C Explanatory memorandum
by Mrs Err, rapporteur
1 Introduction
1. In December 2007, after my
Swiss colleague Ruth‑Gaby Vermot‑Mangold left the Parliamentary Assembly,
I was appointed rapporteur on an innovative theme on which she had
been working with courage and determination. I should like to pay
tribute here to the quality of her work and to her commitment to promoting
women’s rights in Europe and worldwide.
2. In 2005 the Parliamentary Assembly adopted a recommendation
and a resolution following Ms Vermot-Mangold’s report on the “Disappearance
and murder of a great number of women and girls in Mexico”.
NoteNote The purpose of these texts was to
reinforce Mexico’s co‑operation with the Council of Europe while
drawing attention to the Mexican authorities’ initial efforts to
resolve the recurring problem of violence against women in north
Mexico. At the same time, the Assembly decided to “study the concept
of ‘feminicide’ and, in co‑operation with the Mexican Congress,
to explore how this concept may usefully be applied in the European context,
including its possible introduction into European criminal law”.
3. Ms Vermot-Mangold initiated a motion for a resolution
Note worded as follows: “in view of the
mounting importance of the issue, and the pioneer role the Assembly
can play in applying the concept of ‘feminicide’ in Europe, the
Assembly decides to carry out its study of ‘feminicides’ without
further delay”. That is the subject of the report I was asked to
draw up.
4. I should therefore like to review developments in the response
to feminicides in Mexico, then focus on the possibility of making
feminicide a specific offence under criminal law, in line with the
above‑mentioned motion for a resolution. I also wish to highlight
the worldwide problem of “missing women”, which undeniably has much
in common with the problem of feminicides.
2 Developments in the response to feminicides
in Mexico
5. Let us first see how this new
concept developed in Mexico, so that this experience can provide
the basis for further work to determine whether it is feasible to
introduce it, as such or in modified form, at European level.
6. The facts originally occurred in a particular context. Since
1993, hundreds of women and girls, an estimated number of between
350 and 500, have been brutally murdered in the northern Mexican
border state of Chihuahua. The exact number of victims is disputed
but most of them were killed in or around the town of Ciudad Juárez,
others in the state capital of Chihuahua. Many were abducted and
raped before they were killed and their bodies dumped in the desert.
Others were victims of domestic violence taken to the extreme. A
few seem to have been involved in the drugs trade or were victims
of revenge killings. Some were
maquiladorasNote workers, others students
and schoolchildren; many were young mothers; most were poor and
aged between 13 and 30. In addition to the hundreds of women and
girls killed, many have disappeared (presumed to have been abducted)
and are still missing.
7. The reason for these murders and atrocities is unfortunately
simple: “These women were killed because they were women”.
Note The
Mexican Chamber of Deputies’ special commission to study and review
the investigations of murders perpetrated against women in Mexico
and promote justice for the victims of feminicide has coined the
term “feminicide” to describe these murders, which stem from a climate
of generalised violence and discrimination against women. Feminicide
can therefore be defined as the murder of a woman because she is
a woman. The term “gynocide” would also reflect the deep causes
of these crimes against women.
8. After an initial reaction of denial, the Mexican authorities
have made considerable efforts at all levels (municipal, state and
federal) to investigate the murders and disappearances of women
in Ciudad Juárez and Chihuahua and bring to justice both the perpetrators
of the crimes and those officials who initially botched the investigations
and perverted the course of justice. They are also trying to repair
the social fabric of these two cities and to fight violence against
women state‑ and nationwide.
9. To find out about developments in Mexico, the Committee on
Equal Opportunities for Women and Men held a hearing
Note on “feminicides” in Paris
on 6 September 2007. It was attended by several Mexican judges and parliamentarians,
by Mr Romeva i Rueda, Rapporteur of the Committee on Women’s Rights
and Gender Equality of the European Parliament,
Note and by Mr Di Girolamo
of the European Commission.
10. Mexico has set up specialised institutions at federal and
local level.
11. An initial appropriate response to the problem in question
was the creation in February 2006 of the office of Special Federal
Prosecutor for crimes related to violence against women, which was
held by Ms Pérez Duarte until 31 January 2008
Note. At the hearing,
Note she
explained that the situation had changed radically in Chihuahua.
