...continued
The right to privacy and the present case
46.
Article 11(1) of the American Convention sets forth that every
person has the right to have his or her honor and dignity recognized.
Pursuant to Article 11(2): “No one may be the object of arbitrary
or abusive interference with his private life, his family, his home, or
his correspondence, or of unlawful attacks on his honor or reputation.”
Article 11(3) provides that this right is to be protected by law.
The requirements of Article 11 encompass a range of factors
pertaining to the dignity of the individual, including, for example, the
ability to pursue the development of one’s personality and aspirations,
determine one’s identity, and define one’s personal relationships.
47.
A principal objective of Article 11 is to protect individuals from
arbitrary action by State authorities which infringes in the private
sphere.
Of course, where State regulation of matters within that sphere is
necessary to protect the rights of others, it may not only be justified,
but required. The guarantee
against arbitrariness is intended to ensure that any such regulation (or
other action) comports with the norms and objectives of the Convention,
and is reasonable under the circumstances.
48.
The petitioners claim that the cited articles of the Civil Code,
particularly as they restrict María Eugenia Morales de Sierra’s ability
to exercise her profession and dispose of her property, constitute an
arbitrary interference with her right to have her private life respected. In the proceedings generally, the victim has indicated that
the cited provisions prevent her from exercising authority over basic
aspects of her day-to-day life concerning her marriage, home, children and
property. While she and her
husband organize their home on the basis of mutual respect, her status in
the family, community and society is conditioned by the attribution of
authority to her husband to represent the marital union and their minor
child. While their jointly held property has been obtained through
mutual sacrifice, the law prevents her from administering it.
Further, while her husband has never opposed her pursuit of her
profession, the law authorizes him to do so at any moment.
She notes that, although there are increasing opportunities for
women to more fully incorporate themselves into the processes of national
life and development, married women such as herself are continuously
impeded by the fact that the law does not recognize them as having legal
status equivalent to that enjoyed by other citizens.
49.
The provisions in question have been upheld as a matter of domestic
law on the basis that they serve to protect the family, in particular the
children. However, no link
has been shown between the conditioning of the right of married women to
work on spousal approval, or the subordination of a wife’s control of
jointly held property to that of her husband and the effective protection
of the family or children. In mandating these and other forms of subordination of a
wife’s role, the State deprives married women of their autonomy to
select and pursue options for their personal development and support. This legislation, most specifically in the way it makes a
woman’s right to work dependent on the consent of her husband, denies
women the equal right to seek employment and benefit from the increased
self-determination this affords.
50.
Whether or not the husband of the victim–in this case María
Eugenia Morales de Sierra--opposes her exercise of her profession is not decisive in this
regard. The analysis turns on
the fact that the legislation infringes on the victim’s personal sphere
in a manner which cannot be justified.
The mere fact that the husband of María Eugenia Morales de Sierra
may oppose that she works, while she does not have the right to oppose
this in his case, implies a discrimination.
This discrimination has consequences from the point of view of her
position in Guatemalan society, and reinforces cultural habits with
respect to which the Commission has commented in its Report
on the Status of Women in the Americas.
As a married woman, the law does not accord her the same rights or
recognition as other citizens, and she cannot exercise the same freedoms
they do in pursuing their aspirations.
This situation has a harmful effect on public opinion in Guatemala,
and on María Eugenia Morales de Sierra’s position and status within her
family, community and society.
The obligation of the State to respect and
guarantee the rights of María Eugenia Morales de Sierra without
discrimination, and to adopt domestic legal measures
51.
As is demonstrated in the foregoing analysis, the State of
Guatemala has failed to fulfill its obligations under Article 1(1) of the
American Convention to “respect the rights and freedoms recognized
[t]herein and to ensure to all persons subject to [its] jurisdiction the
free and full exercise of those rights and freedoms, without any
discrimination for reasons of … [inter
alia] sex….” “Any
impairment of those rights which can be attributed under the rules of
international law to the action or omission of any public authority
constitutes an act imputable to the State, which assumes responsibility in
the terms provided by the Convention.”
