"Regardless of their sex" or "biological differences". An analysis of the European Court of Human Rights' case law on women in prison/"Independentemente do seu sexo" ou "diferencas biologicas". Uma analise da jurisprudencia sobre mulheres em situacao de privacao de liberdade do Tribunal Europeu dos Direitos Humanos.
| Autor | Ciuffoletti, Sofia |
Introduction
The topic of gender in the International legal arena offers an interesting challenge. Feminist jurisprudence has contributed to decoding and disrupting "the gender bias of apparently neutral systems of rules" (1) in domestic law and regulations. The same is true for the growing attention devoted to the interconnections between nation state and gender (2). International law, however, seems immune to the discourses that expose the gender bias in the legal domain.
As an area of public action, international law reinforces the idea of the law as an abstract and autonomous entity, separated from political, economic, and social systems, operating on a purely rational basis and destined to achieve universality, neutrality, and objectivity (3). One very relevant exception is Charlesworth, Chinkin and Wright (1991), the first attempt at a feminist critique of international law. The purpose of their work was to prove that "the structures of international lawmaking and the content of the rules of international law privilege men; if women's interests are acknowledged at all, they are marginalized. International law is a thoroughly gendered system" (4). To be more specific, a male gendered system.
It is always fascinating to challenge naturalistic fallacies, especially when they are tied to and incorporated into the legal methodology. Female imprisonment is heavily charged with naturalistic fallacies embedded in both doctrine and case law, especially when it comes to the dogma of gender separation, motherhood and the absolute vulnerability paradigm. In this paper I will use qualitative research methods to explore possible bias in international law and specifically in international courts case law (5). In particular, I will focus on the legal reasoning adopted by an international regional court, the European Court of Human Rights (ECtHR), in assessing the gender specificities of female prisoners.
When I first started to analyse gender specific issues in prison, I took for granted the idea that female imprisonment is 'inherently different'. This impression was reinforced by the human rights international and regional soft-law tools specifically targeting the condition of women in prison. When, as L'Altrodiritto (6), we started to challenge the inhuman and degrading treatment of prisoners in Italy, we devoted special attention to the drafting of legal applications for female prisoners, pointing out their specific needs when claiming a violation of Article 3 of the Convention.
When evaluating inhuman and degrading prison conditions, one has to pay special attention not only to the specific case, but also to gender identity and to the needs connected with this dimension of the self. Throughout this whole experience, I was confronted with the lack of gender-oriented assessment by domestic authorities. I searched for International legal precedents in the vast case law concerning prisoners' right in front of the ECtHR in order to substantiate gender-sensitive and -oriented claims, only to discover that an astonishingly small number of cases dealt directly with these issues. Indeed, the analysis of the relevant European case law on women in prison shows a tendency towards biologically oriented or gender-blind interpretations.
Interestingly enough, The ECtHR has built its own case law on gender equality based on the idea that "equality of sexes is one of the major goals in the Member States of the Council of Europe" (7). Amidst the debate over sex and gender as either completely different or totally interrelated notions (8), the Court bases its reasoning on a literal interpretation of Article 14--Prohibition of discrimination, which expressly includes sex among the prohibited grounds of discrimination. Therefore the Court tends to use the term 'sex' (9). Yet Article 14 provides an open-ended list of grounds of discrimination, insofar as it ends with the phrase "or other status". Thus the Court could start discussing 'gender' equality, for example in the highly contested case of Leyla Sahin v. Turkey, where it claimed that: "Gender equality--[is] recognised by the European Court as one of the key principles underlying the Convention and a goal to be achieved by member States of the Council of Europe" (10).
In recent case law concerning the definition of gender equality, many steps indicate that the Court is embracing a more sociological view of gender, acknowledging the gendered dimension of the law and stating that "references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex" (11). Some examples of this shift can be found in the evolving case law in matters of domestic violence (12). However, the case law of the European Court concerning female imprisonment seems to be much more static when it comes to equality law and gender discrimination.
I will start my analysis by presenting the International human rights legal sources (both hard-law and soft-law sources) governing the issue of prison in their gendered dimension. Then I will focus on the case law on female detention. I will present three categories of cases, the first concerning detention conditions, the second concerning antidiscrimination and equality law, the third concerning a case of ill-treatment in prison.
The detention-conditions case concerns a pregnant mother who gave birth and breastfed her baby in prison (Korneykova and Korneykov v. Ukraine (13)). This case raises the issue of a violation of Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment) and illustrates the Court's hermeneutic effort to include gender issues into its legal reasoning.
Another group of cases introduces thetopic of gender discrimination in criminal or penitentiary law. In these cases, applications were lodged by male prisoners in order to challenge the discriminatory nature of positive measures especially designed for women in prison. These measures concern the practice and law of sentencing--i.e. in a case of life sentence (Khamtokhu and Aksenchik v. Russia (14)) and in one of access to stay of execution of sentence due to parental duties and rights (Alexandru Enache v. Romania (15))--and the blanket ban on prison leave for male prisoners (Ecis v. Latvia (16)). In line with the trend in International human rights treaties governing the issue of female detention (and with only one exception), the Court will detect the specificities of female detention in the heavily charged areas of motherhood, breastfeeding, and essential vulnerability.
One last case concerning a gynecological examination imposed on a detainee without her free and informed consent will serve to illustrate the differential approach to violence against women within the Court's case law.
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Human Rights Framework for Women in Prison (on paper). Are Women's Rights Really Human Rights?
Traditionally, general International Human Rights treaties adopt a universalistic approach to human rights and are therefore considered gender neutral. As already mentioned above, this neutrality is only apparent, since international law is a gendered system due to the male organizational and normative structure of the international legal system (17). Charlesworth, Chinkin and Wright offer an interesting perspective, demonstrating how the traditional public/private dichotomy based on gender (18) allows issues of particular importance for women to be ignored or underestimated. Their analysis also deconstructs traditionally accepted notions in International legal instruments-such as torture and human dignity--decodifying the male, rather than truly human context in which they are embedded.
For the purpose of this study, it is important to note that general International Human Rights treaties are neither gender neutral nor prison oriented. One interesting exception is represented by the ICCPR (U.N. International Covenant on Civil and Political Rights): Article 6(5) expressly refers to pregnant women, stipulating that death penalty shall not be carried out on pregnant women (19). This provision paved the way for the motherhood-oriented paradigm for the protection of women in prison.
As a matter of fact, the general framework of international legal instruments for the protection of women in prison is designed to consider female specificity in a motherhood/biologically-oriented perspective, reading all other sociological aspects of female imprisonment under the lens of the universal nature of human rights in prison. Therefore, it could be argued that women in prison should be able to enjoy the protection of human rights, albeit with restrictions that are unavoidable in a closed environment (20). This framework should work based on specific anti-discrimination provisions, as is the case with many international tools (21), in order to reduce potential gender inequalities in the protection of prisoners and their rights. This legal structure, based on the fallacy of the universality of human rights, rests on a highly problematic premise: identical treatment in prison means treatment tailored to the needs of the male prison population.
International treaties specifically designed for the protection of women's rights appeal to the anti-discrimination dimension of human rights and women's rights. In particular, the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) makes no reference to women in prison, but constitutes a basis for implementing positive measures in order to guarantee the full development of women (22). Again, these provisions aim at rights protection based on the protection afforded to the dominant group (Article 3: "...on a basis of equality with men").
General international tools for the protection of prisoners' rights used to include instruments specifically designed for women in prison. The 2015 UN Standard Minimum Rules for...
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