Mexican society had demanded that justice be done and be speeded
up. The violence had cultural roots which worsened towards the border,
a complex frontier with a wall that held back immigration from the south
to the north. Information about “feminicides” and violence against
women was one of the factors in change. Awareness-raising activities
have been organised, in particular for judges.
12. Ms Pérez Duarte said that changes in investigative procedures
had been made at federal and state level. In Chihuahua, 413 women
had died since 1993. In 2007, there had been 11 murders; 56 proceedings
were in progress; 124 cases were being investigated, of which 13
were federal cases because of their links with organised crime,
and 18 had been closed following the suicide of the accused
Note. Of 46 women who had disappeared,
her department had established that a third had fled domestic violence
and had been found again and a third had died, while there was no
explanation for the remaining third. A change in method and in the speed
of work had taken place in finding girls who had disappeared: investigations
were now carried out straightaway to check whether the person had
really gone missing. The focus of the investigations was on the human
beings and their lives to date. Cases of sexual abuse were a form
of violence against women or acts of torture, as provided for in
the Istanbul Protocol on investigation of torture.
13. It should also be underlined that a general law on women’s
access to a life without violence was promulgated on 1 February
2007. It is based on the principle of de jure and de facto equality
between women and men, respect for human dignity, non‑discrimination
and women’s freedom. A comprehensive programme has also been drawn
up with a view to eradicating violence against women, particularly
through measures in schools designed to raise awareness from an
early age and stamp out prejudices.
Note
14. A recent report by Amnesty International
Note condemned
shortcomings in the enforcement of the law, in particular in terms
of refusals to register complaints made by women, botched inquiries
and inadequate implementation of protective measures for women.
The report also highlighted the need to set up additional shelters
for women who are victims of violence.
15. I am convinced that the Council of Europe, the guarantor of
human rights in Europe, has an important role to play in combating
violence against women, including domestic violence, not only in
Europe, but also beyond. This role concerns observer states in particular.
16. I therefore propose that the Committee of Ministers take specific
measures within the framework of its co-operation and assistance
programme to encourage reform of the courts and the prosecution
system in Mexico and to promote equality between women and men,
and especially efforts to combat violence against women.
17. It also seems appropriate to me that Mexico, a country strongly
committed to the implementation of the parliamentary dimension of
the Council of Europe campaign to “Stop domestic violence against
women”, be invited to participate in the drafting of the Council
of Europe convention on combating violence against women advocated
in
Recommendation 1847
(2008) on “Combating violence against women: towards a Council
of Europe convention”.
3 Making
feminicide a specific offence under criminal law in Europe?
18. Clearly, the concept of “feminicide”
has now become institutionalised in Mexico. With the aid of this national
experience, I suggest that the committee consider whether this concept
can usefully be applied in a European context, particularly under
criminal law.
19. At first sight, I believe various solutions are possible.
They call for the Council of Europe’s close attention. The introduction
of a special offence of “feminicide” into criminal law or the addition
of “feminicide” as an aggravating circumstance to existing offences
in criminal law, such as murders or assassinations, could be a solution.
20. It would be necessary to have a clear understanding of the
acts constituting the offence or the conditions constituting the
aggravating circumstances.
21. In addition, as in similar cases, it may be very difficult
to bring evidence to bear. In fact, evidence and its use by criminal
judges is a sensitive issue. Although the concept of feminicide
has not yet been defined, it would have to be proved that the victim
of feminicide had been killed simply because of her gender. Such
acts will at least include violence perpetrated against women because
they are women.
22. It will also have to be decided who will bear the burden of
proof and whether a system of presumption would be appropriate.
In these conditions, the question of possible sharing of the burden
of proof would have to be examined.
23. Taking account of particular situations would help overcome
this difficulty regarding proof. For instance, violence against
a spouse/partner or ex-spouse/ex-partner on a habitual basis could
constitute a specific offence subject to a harsher penalty proportionate
to the seriousness of the acts committed. In that case, habitual
acts of violence would constitute objective proof that the offence
had taken place. If it was proved that the victims had been subjected
to violence prior to the acts being dealt with by the judicial authorities,
the perpetrators would be charged with the more serious offence,
without their necessarily being repeat offenders.
