CEDAW/C/73/D/102/2016
Human Rights and the United Nations treaty bodies. It requires the exhaustion of
domestic remedies. The authors implicitly admitted that in order to fully exhaust
domestic remedies, they should have first resorted to civil action.
6.8 The State party maintains that the authors misinterpret its obligations under th e
Convention and the basic principles of the functioning of the individual
communication procedure, including the rule of exhaustion of domestic remedies, by
justifying that they did not have to exhaust available domestic remedies owing to their
expectation that a special remedy would be established. The dissatisfaction of the
authors with, and doubts about, the existing remedies do not release them from the
obligation to exhaust them.
6.9 The State party disagrees with the claim by the authors that they did not have to
exhaust the existing remedies because they did not possess sufficient evidence to
pursue a civil claim. They argued that this is the very reason for which a special
remedy needs to be to put in place. Even if a special remedy were introduced for
victims of illegal sterilizations, they would have to bear a certain burden of proof that
their sterilization had been performed in an illegal manner.
6.10 The legislative proposal was intended to be an ex gratia act and was never aimed
at replacing the existing remedies, which are of a judicial nature and ensure stronger
procedural safeguards, equal access to court, including of marginalized individuals,
and independent examination of the cases. The State party decided not to establish
the proposed special compensation mechanism, concluding that an “out-of-court”
mechanism would not be an effective complement to the existing means of redress
for the individual failures in the performance of sterilizations in the past.
Additional submissions by the authors
7.1 On 23 August 2017, the authors argued that the State party had not provided a
direct reference or a copy of “another successful civil action” brought by a Roma
woman to recover damages, referred to in their additional submission. The fact that
some Roma women have been able to avail themselves of such a remedy does not
mean that it is compatible with the Convention. The communication concerns gross
human rights violations; the estimates of the numbers of Roma and other vulnerable
women subjected to forcible sterilization run into the thousands.
7.2 On 27 November 2017, the authors submitted an expert opinion by the Center
for Reproductive Rights arguing that special measures must be taken to ensure that
marginalized Roma women have effective access to justice in practice and focusing
on the harshness of the general limitation period.
7.3 On 29 March 2018, the State party disputed the alleged numbers of illegally
sterilized women. The estimation of up to a thousand was based on the experience of
Sweden and thus speculative.
7.4 On 23 July 2018, the authors maintained that the estimated numbers of victims
were relevant and reliable and that the State party had failed to present any evidence
such as statistical data or cases in which the courts had provided co mpensation for
women who brought their claims after the statute of limitations expired. One case of
a sterilization victim is currently pending before the European Court of Human
Rights. 52 What the State party describes as a “reasonable” prospect of success is
nothing more than theoretical.
__________________
52
19-15443
European Court of Human Rights, Maderova v. Czech Republic, application No. 32812/13,
statement of facts of 26 June 2015.
17/18
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