Article 1 imposes both negative and positive obligations on the
State in pursuing the objective of guaranteeing rights which are practical
and effective.
52.
Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 have a
continuous and direct effect on the victim in this case, in contravening
her right to equal protection and to be free from discrimination, in
failing to provide protections to ensure that her rights and
responsibilities in marriage are equal to and balanced with those of her
spouse, and in failing to uphold her right to respect for her dignity and
private life. A person who enjoys the equal protection of and recognition
before the law is empowered
to act to ensure other rights in the face of public or private acts.
Conversely, gender-discrimination operates to impair or nullify the
ability of women to freely and fully exercise their rights, and gives rise
to an array of consequences.
The inter-American system has recognized, for example, that gender
violence is “a manifestation of the historically unequal power relations
between women and men.”
“Traditional attitudes by which women are regarded as subordinate to men
or as having stereotyped roles perpetuate widespread practices involving
violence or coercion, such as family violence and abuse….”
De jure or de
facto economic subordination, in turn, “forces many women to stay in
violent relationships.”
53.
Recognizing that the defense and protection of human rights
necessarily rests first and foremost with the domestic system, Article 2
of the Convention provides that States Parties shall adopt the legislative
and other measures necessary to give effect to any right or freedom not
already ensured as a matter of domestic law and practice.
In the instant case, the State has failed to take the legislative
action necessary to modify, repeal or definitively leave without effect
Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 which discriminate
against the victim and other married women in violation of Articles 24, 17
and 11 of the American Convention. When
the articles at issue were challenged as unconstitutional, the State,
acting through its Court of Constitutionality, failed to respond in
conformity with the norms of the American Convention.
Although relevant national and international authorities have
identified these articles as incompatible with the State’s obligations
under national and international law, they remain the law of the land.
54.
The obligation to respect and ensure the rights of the Convention
requires the adoption of all the means necessary to assure María Eugenia
Morales de Sierra the enjoyment of rights which are effective.
The failure of the State to honor the obligations set forth in
Articles 1 and 2 of the Convention generates liability, pursuant to the
principles of international responsibility, for all acts, public and
private, committed pursuant to the discrimination effectuated against the
victim in violation of the rights recognized in the American Convention
and other applicable treaties. Pursuant
to those same principles, the State of Guatemala is obliged to repair the
consequences of the violations established, including through measures to
restore the rights of María Eugenia Morales de Sierra to the full extent
possible, and to provide a just indemnity for the harm she has sustained.
Measures of reparation are meant to provide a victim with an
effective remedy, with the essential objective of providing full
restitution for the injury suffered.
V. ACTIONS SUBSEQUENT TO REPORT Nº 86/98
55.
Pursuant to the terms of Article 50 of the Convention, the
Commission adopted Report Nº 86/98 on October 1, 1998.
That Report set forth the Commission’s analysis (contained in
sections I – V, supra) and
finding that the State of Guatemala was responsible for
having violated the rights of María Eugenia Morales de Sierra to equal
protection, respect for family life, and respect for private life
established in Articles 24, 17 and 11 of the American Convention on Human
Rights. The Commission
accordingly found the State responsible for having failed to uphold its
Article 1 obligation to respect and ensure those rights under the
Convention, as well as its Article 2 obligation to adopt the legislative
and other measures necessary to give effect to those rights of the victim.
Further, the Commission indicated that the conduct at issue also
constituted violations of the obligations set forth in the Convention on
the Elimination of All Forms of Discrimination against Women, most
specifically, in Articles 15 and 16.
Consequently, the Commission recommended (1) that the State take
the legislative and other measures necessary to amend, repeal or
definitively leave without effect Articles
109, 110, 113, 114, 115, 131,
133, 255 and 317 of the Civil Code so as to bring national law into
conformity with the norms of the American Convention and give full effect
to the rights and freedoms guaranteed to María Eugenia Morales de Sierra
therein; and, (2) that it
redress and adequately compensate María Eugenia Morales de Sierra for the
violations established.
