Advance unedited version CCPR/C/132/D/2615/2015 The complaint 3.1 The author claims that the State party has violated her rights under article 7, read alone and in conjunction with articles 2 (1)-(3), 3 and 26 of the Covenant. She also claims that the State party has violated her rights under articles 17 and 23, each read alone and in conjunction with articles 2 (1), 2 (3), 3 and 26 of the Covenant. With respect to the author’s rights under article 7 of the Covenant, read alone, the author was raped and subjected to other forms of violence, including beatings, threats, insults and other denigrating language and acts. Under international jurisprudence, rape constitutes torture when it is inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or another person acting in an official capacity.8 General recommendation No. 19 of the Committee on the Elimination of Discrimination against Women 9 characterizes violence against women as a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on an equal basis with men. The Committee against Torture has considered in its jurisprudence that sexual abuse by police officers constitutes torture even if it occurs outside of formal detention facilities.10 According to the jurisprudence of the Human Rights Committee, rape constitutes a form of extreme gender-based violence and amounts to a violation of article 7 of the Covenant.11 3.2 In violation of the author’s rights under article 7, read in conjunction with article 2 (2) of the Covenant, the State party has failed to adopt such laws and other measures as may be necessary to give effect to the author’s rights under the Covenant with regard to rape and other forms of sexual violence.12 The State party’s legislation does not: a) recognize rape or other forms of sexual violence as a war crime or a crime against humanity; b) criminalize acts such as forced nudity, forced pregnancy, sexual assault and other forms of sexual violence not involving penetration; c) permit the filing of criminal complaints for rape, or reparations for rape, more than 35 days after the rape; d) include within the definition of rape any acts other than penile penetration of the vagina with a woman or a minor without her consent;13 e) include victims of rape or other forms of sexual violence within the scope of what is known as interim relief (policies under which the State party made ex gratia payments for gross human rights violations during the conflict); or f) provide a proportionate penalty for rape, which is punishable by imprisonment of 5-15 years, depending on the age of the victim. 3.3 In violation of the author’s rights under article 7, read in conjunction with article 2 (3) of the Covenant, the State party’s authorities systematically fail to investigate allegations of torture, sexual violence and ill-treatment. Despite the author’s attempts to file a complaint, domestic authorities – adhering to a common practice – refused to register her claim. Thus, the authorities failed to conduct a thorough, independent, impartial and prompt investigation into the author’s allegations of torture and sexual violence. 3.4 In violation of the author’s rights under article 7, read in conjunction with articles 2 (1), 3, and 26 of the Covenant, the State party failed to provide special measures of protection to which the author was entitled as a member of a particularly vulnerable group – the indigenous community of the Tharu – and instead subjected her to multiple forms of discrimination based on her status as a young indigenous woman. In its general comment No. 28, the Committee recognized that women are particularly vulnerable during internal or international armed conflicts, and States parties are obligated to take effective measures to protect women from rape, abduction and other forms of gender-based violence. In its general comment No. 18 on non-discrimination, the Committee that stated that the “principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the 8 9 10 11 12 13 The author cites, for example, International Criminal Tribunal for Rwanda, Prosecutor v. Akayesu, ICTR-96-4-T, Chamber 1, judgment of 2 September 1998, para. 597. U.N. Doc. A/47/38 at 1 (1993). The author cites Committee against Torture, V.L. v. Switzerland (CAT/C/37/D/262/2005), para. 8.10. The author cites Mehalli v. Algeria (CCPR/C/110/D/1900/2009), para. 7.10. The author cites, inter alia, Djebbar et al. v. Algeria (CCPR/C/103/D/1811/2008), individual concurring opinion by Fabian Salvioli, joined by Cornelis Flinterman, paras. 5, 6 and 7. Regarding the definition of rape under domestic legislation, the author cites section 14 of Muluki Ain. 5