted torture because: (a) it was intentional (her grandfather raped her from the age of 6 years, when she was completely defenceless and under his domination, and took advantage of her age and the family and power relationship); (b) it caused her severe physical and mental suffering given the identity of the perpetrator, the blood relationship and the inherently severe physical and psychological effects of sexual violence, which caused her, inter alia, depression, anguish and fear; and (c) it was committed with the purpose of sexually abusing her, intimidating her, erasing her personality, subjugating her and asserting a position of gender subordination, a relationship of power and patriarchal domination over the victim, a defenceless girl. All of this is evidence of a discriminatory motive.
The author argues that the inhuman or degrading treatment was also caused by the inaction of the State, which made no effort to investigate the case, punish the perpetrator or repair the harm caused by the sexual violence. The authorities did not act with the enhanced due diligence required in a case of sexual violence against a child. After her grandmother tried to file a complaint, officers systematically rejected it and prevented her from filing it, to the point that she had to travel to different towns on seven occasions to register a complaint that was never taken up.
The author argues that the inhuman or degrading treatment was also caused by the lack of comprehensive care and recalls that, according to the Special Rapporteur on torture, when women have children as a result of rape, they need special psychological support since the impact on their lives and mental health is greater.25 Because she was a child victim of sexual violence, the author also alleges a violation of article 24 (1) due to the lack of medical and psychological care appropriate for minors and the absence of any measures to prevent her from being subjected to acts of violence or cruel or inhuman treatment.26
Lastly, the author argues that the forced pregnancy and forced motherhood resulted in “failed motherhood”, because she was unable to take on a maternal role and left her child in the care of her grandmother. Currently, the author suffers from slow psychological processing and difficulties in processing information. In addition, the author suffered discrimination from her relatives and community, which led to the breakdown of the family.
The author also alleges that being forced into motherhood through incest seriously affected her physical, mental and social integrity. She claims that there was also a violation of article 9, recalling that the concept of security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity, and applies to all persons whether or not they are deprived of liberty.27
- General comment No. 35 (2014), para. 4. ↩
The author also maintains that the lack of access to abortion represented arbitrary interference in her private life. The decision to terminate a pregnancy is a decision related to reproductive autonomy, which is a component of the right to privacy. The author did not have access to the health system until her labour began. In any case, she would not have been able to terminate her pregnancy because of the full criminalization of abortion in the State Party. Despite the fact that the author stated that she did not want to take care of the child, she was ignored by health practitioners, who denied her relevant information about options such as adoption, which went against her best interests as a child and violated her autonomy and privacy, as well as her right to be informed and to express her opinion, on the basis of the best interests of the child.
The author also alleges a violation of article 19 of the Covenant since she did not receive: (a) education on sexual and reproductive health; (b) information on pregnancy and childbirth; (c) accurate information about adoption; or (d) information about the criminal proceedings.
The author recalls that the Committee has already recognized that the right of access to information includes the right to receive quality and evidence-based information and education on sexual and reproductive health.28 According to the author, the Committee on the Rights of the Child recommended to the State Party that the national policy to tackle adolescent pregnancies should take into account access to information, and that adolescents should receive sexual and reproductive health education as part of their regular school education in public or private establishments and through the media.29
Lastly, the author alleges violations of articles 3 and 26 of the Covenant, recalling that a State Party’s refusal to provide for the performance of certain reproductive health services for women is discriminatory,30 and claims that her assailant had discriminatory motives, given his position of patriarchal power and dominance over a defenceless girl. The author recalls that the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health has determined that the criminalization of abortion is a clear expression of State interference with a woman’s sexual and reproductive health because it restricts a woman’s control over her body, possibly subjecting her to unnecessary health risks. It also requires women to continue unplanned pregnancies and give birth when it is not their choice to do so.31 She also claims that the total prohibition on abortion in the State Party is a discriminatory measure that has a disproportionate effect on women, preventing them from enjoying the rights recognized in the Covenant, including the right to life, health, privacy and freedom from cruel, inhuman and degrading treatment, on an equal basis with men.32
- Committee on the Elimination of Discrimination against Women, general recommendation No. 24 (1999), para. 11; and L.C. v. Peru (CEDAW/C/50/D/22/2009), para. 8.15. ↩
- A/66/254, para. 27. ↩
- See https://ccprcentre.org/files/documents/INT_CCPR_NGO_NIC_94_9748_S.pdf, p. 15; and Llantoy Huamán v. Peru, para. 3.2. ↩
The author asks the Committee to set out in detail the measures that the State Party should take. First, it should grant rehabilitation measures consisting of access to comprehensive health services, including mental health services for the author, her child and her grandmother. Second, restitution measures should be granted in the form of access to primary and secondary education for the author, access to education at all levels for her son, provision of the necessary resources to develop a work venture according to her wishes (she would like to set up a rural enterprise), compensation for the moral harm suffered and compensation for the cost of pregnancy care, childbirth and the upkeep of her child, as well as for the legal proceedings. Third, satisfaction measures should be considered, for example effective access to justice, the issuance of an arrest warrant for the assailant and compliance with evidentiary standards in cases of sexual violence. Lastly, non-repetition measures should be considered, in the form of guaranteeing access to abortion for girls who are victims of sexual violence, ensuring adequate comprehensive healthcare for girls who are victims of sexual violence, developing appropriate adoption policies, training health professionals and justice officials in the provision of comprehensive care in cases of sexual violence and establishing staff selection processes for cases of sexual violence against girls.
