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OEA/Ser.L/V/II.98
REPORT
Nº 28/98 CASE
11.625 MARÍA
EUGENIA MORALES DE SIERRA GUATEMALA March
6, 1998
I.
CLAIMS PRESENTED
1.
On February 22, 1995, the Inter-American Commission on Human Rights
(hereinafter "Commission") received a petition dated February 8, 1995
alleging that various provisions of the Civil Code of the Republic of Guatemala
(hereinafter "Civil Code," and "State,"
"Guatemala" or "Guatemalan State," respectively) which
establish the legal regime defining the role of each spouse within a marriage
create distinctions between men and women which are discriminatory and violative
of Articles 1.1, 2, 17 and 24 of the American Convention on Human Rights
(hereinafter "American Convention").
2.
The petitioners indicated that Article 109 of the Civil Code confers the
power to represent the marital union upon the husband, while Article 115 sets
forth the exceptional instances when this authority may be exercised by the
wife. Article 131 empowers the
husband to administer marital property, while Article 133 provides for limited
exceptions to that rule. Article
110 addresses responsibilities within the marriage, conferring upon the wife the
"special right and obligation" to care for minor children and the
home. Article 113 provides that a
married woman may only exercise a profession or maintain employment where this
does not prejudice her role as mother and homemaker.
They stated that, according to Article 114, a husband may oppose his
wife's activities outside the home, as long as he provides for her and has
justified reasons. Article 255
confers primary responsibility on the husband to represent the children of the
union and to administer their property. Article
317 provides that, by virtue of her sex, a woman may be excused from exercising
certain forms of guardianship.
3.
The petitioners reported that the constitutionality of these legal
provisions had been challenged before the Guatemalan Court of Constitutionality
in Case 84-92, which had ruled that the distinctions were constitutional, as, inter
alia, they provided juridical certainty in the allocation of roles within
marriage. The petitioners requested
that the Commission find the foregoing provisions of the Civil Code incompatible
in abstracto with the guarantees set forth in Articles 1.1, 2, 17 and 24
of the American Convention.
II.
PROCESSING BEFORE THE COMMISSION
4.
Pursuant to the filing of their petition, on March 14, 1995, the
petitioners sent the Commission a copy of the sentence issued by the Court of
Constitutionality in response to Case 84-92.
Case 11.625 was opened on May 6, 1996, and the pertinent parts of the
petition were transmitted to the Government of Guatemala on that date, with a
response requested within 90 days.
5.
By means of a note dated August 6, 1996, the State indicated that it was
compiling a substantial report in response to the petition, and requested an
extension of the time accorded for its answer.
In a note of August 7, 1996, the Commission indicated that an extension
of 30 days had been granted.
6.
In a note dated September 10, 1996, the State reported that the Executive
was about to send to Congress a project of reforms to modify certain provisions
of the Civil Code at issue in the present case.
The Government explained that the reforms were aimed at modifying
provisions of the Code which in some way contravened Article 46 of the
Constitution, and provisions of the Convention on the Elimination of all Forms
of Discrimination against Women and the American Convention.
The Government indicated that, once submitted to the Congress, a copy of
the draft reforms would be forwarded to the Commission.
This information was transmitted to the petitioners in a note of
September 17, 1996, with the submission of any observations in response
requested within 45 days.
7.
Pursuant to a request from the petitioners, the Commission granted a
hearing to address the admissibility of Case 11.625 during its 93rd regular
period of sessions. During that
hearing, held on October 10, 1996, the Government of Guatemala recognized that
the provisions of the Civil Code characterized by the petitioners as
discriminating against women were out of date.
For that reason, and having regard to Article 2 of the American
Convention, the Executive reported that Deputies Nineth Montenegro and Olga
Camey de Noack had elaborated a set of proposed reforms to the Civil Code,
designated initiative number 1539, which referred to the majority of the
provisions challenged by the petitioners. These
reforms had been presented to the Commission on Legislative and Constitutional
Points of the National Congress for its study and opinion.
Further, the Presidential Coordinating Commission of Executive Policy in
Human Rights Matters (COPREDEH) had prepared a set of complementary reforms to
address certain provisions not dealt with in the pending draft which had been
transmitted to the General Secretariat of the Presidency.