24. There remains the possibility of making “feminicide” in the
strict sense, ie the murder of a woman, a specific criminal offence.
There, too, circumstances external to the murder, such as previous
acts of violence or the particular violence of the murder, might
be taken into account in applying this specific offence. By way of
information, Mexico’s general law on women’s access to a life without
violence refers to “violence by homicide against women” as “the
most extreme form of gender‑based violence against women, resulting
from the violation of their human rights, in the public and private
spheres, which comprises all the forms of misogynistic conduct that
can lead to social and state impunity, and which can result in homicide
or other forms of violent death for women”.
Note
25. Accordingly, in view of the difficulties referred to above,
I suggest that a group of Council of Europe experts conduct a detailed
legal study of the member states’ existing legislation combating
violence against women and of ways to make feminicide and violence
perpetrated against women simply because of the victim’s gender
a separate criminal offence.
26. I also endorse the principle set out by the Council of Europe
Task Force to Combat Violence against Women, including Domestic
Violence, whose final activity report
Note suggests
that specific data be gathered on cases of violence against women
and feminicides with a view to analysing any shortcomings in the
protection of women so as to improve preventive measures and develop
new ones. This dual task of data gathering and legal analysis could
be assigned to a multidisciplinary working group or an observatory
made up of specialists in violence against women.
27. In addition to this sensitive issue, it is essential to make
professionals in contact with the victims, especially doctors, social
workers, police officers and judges, more aware of violence against
women. They can help to establish that the victim was killed because
she was a woman.
4 The
worldwide problem of feminicides
28. As I had already emphasised
in 2005 in my report on “Promoting a United Nations 5th World Conference on
Women”,
NoteNote it is difficult not to tackle this
crucial problem at world level: Amartya Sen, winner of the Nobel Prize
for Economics, writing as long ago as 1990, said that there were
over 100 million women missing worldwide.
Note He analysed
the impact on mortality of the inequality of rights between women
and men in developing countries, especially in Asia. In his view,
the only explanation for this demographic phenomenon was inequality
and neglect leading to excess mortality of women and girls. Furthermore,
a strong gender preference for boys in many regions, such as in
southern and western Asia, China and north Africa, leads to abortion
of female foetuses, infanticide and/or abandonment of new-born girls.
In countries where men and women receive similar care and attention,
the ratio of women to men is about 105 to 100. The ratio in the aforementioned
regions with strong preferences for men and boys, however, stands
at 94 to 100, i.e. there is a shortfall of about 11%, meaning that
hundreds of millions of women are “missing” – not born or meeting
an early death.
29. The findings of a recent survey carried out by journalist
Bénédicte Manier, updated in September 2008, are alarming. Between
1990 and 2005 the number of “missing” women rose from 100 to 163
million in Asia alone (the world figure is certainly far higher),
and these “absent ones” are little girls sacrificed either before
or at birth.
Note Nor
is it any longer denied that these ratios depend on sociological
factors, rather than biological (they had been attributed in the
context of biological factors to a high rate of hepatitis B among
mothers).
NoteNote
30. Certain steps have been taken by the authorities concerned
to curb this problem. The Indian Government, for instance, has released
millions of dollars to encourage families expecting baby girls to
keep them and bring them up. Every family in the provinces with
the most marked population imbalances is to receive 400 dollars
when its baby is born, and a further 2,500 dollars if the girl attends
school and reaches the age of majority still unmarried. By the local
standards of rural families, these are huge sums. The need for action
being urgent, I remain convinced that this method can be effective.
In the longer term, as in European countries, it is preventive action
and the raising of awareness of equality between women and men that
will, in my view, be the most effective methods.
31. Europe has not been spared this problem. Ms Manier has shown
that the vast Asian diaspora is “importing” these customs into the
countries of immigration, especially where a widely available medical
service enables the sex of unborn babies to be determined at an
early stage. In the United Kingdom, for example, the babies born
to Indian mothers between 1990 and 2005 averaged between 104 and
108 boys to every 100 girls, an imbalance that is even higher for
third-born children, reaching 113 boys to every 100 girls. She found
the same tendency among Chinese and Korean families in the United
States, where the ratio was 117 boys to 100 girls for first-born
children, and, where the first two babies had been daughters, the
rate among third-born babies was 150 boys to 100 girls.