56.
The Report was transmitted to the State of Guatemala on November 6,
1998. Pursuant to the terms
set forth, the State was given two months from the date of that
transmission to comply with the recommendations issued and report to the
Commission on the measures taken for that purpose.
By a note of the same date, the Commission informed the petitioners
that a report on the case had been adopted pursuant to the terms of
Article 50 and transmitted to the State.
On November 24, 1998, the Commission transmitted a communication to
the State attaching a fe de errata to correct a drafting error in
one paragraph of that Report.
57.
The State transmitted its response to Report 86/98 by note dated
December 7, 1998. In that
response, the State emphasized its acceptance of the need to address
certain norms in the Civil Code that were out of date and discriminatory
toward married women. However,
it reiterated its position that the victim had not been personally
prejudiced by the challenged norms, as her family life and professional
career had not been harmed. In
line with its recognition of the need to reform the provisions as a
general matter, the State informed the Commission that the Congress had on
November 19, 1998 approved Decree Number 80-98, enacting reforms to the
Civil Code. The attached text
reflected reforms to Articles 109, 110, 115, 131 and 255, and the
derogation of Articles 114 and 133. The
State further informed the Commission that the reforms would enter into
force pursuant to their sanction, promulgation and publication.
58.
On December 28, 1998, the Commission addressed the State to request
that it supply information as soon as possible on the time required to
accomplish the actions necessary for the reforms to enter into force.
By a note of January 12, 1999, the State reported that the text of
Decree 80-98 had been published in the Diario de Centro América on
December 23, 1998. The
modifications had entered into force eight days after publication. The State indicated that it considered that it had fully
complied with the recommendations issued by the Commission in Report
86/98.
59.
Having analyzed the reforms indicated, and having noted that they
addressed seven of the nine provisions challenged by the petitioner, the
Commission addressed the State on January 25, 1999, to request information
as to any measures taken with respect to Articles 113 and 317, which were
not addressed in Decree 80-98, and to ask for additional information about
the language of Article 131 as published, which appeared to be
inconsistent with the explanation of the reform.
In view of the fact that the three month period provided in Article
51 was set to expire on February 6, 1999, the Commission requested a
response within 7 days, and indicated that a request for an extension
could only be considered if accompanied by an express manifestation by the
State that this would suspend that time period.
60.
By a note of that same date, the Commission transmitted a copy of
the text of Decree 80-98 to the petitioners with a request for
observations as to whether the reforms set forth satisfied in whole or in
part the claims presented. A
response was requested within 7 days.
61.
On January 25, 1999, the petitioners submitted a request that the
Commission schedule a hearing on this matter during its next period of
sessions. The Commission
acknowledged receipt on January 29, and requested information as to the
proposed purpose of such a hearing.
62.
On February 1, 1999, the petitioners presented a communication
setting forth their view as to why the reforms did not completely resolve
the discrimination denounced or fully repair the violations suffered by
the victim.
63.
On February 4, 1999, the State presented information indicating
that no measures had been taken with respect to Articles 113 and 317, and
reiterating the reforms reported with respect to Article 131.
64.
By a note of February 5, 1999, the State requested an extension of
60 days to present additional information concerning the case, with the
express understanding that this would suspend the three-month time period
provided in Article 51 of the Convention.
That request was accepted, subject to that understanding, by a note
of the same date, which indicated that the extension would expire on April
7, 1999.
65.
By a note of that same date, the Commission informed the parties
that it had granted a hearing concerning the case, scheduled for March 5,
1999. On February 17, 1999,
the parties were informed that the date had been changed to March 4, 1999.
66.
During that hearing the petitioners expressed their view that the
State had yet to recognize a violation in the particular case, had made no
measures of reparation, and had not addressed Articles 113 and 317, which
formed an important part of their complaint.