The Government indicated its concern with respect to the discrepancies
between the challenged provisions and the obligation of nondiscrimination, and
that it hoped these projected reforms would lead to the adoption of
corresponding measures in the near term. The
petitioners indicated their interest in studying the proposed reforms and
providing observations with respect to how the proposed changes adhered to the
international standards in effect which have special bearing on the rights of
women. The Government in turn
indicated that these draft reforms would be provided to the Commission and the
petitioners. The parties agreed that the Commission should review the
matter during its next period of sessions in order to assess developments and
evaluate the feasibility of resolving the case through the procedure of friendly
settlement.
8.
On October 10, 1996, the petitioners provided the Commission with a set
of 12 signed statements (nine of which were notarized), from married women,
single women, and professionals in the fields of family law and psychology,
concerning the effects and implications of the challenged provisions of the
Civil Code. Copies of these
statements were formally transmitted to the Guatemalan State by means of a note
dated October 15, 1996. Any observations in response, or further information deemed
pertinent were requested within 60 days.
9.
On December 13, 1996, the State transmitted a report to the Commission
updating the efforts it had taken with respect to reforms to the Civil Code,
reiterating information provided during the October 10, 1996 hearing, and
indicating that it was hoped that the project of reforms would be taken up by
the Congress when it initiated its next session.
The Government also provided the Commission with the text of the
"Law to Prevent, Sanction and Punish Intrafamilial Violence," approved
by the Congress by means of Decree Number 97-96 and scheduled to enter into
force on December 28, 1996. This
submission was transmitted to the petitioners by means of a note dated January
9, 1997, with any observations in response requested within 45 days.
10.
Pursuant to the January 24, 1997 request of the petitioners, the
Commission held a hearing on the
case on March 5, 1997, during its 95th regular period of sessions.
The petitioners reported that the only project presented to the Congress
to date with respect to the Civil Code had dealt solely with Article 114
(concerning the legal capacity of women to work and pursue activities outside of
the home). The Commission on the
Woman, the Minor and the Family had reviewed the project, and transmitted it to
the plenary of the Congress on May 15, 1996.
On May 20, 1996, the plenary had transmitted the project to the
Commission of Legislative and Constitutional Points, which had issued an
unfavorable report. The petitioners
submitted a copy of a letter dated February 19, 1997 from the President of the
Commission on the Woman, the Minor and the Family recounting these events, and a
copy of the draft reforms to Article 114 of the Civil Code.
11.
During the hearing, the Government indicated that, notwithstanding that
the efforts referred to during the prior hearing had not prospered, it continued
to pursue initiatives aimed at the reform of the legislation in question.
The State also reported that the Attorney General had challenged Civil
Code Articles 113 and 114 before the Court of Constitutionality in an action
filed on November 16, 1996, the determination of which remained pending.
The Commission questioned the petitioners as to whether they were
requesting a determination in abstracto or pursuing an individual claim.
The petitioners indicated that, in the concrete case, María Eugenia
Morales Aceña de Sierra had been directly affected by the challenged
legislation, and also represented other women victims in Guatemala.
The Commission requested that they formalize the status of María Eugenia
Morales de Sierra as the victim in writing, in order to comply with the
dispositions of its Regulations and proceed to process the petition within its
case system.
12.
The petitioners formalized the status of María Eugenia Morales de Sierra
as victim in a communication of April 23, 1997, the date as of which the
Commission considers this status to have been established in the file.
According to the petitioners, María Eugenia Morales de Sierra is a
victim who, as a married woman with children who resides in Guatemala, is
subject to a legal regime which limits her capacity to exercise her rights. The petitioners characterized the norms in question as being
of immediate application, affecting the rights of the victim by virtue of her
sex and civil status simply by being in effect.
The petitioners supported their position with reference to the
jurisprudence of the European and universal systems for the protection of human
rights concerning the requirements of standing and admissibility.
In a note of June 9, 1997, the pertinent parts of this communication were
transmitted to the State of Guatemala, with any observations requested within 30
days.
13.
On July 10, 1997, the Government submitted a brief communication
indicating that the constitutional challenge interposed by the Attorney General
against Articles 113 and 114 remained pending before the Court of
Constitutionality, and that on May 29, 1997, the National Office of the Woman
and a group of nongovernmental organizations had delivered a set of draft
reforms to the Civil Code to Deputy Nineth Montenegro.
