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Roles and responsibilities of courts and judiciary

Last edited: February 26, 2011

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Drafters should seek to ensure that the criminal justice system effectively addresses all “honour” crimes and killings to ensure accountability for the perpetrator(s) and promote the safety of the victims. Laws should charge the court system to work in coordination with police, advocates, health care providers, criminal justice actors, child protection services, local businesses, the media, employers, religious leaders, health care providers, clergy and organizations working with victims and immigrant communities. See: Coordinated Community Response, StopVAW, The Advocates for Human Rights.

Judicial Discretion

Laws should limit judicial discretion to reduce sentences, reduce the charge or exculpate the defendant in “honour” crimes and killings. Specifically, laws should prohibit judges from using the following factors as mitigating evidence in cases involving “honour”:

  • Private settlements, reconciliation and forgiveness among the perpetrators and the victim or her family;
  • The level of perceived dishonour to the family and perpetrator;
  • The victim’s past behavior, including sexual behavior, that supposedly violated the traditional code of “honour”;
  • The morality or ethics of the victim’s behavior that motivated the perpetrator to commit the “honour” crime or killing;
  • The perpetrator’s status as the household’s primary wage earner; 
  • Defenses in cases of “honour” crimes, “honour” killings, and domestic femicides, including:
    • Crimes of passion defense
    • Provocation or "fit of fury" defenses
    • Defenses of “honour”, morality or ethics
    • Defenses in cases of adultery, whether witnessed or not

Examples:  Article 192 of the Syrian Penal Code allows a judge to reduce the sentence in a case where the judge finds the perpetrator’s motive was “honourable” or “sympathetic.” Likewise, Article 17 of the Egyptian Penal Code permits a judge to reduce a defendant’s sentence in “crimes requiring the sympathy of the court.” Article 243 of the Syrian Penal Code also permits the court to reduce a life sentence to a shorter duration of imprisonment in cases where the crime falls under “extenuating circumstances.” (See: Odeh, Lama Abu, Honor Killings and the Construction of Gender in Arab Societies, American Journal of Comparative Law, Vol. 58, Fall 2010, pp. 928)  Drafters should repeal such provisions that use ambiguous language or confer broad judicial discretion in sentencing for “honour” crimes, or should make clear that such provisions are inapplicable in “honour” crimes cases.   

Similarly, Article 242 of the Syrian Penal Code provides for a reduced penalty in cases where the perpetrator acted in a “state of great anger resulting from a wrongful and dangerous act on the part of the victim.”  (See: Lynn Welchman, Extracted provisions from the penal codes of Arab states relevant to 'crimes of honour’)  Drafters should ensure that such mitigating provocation defenses are not applicable to “honour” crimes or killings.

 

Laws should require judges to undergo trainings on “honour” crimes and domestic violence to dispel misperceptions they may hold. Trainings for judges should provide information on women’s human rights, violence against women, cultural sensitivities, “honour”-based violence, including its prevalence, defining characteristics, risk factors, and consequences, the needs of victims, victim experiences in court, and the impact of judicial demeanour on perpetrators and should seek to dispel harmful stereotypes about women and girls. Where specific “honour” crimes legislation or violence against women legislation has been enacted, judges should be educated about such laws.. Drafters should work closely with civil society to ensure effective civilian and independent oversight of the court system and to ensure the availability of procedures complaints about judicial misconduct to an independent investigatory body. They should also instruct judges on evaluating safety risks in cases involving “honour” in sentencing.

The United Nations Handbook for legislation on violence against women recommends that laws require the appropriate ministerial branch to consult with police, prosecutors, judges and health and education professionals to develop regulations, guidelines and other protocols for implementation of laws on "honour" crimes within a specified timeframe of the law’s entry into force (p. 20-21). Guidelines should instruct judges to treat “honour” crimes and killings as a serious crime and advise them on the limits in applying the aforementioned defenses, mitigating factors, or considerations to “honour” crimes, “honour” killings and domestic femicides. Guidelines should also address sentencing and direct judges to impose penalties that are commensurate with other crimes of violence, promote accountability for the perpetrator and promote victim safety. Guidelines should direct judges to exercise caution or even prohibit them from suspending sentences, granting bail or granting parole or probation in “honour” crimes and killings. A judicial decision on custodial sentencing and pretrial release should always prioritize the safety risk to the victim if the perpetrator is released, and guidelines should direct judges to deny release, impose conditions on the release that will ensure the victim’s safety, and/or impose a no contact order paired with a verbal warning about the consequences of breach. Guidelines should discourage, or even prohibit, judges from ordering mediation in cases involving “honour” because of the power imbalance within the “honour” context.

For example, Article 48(1) of the Council of Europe Convention on preventing and combating violence against women and domestic violence calls upon states to “prohibit mandatory alternative dispute resolution processes, including mediation and conciliation” in cases of violence against women.

Guidelines should address judicial demeanour and direct judges to listen to the victim, take her words seriously, and consider her needs. (See: Judicial Responses to Domestic Violence, Stop VAW, The Advocates for Human Rights).

