Strasbourg, 19 April 2016	GEC(2016)2

GENDER EQUALITY COMMISSION

(GEC)

______________

INFORMATION NOTE

Review of International Good Practices in Training on

Women’s Rights and Gender Equality for Legal Professionals

In the framework of the project

Improving Women’s Access to Justice in Five Eastern Partnership Countries

(Armenia, Azerbaijan, Georgia, Republic of Moldova and Ukraine)

I.                   Background

The Council of Europe Gender Equality Strategy for 2014­2017highlights the fact that despite the strengthening of legal protections of women’s rights, for example through the adoption of specialised legal instruments such as the Council of Europe Convention on preventing and combating violence against women and domestic violence, and the growing jurisprudence of the European Court of Human Rights, women face persistent inequalities in accessing justice throughout the member states. Priority areas under Strategic Objective 3 of the Gender Equality Strategy (on guaranteeing equal access of women to justice) include undertaking data-gathering about the precise obstacles that prevent women from accessing national and international justice systems, and identifying and disseminating good practices to improve women’s access to justice.

Within this framework, the Council of Europe Gender Equality Commission (GEC) has supported several initiatives, in particular the Feasibility Study on Equal Access of Women to Justice,[1] the hearing on “Access to Justice for Women Victims of Violence” (Paris, 9 December 2013), the seminar on “Tackling the gaps in research and the lack of data disaggregated by sex concerning women’s equal access to justice” (Paris, 26-27 June 2014), and the Conference “Towards Guaranteeing Equal Access of Women to Justice” (Bern, 15-16 October 2015). The GEC has also compiled good practices from member states to reduce obstacles and facilitate women’s access to justice[2].

To support the implementation of Objective 3 of the Gender Equality Strategy, in 2015 and 2016, the Gender Equality Unit of the Council of Europe is implementing an EU-funded regional project to improve women’s access to justice in five countries: Azerbaijan, Armenia, Georgia, the Republic of Moldova and Ukraine. The aims of the project are to identify and support the removal of obstacles to women’s access to justice; and to strengthen the capacity of the beneficiary countries to design measures to ensure that the justice chain is gender-responsive, including through the training of legal professionals. The project has produced five national studies mapping the obstacles to women’s access to justice in each of the countries. In addition, a training manual on equal access of women to justice, addressed to judges and prosecutors and adapted to each national context, is under preparation.

Legal education and training programmes for legal professionals are recognised as one important good practice to address the factors that undermine women’s access to justice.  It is therefore surprising that judicial training on the topics of gender equality or women’s rights is not yet standard practice among member states, nor are these subjects generally included among coursework for law students[3]. There is a clear need to identify and build upon initiatives to train judicial officers in a wide range of issues to improve women’s access to justice. 

II.                Purpose of the review paper

This paper builds on earlier GEC initiatives and provides a review of good practices in training on women’s rights and gender equality for legal professionals. It describes the principles that underpin effective training and gives examples of measures taken in various countries to address women’s rights through capacity-building within the legal system. The review paper aims to provide details on specific good practices of training of judicial officers in member states of the Council of Europe, as well as non-member states.  The review paper is structured around a set of principles for legal training on women’s rights and gender equality that have been effective in various jurisdictions (see the proposed outline of the review paper, below).

The paper will be used to inform the work on the preparation of the training manual on women’s access to justice under the project on Improving Women’s Access to Justice in Five Eastern Partnership Countries, but also more widely to facilitate the exchange of good practices among member states of the Council of Europe under Objective 3 of the Gender Equality Strategy.

III.             Barriers to equal access of women to justice

Through the above-mentioned series of studies and events, the Council of Europe has identified a number of barriers to women’s access to justice. They comprise socio-economic and cultural barriers, as well as legal and procedural barriers[4]. They include a number of interrelated factors (a ‘justice puzzle’[5]) some of which are features of the legal system itself and some of which are outside of it.  Gender-neutral obstacles can disproportionately impact women’s ability to obtain redress due to their disadvantaged position in society (e.g. the cost of legal procedures or the location and working hours of justice institutions). 

