General recommendation No. 33 on women's access to justice

The right to access to justice for women is essential to the realization of all the rights protected under the Convention on the Elimination of All Forms of Discrimination against Women. It is a fundamental element of the rule of law and good governance, together with the independence, impartiality, integrity and credibility of the judiciary, the fight against impunity and corruption, and the equal participation of women in the judiciary and other law implementation mechanisms. The right to access to justice is multidimensional. It encompasses justiciability, availability, accessibility, good quality, the provision of remedies for victims and the accountability of justice systems. For the purposes of the present general recommendation, all references to “women” should be understood to include women and girls, unless otherwise specifically noted.

In the present general recommendation, the Committee examines the obligations of States parties to ensure that women have access to justice. These obligations encompass the protection of women’s rights against all forms of discrimination with a view to empowering them as individuals and as rights holders. Effective access to justice optimizes the emancipatory and transformative potential of the law.

In practice, the Committee has observed a number of obstacles and restrictions that impede women from realizing their right to access to justice on a basis of equality, including a lack of effective jurisdictional protection offered by States parties in relation to all dimensions of access to justice. These obstacles occur in a structural context of discrimination and inequality owing to factors such as gender stereotyping, discriminatory laws, intersecting or compounded discrimination, procedural and evidentiary requirements and practices, and a failure to systematically ensure that judicial mechanisms are physically, economically, socially and culturally accessible to all women. All these obstacles constitute persistent violations of women’s human rights.

The scope of the present general recommendation includes the procedures and quality of justice for women at all levels of justice systems, including specialized and quasi-judicial mechanisms. Quasi-judicial mechanisms encompass all actions of public administrative agencies or bodies, similar to those carried out by the judiciary, which have legal effects and may affect legal rights, duties and privileges.

The scope of the right to access to justice also includes plural justice systems. The term “plural justice systems” refers to the coexistence within a State party of State laws, regulations, procedures and decisions on the one hand, and religious, customary, indigenous or community laws and practices on the other. Therefore, plural justice systems include multiple sources of law, whether formal or informal, whether State, non-State or mixed, that women may encounter when seeking to exercise their right to access to justice. Religious, customary, indigenous and community justice systems — referred to as traditional justice systems in the present general recommendation — may be formally recognized by the State, operate with the acquiescence of the State, with or without any explicit status, or function outside of the State’s regulatory framework.

International and regional human rights treaties and declarations and most national constitutions contain guarantees relating to sex and/or gender equality before the law and obligations to ensure that everyone benefits from the equal protection of the law.¹ Article 15 of the Convention provides that women and men must have equality before the law and benefit from equal protection of the law. Article 2 stipulates that States parties must take all appropriate measures to guarantee the substantive equality of men and women in all areas of life, including through the establishment of competent national tribunals and other public institutions, to ensure the effective protection of women against any act of discrimination. The content and scope of that provision are further detailed in the Committee’s general recommendation No. 28 on the core obligations of States parties under article 2 of the Convention. Article 3 mentions the need for appropriate measures to ensure that women can exercise and enjoy their human rights and fundamental freedoms on a basis of equality with men.

1. See, for example, articles 7 and 8 of the Universal Declaration of Human Rights, articles 2 and 14 of the International Covenant on Civil and Political Rights and articles 2 (2) and 3 of the International Covenant on Economic, Social and Cultural Rights. At the regional level, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights all contain relevant provisions. ↩

Discrimination may be directed against women on the basis of their sex and gender. Gender refers to socially constructed identities, attributes and roles for women and men and the cultural meaning imposed by society on to biological differences, which are consistently reflected within the justice system and its institutions. Under article 5 (a) of the Convention, States parties have an obligation to expose and remove the underlying social and cultural barriers, including gender stereotypes, that prevent women from exercising and claiming their rights and impede their access to effective remedies.

Discrimination against women, based on gender stereotypes, stigma, harmful and patriarchal cultural norms and gender-based violence, which affects women in particular, has an adverse impact on the ability of women to gain access to justice on an equal basis with men. In addition, discrimination against women is compounded by intersecting factors that affect some women to degrees or in ways that differ from those affecting men or other women. Grounds for intersecting or compounded discrimination may include ethnicity/race, indigenous or minority status, colour, socioeconomic status and/or caste, language, religion or belief, political opinion, national origin, marital and/or maternal status, age, urban/rural location, health status, disability, property ownership and identity as a lesbian, bisexual or transgender woman or intersex person. These intersecting factors make it more difficult for women from those groups to gain access to justice.²

2. See paragraph 18 of general recommendation No. 28. ↩

Other factors that make it more difficult for women to gain access to justice include illiteracy, trafficking, armed conflict, status as an asylum seeker, internal displacement, statelessness, migration, being a female head of household, widowhood, living with HIV, deprivation of liberty, criminalization of prostitution, geographical remoteness and stigmatization of women fighting for their rights. That human rights defenders and organizations are frequently targeted because of their work must be emphasized and their own right to access to justice protected.