Third-party submissions
On 19 April 2021, the Committee received a third-party submission from the Centre for International Human Rights of the Pritzker School of Law at Northwestern University and from Anand Grover, former Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. In the submission, it is argued that forced motherhood constitutes a violation of the right to a dignified life.33
- A summary of the submission can be found in annex I of document CCPR/C/142/D/3627/2019. ↩
On 26 April 2021, the Committee received a third-party submission from students at the Paris Human Rights Centre and Assas International Law Clinic at the Panthéon-Assas University. The submission deals with the violation of the right to privacy to which forced pregnancy gives rise.34
- A summary of the submission can be found in annex II of document CCPR/C/142/D/3627/2019. ↩
Lack of cooperation by the State Party
In notes verbales sent on 4 July 2019, 7 October 2020, 25 January 2021 and 16 June 2021, the Committee requested the State Party to provide information and observations on the admissibility and the merits of the present communication. The Committee regrets the State Party’s failure to provide any information with regard to the admissibility or the merits of the author’s claims. It recalls that article 4 (2) of the Optional Protocol obliges States Parties to examine in good faith all allegations brought against them and to make available to the Committee all information at their disposal. In the absence of a reply from the State Party, due weight must be given to the author’s allegations, to the extent that they are properly substantiated.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee recalls that the purpose of requiring that domestic remedies be exhausted is to give States Parties the opportunity to perform their duty to protect and guarantee Covenant rights.35 The Committee also recalls that, for the purposes of article 5 (2) (b) of the Optional Protocol, authors need submit only those remedies that offer them a reasonable prospect of redress.36 In the present case, with regard to remedies available for access to voluntary termination of pregnancy, the Committee notes that the State Party has not responded to the author’s argument that, based on the legislation in force, there is a total ban on abortion and no remedy is available for obtaining access to voluntary termination of pregnancy. In the absence of any information from the State Party identifying another remedy that would have been effective and available to the author to remedy the lack of access to termination of pregnancy, the Committee considers that article 5 (2) (b) of the Optional Protocol does not preclude it from considering the communication. With regard to the criminal investigation into the acts of sexual violence, the Committee notes that the authorities have taken no action since the complaint was filed in 2014 and that the State Party has provided no explanation on that point, and therefore also concludes that article 5 (2) (b) of the Optional Protocol does not preclude it from considering the communication.
The Committee notes the author’s claims under article 9 (1) of the Covenant and considers that she has not provided sufficient information to explain how the facts as set out in the present communication could have undermined the enjoyment of her rights under that article. Accordingly, the Committee considers that these claims have not been sufficiently substantiated and therefore finds them inadmissible under article 2 of the Optional Protocol.
The Committee also takes note of the author’s claim of an autonomous violation of articles 3 and 26 of the Covenant. The Committee considers that this claim is closely related to the claims made under other articles of the Covenant and that it should therefore consider them together.37
- L.M.R. v. Argentina, para. 8.5. ↩
The Committee considers that the allegations relating to article 2 (3) of the Covenant, read in conjunction with articles 3, 6, 7, 17, 19, 24 (1) and 26, and the allegations relating to articles 6, 7, 17 and 19, read in conjunction with articles 3, 24 (1) and 26, have been sufficiently substantiated for the purposes of admissibility and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the present communication in the light of all the information submitted to it, in accordance with article 5 (1) of the Optional Protocol.