The draft reforms had been transmitted to the Commission of Legislative
and Constitutional Points for its study and opinion.
The Government indicated that, given its continuing efforts and those of
nongovernmental groups to modify Civil Code provisions which might discriminate
against women, the petitioners had not exhausted domestic remedies. This submission was transmitted to the petitioners in a note
of July 14, 1997, with any observations requested within 30 days.
14.
On July 28, 1997, the petitioners provided the Commission with
documentation complementing their April 23, 1997 submission, and consisting of a
sworn declaration signed by María Eugenia Morales de Sierra, her birth
certificate, marriage certificate, and birth certificates for her children.
The declaration sets forth the effect of the legislative provisions at
issue on the declarant's life, including, inter alia, the fact that the
law prohibits her from representing the family or her minor child unless her
husband is unable to do so; that she is unable to administer property obtained
during the marriage or that of her children; and that the law would allow her
husband to oppose her exercise of her profession at any moment. The declarant maintains that these restrictions have both
legal and cultural consequences. The
documentation was transmitted to the Government of Guatemala by means of a note
dated August 14, 1997, with any response deemed pertinent requested within 30
days.
15.
Pursuant to the request of the petitioners, the Commission held an
additional hearing on the admissibility of the present case on October 10, 1997,
during its 97th period of sessions. In
a note dated September 18, 1997, the Government had indicated that it would
respond to the additional information submitted by the petitioners during that
scheduled hearing.
16.
During the hearing, the petitioners produced three experts who testified
as amici curiae to support the standing of María Eugenia Morales de
Sierra as a direct victim in the instant case: Dinah Shelton, Center for Civil
and Human Rights, Notre Dame Law School; Sian Lewis-Anthony, Interights; and
Rhonda Copelon, International Women's Human Rights Law Clinic and the Concertación
de Mujeres Activistas Para los Derechos Humanos.
These experts recalled that members of a class targeted by legislation
which is discriminatory on its face are deemed victims for the purpose of
bringing petitions, citing, for example, the case of Dudgeon v. the United
Kingdom (1982) 4 E.H.R.R. 149, para. 41.
They further indicated that a putative victim need not demonstrate
specified harm, nor even that specific measures of implementation have been
taken, citing, for example, Marckx
v. Belgium (1979), 2 E.H.R.R. 330, para 25, 27.
In some cases, they noted, it may be sufficient to show the risk of a
direct effect based on status, citing Klass v. Germany (1980), 2 E.H.R.R.
214, at para. 33. The petitioners
asserted that, for the purposes of admissibility, where legislation creates a
facial distinction with respect to a protected class, harm should be presumed.
The prohibition against discrimination, they noted, is a nonderogable
primary obligation. The petitioners
sustained that the challenged provisions of the Civil Code play a central role
in perpetuating and sustaining the inequality of women and men.
Accordingly, while the provisions most immediately affect married women,
in a larger sense they impact all women and Guatemalan society as a whole.
Given their position that María Eugenia Morales de Sierra is in fact a
victim with standing, the amici curiae indicated that resolving the
questions raised did not require a decision in abstracto by the
Commission.
17.
The State, for its part, indicated that María Eugenia Morales de Sierra
had acknowledged in her statement of August 28, 1997 that her husband had never
actually restricted her professional activities under the terms of Article 114.
The representative of the Government reported that the Congress continued
to study diverse proposals to reform the Civil Code in order to correct or
modify provisions which impede the ability of women to fully exercise their
rights. In particular, in August of
1997, the National Office of the Woman had presented a comprehensive set of
reforms to the Civil Code. Additionally, the Commission of the Woman, the Minor and the
Family of the Congress was currently studying projects concerning the integral
promotion of women and the family; the elaboration of a law concerning sexual
harassment; and the creation of a National Institute of the Woman (initiative
number 1793). Given the pendency of
these projects, the State asked that the Commission postpone its decision on
admissibility in the present case.
18.
During the hearing, the Commission reaffirmed that the petitioners had
amended their initial petition for a decision on the compatibility of the
provisions at issue in abstracto to instead request a decision on the
individual claims of the named victim. The
Commission also requested the views of the petitioner with respect to whether
the former should proceed to an immediate decision on the admissibility and
merits of the case. They indicated that, in their view, the processing of the
case had been sufficient and that it was ripe for decision.
