Letter to the Ministers of Justice in Denmark, Finland, Norway and Sweden
Publisert:
22. jun 2010, kl. 16:00
|
Sist oppdatert:
2. sep 2013, kl. 14:23
15 June 2010
Dear Ministers of Justice,
Amnesty International has been informed that on 22 June 2010, the Ministers of Justice from the Nordic countries will meet in Copenhagen to discuss, among other issues, the requirements in various human rights instruments regarding rape and sexual violence, and to review national legislation on rape and sexual offences in the Nordic countries in the light of existing human rights obligations and standards.
Through this letter, Amnesty International takes the opportunity to stress the need for a revision of the Nordic rape legislations making them in compliance with human rights standards. We welcome the current review processes in Sweden, Denmark and Finland but want to underline the importance of a clear reference to human rights law as further described below.
We also forward an appeal to the Nordic countries on behalf of 27.411 individuals from all over the world who are calling on you to enhance the legal protection for rape victims. Please see the attached appeal (attachment 1), signed by people from Denmark, Norway, Italy, Hungary, Paraguay, Slovenia, The Netherlands, UK and the USA.
Rape definition
In 2008 Amnesty Denmark, Finland, Norway and Sweden released the report Case Closed – Rape and Human Rights in the Nordic Countries. An updated summary of the report was launched internationally, to mark the International Women’s Day in 2010 (see attachment 2).
The report identifies several obstacles to justice for victims of rape and sexual violence, including the definitions of rape in national legislation in the Nordic countries. All the recommendations presented by Amnesty International to overcome deficiencies in existing law and practise are based on human rights laws and standards, which aim to ensure women’s rights and gender equality in practice. These laws include the Convention on the Eliminations of all Forms of Discrimination against Women (CEDAW), the European Convention on Human Rights (ECHR) and the Rome Statute of the International Criminal Court, as well as relevant case law from the European Court of Human Rights and the Rules of Procedure and Evidence, and the Elements of Crimes of the International Criminal Court (ICC). The Rome Statute, Rules of Procedure and Evidence and the Elements of Crimes relate to international criminal law, CEDAW is a universal binding human rights treaty and ECHR is a binding regional human rights treaty, and as such, they are different areas of international law. However, their provisions should be read as complementary and be applied consistently, as they all aim to secure the equality before the law for men and women, particularly in the area of justice for sexual crimes, where women have too frequently suffered very grave discrimination in the application of the criminal law.
Amnesty International calls on all four Nordic states to adopt provisions in the Penal Code that adequately protect the integrity and sexual self-determination of all individuals. As pointed out in Amnesty International’s Six-point checklist on justice for violence against women (see attachment 3) the following should form the basis of these provisions:
• Rape and other forms of sexual violence should be defined as sexual conduct in which the victim involved was coerced, by violent or non-violent means, and therefore her agreement to engage in sexual acts was not truly and freely given. There should be no assumption in law or in practice that a victim gives her consent because she has not physically resisted the unwanted sexual conduct regardless of whether or not the perpetrator threatened to use or used physical violence.
• Criminal law should identify rape and other sexual violence as crimes against the physical and mental integrity of the victim, rather than as a crime against morality or honour. The law criminalizing the conduct should be gender-neutral.
• Criminal law should enable the effective prosecution of any perpetrator for acts of sexual violence, and there should be no exemptions for certain perpetrators such as a marital rape exemption which assumes that married women automatically consent to sexual contact with their husbands.
Relevance of ECHR case law
Jurisprudence from the European Court of Human Rights clarifies the content of the rights enshrined in the European Convention of Human Rights. National laws and practice in the Nordic countries should be consistent with the Court's jurisprudence. Accordingly, in relation to the criminalization and definition of rape and other sexual offences, the judgement in the case of MC. v. Bulgaria is of particular relevance. According to the Court’s judgment, states are obliged to punish and prosecute all non-consensual sexual acts, even in the absence of physical resistance on the part of the victim.
There have been several proceedings aiming towards stronger implementation of European Convention on Human Rights on national level the last years. On 19th February 2010, a high level conference on the future of the European Court of Human Rights was held, resulting in The Interlaken Declaration. The declaration calls on the member states to guarantee the application and implementation of the ECHR at national level. According to the Interlaken declaration, State Parties commit themselves to: “Taking into account the Court's developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system”. The declaration was adopted unanimously by those assembled; including the Ambassador and Director General for Legal Affairs of the Swedish Ministry of Foreign Affairs, the Secretary of State at the Minister of Justice of Norway, the Minister of Justice of Finland and the Human Rights Ambassador of Denmark.
Monitoring body
Amnesty International calls on the governments in the Nordic countries to ensure that all legal procedures in cases involving crimes of rape and other sexual violence are impartial and fair, and not affected by prejudices or stereotypical notions about female and male sexuality. To achieve this, a wide range of concrete measures targeted at the legal system to improve the quality of rape investigations and the judicial handling of rape cases are needed. Amnesty International therefore calls on the governments in the Nordic countries to establish an independent, temporary monitoring mechanism to systematically analyze all rape investigations that are closed before coming to trial, to assess the investigation quality and prosecution practises in these cases. The findings of the commission could serve as the basis for any further measures to improve the legal process in rape cases, improve the quality of investigation and bring about a higher level of consistency and uniformity in the practices of the different police districts and prosecution divisions.