They also pointed out that the reformed text of Article 131 was
unclear. Further, they
indicated that what was required with respect to Articles 109 and 131 was
that decisions on the representation of the marital union and marital
property be taken jointly, rather than jointly or separately as the
reforms provide.
67.
The State, for its part, presented arguments as to why it
considered that Article 317 did not require reform.
Its position was that the Article permits women to request to be
excused from exercising certain forms of custody; accordingly, it provides
a privilege that can be invoked by choice and imposes no discrimination.
The State indicated that a draft reform to derogate Article 113 had
been elaborated in February, but that additional time would be required to
work toward its adoption. With
respect to Article 131, the State indicated that there had been a mistake
in the transmission of the text when published, and that this would be
corrected. The State
indicated that it wished to have an additional extension of one year to
accomplish the measures indicated, with the understanding that this
suspended the period referred to in Article 51 of the Convention.
68.
On March 10 and 11, 1999, the petitioners submitted communications
as to why they considered that an additional extension should not be
granted. They indicated that
the State had indicated no intention to derogate Article 317, or to amend
Articles 109 or 131 to require joint decision making, and that there were
no guarantees that Article 113 would in fact be derogated.
69.
Pursuant to that hearing, by note of March 24, 1999, the State
requested an additional one-year extension, again, with the express
understanding that this interrupted the running of the three-month time
period provided in Article 51. That
communication was transmitted to the petitioners for their information on
March 31, 1999. In the interim, on March 29, 1999, the petitioners had
submitted an additional communication on these points, asking that the
case be placed before the Inter-American Court of Human Rights without
delay, or, if an extension were granted, that it be limited to three
months.
70.
On April 7, 1999, the Commission granted the requested extension of
one year, with the understanding that this suspended the period referred
to in Article 51, and under the condition that the State present
significant advances toward full compliance with the recommendations in
meetings to be convoked by the Commission during its next two periods of
sessions.
71.
By notes of April 7 and 8, 1999, the Commission convened the
parties for a working meeting on May 7, 1999, during its 103 period of
sessions, to discuss the status of the recommendations issued in Report
86/98 and the measures of compliance that remained pending, particularly
those concerning Articles 113, 131 and 317.
By means of a note of April 15, 1999, the Commission informed the
petitioners of the extension and the express conditions under which it had
been granted.
72.
As a follow-up to the May 7, 1999 meeting, the Commission addressed
the State on August 23, 1999, with a request that it supply information
within 30 days on the measures adopted to effectuate the recommendations
issued in Report 86/98. On
August 31, 1999, the Commission convened the parties for a hearing to be
held on October 5, 1999, during its 104º period of sessions.
73.
On September 2, 1999, the State informed the Commission that it had
complied with the recommendations issued in Report 86/98 through the
adoption of Decree 29-99, reforming Article 131 and derogating Article
113. A copy of the decree was
attached, with the information that it had entered into force as of the
date of the letter. Given
this compliance, the State asked that the case be archived.
This information was transmitted to the petitioners on September
13, 1999, with observations in response requested within 21 days.
74.
In the course of the October 5, 1999 hearing, the petitioners
presented a communication requesting that, in view of the reform of
Article 131 and derogation of Article 113, the Commission issue a final
report setting forth the partial compliance of the State.
The petitioners congratulated the State for having reformed the
majority of the discriminatory provisions challenged in the case,
recognizing in particular the derogation of Articles 113 and 114, and
reform to Article 110, establishing that spouses have an equal
responsibility to care for the children and home.
The petitioners asked that the final report expressly indicate the
State’s failure to derogate the challenged provision of Article 317.
Further, they asked that it reflect that, by allowing either spouse
to exercise authority autonomously, the reforms to Articles 109, 115, 131
and 255 do not guarantee María Eugenia Morales de Sierra effective
participation in decision making. They
maintain that this may only be done by requiring joint consent in such
decisions.
75.
The State, for its part, reiterated the importance it attaches to
having carried out the reforms in question.
It also reiterated its view that Article 317 constitutes a
privilege, a special consideration which may be invoked, rather than a
form of discrimination which is imposed.