Pursuant to inquiry by the Commission, the State indicated that it
remained disposed to consider the option of the friendly settlement procedure.
The petitioners indicated their belief that this option had been explored
sufficiently, and had failed to provide any fruitful results.
III. THE
POSITIONS OF THE PARTIES
The Position of the Petitioners
19.
The petitioners maintain that the cited provisions of the Civil Code
discriminate against women, in a form which is immediate, direct and continuing,
in violation of the rights of María Eugenia Morales de Sierra established in
Articles 1.1, 2, 17 and 24 of the American Convention.
The petitioners cite international human rights jurisprudence, including
that of the Inter-American Court, for the proposition that, while a difference
in treatment is not necessarily discriminatory, such a distinction must be
objectively justified in the pursuit of a legitimate end, and the means employed
must be proportionate to that end. They
contend that the provisions in question set forth distinctions between women and
men, most immediately married women and men, which are illegitimate and
unjustified. They note that the
Court of Constitutionality found the challenged provisions justified as a form
of protection for women, and as a means of establishing juridical certainty in
the allocation of rights and responsibilities within marriage.
The petitioners maintain that, even should these be deemed legitimate and
sufficient justifications, the means employed are disproportionate.
They assert that these provisions are contrary to the principle of
equality between the spouses, and nullify the juridical capacity of the woman
within the domestic legal order, thereby controverting the protections set forth
in Articles 17 and 24 of the American Convention, as well as the obligations set
forth in Articles 1.1 and 2.
20.
The petitioners initially positioned their claims as a request for a
decision in abstracto on the compatibility of the cited provisions of the
Civil Code with the provisions of Articles 1.1, 2, 17 and 24 of the American
Convention. Citing Advisory
Opinions OC/13 and OC/14 of the Inter-American Court, they argued that the
Commission could exercise jurisdiction over the matter through its general
functions under Article 41 of the American Convention to: promote and oversee
member state compliance with their human rights obligations; make
recommendations to the states for measures in favor of the protection of human
rights; and to act on individual petitions.
21.
As recorded, the petitioners amended their position during the processing
of the petition in 1997 to designate co-petitioner María Eugenia Morales de
Sierra as an individual victim. Pursuant
to that modification, the petitioners provided information which they assert
demonstrates how the distinctions created by the challenged legislation restrict
the ability of the victim to fully exercise the guarantees set forth in Articles
1.1, 2, 17 and 24 of the American Convention.
22.
The petitioners maintain that the case satisfies all the requirements of
admissibility, domestic remedies having been invoked and exhausted, and the
victim having pleaded the direct effect of the impugned provisions on her
ability to exercise her rights.
The Position of the State
23.
The Government has not expressly controverted the substance of the claims
raised by the petitioners. Rather,
it indicates that steps are being taken by each branch of Government to respond
to provisions of the Civil Code which contravene the Constitutional guarantee of
equality, as well as provisions of the American Convention and other applicable
international obligations. The
executive branch has presented various draft reforms to the Congress for study.
The Congress has reviewed and rejected some of these projects, and
continues to receive and review others. The
Attorney General has challenged the constitutionality of Articles 113 and 114 of
the Civil Code in a claim filed before the Court of Constitutionality on
November 16, 1996. In hearings
before the Commission, the Government indicated that the executive had pursued
certain initiatives within its mandate, and, in view of the system of separation
of powers extant in the national system, could not interfere with those being
dealt with under the jurisdiction of other branches of Government.
The State maintains that the measures undertaken demonstrate its
commitment to upholding the guarantees set forth in the Constitution, and in the
American Convention on Human Rights and other applicable international law.
24.
It is on the basis of these pending measures that the State controverts
the admissibility of the case, contending that these demonstrate that domestic
mechanisms continue to offer available and effective relief for the problem
denounced. Accordingly, the State
contends that the petitioners have not satisfied the requirement of exhausting
the applicable internal remedies. Additionally,
the State appears to contend that the Commission may lack jurisdiction ratione
personae. During the October
10, 1997 hearing before the Commission, the Government indicated that, although
the victim complains that Article 114 of the Civil Code constitutes an
infringement of her right to work, in fact, she freely exercises her profession,
and acknowledged in her written statement of August 28, 1997 that her husband
had never impeded those activities. The
presumed implication is that, if the victim has not been directly prejudiced as
a result of the legislation, the Commission lacks jurisdiction ratione
personae.