Yours sincerely,
Lars Normann Jørgensen, Secretary General, Amnesty International, Denmark
Frank Johansson, Secretary General, Amnesty International Finland
John Peder Egenæs, Secretary General, Amnesty International Norway
Bergh, Secretary General, Amnesty International, Sweden
Dear Ministers of Justice,
Amnesty International has been informed that on 22 June 2010, the Ministers of Justice from the Nordic countries will meet in Copenhagen to discuss, among other issues, the requirements in various human rights instruments regarding rape and sexual violence, and to review national legislation on rape and sexual offences in the Nordic countries in the light of existing human rights obligations and standards.
Through this letter, Amnesty International takes the opportunity to stress the need for a revision of the Nordic rape legislations making them in compliance with human rights standards. We welcome the current review processes in Sweden, Denmark and Finland but want to underline the importance of a clear reference to human rights law as further described below.
We also forward an appeal to the Nordic countries on behalf of 27.411 individuals from all over the world who are calling on you to enhance the legal protection for rape victims. Please see the attached appeal (attachment 1), signed by people from Denmark, Norway, Italy, Hungary, Paraguay, Slovenia, The Netherlands, UK and the USA.
Rape definition
In 2008 Amnesty Denmark, Finland, Norway and Sweden released the report Case Closed – Rape and Human Rights in the Nordic Countries. An updated summary of the report was launched internationally, to mark the International Women’s Day in 2010 (see attachment 2).
The report identifies several obstacles to justice for victims of rape and sexual violence, including the definitions of rape in national legislation in the Nordic countries. All the recommendations presented by Amnesty International to overcome deficiencies in existing law and practise are based on human rights laws and standards, which aim to ensure women’s rights and gender equality in practice. These laws include the Convention on the Eliminations of all Forms of Discrimination against Women (CEDAW), the European Convention on Human Rights (ECHR) and the Rome Statute of the International Criminal Court, as well as relevant case law from the European Court of Human Rights and the Rules of Procedure and Evidence, and the Elements of Crimes of the International Criminal Court (ICC). The Rome Statute, Rules of Procedure and Evidence and the Elements of Crimes relate to international criminal law, CEDAW is a universal binding human rights treaty and ECHR is a binding regional human rights treaty, and as such, they are different areas of international law. However, their provisions should be read as complementary and be applied consistently, as they all aim to secure the equality before the law for men and women, particularly in the area of justice for sexual crimes, where women have too frequently suffered very grave discrimination in the application of the criminal law.
Amnesty International calls on all four Nordic states to adopt provisions in the Penal Code that adequately protect the integrity and sexual self-determination of all individuals. As pointed out in Amnesty International’s Six-point checklist on justice for violence against women (see attachment 3) the following should form the basis of these provisions:
• Rape and other forms of sexual violence should be defined as sexual conduct in which the victim involved was coerced, by violent or non-violent means, and therefore her agreement to engage in sexual acts was not truly and freely given. There should be no assumption in law or in practice that a victim gives her consent because she has not physically resisted the unwanted sexual conduct regardless of whether or not the perpetrator threatened to use or used physical violence.
• Criminal law should identify rape and other sexual violence as crimes against the physical and mental integrity of the victim, rather than as a crime against morality or honour. The law criminalizing the conduct should be gender-neutral.
• Criminal law should enable the effective prosecution of any perpetrator for acts of sexual violence, and there should be no exemptions for certain perpetrators such as a marital rape exemption which assumes that married women automatically consent to sexual contact with their husbands.
Relevance of ECHR case law
Jurisprudence from the European Court of Human Rights clarifies the content of the rights enshrined in the European Convention of Human Rights. National laws and practice in the Nordic countries should be consistent with the Court's jurisprudence. Accordingly, in relation to the criminalization and definition of rape and other sexual offences, the judgement in the case of MC. v. Bulgaria is of particular relevance. According to the Court’s judgment, states are obliged to punish and prosecute all non-consensual sexual acts, even in the absence of physical resistance on the part of the victim.
There have been several proceedings aiming towards stronger implementation of European Convention on Human Rights on national level the last years. On 19th February 2010, a high level conference on the future of the European Court of Human Rights was held, resulting in The Interlaken Declaration. The declaration calls on the member states to guarantee the application and implementation of the ECHR at national level. According to the Interlaken declaration, State Parties commit themselves to: “Taking into account the Court's developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system”. The declaration was adopted unanimously by those assembled; including the Ambassador and Director General for Legal Affairs of the Swedish Ministry of Foreign Affairs, the Secretary of State at the Minister of Justice of Norway, the Minister of Justice of Finland and the Human Rights Ambassador of Denmark.
Monitoring body
Amnesty International calls on the governments in the Nordic countries to ensure that all legal procedures in cases involving crimes of rape and other sexual violence are impartial and fair, and not affected by prejudices or stereotypical notions about female and male sexuality. To achieve this, a wide range of concrete measures targeted at the legal system to improve the quality of rape investigations and the judicial handling of rape cases are needed. Amnesty International therefore calls on the governments in the Nordic countries to establish an independent, temporary monitoring mechanism to systematically analyze all rape investigations that are closed before coming to trial, to assess the investigation quality and prosecution practises in these cases. The findings of the commission could serve as the basis for any further measures to improve the legal process in rape cases, improve the quality of investigation and bring about a higher level of consistency and uniformity in the practices of the different police districts and prosecution divisions.
Yours sincerely,
Lars Normann Jørgensen, Secretary General, Amnesty International, Denmark
Frank Johansson, Secretary General, Amnesty International Finland
John Peder Egenæs, Secretary General, Amnesty International Norway
Bergh, Secretary General, Amnesty International, Sweden