The State indicated that it would submit the legislative history of
the Article as well as opinions on the question by the Attorney General
and President of the Congressional Commission of Women and the Family in
support of its position. The petitioner’s communication was formally transmitted to
the State on October 13, 1999, with a request that any further information
on the case be submitted within 30 days.
76.
On December 17, 1999, the State submitted a response indicating its
view that the reforms adopted had accomplished what was required, and
reiterating its views with respect to Article 317.
This information was transmitted to the petitioners on December 21,
1999, with any observations requested within 30 days.
77.
The above proceedings having been carried out, and certain articles
having been reformed pursuant to Decrees 80-98 and 27-99, the Commission
wishes to briefly summarize the status of the legislation at issue in the
present case. Articles 113,
114 and 133 have been derogated. Article
109 has been reformed to provide that representation of the marital union
corresponds equally to both spouses, who shall have equal authority in the
home and decide jointly on household and family matters.
In the case of disagreement, a family court judge will decide who
prevails.
Article 110 maintains its original heading, “protection of the
wife,” and first paragraph, stipulating that the husband owes certain duties
of protection and assistance to the wife.
It has been modified with respect to its second paragraph to
reflect that both spouses have the duty to care for minor children.
Article 115 has been modified to provide that in case of a
disagreement between spouses as to representation of the marital union, a
family judge will decide to whom it shall correspond on the
basis of the conduct of each.
Article 131 has been amended to read that both spouses may
administer marital properly, either jointly or separately.
Article 255 has been modified to provide that both spouses shall
represent children and administer their property, either jointly or
separately.
Article 317, which allows
certain classes of persons to be excused from exercising certain types of
custody remains in its original form.
78.
The Commission fully recognizes and values the reforms enacted by
the State of Guatemala in response to the recommendations set forth in
Report 86/98. As the parties
have recognized, these constitute a significant advance in the protection
of the fundamental rights of the victim and of women in Guatemala.
The reforms represent a substantial measure of compliance with the
Commission’s recommendations, and are consistent with the State’s
obligations as a Party to the American Convention.
79.
The Commission is not, however, in a position to conclude that the State
has fully complied with the recommendations. The original heading and
first paragraph of Article 110, which remain in force, refer to the duty
of the husband to protect and assist his wife within the marriage, a duty
that, in and of itself, is consistent with the nature of the marital
relationship. For its
part, Article 111 of the
Code establishes the
obligation of the wife to
contribute
equitably to maintenance of the home to the extent that she can,
a duty that is also consistent with the relationship between spouses.
While neither of these duties gives rise, in itself, to a situation
of incompatibility, they continue to reflect an imbalance in that the
legislation recognizes that the wife is the beneficiary of the husband’s
duty to protect and assist her, while the law does not impose the same
duty on her with regard to her husband. Article 17(4) of the American Convention requires the State
to “ensure the equality of rights and the adequate balancing of
responsibilities of the spouses as to marriage”
80.
With regard to Article 317, the decisive factor is not whether it is
viewed as referring to a privilege or an obligation; what is dispositive
is the nature of the distinction made in the provision and the
justification offered for it. Essentially,
the terms of Article 317 identify categories of persons who may be excused
from custody or guardianship due to limitations, for example, economic or
health reasons. It is not
evident, nor has the State explained what limitation justifies including
“women” in these categories. According
to Article 17 of the American Convention, and as expressly stipulated in
Article 16 of the Convention on the Elimination of All Forms of
Discrimination against Women, States Parties must guarantee equal rights
and duties with regard to exercising custody and other forms of
guardianship of children.
81.
In this sense, both Article 317 and the title and first paragraph of
Article 110 suggest, expressly or implicitly, that women are characterized
by inherent weaknesses that limit their capacity as compared to men.