Women may encounter challenges to accessing justice related to the legal framework, either as explicit discriminatory provisions, or more often as legislative gaps that result in inadequate protection of the law.

The limited jurisprudence on indirect sex-based discrimination presents a significant challenge for women’s access to justice.  The majority of applications lodged with the European Court of Human Rights (ECtHR) for alleged violations of Article 14 of the European Convention on Human Rights (ECHR) (prohibition of discrimination), on the ground of sex, have been made by men[6].  Furthermore, a review of recent ECtHR case-law reveals that the cases in which a violation of Article 14 has been found (on the ground of sex) are by and large those in which differential treatment is explicit (e.g. earlier retirement age for women or parental leave not available to men)[7].

The lack of appropriate remedies limits women’s access to justice.  The failure to provide appropriate remedies has implications on the way lawyers and prosecutors frame and argue a case, and on how judges apply an equality perspective when issuing judgements. When the law fails to provide remedies tailored to the needs of victims (such as protection orders in domestic violence cases), women are prevented from receiving justice.

Barriers to justice may be related to the problematic interpretation and implementation of the law. Inadequacies in the administration of justice occur when legal professionals have insufficient knowledge of relevant law or of how to apply the law in specific cases.  Closely related to lack of knowledge of the law is the fact that legal officials may lack sensitivity to violations of women rights and even question their justiciability.

The lack of gender-sensitiveness in legal procedures, in legal institutions or in data-collection systems constitutes a further obstacle to equal access of women to justice.  Examples of special processes that are responsive to the needs of women in the justice system include fast-track court systems for cases of violence, or rules of evidence that preclude admitting information that is damaging to the victim’s dignity or privacy, as in cases of rape or sexual violence.  In contrast, some processes to improve the administration of justice generally, such as mediation or alternative dispute resolution, can have a discriminatory impact on women if power imbalances are not given due consideration. 

While poor accountability mechanisms and corruption preclude access to justice for both women and men, women are more vulnerable to some forms of exploitation and extortion due to economic and power imbalances.  Corruption within the judiciary also reinforces existing gender discrimination. Lack of accountability can also encompass legal systems that do not monitor how the law is interpreted or the impact it has on women specifically. 

Under-representation of women throughout justice systems is a gender inequality in itself, but it can also impact on women’s access to justice, as the masculinisation of the justice authorities may make women less willing to bring a case or give testimony to the justice system. While women may be well-represented in some institutions, they are generally not present to the same degree as men in senior positions, and in certain offices (for example, in police or prosecutor’s offices).

Social barrierspreventing women from accessing justice refer to the gender norms that are inherent in society.  Every justice system is a reflection of society’s values and conceptions of gender, and justice officials can also perpetuate negative gender stereotypes or exhibit discriminatory attitudes in the administration of justice.  Particular attention has been brought to the issue of judicial bias because of the unique role of the judiciary and the risk that given their positions of power, judges can “give stereotypes the full weight and authority of the law”[8].  Any legal professional, however, can exhibit bias, for example when the police display dismissive or negative attitudes toward female victims of violence, when prosecutors diminish or trivialise sexual violence or when lawyers characterise sexual harassment as “compliments.”  A legal education programme should expose trainees to the harmful impact of gender stereotypes and ways to ensure that negative attitudes and bias toward women who apply to the legal system are not perpetuated. 

Specific knowledge of the situation in the five countries included in the project on Improving women’s access to justice in five Eastern Partnership countries was gained through five national studies on barriers, obstacles and good practices for women’s access to justice, carried out in 2015, and at the regional conference and training seminar on the same topic in Kvareli, Georgia, 5-6 November 2015.

As important as identifying weaknesses in the justice chain, understanding the types of rights violations that women experience or that disproportionately impact women is a critical part of improving access to justice.  Understandably, numerous initiatives to remove barriers to justice focus on violence against women. Legal professionals, however, should be aware of the full range of gender-based rights violations that women most frequently face. The table below summarises some of the legal issues and forms of discrimination that women encounter, classified by area of law.