32. This dramatic finding of serious human rights violations and
manifest discrimination worldwide leads me to call for this problem
to be highlighted in relations between Council of Europe member
states and the countries concerned. I believe that it is urgent
to deal with this problem and to ask especially those third countries
concerned (such as Mexico and Guatemala) both to encourage families
to treat their daughters better, bring them up and regard them as
human assets rather than burdens, and to continue their efforts
to this end.
5 Conclusions
33. I submit for adoption by the
Assembly the above draft resolution and draft recommendation. I
propose that these be examined at the first part-session of the
Assembly in 2009 (26-30 January), so that the members of the Mexican
delegation to the Assembly will be able to be present during the
debate.
Reporting committee:
Committee on Equal Opportunities for Women and Men
Reference to committee: Doc. 10718, reference No. 3204 of 17 March 2006, extended to 31
December 2008 by Bureau decision on 23 June 2008
Draft resolution and draft recommendation unanimously adopted
by the committee on 5 December 2008.
Members of the committee: Mr Steingrímur J. Sigfússon (chairperson),
Mr José Mendes Bota (1st vice-chairperson),
Mrs Ingrīda Circene (2nd vice-chairperson),
Mrs Anna Čurdová (3rd vice-chairperson),
Mr Frank Aaen, Mr Francis Agius, Mr John Austin,
Mr Lokman Ayva, Ms Marieluise
Beck, Mrs Anna Benaki (alternate: Mr Ioannis Giannellis-Theodosiadis),
Mr Laurent Béteille, Mrs Oksana Bilozir, Ms María Delia Blanco Terán, Mrs Olena
Bondarenko, Mr Pedrag Bošcović, Ms Anna Maria Carloni, Mr James Clappison, Mrs Minodora Cliveti,
Ms Diana Çuli, Mr Ivica Dačiċ, Mr David Darchiashvili, Mrs Lydie
Err, Mrs Catherine Fautrier, Mrs Mirjana Ferić-Vac, Ms Sonia Fertuzinhos,
Mrs Alena Gajdůšková, Mr Guiseppe
Galati, Mrs Claude Greff, Mr Attila Gruber,
Mrs Carina Hägg, Mr Ilie
Ilaşcu, Mrs Fatme Ilyaz, Ms Francine John-Calame, Ms Nataša Jovanoviċ,
Mrs Birgen Keleş, Mrs Krista
Kiuru, Mrs Angela Leahu, Mr Terry Leyden, Mrs Mirjana Malić, Mrs Nursuna Memecan, Mrs Danguté Mikutiené,
Mr Burkhardt Müller-Sönksen, Mrs Christine Muttonen, Mrs Hermine
Naghdalyan, Ms Fiamma Nirenstein, Mrs Yuliya Novikova, Mr Mark Oaten
(alternate: Ms Christine McCafferty),
Mr Kent Olsson, Mr Jaroslav Paška, Mrs Antigoni Papadopoulos, Mr Claudio Podeschi,
Mrs Majda Potrata, Ms Mª del Carmen Quintanilla
Barba, Mr Frédéric Reiss, Mrs Mailis Reps, Ms Maria Pilar
Riba Font, Ms Jadwiga Rotnicka, Mrs Marlene Rupprecht, Mrs Klára Sándor, Ms Miet Smet, Mme Albertina
Soliani, Mrs Darinka Stantcheva,
Mrs Tineke Strik, Mr Michał Stuligrosz, Mrs Doris Stump, Mr Han Ten Broeke, Mr Vasile
Ioan Dănuţ Ungureanu, Mrs Tatiana Volozhinskaya, Mr Marek Wikiński, Mr Paul Wille, Mrs Betty
Williams (alternate: Baroness Anita Gale),
Mr Gert Winkelmeier, Ms Karin S. Woldseth, Mrs Gisela Wurm, Mr Andrej Zernovski, Mr Vladimir
Zhidkikh, Mrs Anna Roudoula Zissi.
N.B. The names of the members who took part in the meeting
are printed in bold.
Secretariat of the committee:
Mrs Kleinsorge, Mrs Affholder, Mrs Devaux.