This affects María Eugenia Morales de Sierra in her right to equal
protection of the law, in accordance with Article 24 of the American
Convention, and to respect for her human dignity, pursuant to Article 11
of that Convention. Additionally,
as stated in paragraph 44 above, these norms apply stereotyped notions
about gender roles, thereby perpetuating de
facto discrimination against women in the family sphere.
Further, with regard to the question of compliance with the
recommendations, the State has provided no measures of reparation to the
victim in response to the findings and recommendations of the Commission.
82.
The petitioners have responded to the modification of Articles 109, 115,
131 and 255 by contending that the Convention requires that the decisions
at issue be taken by both spouses jointly, rather than autonomously as the
reforms permit. Because this
position was not developed in the proceedings prior to Report 86/98, and
because it has not been sufficiently sustained subsequently in relation to
the facts of the particular case and the experience of the victim, or the
normative content or jurisprudence of the system, the Commission finds
that the question has not been sufficiently defined in the case, and
cannot conclude that the reforms fail to satisfy the recommendations for
this reason.
VI.
CONCLUSIONS
83.
On the basis of the foregoing analysis and conclusions, the
Commission finds that the recommendations issued in Report 86/98 have been
complied with in important measure. It
reiterates its conclusion that the State of Guatemala has not discharged
its responsibility for having violated the rights of María Eugenia
Morales de Sierra to equal protection, respect for family life, and
respect for private life established in Articles 24, 17, and 11 of the
American Convention on Human Rights in relation to the heading and
paragraph one of Article 110 and paragraph four of Article 317.
The Commission accordingly finds the State responsible for having
failed to uphold its Article 1 obligation to respect and ensure those
rights under the Convention, as well as its Article 2 obligation to adopt
the legislative and other measures necessary to give effect to those
rights of the victim.
VII.
RECOMMENDATIONS
84.
On the basis of the analysis and conclusions set forth in the
present report,
THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS,
DECIDES:
To
reiterate its recommendations to the State of Guatemala that it:
1.
Adapt the pertinent provisions of the Civil Code to balance the legal
recognition of the reciprocal duties of women and men in marriage and take
the legislative and other measures necessary to amend Article 317 of the
Civil Code so as to bring national law into conformity with the norms of
the American Convention and give full effect to the rights and freedoms
guaranteed to María Eugenia Morales de Sierra therein.
2.
Redress and adequately compensate María Eugenia Morales de Sierra for
the harm done by the violations established in this Report.
VIII.
PUBLICATION
85.
On November 7, 2000, the Commission transmitted Report No.
92/00–the text of which is reproduced above–to the State of Guatemala
and to the petitioners, pursuant to Article 51(2) of the American
Convention, and granted the State one month to comply with the foregoing
recommendations. In
accordance with the aforementioned Article 51(2), at this stage in the
proceedings the Commission shall restrict itself evaluating the measures
taken by the Guatemalan State to comply with the recommendations and
remedy the situation examined. The
Guatemalan State did not submit observations on Report 92/00.
86.
In view of the foregoing considerations and the provisions of
Article 51(3) of the American Convention and Article 48 of the Regulations
of the Commission, the Commission decides to reiterate the conclusions and
recommendations contained, respectively, in Chapters VI and VII supra;
to publish this report; and to include it in its Annual Report to the
General Assembly of the OAS. Pursuant
to the provisions contained in the instruments governing its mandate, the
IACHR will continue to evaluate the measures taken by the State of
Guatemala with respect to those recommendations, until the State has fully
complied with them.
Approved
by the Inter-American Commission on Human Rights on January 19, 2001.
(Signed): Hélio Bicudo, Chairman; Claudio Grossman, _First
Vice-Chairman; Juan E. Méndez, Second Vice-Chairman; and Commissioners
Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.
[ Table of
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See, inter
alia, Eur. Ct. H.R., Gaskin v. United Kingdom, Ser. A No. 160
(addressing interest of applicant in accessing records concerning
childhood and early development); Niemetz v. Germany, Ser. A No.
251-B, para. 29 (noting that respect for private life includes right
to “establish and develop relationships,” both personal and
professional.)
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