Area of law	Legal issues and forms of discrimination
Violence against women/ Gender-based violence (GBV) [Note: both criminal and civil law issues should be considered]	·      All forms of violence against women as outlined in the Istanbul Convention (including domestic violence (DV), sexual violence, rape, sexual harassment, etc.) ·      Early and forced marriage ·      Human trafficking
Labour law	·      Discriminatory practices in recruitment, hiring, promotion, remuneration/equal pay, firing ·      Restrictions on the right to work/protective legislation ·      Maternity and breastfeeding provisions; childcare/ parental leave (including fathers’ access) ·      Sexual harassment  ·      Informal and vulnerable employment ·      [Social security law/pension issues]
Family and civil law	·      Marriage and divorce processes[9] ·      [Links between divorce proceedings and DV cases] ·      Child custody and alimony (in divorce cases) ·      Property division (in divorce cases) ·      Parental rights (incl. in DV cases and couples of different nationalities) ·      Property rights and inheritance ·      Citizenship laws
Criminal law	·      Gender-specific offences ·      Self-defence in GBV cases ·      Rights of women in custody/women as offenders
Public law	·      The disparate impact of neutral tax and pension laws on women
Sexual and reproductive rights	·      Right to control and decide freely on matters related to sexuality, including sexual and reproductive health ·      Sex selection before birth ·      Access to reproductive health services, family planning and contraception

The road map for the measures that are needed to improve women’s access to justice is clear, and training plays an important role within the broader scope of judicial reform and strengthening the rule of law. However, it is the task of national legal systems to determine the best way forward, building on good practices that have been tested in varied jurisdictions.  Judicial training is vital to increasing the capacity of individual actors in the justice sector as well as that of the system as a whole. Ultimately, training of legal professionals would serve to redress the inequalities that disenfranchise and disempower women in relation to the justice system.

IV.             Proposed outline of the review paper

1.      Introduction

2.      Barriers to women’s access to justice

3.      Guiding principles and good practices for training on women’s rights and gender equality for legal professionals

Putting international and regional human rights standards at the core

Examples already included:

-       Training manual on gender sensitivity and CEDAW developed by the Philippine Judiciary Academy and the Ateneo Human Rights Center.[10] 

-       On-line self-learning guide on CEDAW for legal practitioners developed by the Swiss Federal Commission for Women’s Issues.[11]

Assuming gender equality as an explicit topic and the framework for training

Examples already included:

-       Broad programme on gender equality and women’s rights for judges, prosecutors, court officers and administrative employees of the justice system created by the Women’s Office of the Supreme Court of Argentina.[12] 

-       Trainings for judges and magistrates in Latin American and Africa conducted by the National Association of Women Judges (NAWJ) through the Jurisprudence of Equality Program.[13]

Addressing domestic law comprehensively

Examples already included:

-       The Judicial Training Institute in Belgium regularly conducts training sessions for members of the judiciary on new legislation and directives, for example concerning the topics of mediation in criminal cases, a multidisciplinary approach to sexual abuse, and female genital mutilation.[14] 

-       In Kyrgyzstan, training programmes for legal officials have been designed to address women’s land rights.[15]

-       The Muslim Women’s Research and Action Forum in Sri Lanka worked with local courts that hear marriage and divorce cases to improve judges’ understanding of how to apply the law in a gender-sensitive manner.[16] 

Including simultaneous objectives to improve substantive knowledge and to build skills

Examples already included:

-       The Judicial Academy of Croatia implements basic educational programmes for trainees in judicial bodies, candidate judges and deputy prosecutors, and also on-going professional-level training for sitting judges and deputy prosecutors. The training programme combines sessions on substantive topics with more general sensitisation and the teaching of gender-sensitive methods to apply during legal proceedings.[17]

Developing sessions to address judicial bias, preconceptions and the negative impact of gender stereotypes 

Examples already included:

-       In Sweden, a training programme for judges focuses on the role of the judge as a guarantor of fair treatment in legal proceedings and also includes sessions devoted to conscious and unconscious prejudice and the challenges of adjudicating cases in a multicultural setting.  Other trainings aim to improve the knowledge of criminal justice professionals in how victims of sexual crimes typically react when involved in legal proceedings in order to eliminate stereotypes about how victims of crimes are expected to behave.[18]