The Committee has documented many examples of the negative impact of intersecting forms of discrimination on access to justice, including ineffective remedies, for specific groups of women. Women belonging to such groups often do not report violations of their rights to the authorities for fear that they will be humiliated, stigmatized, arrested, deported, tortured or have other forms of violence inflicted upon them, including by law enforcement officials. The Committee has also noted that, when women from those groups lodge complaints, the authorities frequently fail to act with due diligence to investigate, prosecute and punish perpetrators and/or provide remedies.³

3. See, for example, the concluding observations on the Bahamas (CEDAW/C/BHS/CO/1-5, para. 25 (d)), Costa Rica (CEDAW/C/CRI/CO/5-6, paras. 40-41), Fiji (CEDAW/C/FJI/CO/4, paras. 2425), Kyrgyzstan (A/54/38/Rev.1, part one, paras. 127-128), the Republic of Korea (CEDAW/C/KOR/CO/6, paras. 19-20, and CEDAW/C/KOR/CO/7, para. 23 (d)) and Uganda (CEDAW/C/UGA/CO/7, paras. 43-44). ↩

In addition to articles 2 (c), 3, 5 (a) and 15 of the Convention, States parties have further treaty-based obligations to ensure that all women have access to education and information about their rights and the remedies that are available and how to gain access to them, and access to competent, gender-sensitive dispute resolution systems, as well as equal access to effective and timely remedies.⁴

4. See, in particular, general recommendations Nos. 19, 21, 23, 24, 26, 27, 29 and 30. ↩

The Committee’s views and recommendations concerning the steps that need to be taken to overcome obstacles encountered by women in gaining access to justice are informed by its experience in considering the reports of States parties, its analysis of individual communications and its conduct of inquiries under the Optional Protocol to the Convention. In addition, reference is made to work on access to justice by other United Nations human rights mechanisms, national human rights institutions, civil society organizations, including community-based women’s associations, and academic researchers.

The Committee has observed that the concentration of courts and quasi-judicial bodies in the main cities, their non-availability in rural and remote regions, the time and money needed to gain access to them, the complexity of proceedings, the physical barriers for women with disabilities, the lack of access to high-quality, gender-competent legal advice, including legal aid, as well as the often-noted deficiencies in the quality of justice systems (e.g., gender-insensitive judgements or decisions owing to a lack of training, delays and excessive length of proceedings, corruption) all prevent women from gaining access to justice.

Six interrelated and essential components — justiciability, availability, accessibility, good quality, provision of remedies for victims and accountability of justice systems — are therefore necessary to ensure access to justice. While differences in prevailing legal, social, cultural, political and economic conditions will necessitate a differentiated application of these features in each State party, the basic elements of the approach are universally relevant and immediately applicable. Accordingly:

With regard to justiciability, the Committee recommends that States parties:

With regard to the availability of justice systems, the Committee recommends that States parties:

With regard to accessibility of justice systems, the Committee recommends that States parties:

With regard to the good quality of justice systems, the Committee recommends that States parties:

With regard to the provision of remedies, the Committee recommends that States parties:

With regard to the accountability of justice systems, the Committee recommends that States parties:

Frequently, States parties have constitutional provisions, laws, regulations, procedures, customs and practices that are based on traditional gender stereotypes and norms and are, therefore, discriminatory and deny women full enjoyment of their rights under the Convention. The Committee, therefore, consistently calls upon States parties, in its concluding observations, to review their legislative frameworks and to amend and/or repeal provisions that discriminate against women. This is consistent with article 2 of the Convention, which enshrines obligations for States parties to adopt appropriate legal and other measures to eliminate all forms of discrimination against women by public authorities and non-State actors, be they individuals, organizations or enterprises.