IV. CONSIDERATIONS
WITH RESPECT TO ADMISSIBILITY
25.
The Commission is competent to examine the subject matter of this
complaint, as it concerns alleged violations of Articles 1.1, 2, 17 and 24 of
the American Convention. The
Republic of Guatemala deposited its ratification of the American Convention on
May 25, 1978, and the Convention entered into force for all parties on July 18,
1978.
26.
The petitioners' submissions include the information required by Article
32 of the Commission's Regulations, and meet the conditions set forth in Article
46.1.c of the American Convention and Article 39 of the Commission's
Regulations, as the claims are neither pending settlement in another
international inter-governmental proceeding, nor essentially duplicative of a
petition pending or previously considered by the Commission.
27.
Article 46 of the American Convention specifies that, in order for a case
to be admitted, "remedies under domestic law [shall] have been pursued and
exhausted in accordance with generally recognized principles of international
law." This requirement ensures
the state concerned the opportunity to resolve disputes within its own legal
framework. The remedies generally
required to be exhausted in accordance with the principles of international law
are those which are available for and effective in addressing the allegations at
issue. In 1992, María Eugenia
Morales de Sierra, the Assistant Procurator for Human Rights and the victim in
the present case, brought an action challenging the constitutionality of 12
articles of the Civil Code, in part or in full, including the nine articles at
issue in the present case. The
action was based on the contention that the provisions in question contravened, inter
alia, the equality provisions of the Constitution, namely Articles 4 and 47.
The claim was rejected by the Court of Constitutionality in a decision of
July 24, 1993. The petitioners contend that they have invoked and exhausted
the applicable domestic remedy.
28.
Where a State claims that a petitioner has failed to discharge the
requirement of exhaustion, the former bears the burden of indicating the
specific remedies which remain available and effective.
See, Article 37.3, Regulations of the Inter-American Commission, see
e.g., I.Ct.H.R., Loayza Tamayo Case, Preliminary Objections, Judgment
of Jan. 31, 1996, para. 40 (citing established Court jurisprudence).
The State has not disputed that the constitutional mechanism invoked by
the co-petitioner was the adequate jurisdictional remedy under the
circumstances. Nor has it disputed
that all of the claims now at issue before the Commission were raised in
substance before the Court of Constitutionality.
Rather, it contends that executive and legislative action aimed at
reforming the provisions in question provide one avenue for redress, and that
the constitutional action filed by the Attorney General in 1996 impugning
Articles 113 and 114 of the Civil Code provides another.
With respect to the executive and legislative action referred to, the
Commission observes that the remedies generally required to be exhausted are
those the judicial system offers to address the infringement of a legal right.
With respect to the constitutional challenge brought by the Attorney
General, the Commission observes that the co-petitioner and victim already
challenged those provisions before the Court of Constitutionality.
Given that the claims at issue before the Commission were placed before
the Court of Constitutionality, thereby enabling the highest tribunal with
jurisdiction to monitor and interpret the constitutionality of laws to render a
determination of the rights at issue under domestic law, the Commission
considers the requirement that domestic remedies be exhausted to have been
satisfied. In effect, among its
functions pursuant to the Guatemalan Constitution, the Court of
Constitutionality acts as a court of original jurisdiction with respect to
certain challenges to laws on constitutional grounds.
29.
Article 46.1.b of the Convention establishes that a case must be filed in
a timely manner, within six months of the date the interested party received
notification of the final judgment within the domestic system.
As the Commission has previously stated, this rule exists to allow for
juridical certainty while still providing sufficient time for a potential
petitioner to consider her position. The
State, for its part, has not alleged failure to comply with the six-months rule.
(Such a position would, in any case, be inconsistent with its argument
that domestic remedies remain to be exhausted.
See generally, I.Ct.H.R., Neira Alegria Case, Preliminary
Objections, Judgment of Dec. 11, 1991, Ser. C No. 13, paras. 28-29.)