Including the perspectives of “justice users”

Examples already included:

-       When developing a training for judges, the International Association of Women Judges (IAWJ) and Sakshi, an Indian NGO, conducted interviews with judges of various jurisdictions and also with female lawyers and litigants in order to identify commonly-held stereotypes. The resulting training programme addresses internalized myths and stereotypes through a variety of methods, such as joint workshops between judges and other relevant professionals from the fields of health, social protection and victim services, as well as site visits by judges to women’s shelters and prisons.[19] 

-       Two organisations- the Tanzania Women Judges’ Association and Society for Women and AIDS in Africa, an NGO that works with rural women, jointly conduct training for magistrates and judges on human rights law.  Through their contact with the NGO, judges have become aware of the barriers that women face, including those linked to gender bias, and they have also become more accountable in their decision-making.  After the training, there have been several instances of judges devising simple but effective solutions to enhance women’s access to justice, such as waiving court fees and prioritizing sensitive cases.[20]

Addressing the specific challenges deriving from multiple and intersectional discrimination

Examples already included:

-       No examples yet, but resources under Norway grants may provide such examples.

Developing training programme that are flexible and adaptable to different groups of legal professionals

Examples already included:

-       The Magistrates School of Albania integrated coursework on domestic violence, human trafficking and gender-sensitivity into its existing curriculum for trainee judges and prosecutors (14 hours of coursework).  In addition, other training activities on the family code have been conducted with judges, attorneys and notaries, and a bench-book (manual) for issuing protective orders in domestic violence cases has been issued for sitting judges.[21] 

-       The American Bar Association drafted a manual with guidance on incorporating domestic violence topics in university law programmes within core courses (e.g. constitutional law, criminal law, family law), upper-level courses, clinical education and externships.[22]

Ensuring that training conforms to local standards of accreditation

Examples already included:

-       Under a U.S. Department of State programme in the Democratic Republic of the Congo, members of a judges’ association received training to improve their capacity to adjudicate cases concerning gender-based crimes. Additionally, capacity-building was provided to the bar association to teach continuing legal education on gender-based crimes to members of the bar.[23]

Encouraging legal professionals to be more proactive/ ‘agents of change’

Examples already included:

-       Under a programme of the National Institute of Justice of Moldova and the Women’s Law Centre, a group of judges and prosecutors have completed a training-of-trainers (ToT) course to prevent and combat domestic violence. It is expected that this pool of experts will now educate their peers throughout the country in a series of national trainings.[24]  The High School of Justice of Georgia has used a similar model of training judges through a ToT model on a gender equality curriculum.[25]

-       In implementing the initiative mentioned earlier, the Women’s Office of the Supreme Court of Argentina uses a model in which gender facilitators within the judicial system are trained using a standard curriculum. These facilitators then conduct gender justice workshops for judges, prosecutors, court officials, and administrative employees. The facilitators are selected based on their career records and skills and are supported with training materials.[26]

-       A needs assessment of female judges in several countries of the Middle East and North Africa (MENA) region indicated that few speak out about either the obstacles that women face accessing the court or that women as judicial professionals encounter. Therefore, a current IAWJ project aims to enhance the capacity of female judges to provide judicial leadership on gender and access to justice issues.[27] 

4.      Methodological considerations for effective training programmes

Conduct needs assessment and court practice analysis

Use interactive methods and relevant practical exercises

Encourage professional exchange and interactions

Consider joint and cross-sector training exercises

Make use of technology-based teaching tools

Plan for monitoring and impact evaluation

5.      Conclusions

V.                Next steps

An initial review of good practices was conducted in 2015 by Elisabeth Duban. The Gender Equality Unit will hire an international consultant to expand this initial review by adding more examples and further developing the examples already included there. Funding for this consultancy will come from the regional project on improving women’s access to justice in five Eastern Partnership countries. It is expected that the consultant will complete the paper by the end of October 2016.