Women, nonetheless, face many difficulties in gaining access to justice as a result of direct and indirect discrimination, as defined in paragraph 16 of general recommendation No. 28. Such inequality is apparent not only in the discriminatory content and/or impact of laws, regulations, procedures, customs and practices, but also in the lack of capacity and awareness on the part of judicial and quasi-judicial institutions to adequately address violations of women’s human rights. In its general recommendation No. 28, the Committee, therefore, notes that judicial institutions must apply the principle of substantive or de facto equality, as embodied in the Convention, and interpret laws, including national, religious and customary laws, in line with that obligation. Article 15 encompasses obligations for States parties to ensure that women enjoy substantive equality with men in all areas of the law.

Many of the Committee’s concluding observations and views under the Optional Protocol, however, demonstrate that discriminatory procedural and evidentiary rules and a lack of due diligence in the prevention, investigation, prosecution, punishment and provision of remedies for violations of women’s rights result in contempt of obligations to ensure that women have equal access to justice.

Special consideration is to be given to girls (including the girl child and adolescent girls, where appropriate) because they face specific barriers to gaining access to justice. They often lack the social or legal capacity to make significant decisions about their lives in areas relating to education, health and sexual and reproductive rights. They may be forced into marriage or subjected to other harmful practices and various forms of violence.

The Committee recommends that States parties:

Stereotyping and gender bias in the justice system have far-reaching consequences for women’s full enjoyment of their human rights. They impede women’s access to justice in all areas of law, and may have a particularly negative impact on women victims and survivors of violence. Stereotyping distorts perceptions and results in decisions based on preconceived beliefs and myths rather than relevant facts. Often, judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to those stereotypes. Stereotyping also affects the credibility given to women’s voices, arguments and testimony as parties and witnesses. Such stereotyping can cause judges to misinterpret or misapply laws. This has far-reaching consequences, for example, in criminal law, where it results in perpetrators not being held legally accountable for violations of women’s rights, thereby upholding a culture of impunity. In all areas of law, stereotyping compromises the impartiality and integrity of the justice system, which can, in turn, lead to miscarriages of justice, including the revictimization of complainants.

Judges, magistrates and adjudicators are not the only actors in the justice system who apply, reinforce and perpetuate stereotypes. Prosecutors, law enforcement officials and other actors often allow stereotypes to influence investigations and trials, especially in cases of gender-based violence, with stereotypes undermining the claims of the victim/survivor and simultaneously supporting the defence advanced by the alleged perpetrator. Stereotyping can, therefore, permeate both the investigation and trial phases and shape the final judgement.

Women should be able to rely on a justice system free of myths and stereotypes, and on a judiciary whose impartiality is not compromised by those biased assumptions. Eliminating stereotyping in the justice system is a crucial step in ensuring equality and justice for victims and survivors.

The Committee recommends that States parties:

The provision of education from a gender perspective and raising public awareness through civil society, the media and the use of ICT are essential to overcoming the multiple forms of discrimination and stereotyping that have an impact on access to justice and to ensuring the effectiveness and efficiency of justice for all women.

Article 5 (a) of the Convention provides that States parties must take all appropriate measures to modify social and cultural patterns of conduct, with a view to eliminating prejudices and customary and all other practices that are based on the idea of the inferiority or the superiority of either sex. In its general recommendation No. 28, the Committee emphasized that all provisions of the Convention must be read jointly in order to ensure that all forms of gender-based discrimination are condemned and eliminated.¹¹

11. In paragraph 7, it was stated that article 2 of the Convention should be read in conjunction with articles 3, 4, 5 and 24 and in the light of the definition of discrimination contained in article 1. ↩

Women who are unaware of their human rights are unable to make claims for the fulfilment of those rights. The Committee has observed, especially during its consideration of periodic reports submitted by States parties, that they often fail to guarantee that women have equal access to education, information and legal literacy programmes. Furthermore, awareness on the part of men of women’s human rights is also indispensable to guaranteeing non-discrimination and equality, and to guaranteeing women’s access to justice in particular.

The Committee recommends that States parties:

Civil society, the media and ICT play an important role in both reinforcing and reproducing gender stereotypes as well as in overcoming them.

The Committee recommends that States parties:

A crucial element in guaranteeing that justice systems are economically accessible to women is the provision of free or low-cost legal aid, advice and representation in judicial and quasi-judicial processes in all fields of law.

The Committee recommends that States parties:

Highly qualified human resources, combined with adequate technical and financial resources, are essential to ensure the justiciability, availability, accessibility, good quality, provision of remedies for victims and accountability of justice systems.

The Committee recommends that States parties:

Given the diversity of institutions and judicial arrangements around the world, some elements placed under one field of law in one country may be placed elsewhere in another. For example, the definition of discrimination may or may not be included in the Constitution; protection orders may appear under family law and/or under criminal law; and asylum and refugee issues may be dealt with by administrative courts or by quasi-judicial bodies. States parties are asked to consider the paragraphs below in that light.