While an issue of timeliness would have arisen had the petitioners
specifically challenged the decision of the Court of Constitutionality or had
they complained about specific past occurrences, they are in fact complaining
about what they allege to be a continuing violation. See generally, I.Ct.H.R., Blake Case,
Preliminary Exceptions, Judgment of July 2, 1996, paras. 29-40. They maintain that the legislation in question gives rise to
restrictions on the rights of women on a daily, direct and continuing basis, and
have provided victim testimony to that effect. Given the nature of the claims raised, which concern the
ongoing effects of legislation which remains in force, the six-months rule
creates no bar to the admissibility of this case under the circumstances
analyzed above.
30.
With respect to the question of jurisdiction ratione personae, the
Commission has previously explained that, in general, its competence under the
individual case process pertains to facts involving the rights of a specific
individual or individuals. See
generally, I.A.C.H.R., Case of Emérita Montoya González, Report
48/96, Case 11.553 (Costa Rica), in Annual
Report of the IACHR 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., March 14, 1997,
paras. 28, 31. The Commission
entertains a broader competence under Article 41.b of the Convention to address
recommendations to member states for the adoption of progressive measures in
favor of the protection of human rights.
31.
Pursuant to their original petition for a decision in abstracto,
which appeared to rely on the Commission's competence under Article 41.b of the
American Convention rather than that under Article 41.f, the petitioners
modified their petition and named María Eugenia Morales de Sierra as an
individual victim, as previously noted, in their communication of April 23,
1997. With the identification of an
individual victim, the Commission may advance with its decision on admissibility
in the present case. As the
Honorable Court has explained, in order to initiate the procedures established
in Articles 48 and 50 of the American Convention, the Commission requires a
petition denouncing a concrete violation with respect to a specific individual.
I.Ct.H.R., Advisory Opinion OC-14/94, "International
Responsibility for the Promulgation and Enforcement of Laws in Violation of the
Convention (Arts. 1 and 2 of the American Convention)," of Dec. 9,
1994, para. 45, see also, paras. 46-47.
With respect to the other contentious mechanisms of the system, Article
61.2 of the Convention establishes, further, that "[i]n order for the Court
to hear a case, it is necessary that the procedures set forth in ... [those
Articles] shall have been completed."
"The contentious jurisdiction of the Court is intended to protect
the rights and freedoms of specific individuals, not to resolve abstract
questions." Id. para
49.
32.
The petitioners argue that the victim has experienced and continues to
experience violations of her rights to equality, and to equal protection of and
before the law, under Articles 2, 17 and 24 of the American Convention, by
reason of her gender. They allege
that the challenged legislation has a direct impact on the ability of María
Eugenia Morales de Sierra to exercise her rights.
The victim alleges that, although her family life is based on the
principle of reciprocal respect, the law prevents her from representing the
marital union or her minor child unless her husband is unable to do so, and that
the fact that the law vests this power in her husband creates a disequilibrium
in the weight of the authority exercised by each spouse within their marriage,
an imbalance which may be perceived within the family, community and society.
The victim complains that the law provides that her husband has the
exclusive competence to administer family property, and the goods of their minor
child, and that, notwithstanding that the law requires women to bear primary
responsibility for child care and the home, it excuses them from exercising
certain forms of guardianship by virtue of their sex.
The victim asserts that, although her right and duty as a mother is to
protect the best interests of her children, the law strips her of the legal
authority necessary to do that. The
victim indicates that, although her husband has not opposed her professional
activities, the law gives him the authority to do so at any moment.
Accordingly, the victim maintains that the legislation in question
constitutes an attack on her human dignity, and contravenes her right to a life
free of discrimination based on gender. See
Notarized Statement of May 5, 1997, signed by the victim.
33.
With respect to the allegations concerning Article 114 of the Civil Code,
the Government appears to argue that, as the victim's husband has never opposed
her exercise of her profession, her rights have therefore never been infringed
by the application of that provision. This
argument, however, misses the substance of the complaint raised, and is rejected
for that reason. In the first
place, in virtue of the public order of human rights, even the eventual consent
of a victim to a violation does not validate the violative act of a State, nor
does it affect the competence of the international organ to whom the States have
entrusted their protection. The
victim asserts that the American Convention protects her right as a married
woman to work and develop other activities outside of the home under equal
conditions with men. Accordingly,
she contends that the restrictions which Article 114 imposes on married women,
but not upon married men, deny her the right to pursue professional and other
opportunities on equal terms with men simply by virtue of being in force.