In addition, laws should provide for the creation of a judicial code of conduct, or, where one already exists, its review and evaluation to ensure it respects the human rights of women and girls. (See: UN Basic Principles on the Independence of the Judiciary)  Drafters should work closely with civil society to ensure effective civilian and independent oversight of the judiciary and to ensure the availability of a complaint procedure regarding judicial misconduct to an independent investigatory body. Laws should allocate funding to an independent body to conduct court monitoring to systematically identify needed improvement in judicial responses in these cases and also increase the visibility of “honour” crimes and killings. (See: Court Monitoring Programs, Stop VAW, The Advocates for Human Rights)

Drafters should consider providing for the establishment of specialized courts to handle violence against women cases, including “honour” crimes and killings, and ensure these courts are adequately staffed, funded and have appropriate training for personnel. Such courts can help ensure perpetrator accountability and victim protection by streamlining navigation of the court system, increasing victims' access to resources, and ensuring a greater expertise of the judges and other personnel addressing these issues. (See: Specialized Domestic Violence Court Systems, Stop VAW, The Advocates for Human Rights. Also, laws should promote a stronger female presence in the judiciary.

Example: In 2008, the Liberian government created a special court with exclusive jurisdiction over rape cases and other forms of violence against women and minors, located in the capital of Monrovia.  It became fully operational in February 2009.  During Liberia’s long civil war that ended in 2003, the rape of girls and women was rampant.  A new and stringent rape law was enacted in 2005, but rape cases continued to rise, and were rarely successfully pursued or prosecuted in regular courts, and impunity persisted for perpetrators.  Some studies estimated more than 90% of Liberian women and children were exposed to some form of gender-based or sexual violence.  A UN human rights report released in 2006 found that Liberia's courts and police failed to fully prosecute perpetrators of sexual violence even after the new rape law came into effect. Another report estimated less than four cases were successfully prosecuted in the year after the law was passed, noting that the legal system was in serious need of reform and only in operation as little as 42 days a year. (Lois Bruthus, Zero tolerance for Liberian Rapists, in Sexual Violence (2006)) This challenge continues despite the establishment of the new court, known as Criminal Court ‘E’, and stepped up prosecution efforts, but more women appear to be coming forward to report rapes and other sexual crimes – rape is the number one crime reported to the Liberian police in 2009.  It is hoped the court will strengthen the judicial system to expeditiously handle criminal proceedings related to sexual violence and build the capacity of the legal profession and courts in general to prosecute these types of case. Combating Sexual And Gender Based Violence in Liberia (2008). Groups have recommended that Liberia expand this court into other areas of the country, to ensure adequate access for all Liberians.


Victim Protection and Access to Justice

Laws should grant judges the power to take measures to protect victims and witnesses from retaliation and intimidation, such as issuing protection or restraining orders in domestic violence and “honour” cases against the perpetrator(s). Laws should criminalize a violation of these orders and authorize judges to impose an immediate and direct criminal penalty for any such violation. Laws should facilitate information sharing among courts, police, prosecutors and other criminal justice actors through a registration system of these orders.

Laws should require courts to evaluate procedures and structures to enhance victim and witness safety and minimize perpetrators’ ability to intimidate or harass victims or witnesses at the court through measures such as:

  • Establishing a separate waiting area for the victim and witnesses potentially at risk of retaliatory violence;
  • Delaying the perpetrator’s departure so he cannot follow or attack the victim;
  • Send a court personnel to accompany the victim to her transport;
  • Use a metal detector or search procedures for weapons or harmful substances;
  • Requiring issuance of a judicial order to notify the victim and witnesses potentially at risk of retaliatory violence upon the perpetrator’s release from prison;
  • GPS monitoring.

(See the section on Domestic Violence)

Courts should take steps to increase victims’ access to justice, such as offering emergency hours, multiple locations such as police units for filing a complaint, authorized and trained interpreter services, disability access, and template forms and checklists. Courts should establish systems that enable a victim to testify in court proceedings in a way that protects her privacy and confidentiality, ensures her safety during and after proceedings, and prevents re-victimization. Victim refusal to testify should not be considered an offense. Courts should also make available to victims of “honour” crimes trained advocates who can provide victims with advocacy and support services throughout the proceedings and assist victims in navigating the criminal justice process. (See: UN Resolution Adopted by the General Assembly, “Strengthening Crime Prevention and Criminal Justice Responses to Violence against Women,” U.N. Doc. A/Res/65/228, 2011, Annex: Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice, Art. VI)

Also, drafters should “ensure that all victims of violence are able to institute proceedings as well as, where appropriate, public or private organisations with legal personality acting in their defence, either together with the victims or on their behalf” in cases of "honour" crimes and killings. (See: Council of Europe, Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against violence, 2002, Article 38) Legislation should provide for a registration or other system for organizations wishing to intervene on behalf of victims of honour killings to acquire the necessary legal standing. While Article 237(1) of the Turkish Criminal Procedure Code provides that victims, real persons and legal entities, that have been damaged by the crime, are entitled to intervene in the public prosecution during the prosecution phase, this has not been the case in Turkey. In cases where women’s NGOs have filed an application on behalf of a victim of "honour" crimes or killings to intervene in the public prosecution, the court has refused their application on the grounds that they are not directly affected by the crime.

Example: While Article 237(1) of the Turkish Criminal Procedure Code provides that “the victims, real persons and legal entities, who have been damaged by the crime are entitled to intervene in the public prosecution during the prosecution phase,” this has not been the case in Turkey. In cases in Turkey where women’s NGOs have filed an application on behalf of a victim of an “honour” killings to intervene in the public prosecution, the court has refused their application on the grounds that they are not directly affected by the crime.