The Committee has observed that, in practice, States parties that have adopted constitutional guarantees relating to substantive equality between men and women and incorporated international human rights law, including the Convention, into their national legal orders are better equipped to secure gender equality in access to justice. Under articles 2 (a) and 15 of the Convention, States parties are to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation, including through the establishment of competent national tribunals and other public institutions, and to take measures to ensure the realization of that principle in all areas of public and private life as well as in all fields of law.

The Committee recommends that States parties:

In some communities, women are unable to approach justice systems without the assistance of a male relative, and social norms hinder their ability to exercise autonomy outside the household. Article 15 of the Convention provides that women and men are to be equal before the law and that States parties must accord to women a legal capacity in civil matters identical to that of men and the same opportunities to exercise that capacity. The civil law procedures and remedies to which women are to have access include those in the fields of contracts, private employment, personal injury, consumer protection, inheritance, land and property rights.

The Committee recommends that States parties:

Inequality in the family underlies all other aspects of discrimination against women and is often justified in the name of ideology, tradition and culture. The Committee has repeatedly emphasized that family laws and the mechanisms of their application must comply with the principle of equality enshrined in articles 2, 15 and 16 of the Convention.¹³

13. See, in particular, general recommendation No. 29 on article 16 of the Convention (economic consequences of marriage, family relations and their dissolution). ↩

The Committee recommends that States parties:

Criminal laws are particularly important in ensuring that women are able to exercise their human rights, including their right to access to justice, on the basis of equality. States parties are obliged, under articles 2 and 15 of the Convention, to ensure that women have access to the protection and remedies offered through criminal law, and that they are not exposed to discrimination within the context of those mechanisms, either as victims or as perpetrators of criminal acts. Some criminal codes or acts and/or criminal procedure codes discriminate against women by:

The Committee has also highlighted the fact that women suffer from discrimination in criminal cases owing to a lack of gender-sensitive, non-custodial alternatives to detention, a failure to meet the specific needs of women in detention and an absence of gender-sensitive monitoring and independent review mechanisms.¹⁴ The secondary victimization of women by the criminal justice system has an impact on their access to justice, owing to their heightened vulnerability to mental and physical abuse and threats during arrest, questioning and detention.

14. Communication No. 23/2009, Abramova v. Belarus, views adopted on 25 July 2011; see also the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), adopted by the General Assembly in its resolution 65/229. ↩

Women are also disproportionately criminalized owing to their situation or status, such as being involved in prostitution, being a migrant, having been accused of adultery, identity as a lesbian, bisexual or transgender woman or intersex person, having undergone an abortion or belonging to other groups that face discrimination.

The Committee notes that many countries have critical shortages of trained police and legal and forensic staff capable of dealing with the requirements of criminal investigations.

The Committee recommends that States parties:

In accordance with articles 2 and 15 of the Convention, the availability and accessibility of judicial and quasi-judicial mechanisms and remedies under administrative, social and labour law should be guaranteed to women on a basis of equality. The subject areas that tend to fall within the ambit of administrative, social and labour law, and are of particular importance for women, include health services, social security entitlements, labour relations, including equal remuneration, equality of opportunities to be hired and promoted, equality of remuneration for civil servants, housing and land zoning, grants, subsidies and scholarships, compensation funds, governance of Internet resources and policy and migration and asylum.¹⁷

17. See general recommendation No. 32 on gender-related dimensions of refugee status, asylum, nationality and statelessness of women. ↩

The Committee recommends that States parties:

Other specialized judicial and quasi-judicial mechanisms,¹⁸ including labour,¹⁹ land claims, electoral and military courts, inspectorates and administrative bodies,²⁰ also have obligations to comply with international standards of independence, impartiality and efficiency and the provisions of international human rights law, including articles 2, 5 (a) and 15 of the Convention.

18. Depending on the country, the fields are covered by general or specialized justice systems. ↩
19. With regard to women’s access to justice, relevant conventions of the International Labour Organization conventions include the Labour Inspection Convention, 1947 (No. 81), the Migration for Employment Convention (Revised), 1949 (No. 97), the Labour Inspection (Agriculture) Convention, 1969 (No. 129), the Indigenous and Tribal Peoples Convention, 1989 (No. 169), and the Domestic Workers Convention, 2011 (No. 189). ↩
20. See the draft principles governing the administration of justice through military tribunals (see E/CN.4/2006/58). ↩

Transitional and post-conflict situations may result in increased challenges for women seeking to assert their right to access to justice. In its general recommendation No. 30, the Committee highlighted the specific obligations of States parties in connection with access to justice for women in such situations.