34.
With respect to the claims as a whole, the Commission observes that a
legal provision may affect an individual in different ways.
A non-self-executing law will require measures of implementation by state
authorities before it can be applied in a concrete case.
OC-14/94, supra, para. 41.
A self-executing law, on the other hand, may violate a protected right by
virtue of its entry into force, if all other requirements (e.g. competence
ratione personae) are complied with. Therefore,
and taking into account the foregoing, "a norm that deprives a portion of
the population of some of its rights -- for example, because of race -- automatically
injures all the members of that race."
Emphasis added. Id.,
para. 43.
35.
In the instant case, María Eugenia Morales de Sierra alleges that the
challenged provisions of the Civil Code create distinctions based on gender
which infringe her rights to equality and to equal protection of and before the
law simply by virtue of being in force. In
this regard, international jurisprudence has established that a law may violate
the right of an individual, even in the absence of any specific measure of
subsequent implementation by the authorities, where the individual is directly
affected, or is at imminent risk of being directly affected by a legislative
provision. See generally,
E.Ct.H.R., Case of Klass and Others, Judgment of 6 Sept. 1978, Ser. A
Vol. 28, paras. 33-38; E.Ct.H.R., Marckx Case, Judgment of 13 June 1979,
para. 27; see also, U.N.H.R. Committee, Ballantyne, Davidson and
McIntyre v. Canada, 1993 Report, Vol. II, p. 102. María Eugenia Morales de Sierra is "challenging a legal
position" -- that of married women under the cited Articles of the Civil
Code -- "which affects her personally." See, Marckx Case, supra, para 27.
The Commission considers that the direct effect of the challenged
legislative provisions on the rights and daily life of the victim has been
adequately alleged and demonstrated for the purposes of admissibility in the
present case, and will analyze its relevance and impact in the decision on the
merits. In this phase, the
Commission will not discuss matters related to human rights violations committed
via self-executing laws.
36.
Finally, as required by Article 47 of the American Convention, the
petitioners have stated facts tending to establish a violation of the rights
guaranteed by this Convention. Articles
109, 110, 113, 114, 115, 131, 133, 255, and 317 of the Civil Code establish
differences in the treatment the law provides with respect to married women and
married men, and in some cases, married and unmarried women.
Under international human rights law, such differences must be analyzed
to determine whether they pursue a legitimate aim, and whether the means
employed are proportional to the end sought.
I.Ct.H.R., Advisory Opinion OC-4/84, "Proposed Amendments to the
Naturalization Provisions of the Constitution of Costa Rica," Ser. A
No. 4, para. 56, citing E.Ct.H.R., Belgian Linguistic Case,
Judgment of July 23, 1968, Ser. A No. 6, at 34. In other words, the law is expected to be even-handed between
women and men unless just, legitimate and reasonable compelling bases have been
adduced to justify a difference in treatment.
See Van Raalte v. Netherlands, 24 E.H.R.R. 503, para. 42.
The Commission will take up this question in its analysis of the merits
of the case.
Additional Considerations
37.
As to Article 48.1.f of the American Convention, which authorizes the
Commission to place itself at the disposal of the parties for the purpose of
facilitating a possible friendly settlement, the record reflects that the
parties were notified of the Commission's disposition to assist them in this
regard during the various hearings. The
parties discussed various options with a view to pursuing this process, but
never reached any agreement to enter into formal negotiations for this purpose.
During the October 10, 1997, the petitioners indicated that, in view of
the lack of progress on reforms within the domestic system, they were no longer
interested in the possibility of friendly settlement.
38.
Taking into account the foregoing analysis and conclusions,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS DECIDES:
A. To
declare the present case admissible.
B.
To transmit this report to the State of Guatemala and the petitioners.
C.
To place itself at the disposal of the parties for the purpose of
reaching a settlement based on respect for the human rights protected in the
American Convention; and invite the parties to indicate their disposition to
initiate the procedure of friendly settlement within a period of 30 days,
counted as of the date of transmission of the present report.
D. To
continue with the analysis of the merits of the case. E. To make this report public, and publish it in its Annual Report to the General Assembly of the OAS. [
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