The Committee notes the author’s claim that the facts of the present case constitute a violation of her rights under article 6 (1) of the Covenant because the State Party failed to provide her with access to sexual and reproductive health services, thereby exposing her to the risk of maternal mortality inherent in pregnancy and childbirth at a young age and causing her to suffer depression and consider suicide as a means of avoiding forced motherhood, and that her right to a dignified life was also affected because, by not providing her with access to abortion or information about her options, including the option of giving up her child for adoption, the State Party imposed forced motherhood on her without providing her with protective measures or any support in attaining her life goals, which were altered due to forced motherhood, especially given her status as a minor. Lastly, the Committee notes that the author links the foregoing to a violation of article 2 (3) of the Covenant, on the basis of a lack of due diligence in the criminal investigation and the lack of access to an effective remedy in relation to her forced motherhood, in the absence of a mechanism for access to legal abortion.
The Committee also notes that, despite knowing that the author and her grandmother had managed to seek refuge in a private shelter for women victims of violence and that they were afraid to go out for fear of being recognized by the assailant, the authorities did not investigate and decided to close the proceedings “due to the victims’ lack of interest”. The authorities knew that the author’s grandfather had deprived her of her liberty, subjected her to forced labour and physically abused her and that he belonged to armed groups. The Committee considers that the State Party’s continued failure to protect38 the author allowed the violence against her, including rape, to continue. The State Party failed to exercise its enhanced duty to protect a child victim of violence.
- Portillo Cáceres et al. v. Paraguay (CCPR/C/126/D/2751/2016), para. 7.8. See also Lugumire and Barhatulirwa v. Democratic Republic of the Congo (CCPR/C/137/D/2790/2016), para. 6.3; and Committee on Economic, Social and Cultural Rights, general comment No. 22 (2016), para. 59. ↩
The Committee recalls that the right to life cannot be properly understood if it is interpreted in a restrictive manner; the protection of this right requires that States adopt positive measures.39 In this connection, the Committee notes that violations through acts of omission include the failure to take appropriate steps towards the full realization of everyone’s right to sexual and reproductive health and the failure to enact and enforce relevant laws.40 In addition, the Committee notes that access to healthcare, including access to sexual and reproductive healthcare, is extremely limited for women in rural areas, where maternal mortality and morbidity are disproportionately high. When abortion is illegal, the health impact is even greater.41 The Committee recalls that States Parties must provide safe, legal and effective access to abortion where the life and health of the pregnant woman or girl is at risk, or where carrying a pregnancy to term would cause the pregnant woman or girl substantial pain or suffering, most notably where the pregnancy is the result of rape or incest, and should remove existing barriers to effective access by women and girls to safe and legal abortion.42 The Committee also notes that the Committee on the Rights of the Child considered that, in the case of pregnant girls, consideration should be given to the particularly high risk to their lives because of possible complications during pregnancy and childbirth.43 The Committee on the Rights of the Child has also urged States to decriminalize abortion to ensure that girls have access to safe abortion and post-abortion services, review legislation with a view to guaranteeing the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.44
- Toussaint v. Canada (CCPR/C/123/D/2348/2014), para. 11.3. ↩
- Committee on Economic, Social and Cultural Rights, general comment No. 22 (2016), para. 55. ↩
- Committee on the Elimination of Discrimination against Women, general recommendation No. 34 (2016), paras. 37 and 38. ↩
- Human Rights Committee, general comment No. 36 (2018), para. 8. ↩
- Camila v. Peru (CRC/C/93/D/136/2021), para. 8.5. ↩
- Ibid.; and Committee on the Rights of the Child, general comment No. 20 (2016), para. 60. ↩
The Committee recalls its general comment No. 36 (2018), in which it established that the right to life also concerns the right to enjoy a dignified life, meaning that States Parties should take all appropriate measures to address the general conditions in society that may give rise to threats to the right to life or prevent individuals from enjoying their right to a dignified life. Moreover, States Parties may be in violation of article 6 of the Covenant even when such threats and situations have not resulted in loss of life.45 The Committee also notes that every child has the right to plan his or her life in a way that is supported and encouraged by the public authorities so that it provides personal benefits for the child, as well as benefits for the society to which he or she belongs.46 In particular, the Committee notes the considerations put forward in the first third-party submission to the effect that forced motherhood interrupts and hinders the achievement of the personal, family, educational and professional goals of adolescent mothers and severely restricts their lives and futures and their right to a dignified life. The Committee further notes the view of the Committee on the Rights of the Child that, regarding the situation of pregnant girls, consideration should be given to the potentially serious impact that it can have on their development and their life goals.47
- Human Rights Committee, general comment No. 36 (2018), paras. 3, 7 and 26. See also Portillo Cáceres et al. v. Paraguay, para. 7.3. ↩
- Inter-American Court of Human Rights, Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala, Judgment, 19 November 1999, para. 191. ↩
- Camila v. Peru, para. 8.5 ↩
In the light of the foregoing, the Committee is of the view that the facts before it disclose a violation of article 6 (1) of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1).
The Committee notes that the author alleges that the facts of the present case constitute a violation of article 7 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1) for the following reasons: (a) failure to prevent sexual violence despite knowing that the perpetrator was a dangerous individual; (b) the sexual violence and forced pregnancy that caused her severe suffering, resulting in thoughts of suicide; (c) the legal prohibition of abortion, which led to forced pregnancy and forced motherhood, even though she was still a child; (d) the absence of an effective investigation in the context of the rape complaint, depriving her of her right to redress; (e) revictimization; and (f) the lack of comprehensive care she required, delivered in an appropriate manner given her status as a minor.
The Committee recalls that the legality of a particular conduct or action under domestic law does not mean that it cannot infringe article 7 of the Covenant.48 The Committee recalls that the right protected by article 7 of the Covenant relates not only to physical pain but also to mental suffering and that this protection is particularly important in the case of children.49 In particular, the Committee notes the view of the Committee on the Rights of the Child that, in the case of pregnant girls, consideration should be given to the special and differential physical and mental health impacts of child pregnancy, whose effect on each girl will depend on her age and physical and psychological maturity, her family and community support systems and other factors that can have a bearing on mental health, including a history of rape or incest and socioeconomic or cultural factors that increase vulnerability.50 In the case of child victims, the impact “can be exacerbated and they may suffer an emotional trauma that differs from that suffered by an adult, with extremely profound effects, in particular when the victim’s relationship with the perpetrator is based on trust and authority”.51 Lastly, the Committee also recalls that, when the victim is a minor, the obligation of due diligence is enhanced and impunity constitutes an aggravating circumstance.52
- Whelan v. Ireland (CCPR/C/119/D/2425/2014), para. 7.4. ↩
- General comment No. 20 (1992), paras. 2 and 5. ↩
- Camila v. Peru, para. 8.5 ↩
- Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, para. 163. ↩
- See Purna v. Nepal; X v. Sri Lanka; and Inter-American Court of Human Rights, V.R.P., V.P.C. et al. v. Nicaragua, paras. 158 and 171. ↩
The Committee considers that the author suffered a high level of distress as a result of constant threats from her grandfather, the need to hide and seek shelters for women victims of violence, the stigmatization and rejection she experienced from her own family and a combination of acts and omissions attributable to the State Party. The Committee notes that the right to termination of pregnancy is not guaranteed in the State Party and recalls that denial of access to abortion constitutes a violation of article 7 when the physical or mental health of the woman is at risk, that the age of the victim influences the degree of suffering and, even more seriously, that the victim is a minor who has been sexually abused.53 The Committee also notes that the author did not receive any psychological support after having been forced into motherhood.
- Llantoy Huamán v. Peru, para. 6.3; Mellet v. Ireland (CCPR/C/116/D/2324/2013), para. 7.4; Whelan v. Ireland; and L.M.R. v. Argentina. ↩
The Committee also notes that the author’s grandmother tried to file a complaint on seven occasions at various police stations and prosecutors’ offices, but none of the authorities she approached assumed jurisdiction or provided her with accurate information. It also notes that the Special Police Unit for Women and Children in Jinotega refused to receive the complaint from the grandmother and that requests made by the author, her grandmother and her lawyer for information on the steps taken and for copies of the complaint and the case file were also refused.
In the light of the foregoing, the Committee is of the view that the facts before it disclose a violation of article 7 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1).
The Committee notes the author’s claim that the facts also constitute a violation of article 17 of the Covenant because the lack of access to abortion represented arbitrary interference with her reproductive autonomy, which is a component of the right to privacy. The Committee notes that the State Party failed to provide specific observations in this regard.
In the circumstances of the present case, the Committee considers that the full criminalization of the right to terminate a pregnancy constituted unreasonable interference by the State Party in the author’s decision given her age and her status as a victim of sexual violence and therefore constitutes arbitrary interference with the author’s right to privacy, in violation of article 17 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1).55
- Llantoy Huamán v. Peru, para. 6.4; and Whelan v. Ireland, para. 7. ↩
The Committee notes the author’s claim that the facts also constitute a violation of article 19 of the Covenant, as she did not receive the sexual and reproductive health education that would have enabled her to identify sexual violence and realize that she was pregnant, nor did she receive accurate information about her right to give up her child for adoption. The Committee notes that the State Party failed to provide its observations in this regard.
The Committee recalls that the right of access to information includes the right to receive quality and evidence-based information and education on sexual and reproductive health.56 The Committee notes that the lack of access to such information, including about the possibility of giving up her child for adoption, resulted in her forced motherhood.
- Human Rights Committee, general comment No. 36 (2018), para. 8. See also joint general recommendation No. 31 of the Committee on the Elimination of Discrimination against Women/general comment No. 18 of the Committee on the Rights of the Child (2019), para. 68; Committee on Economic, Social and Cultural Rights, general comment No. 22 (2016), paras. 9, 18 and 19; and Camila v. Peru, para. 8.14. ↩
In the light of the foregoing, the Committee is of the view that the facts before it disclose a violation of article 19 of the Covenant, read alone and in conjunction with articles 2 (3) and 24 (1).
Lastly, the Committee takes note of the author’s allegation that the facts also constitute a violation of articles 3 and 26 of the Covenant as a result of the lack of provision of certain reproductive health services, the author’s forced pregnancy and forced motherhood and the failure to protect the author from sexual violence committed by her grandfather, which had also been reported on several occasions. The Committee considers that the absence of an institutional response, the lack of protective measures and the vexatious and stereotyped comments made by the State Party’s authorities, both at the health facilities and police stations, indicate discriminatory treatment by the police and the health authorities insofar as they called into question the author’s morals.57
- L.N.P. v. Argentina (CCPR/C/102/D/1610/2007), para. 13.3. ↩
The Committee notes that the impossibility of obtaining an abortion in itself constitutes differential treatment based on gender, on the basis of a gender stereotype related to the reproductive role of women, who are primarily thought of as mothers. By being stereotyped as a reproductive tool, the author was subjected to discrimination.58 The Committee also notes that the lack of protection from sexual violence, the forced pregnancy, forced motherhood and the lack of access to women’s health services are forms of genderbased violence against women and gender discrimination.59 The Committee therefore considers that the facts of the present communication also disclose a form of intersectional discrimination based on the author’s gender, her age and the fact that she lived in poverty in a rural age.60
- Mellet v. Ireland, para. 7.11. ↩
- Chakupewa et al. v. Democratic Republic of the Congo (CCPR/C/131/D/2835/2016). See also Committee on the Elimination of Discrimination against Women, general recommendation No. 35 (2017) on gender-based violence against women, para. 18. ↩
- L.N.P. v. Argentina, L.C. v. Peru and Camila v. Peru. Inter-American Court of Human Rights, Guzmán Albarracín et al. v. Ecuador, Judgment, 24 June 2020, paras. 113 and 141. ↩
Based on the foregoing, the Committee concludes that the facts before it reveal a violation of articles 6 (1), 7, 17 and 19 of the Covenant, read alone and in conjunction with articles 2 (3), 3 and 26.
In the light of the above findings, and considering the complete ban on abortion in the State Party and the total absence of investigations in the present case, the Committee considers that the facts before it also disclose a violation of article 2 (3) of the Covenant, read in conjunction with articles 3, 6, 7, 17, 24 (1) and 26.61
- CCPR/C/NIC/CO/4, paras. 19 and 20; Purna v. Nepal, para. 12.4; A.S. v. Nepal (CCPR/C/115/D/2077/2011), para. 8.6; Tharu et al. v. Nepal (CCPR/C/114/D/2038/2011), para. 11; and Himal and Devi Sharma v. Nepal (CCPR/C/122/D/2265/2013), para. 10.1. ↩
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of article 2 (3) of the Covenant, read in conjunction with articles 3, 6, 7, 17, 24 (1) and 26, and of articles 6 (1), 7, 17 and 19, read alone and in conjunction with articles 2 (3), 3, 24 (1) and 26.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide an effective remedy. Accordingly, the State Party should: (a) provide the author with full reparation, including adequate compensation, for the harm she has suffered; (b) repair the harm inflicted on her life plans, including by providing the necessary support to enable her to obtain access to education in whatever form she considers most appropriate; (c) ensure that her child has access to education at all levels; (d) provide specialized psychological care to the author and her son, as a child born of sexual violence, for as long as the author and the specialist deem necessary; and (e) make a public acknowledgement of responsibility. The State Party is also under an obligation to take steps to prevent similar violations from occurring in the future. In this regard, the Committee requests the State Party to: (a) review its legal framework and ensure access to pregnancy termination services for all women and girls who are victims of sexual violence, including incest or rape, and/or in cases where there is a risk to the mother’s health; (b) take action to combat sexual violence in all sectors, including by conducting education and awareness campaigns for the general public and in the field of administration of justice; (c) train health and justice professionals on comprehensive care in cases of sexual violence; and (d) develop adequate adoption policies.
Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the present Views. The State Party is also requested to publish the present Views and to have them widely disseminated.