The Committee recommends that States parties:

Many jurisdictions have adopted mandatory or optional systems for mediation, conciliation, arbitration and collaborative resolutions of disputes, as well as for facilitation and interest-based negotiations. This applies, in particular, in the areas of family law, domestic violence, juvenile justice and labour law. Alternative dispute resolution processes are sometimes referred to as informal justice, which are linked to, but function outside of, formal court litigation processes. Informal alternative dispute resolution processes also include non-formal indigenous courts and chieftancy-based alternative dispute resolution, where chiefs and other community leaders resolve interpersonal disputes, including divorce, child custody and land disputes. While such processes may provide greater flexibility and reduce costs and delays for women seeking justice, they may also lead to further violations of their rights and impunity for perpetrators because they often operate on the basis of patriarchal values, thereby having a negative impact on women’s access to judicial review and remedies.

The Committee recommends that States parties:

The development of national human rights institutions and ombudsperson offices may open up further possibilities for women to gain access to justice.

The Committee recommends that States parties:

The Committee notes that State laws, regulations, procedures and decisions can sometimes coexist, within a given State party, with religious, customary, indigenous or community laws and practices. This results in the existence of plural justice systems. There are, therefore, multiple sources of law that may be formally recognized as part of the national legal order or operate without an explicit legal basis. States parties have obligations under articles 2, 5 (a) and 15 of the Convention and under other international human rights instruments to ensure that women’s rights are equally respected and that women are protected against violations of their human rights by all components of plural justice systems.²¹

21. See, in particular, general recommendation No. 29. ↩

The presence of plural justice systems can, in itself, limit women’s access to justice by perpetuating and reinforcing discriminatory social norms. In many contexts, the availability of multiple avenues for gaining access to justice within plural justice systems notwithstanding, women are unable to effectively exercise a choice of forum. The Committee has observed that, in some States parties in which systems of family and/or personal law based on customs, religion or community norms coexist alongside civil law systems, individual women may not be as familiar with both systems or at liberty to decide which regime applies to them.

The Committee has observed a range of models through which practices embedded in plural justice systems can be harmonized with the Convention in order to minimize conflicts of laws and guarantee that women have access to justice. They include the adoption of legislation that clearly defines the relationship between existing plural justice systems, the creation of State review mechanisms and the formal recognition and codification of religious, customary, indigenous, community and other systems. Joint efforts by States parties and non-State actors will be necessary to examine ways in which plural justice systems can work together to reinforce protection for women’s rights.²²

22. International Development Law Organization, Accessing Justice: Models, Strategies and Best Practices on Women’s Empowerment (Rome, 2013). ↩

The Committee recommends that, in cooperation with non-State actors, States parties:

Many countries have made reservations to:

In view of the fundamental importance of women’s access to justice, the Committee recommends that States parties withdraw their reservations to the Convention, in particular to articles 2 (c), 5 (a), 15 and 16.

The Optional Protocol to the Convention creates an additional international legal mechanism to enable women to bring complaints in relation to alleged violations of the rights set forth in the Convention and to enable the Committee to conduct inquiries into alleged grave or systematic violations of the rights set forth in the Convention, thereby reinforcing women’s right to access to justice. Through its decisions on individual communications issued under the Optional Protocol, the Committee has produced noteworthy jurisprudence in relation to women’s access to justice, including in relation to violence against women,²³ women in detention,²⁴ health²⁵ and employment.²⁶

23. See communication No. 19/2008, Kell v. Canada, views adopted on 28 February 2012; communication No. 20/2008, V.K. v. Bulgaria, views adopted on 25 July 2011; communication No. 18/2008, Vertido v. the Philippines, views adopted on 16 July 2010; communication No. 6/2005, Yildirim v. Austria, views adopted on 6 August 2007; communication No. 5/2005, Goekce v. Austria, views adopted on 6 August 2007; and communication No. 2/2003, A.T. v. Hungary, views adopted on 26 January 2005. ↩
24. See communication No. 23/2009, Abramova v. Belarus, views adopted on 25 July 2011. ↩
25. See communication No. 17/2008, Teixeira v. Brazil, views adopted on 25 July 2011. ↩
26. See communication No. 28/2010, R.K.B. v. Turkey, views adopted on 24 February 2012. ↩

The Committee recommends that States parties: