María Eugenia Morales de Sierra v. Guatemala, Case 11.625, Report No. 4/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 929 (2000).
REPORT
Nº 4/01*
CASE 11.625
MARÍA EUGENIA MORALES DE SIERRA
GUATEMALA
January 19, 2001
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 Articles 109, 110, 113, 114, 115, 131, 133, 255,
and 317 of the Civil Code of the Republic of Guatemala (hereinafter "Civil
Code"), which define the role of each spouse within the institution
of marriage, create distinctions between men and women which are discriminatory
and violate Articles 1(1), 2, 17 and 24 of the American Convention on Human
Rights (hereinafter "American Convention").
2.
The petitioners, the Center for Justice and International Law and
María Eugenia Morales de Sierra, 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. In the
case of a controversy with respect to the foregoing, a judge shall decide.
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. In response,
the Court 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.
4. The Commission indicated to the petitioners the need to identify concrete victims, as this was a requirement under its case system. On April 23, 1997, the petitioners submitted their written presentation of María Eugenia Morales de Sierra as the concrete victim in the case.
II.
PROCESSING BY THE COMMISSION
5.
Pursuant to the filing of the petition, on March 14, 1995 the petitioners
sent the Commission a copy of the sentence issued by the Court of Constitutionality
in Case 84-92. The Commission
opened Case 11.625 on May 6, 1996, and the pertinent parts of the petition
were transmitted to the Republic of Guatemala (hereinafter “State”
or “Guatemalan State”) with a request for information in response
within 90 days.
6.
The State requested an extension of time to respond by means of a
note of August 6, 1996. In
a note of August 7, 1996, the Commission indicated that an extension of
30 days had been granted.
7.
The response of the State, dated September 10, 1996, was received
and the pertinent parts thereof were transmitted to the petitioners for
their observations.
8.
Pursuant to the petitioners’ request, the Commission granted
a hearing to address the admissibility of Case 11.625 during its 93rd regular
period of sessions. At the
conclusion of that hearing, held on October 10, 1996 at the Commission’s
headquarters, the parties agreed that the Commission should review the matter
during its next period of sessions to assess any developments and evaluate
the feasibility of resolving the case through the procedure of friendly
settlement initiated.
9.
Additional information provided by the petitioners during that hearing
was formally transmitted to the State for its observations by means of a
note of October 15, 1996.
10.
On December 13, 1996, the State transmitted a report to the Commission
on pending efforts in favor of reforming the Civil Code, as well as 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.
11.
Pursuant to the January 24, 1997 request of the petitioners, the
Commission held a hearing on this case at its headquarters on March 5, 1997,
during its 95th regular period of sessions. 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.
The pertinent parts of this communication were transmitted to the
State for its observations by means of a note of June 9, 1997.
13.
On July 10, 1997, the Government provided a brief submission of additional
information which was transmitted to the petitioners for their observations
by means of a note dated July 14, 1997.
14.
On July 28, 1997, the petitioners provided the Commission with documentation
complementing their April 23, 1997 submission.
The documentation was transmitted to the Government of Guatemala
for its observations on August 14, 1997.
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, at its headquarters, during its 97th period of sessions.
Pursuant to Commission inquiry, 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
thoroughly explored, but had failed to provide any fruitful results.
16.
On March 6, 1998, the Commission approved Report 28/98, declaring
the present case admissible. That
report was transmitted to both parties by means of notes of April 2, 1998.[1]
17.
Citing ongoing discussions concerning reforms to the relevant articles
of the Civil Code, on May 5, 1998, the State requested an extension of time
to provide information relevant to Report 28/98.
The Commission granted an extension until June 22, 1998, and informed
the petitioners that this had been done.
18.
The State filed a brief submission, dated June 23, 1998, indicating
that it remained disposed to enter into friendly settlement negotiations,
and requesting that, if this were accepted by the petitioners, the Commission
suspend its processing of the matter.
This filing was transmitted to the petitioners for any observations
by means of a note of July 16, 1998.
19. The petitioners filed a summary of their arguments concerning the merits of the claims raised by means of a note dated August 10, 1998. The pertinent parts thereof were transmitted to the State for its observations on August 27, 1998.
III.
THE POSITIONS OF THE PARTIES
The Position of the Petitioners
20.
From the initiation of this matter, the petitioners have maintained
that the challenged articles of the Civil Code of Guatemala establish distinctions
between men and women which are discriminatory and therefore violate the
terms of the American Convention.
Pursuant to their designation of María Eugenia Morales de Sierra
as the named victim, the petitioners asserted that these articles place
her in a position of juridical subordination to her husband, and prevent
her from exercising control over important aspects of her life.
They indicate that the cited provisions discriminate against the
victim in a manner which is immediate, direct and continuing, in violation
of the rights established in Articles 1(1), 2, 17, and 24 of the American
Convention. Pursuant to their
arguments submitted after Commission’s adoption of Report 28/98 admitting
the case, they further allege that this discrimination infringes upon the
private and family life of the victim in contravention of Article 11(2)
of the Convention.
21. The
petitioners contend that Articles 109, 110, 113, 114, 115, 131, 133, 255
and 317 of the Civil Code create distinctions between married women, single
women and married men, with the result that María Eugenia Morales is prohibited
from exercising rights to which those other groups are entitled.
Citing international human rights jurisprudence, including that of
the Inter-American Court, they assert that, while a difference in treatment
is not necessarily discriminatory, any such distinction must be objectively
justified in the pursuit of a legitimate end, and the means employed must
be proportionate to that end. The
distinctions at issue in this case, they maintain, are illegitimate and
unjustified.
22. The
petitioners allege that, as a married woman living in Guatemala, a mother,
a working professional, and the owner of property acquired jointly with
her husband during their marriage, Ms. Morales de Sierra is subject to the
immediate effects of this legal regime by virtue of her sex and civil status,
and the mere fact that the challenged provisions are in force.
By virtue of Article 109, representation of the marital unit corresponds
to the husband, and by virtue of Article 131, he administers the marital
property. Articles 115 and 133 provide respective exceptions to these
general rules only where the husband is essentially absent.
By virtue of Article 255, the husband represents and administers
the property of minors or incapacitated persons.
A wife, in contrast, may be excused from exercising custody over
such persons by virtue of her sex and the terms of Article 317.
These articles prevent Ms. Morales de Sierra from legally representing
her own interests and those of her family, and require that she depend on
her husband to do so.
23. Further,
her right to work is conditioned on what the petitioners characterize as
the anachronistic legislative division of duties within marriage, with Article
110 providing that care of the home and children corresponds to the wife
and mother, and Articles 113 and 114 providing that a wife may pursue activities
outside the home only to the extent that these do not prejudice her role
within it. Although the victim’s
husband has never opposed her exercise of her profession, by law he could
do so at any moment, and in the case of a dispute, a judge would decide.
The petitioners refer to the dicta of the Inter-American Court in
Advisory Opinion OC-14 in submitting that a norm which deprives a group
within a population of certain rights, for example on the basis of a factor
such as race or sex, automatically injures all the members of the group
thus affected.
24. The
petitioners dispute the finding of the Court of Constitutionality of Guatemala
that the challenged provisions are 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.
They assert that the means employed are disproportionate and the
resulting discrimination in treatment is unreasonable.
These provisions, they argue, are contrary to the principle of equality
between the spouses, and nullify the juridical capacity of a married 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.
Further, they argue that the manner in which the provisions impede
the ability of the victim to exercise her rights, in limiting, for example,
her right to work or to dispose of her property, constitutes an unjustified
interference in her private life in contravention of Article 11(2).
25. Finally,
the petitioners note that the challenged provisions contravene Articles
15 and 16 of the Convention on the Elimination of All Forms of Discrimination
against Women, provisions to which the Commission may refer in formulating
its decision. They further note that the recognized relationship between
inequality in gender relations and the prevalence of violence against women
may also serve to guide the Commission’s findings.
The Position of the State
26.
The State does not controvert the substance of the claims raised
by the petitioners. Rather,
it maintains that it is continuing to take steps to modify the challenged
articles of the Civil Code to bring them into conformity with the norms
of the American Convention and the Convention on the Elimination of All
Forms of Discrimination against Women.
In proceedings before the Commission prior to the adoption of Report
28/98, the State acknowledged that the cited provisions are “out of
date” and give rise to concerns with respect to the obligation of nondiscrimination.
It further noted that efforts in favor of reform of the articles
had been based on the fact that they contravene Article 46 of the Constitution,
as well as provisions of the American Convention and the Convention on the
Elimination of All Forms of Discrimination Against Women.
The Government emphasized that it had demonstrated its interest in
derogating or reforming certain articles of the Civil Code, both through
supporting initiatives in favor of legislative changes, and through a constitutional
challenge to Articles 113 and 114 presented by the Attorney General in 1996.
27.
It was principally on the basis of pending initiatives in favor of
reform that the State had challenged the admissibility of the case, contending
that domestic mechanisms continued to offer available and effective relief
for the situation denounced, and that the petitioners had accordingly failed
to satisfy the requirement of exhausting internal remedies.[2]
Following the adoption of the Commission’s report on admissibility,
the State indicated that the Congress was continuing to pursue the objective
of modifying certain articles of the Civil Code in order to bring them into
conformity with the Convention on the Elimination of All Forms of Discrimination
against Women. As of the State’s
June 22, 1998 submission, those reforms were still under discussion in the
Congress. The State maintains
that the measures undertaken in favor of reform of the challenged articles
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.
IV.
CONSIDERATIONS REGARDING THE MERITS
Initial considerations
28.
At the outset, it is pertinent to note that, notwithstanding the
presentation of various draft reform projects before the Guatemalan congressional
commissions charged with pronouncing on such initiatives, as of the date
of the present report, the relevant articles of the Civil Code continue
in force as the law of the Republic of Guatemala. In brief, Article 109
provides that representation of the marital union corresponds to the husband,
although both spouses have equal authority within the home.[3]
Article 110 stipulates that the husband owes certain duties of protection
and assistance to the wife, while the latter has the special right and duty
to care for minor children and the home.[4]
Article 113 sets forth that the wife may exercise a profession or
pursue other responsibilities outside the home only insofar as this does
not prejudice her responsibilities within it.[5]
Article 114 establishes that the husband may oppose the pursuit of
his wife’s activities outside the home where he provides adequately
for maintenance of the home and has “sufficiently justified reasons.”
Where necessary, a judge shall resolve disputes in this regard.[6]
Article 115 states that representation of the marital union may be
exercised by the wife where the husband fails to do so, particularly where
he abandons the home, is imprisoned, or is otherwise absent.[7]
Article 131 states that the husband shall administer the marital
property.[8]
Article 133 establishes exceptions to this rule on the same basis
set forth in Article 115.[9]
Article 255 states that, where husband and wife exercise parental
authority over minor children, the husband shall represent the latter and
administer their goods.[10]
Article 317 establishes that specific classes of persons may be excused
from exercising certain forms of custody, including, inter
alia, women.[11]
29.
The Commission received information about two initiatives in favor
of reform of those articles during the on-site visit it carried out in Guatemala
from August 6 to 11, 1998, but has yet to receive information as to corresponding
action by the plenary of the Congress.
Nor has it received information as to the outcome, if any, of the
constitutional challenge against Articles 113 and 114 which was presented
by the Attorney General before the Court of Constitutionality in 1996.
While the State appears to link the continuation of efforts in favor
of reform to its willingness to explore the option of friendly settlement,
the petitioners have indicated that they consider the possibility of entering
into friendly settlement negotiations to have been explored and exhausted.
30.
Paragraphs 28 and 29
refer to a general situation which the Commission examined during its recent
on-site visit to Guatemala, and to which it made reference in its Report
on the Situation of Women in the Americas.
(See references, infra.) In the concrete
case of María Eugenia Morales de Sierra, the Commission explicitly addressed
its competence ratione personae
in its Report 28/98 on admissibility:
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, IACHR, 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.
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.[12]
The right of María Eugenia Morales de Sierra
to equal protection of and
before the law
31.
The right to equal protection of the law set forth in Article 24
of the American Convention requires that national legislation accord its
protections without discrimination.
Differences in treatment in otherwise similar circumstances are not
necessarily discriminatory.[13]
A distinction which is based on “reasonable and objective criteria”
may serve a legitimate state interest in conformity with the terms of Article
24.[14]
It may, in fact, be required to achieve justice or to protect persons
requiring the application of special measures.[15]
A distinction based on reasonable and objective criteria (1) pursues
a legitimate aim and (2) employs means which are proportional to the end
sought.[16]
32.
Pursuant to the status of Guatemala as a State Party to the Convention
on the Elimination of All Forms of Discrimination against Women,[17]
and the terms of Article 29 of the American Convention,[18]
it must be noted that Article 15.1 of the former requires that States Parties
shall ensure that women are accorded equality with men before the law.
Article 15(2) specifies that women must be accorded the same legal
capacity as men in civil matters, particularly with respect to concluding
contracts and administering property, and the same opportunities to exercise
that capacity. Discrimination
against women as defined in this Convention is:
any
distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field.
This definition, responding as it does to the specific
causes and consequences of gender discrimination, covers forms of systemic
disadvantage affecting women that prior standards may not have contemplated.
33.
In the proceedings before the Commission, the State has not controverted
that Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 of the Civil
Code create distinctions between married women and married men which are
based on sex. In fact, it has
acknowledged that aspects of the challenged provisions are inconsistent
with the equality and non-discrimination provisions of the Constitution,
the American Convention and the Convention on the Elimination of All Forms
of Discrimination against Women.
34.
Notwithstanding that recognition, however, the June 24, 1993 decision
of the Court of Constitutionality on the validity of the cited articles
remains the authoritative application and interpretation of national law.
That decision bases itself on the fact that the Constitution establishes
that men and women are entitled to equality of opportunities and responsibilities,
whatever their civil status, as well as to equality of rights within marriage.
It notes that certain human rights treaties, including the Convention
on the Elimination of All Forms of Discrimination against Women, form part
of internal law. In its analysis
of Article 109, the Court indicates that the legal attribution of representation
of the marital unit to the husband is justified by reason of “certainty
and juridical security.” This
does not give rise to discrimination against the wife, the Court continues,
as she is free to dispose of her own goods, and both spouses are attributed
with equal authority within the home. The Court validates Article 115 on
the same basis. With respect to Article 131, which vests authority in the husband
to administer jointly held property, the Court recalls that, pursuant to
Article 109, both spouses shall decide on matters concerning the family
economy, including whether property shall be held separately or jointly.
In the absence of such a decision, reasons of certainty and juridical
security justify the application of Article 131.
The Court finds Article 133 valid on the same basis.
35.
In analyzing Article 110, which attributes responsibility for sustaining
the home to the husband, and responsibility for caring for minor children
and the home to the wife, the Court emphasizes the mutual support spouses
must provide each other and the need to protect the marital home and any
children. The division of roles
is not aimed at discriminating, the Court finds, but at protecting the wife
in her role as mother, and at protecting the children.
The woman is not prejudiced; rather, the provisions enhance her authority.
In analyzing Articles 113 and 114, which permit a woman to pursue
work outside the home to the extent this does not conflict with her duties
within it, the Court states that these contain no prohibition on the rights
of the woman. As no right is absolute, the Articles contain limitations aimed
primarily at protecting the children of the union. Consistent with the duties of each spouse, the husband may
oppose his wife’s activities outside the home only if he offers adequate
sustenance and has justified reasons.
The disposition that a judge shall decide in the event of a disagreement
protects against the possibility of arbitrary action, as it ensures that
the husband’s reasons refer to the legally defined role of the wife
and the protection of the children.
36.
The Commission observes that the guarantees of equality and non-discrimination
underpinning the American Convention and American Declaration of the Rights
and Duties of Man reflect essential bases for the very concept of human
rights. As the Inter-American
Court has stated, these principles “are inherent in the idea of the
oneness in dignity and worth of all human beings.”[19]
Statutory distinctions based on status criteria, such as, for example,
race or sex, therefore necessarily give rise to heightened scrutiny.
What the European Court and Commission have stated is also true for
the Americas, that as “the advancement of the equality of the sexes
is today a major goal,” … “very weighty reasons would have
to be put forward” to justify a distinction based solely on the ground
of sex.[20]
37.
The gender-based distinctions under study have been upheld as a matter
of domestic law essentially on the basis of the need for certainty and juridical
security, the need to protect the marital home and children, respect for
traditional Guatemalan values, and in certain cases, the need to protect
women in their capacity as wives and mothers.
However, the Court of Constitutionality made no effort to probe the
validity of these assertions or to weigh alternative positions, and the
Commission is not persuaded that the distinctions cited are even consistent
with the aims articulated. For
example, the fact that Article 109 excludes a married woman from representing
the marital union, except in extreme circumstances, neither contributes
to the orderly administration of justice, nor does it favor her protection
or that of the home or children. To
the contrary, it deprives a married woman of the legal capacity necessary
to invoke the judicial protection which the orderly administration of justice
and the American Convention require be made available to every person.
38.
By requiring married women to depend on their husbands to represent
the union–in this case María Eugenia Morales de Sierra–the terms
of the Civil Code mandate a system in which the ability of approximately
half the married population to act on a range of essential matters is subordinated
to the will of the other half. The
overarching effect of the challenged provisions is to deny married women
legal autonomy.[21]
The fact that the Civil Code deprives María
Eugenia Morales de Sierra, as a married
woman, of legal capacities to which other Guatemalans are entitled leaves
her rights vulnerable to violation without recourse.[22]
39.
In the instant case the Commission finds that the gender-based distinctions
established in the challenged articles cannot be justified, and contravene
the rights of María Eugenia Morales de Sierra set forth in Article 24. These
restrictions are of immediate effect, arising simply by virtue of the fact
that the cited provisions are in force.
As a married woman, she is denied protections on the basis of her
sex which married men and other Guatemalans are accorded.
The provisions she challenges restrict, inter
alia, her legal capacity, her access to resources, her ability to enter
into certain kinds of contracts (relating, for example, to property held
jointly with her husband), to administer such property, and to invoke administrative
or judicial recourse. They
have the further effect of reinforcing systemic disadvantages which impede
the ability of the victim to exercise a host of other rights and freedoms.
The case of María Eugenia Morales de Sierra and
rights of the family: equality of rights and balancing of responsibilities in marriage
40.
Article 17(1) of the American Convention establishes rights pertaining
to family life pursuant to the disposition that, as “the natural and
fundamental group unit of society,” the family “is entitled to
protection by society and the state.”
The right to marry and found a family is subject to certain conditions
of national law, although the limitations thereby introduced must not be
so restrictive “that the very essence of the right is impaired.”[23] Article 17(4), which derives
from Article 16(1) of the Universal Declaration of Human Rights, specifies
that “States Parties shall take appropriate steps to ensure the equality
of rights and the adequate balancing of responsibilities” in marriage
and its dissolution. In this
regard, Article 17(4) is the “concrete application” of the general
principle of equal protection and non-discrimination of Article 24 to marriage.[24]
41.
In the case of Guatemala and other States Parties, the Convention
on the Elimination of All Forms of Discrimination against Women specifies
steps that must be taken to ensure substantive equality in family law and
family relations. Pursuant
to Article 16 of that Convention, States Parties are required to ensure,
inter alia, “on the basis of equality between men and women,”
the same rights and duties with respect to the exercise of custody or other
types of guardianship of children; the “same personal rights …
to choose a family name, a profession and an occupation;” and the same
rights with respect to the ownership, administration and disposition of
property.
42.
The petitioners have indicated that the cited articles of the Civil
Code impede the ability of wife and husband to equally exercise their rights
and fulfill their responsibilities in marriage.
María Eugenia Morales
de Sierra alleges that, although her
family life is based on the principle of reciprocal respect, the fact that
the law vests exclusive authority in her husband to represent the marital
union and their minor child 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. While the victim,
as a parent, has the right and duty to protect the best interests of her
minor child, the law strips her of the legal capacity she requires to do
that.
43.
As discussed above, the challenged articles of the Civil Code establish
distinct roles for each spouse. The
husband is responsible for sustaining the home financially, and the wife
is responsible for caring for the home and children (Article 110). The wife may work outside the home only to the extent this
does not prejudice her legally defined role within it (Article 113), in
which case her husband has the right to oppose such activities (Article
114). The husband represents
the marital union (Article 109), controls jointly held property (Article
131), represents the minor children, and administers their property (Article
255). The Court of Constitutionality characterized the State’s regulation
of matrimony as providing certainty and juridical security to each spouse,
and defended the disposition of roles on the basis that the norms set forth
preferences which are not discriminatory, but protective.
44.
The Commission finds that, far from ensuring the “equality of
rights and adequate balancing of responsibilities” within marriage,
the cited provisions institutionalize imbalances in the rights and duties
of the spouses. While Article
110 suggests a division of labor between a husband’s financial responsibilities
and the wife’s domestic responsibilities, it must be noted that, pursuant
to Article 111, a wife with a separate source of income is required to contribute
to the maintenance of the household, or to fully support it if her husband
is unable to do so. The fact
that the law vests a series of legal capacities exclusively in the husband
establishes a situation of de jure
dependency for the wife and creates an insurmountable disequilibrium in
the spousal authority within the marriage.
Moreover, the dispositions of the Civil Code apply stereotyped notions
of the roles of women and men which perpetuate de
facto discrimination against women in the family sphere, and which have
the further effect of impeding the ability of men to fully develop their
roles within the marriage and family.
The articles at issue create imbalances in family life, inhibiting
the role of men with respect to the home and children, and in that sense
depriving children of the full and equal attention of both parents.
“A stable family is one which is based on principles of equity,
justice and individual fulfillment for each member.”[25]
45. In the case of Ms. Morales de Sierra, the Commission concludes that the challenged articles controvert the duty of the State to protect the family by mandating a regime which prevents the victim from exercising her rights and responsibilities within marriage on an equal footing with her spouse. The State has failed to take steps to ensure the equality of rights and balancing of responsibilities within marriage. Accordingly, in this case, the marital regime in effect is incompatible with the terms of Article 17(4) of the American Convention, read with reference to the requirements of Article 16(1) of the Convention on the Elimination of All Forms of Discrimination Against Women.
The right to privacy and the present case
46.
Article 11(1) of the American Convention sets forth that every person
has the right to have his or her honor and dignity recognized.
Pursuant to Article 11(2): “No one may be the object of arbitrary
or abusive interference with his private life, his family, his home, or
his correspondence, or of unlawful attacks on his honor or reputation.”
Article 11(3) provides that this right is to be protected by law.
The requirements of Article 11 encompass a range of factors pertaining
to the dignity of the individual, including, for example, the ability to
pursue the development of one’s personality and aspirations, determine
one’s identity, and define one’s personal relationships.[26]
47.
A principal objective of Article 11 is to protect individuals from
arbitrary action by State authorities which infringes in the private sphere.[27]
Of course, where State regulation of matters within that sphere is
necessary to protect the rights of others, it may not only be justified,
but required. The guarantee
against arbitrariness is intended to ensure that any such regulation (or
other action) comports with the norms and objectives of the Convention,
and is reasonable under the circumstances.[28]
48.
The petitioners claim that the cited articles of the Civil Code,
particularly as they restrict María Eugenia Morales de Sierra’s ability
to exercise her profession and dispose of her property, constitute an arbitrary
interference with her right to have her private life respected. In the proceedings generally, the victim has indicated that
the cited provisions prevent her from exercising authority over basic aspects
of her day-to-day life concerning her marriage, home, children and property.
While she and her husband organize their home on the basis of mutual
respect, her status in the family, community and society is conditioned
by the attribution of authority to her husband to represent the marital
union and their minor child. While their jointly held property has been obtained through
mutual sacrifice, the law prevents her from administering it.
Further, while her husband has never opposed her pursuit of her profession,
the law authorizes him to do so at any moment.
She notes that, although there are increasing opportunities for women
to more fully incorporate themselves into the processes of national life
and development, married women such as herself are continuously impeded
by the fact that the law does not recognize them as having legal status
equivalent to that enjoyed by other citizens.
49.
The provisions in question have been upheld as a matter of domestic
law on the basis that they serve to protect the family, in particular the
children. However, no link
has been shown between the conditioning of the right of married women to
work on spousal approval, or the subordination of a wife’s control
of jointly held property to that of her husband and the effective protection
of the family or children. In mandating these and other forms of subordination of a wife’s
role, the State deprives married women of their autonomy to select and pursue
options for their personal development and support. This legislation, most specifically in the way it makes a woman’s
right to work dependent on the consent of her husband, denies women the
equal right to seek employment and benefit from the increased self-determination
this affords.
50.
Whether or not the husband of the victim–in this case María
Eugenia Morales de Sierra--opposes her exercise of her profession[29] is not decisive in this
regard. The analysis turns
on the fact that the legislation infringes on the victim’s personal
sphere in a manner which cannot be justified.
The mere fact that the husband of María Eugenia Morales de Sierra
may oppose that she works, while she does not have the right to oppose this
in his case, implies a discrimination.
This discrimination has consequences from the point of view of her
position in Guatemalan society, and reinforces cultural habits with respect
to which the Commission has commented in its Report
on the Status of Women in the Americas.[30]
As a married woman, the law does not accord her the same rights or
recognition as other citizens, and she cannot exercise the same freedoms
they do in pursuing their aspirations.
This situation has a harmful effect on public opinion in Guatemala,
and on María Eugenia Morales de Sierra’s position and status within
her family, community and society.
The obligation of the State to respect and guarantee the rights of María
Eugenia Morales de Sierra without discrimination, and to adopt domestic
legal measures
51.
As is demonstrated in the foregoing analysis, the State of Guatemala
has failed to fulfill its obligations under Article 1(1) of the American
Convention to “respect the rights and freedoms recognized [t]herein
and to ensure to all persons subject to [its] jurisdiction the free and
full exercise of those rights and freedoms, without any discrimination for
reasons of … [inter alia]
sex….” “Any
impairment of those rights which can be attributed under the rules of international
law to the action or omission of any public authority constitutes an act
imputable to the State, which assumes responsibility in the terms provided
by the Convention.”[31]
Article 1 imposes both negative and positive obligations on the State
in pursuing the objective of guaranteeing rights which are practical and
effective.
52.
Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 have a continuous
and direct effect on the victim in this case, in contravening her right
to equal protection and to be free from discrimination, in failing to provide
protections to ensure that her rights and responsibilities in marriage are
equal to and balanced with those of her spouse, and in failing to uphold
her right to respect for her dignity and private life. A person who enjoys
the equal protection of and recognition before the law
is empowered to act to ensure other rights in the face of public
or private acts. Conversely,
gender-discrimination operates to impair or nullify the ability of women
to freely and fully exercise their rights, and gives rise to an array of
consequences.[32]
The inter-American system has recognized, for example, that gender
violence is “a manifestation of the historically unequal power relations
between women and men.”[33]
“Traditional attitudes by which women are regarded as subordinate to
men or as having stereotyped roles perpetuate widespread practices involving
violence or coercion, such as family violence and abuse….”[34]
De jure or de
facto economic subordination, in turn, “forces many women to stay
in violent relationships.”[35]
53.
Recognizing that the defense and protection of human rights necessarily
rests first and foremost with the domestic system, Article 2 of the Convention
provides that States Parties shall adopt the legislative and other measures
necessary to give effect to any right or freedom not already ensured as
a matter of domestic law and practice.
In the instant case, the State has failed to take the legislative
action necessary to modify, repeal or definitively leave without effect
Articles 109, 110, 113, 114, 115, 131, 133, 255 and 317 which discriminate
against the victim and other married women in violation of Articles 24,
17 and 11 of the American Convention.
When the articles at issue were challenged as unconstitutional, the
State, acting through its Court of Constitutionality, failed to respond
in conformity with the norms of the American Convention.[36]
Although relevant national and international authorities have identified
these articles as incompatible with the State’s obligations under national
and international law, they remain the law of the land.[37]
54.
The obligation to respect and ensure the rights of the Convention
requires the adoption of all the means necessary to assure María Eugenia
Morales de Sierra the enjoyment of rights which are effective.
The failure of the State to honor the obligations set forth in Articles
1 and 2 of the Convention generates liability, pursuant to the principles
of international responsibility, for all acts, public and private, committed
pursuant to the discrimination effectuated against the victim in violation
of the rights recognized in the American Convention and other applicable
treaties. Pursuant to those
same principles, the State of Guatemala is obliged to repair the consequences
of the violations established, including through measures to restore the
rights of María Eugenia Morales de Sierra to the full extent possible, and
to provide a just indemnity for the harm she has sustained.
Measures of reparation are meant to provide a victim with an effective
remedy, with the essential objective of providing full restitution for the
injury suffered.[38]
V. ACTIONS
SUBSEQUENT TO REPORT Nº 86/98
55.
Pursuant to the terms of Article 50 of the Convention, the Commission
adopted Report Nº 86/98 on October 1, 1998.
That Report set forth the Commission’s analysis (contained in
sections I – V, supra) and
finding that the State of Guatemala was responsible for
having violated the rights of María Eugenia Morales de Sierra to equal protection,
respect for family life, and respect for private life established in Articles
24, 17 and 11 of the American Convention on Human Rights.
The Commission accordingly found the State responsible for having
failed to uphold its Article 1 obligation to respect and ensure those rights
under the Convention, as well as its Article 2 obligation to adopt the legislative
and other measures necessary to give effect to those rights of the victim.
Further, the Commission indicated that the conduct at issue also
constituted violations of the obligations set forth in the Convention on
the Elimination of All Forms of Discrimination against Women, most specifically,
in Articles 15 and 16. Consequently,
the Commission recommended (1) that the State take the legislative and other
measures necessary to amend, repeal or
definitively leave without effect Articles
109, 110, 113, 114, 115, 131,
133, 255 and 317 of the Civil Code so as to bring national law into conformity
with the norms of the American Convention and give full effect to the rights
and freedoms guaranteed to María Eugenia Morales de Sierra therein; and,
(2) that it redress and adequately
compensate María Eugenia Morales de Sierra for the violations established.
56.
The Report was transmitted to the State of Guatemala on November
6, 1998. Pursuant to the terms
set forth, the State was given two months from the date of that transmission
to comply with the recommendations issued and report to the Commission on
the measures taken for that purpose.
By a note of the same date, the Commission informed the petitioners
that a report on the case had been adopted pursuant to the terms of Article
50 and transmitted to the State. On
November 24, 1998, the Commission transmitted a communication to the State
attaching a fe de errata to correct a drafting error in one paragraph
of that Report.
57.
The State transmitted its response to Report 86/98 by note dated
December 7, 1998. In that response,
the State emphasized its acceptance of the need to address certain norms
in the Civil Code that were out of date and discriminatory toward married
women. However, it reiterated
its position that the victim had not been personally prejudiced by the challenged
norms, as her family life and professional career had not been harmed.
In line with its recognition of the need to reform the provisions
as a general matter, the State informed the Commission that the Congress
had on November 19, 1998 approved Decree Number 80-98, enacting reforms
to the Civil Code. The attached
text reflected reforms to Articles 109, 110, 115, 131 and 255, and the derogation
of Articles 114 and 133. The
State further informed the Commission that the reforms would enter into
force pursuant to their sanction, promulgation and publication.
58.
On December 28, 1998, the Commission addressed the State to request
that it supply information as soon as possible on the time required to accomplish
the actions necessary for the reforms to enter into force.
By a note of January 12, 1999, the State reported that the text of
Decree 80-98 had been published in the Diario de Centro América on
December 23, 1998. The modifications
had entered into force eight days after publication. The State indicated that it considered that it had fully complied
with the recommendations issued by the Commission in Report 86/98.
59.
Having analyzed the reforms indicated, and having noted that they
addressed seven of the nine provisions challenged by the petitioner, the
Commission addressed the State on January 25, 1999, to request information
as to any measures taken with respect to Articles 113 and 317, which were
not addressed in Decree 80-98, and to ask for additional information about
the language of Article 131 as published, which appeared to be inconsistent
with the explanation of the reform.[39]
In view of the fact that the three month period provided in Article
51 was set to expire on February 6, 1999, the Commission requested a response
within 7 days, and indicated that a request for an extension could only
be considered if accompanied by an express manifestation by the State that
this would suspend that time period.
60.
By a note of that same date, the Commission transmitted a copy of
the text of Decree 80-98 to the petitioners with a request for observations
as to whether the reforms set forth satisfied in whole or in part the claims
presented. A response was requested
within 7 days.
61.
On January 25, 1999, the petitioners submitted a request that the
Commission schedule a hearing on this matter during its next period of sessions.
The Commission acknowledged receipt on January 29, and requested
information as to the proposed purpose of such a hearing.
62.
On February 1, 1999, the petitioners presented a communication setting
forth their view as to why the reforms did not completely resolve the discrimination
denounced or fully repair the violations suffered by the victim.
63.
On February 4, 1999, the State presented information indicating that
no measures had been taken with respect to Articles 113 and 317, and reiterating
the reforms reported with respect to Article 131.
64.
By a note of February 5, 1999, the State requested an extension of
60 days to present additional information concerning the case, with the
express understanding that this would suspend the three-month time period
provided in Article 51 of the Convention.
That request was accepted, subject to that understanding, by a note
of the same date, which indicated that the extension would expire on April
7, 1999.
65.
By a note of that same date, the Commission informed the parties
that it had granted a hearing concerning the case, scheduled for March 5,
1999. On February 17, 1999,
the parties were informed that the date had been changed to March 4, 1999.
66.
During that hearing the petitioners expressed their view that the
State had yet to recognize a violation in the particular case, had made
no measures of reparation, and had not addressed Articles 113 and 317, which
formed an important part of their complaint.
They also pointed out that the reformed text of Article 131 was unclear.
Further, they indicated that what was required with respect to Articles
109 and 131 was that decisions on the representation of the marital union
and marital property be taken jointly, rather than jointly or separately
as the reforms provide.
67.
The State, for its part, presented arguments as to why it considered
that Article 317 did not require reform.
Its position was that the Article permits women to request to be
excused from exercising certain forms of custody; accordingly, it provides
a privilege that can be invoked by choice and imposes no discrimination.
The State indicated that a draft reform to derogate Article 113 had
been elaborated in February, but that additional time would be required
to work toward its adoption. With
respect to Article 131, the State indicated that there had been a mistake
in the transmission of the text when published, and that this would be corrected.
The State indicated that it wished to have an additional extension
of one year to accomplish the measures indicated, with the understanding
that this suspended the period referred to in Article 51 of the Convention.
68.
On March 10 and 11, 1999, the petitioners submitted communications
as to why they considered that an additional extension should not be granted.
They indicated that the State had indicated no intention to derogate
Article 317, or to amend Articles 109 or 131 to require joint decision making,
and that there were no guarantees that Article 113 would in fact be derogated.
69.
Pursuant to that hearing, by note of March 24, 1999, the State requested
an additional one-year extension, again, with the express understanding
that this interrupted the running of the three-month time period provided
in Article 51. That communication
was transmitted to the petitioners for their information on March 31, 1999. In the interim, on March 29, 1999, the petitioners had submitted
an additional communication on these points, asking that the case be placed
before the Inter-American Court of Human Rights without delay, or, if an
extension were granted, that it be limited to three months.
70.
On April 7, 1999, the Commission granted the requested extension
of one year, with the understanding that this suspended the period referred
to in Article 51, and under the condition that the State present significant
advances toward full compliance with the recommendations in meetings to
be convoked by the Commission during its next two periods of sessions.
71.
By notes of April 7 and 8, 1999, the Commission convened the parties
for a working meeting on May 7, 1999, during its 103 period of sessions,
to discuss the status of the recommendations issued in Report 86/98 and
the measures of compliance that remained pending, particularly those concerning
Articles 113, 131 and 317. By
means of a note of April 15, 1999, the Commission informed the petitioners
of the extension and the express conditions under which it had been granted.
72.
As a follow-up to the May 7, 1999 meeting, the Commission addressed
the State on August 23, 1999, with a request that it supply information
within 30 days on the measures adopted to effectuate the recommendations
issued in Report 86/98. On
August 31, 1999, the Commission convened the parties for a hearing to be
held on October 5, 1999, during its 104º period of sessions.
73.
On September 2, 1999, the State informed the Commission that it had
complied with the recommendations issued in Report 86/98 through the adoption
of Decree 29-99, reforming Article 131 and derogating Article 113.
A copy of the decree was attached, with the information that it had
entered into force as of the date of the letter.
Given this compliance, the State asked that the case be archived.
This information was transmitted to the petitioners on September
13, 1999, with observations in response requested within 21 days.
74.
In the course of the October 5, 1999 hearing, the petitioners presented
a communication requesting that, in view of the reform of Article 131 and
derogation of Article 113, the Commission issue a final report setting forth
the partial compliance of the State.
The petitioners congratulated the State for having reformed the majority
of the discriminatory provisions challenged in the case, recognizing in
particular the derogation of Articles 113 and 114, and reform to Article
110, establishing that spouses have an equal responsibility to care for
the children and home. The
petitioners asked that the final report expressly indicate the State’s
failure to derogate the challenged provision of Article 317.
Further, they asked that it reflect that, by allowing either spouse
to exercise authority autonomously, the reforms to Articles 109, 115, 131
and 255 do not guarantee María Eugenia Morales de Sierra effective participation
in decision making. They maintain
that this may only be done by requiring joint consent in such decisions.
75.
The State, for its part, reiterated the importance it attaches to
having carried out the reforms in question.
It also reiterated its view that Article 317 constitutes a privilege,
a special consideration which may be invoked, rather than a form of discrimination
which is imposed. The State
indicated that it would submit the legislative history of the Article as
well as opinions on the question by the Attorney General and President of
the Congressional Commission of Women and the Family in support of its position. The petitioner’s communication was formally transmitted
to the State on October 13, 1999, with a request that any further information
on the case be submitted within 30 days.
76.
On December 17, 1999, the State submitted a response indicating its
view that the reforms adopted had accomplished what was required, and reiterating
its views with respect to Article 317.
This information was transmitted to the petitioners on December 21,
1999, with any observations requested within 30 days.
77.
The above proceedings having been carried out, and certain articles
having been reformed pursuant to Decrees 80-98 and 27-99, the Commission
wishes to briefly summarize the status of the legislation at issue in the
present case. Articles 113,
114 and 133 have been derogated. Article
109 has been reformed to provide that representation of the marital union
corresponds equally to both spouses, who shall have equal authority in the
home and decide jointly on household and family matters.
In the case of disagreement, a family court judge will decide who
prevails.[40]
Article 110 maintains its original heading, “protection of the
wife,” and first paragraph, stipulating that the husband owes certain duties
of protection and assistance to the wife.[41]
It has been modified with respect to its second paragraph to reflect
that both spouses have the duty to care for minor children.[42]
Article 115 has been modified to provide that in case of a disagreement
between spouses as to representation of the marital union, a family judge
will decide to whom it shall correspond on the
basis of the conduct of each.[43]
Article 131 has been amended to read that both spouses may administer
marital properly, either jointly or separately.[44]
Article 255 has been modified to provide that both spouses shall
represent children and administer their property, either jointly or separately.[45]
Article 317, which allows certain
classes of persons to be excused from exercising certain types of custody
remains in its original form.[46]
78.
The Commission fully recognizes and values the reforms enacted by
the State of Guatemala in response to the recommendations set forth in Report
86/98. As the parties have
recognized, these constitute a significant advance in the protection of
the fundamental rights of the victim and of women in Guatemala.
The reforms represent a substantial measure of compliance with the
Commission’s recommendations, and are consistent with the State’s
obligations as a Party to the American Convention.
79.
The Commission is not, however, in a position to conclude that the State
has fully complied with the recommendations. The original heading and first
paragraph of Article 110, which remain in force, refer to the duty of the
husband to protect and assist his wife within the marriage, a duty that,
in and of itself, is consistent with the nature of the marital relationship.
For its part, Article 111
of the Code establishes
the obligation of the
wife to
contribute
equitably to maintenance of the home to the extent that she can,[47]
a duty that is also consistent with the relationship between spouses.
While neither of these duties gives rise, in itself, to a situation
of incompatibility, they continue to reflect an imbalance in that the legislation
recognizes that the wife is the beneficiary of the husband’s duty to
protect and assist her, while the law does not impose the same duty on her
with regard to her husband. Article 17(4) of the American Convention requires the State
to “ensure the equality of rights and the adequate balancing of responsibilities
of the spouses as to marriage”
80.
With regard to Article 317, the decisive factor is not whether it is viewed
as referring to a privilege or an obligation; what is dispositive is the
nature of the distinction made in the provision and the justification offered
for it. Essentially, the terms
of Article 317 identify categories of persons who may be excused from custody
or guardianship due to limitations, for example, economic or health reasons.
It is not evident, nor has the State explained what limitation justifies
including “women” in these categories.
According to Article 17 of the American Convention, and as expressly
stipulated in Article 16 of the Convention on the Elimination of All Forms
of Discrimination against Women, States Parties must guarantee equal rights
and duties with regard to exercising custody and other forms of guardianship
of children.
81.
In this sense, both Article 317 and the title and first paragraph of Article
110 suggest, expressly or implicitly, that women are characterized by inherent
weaknesses that limit their capacity as compared to men.
This affects María Eugenia Morales de Sierra in her right to equal
protection of the law, in accordance with Article 24 of the American Convention,
and to respect for her human dignity, pursuant to Article 11 of that Convention.
Additionally, as stated in paragraph 44 above, these norms apply
stereotyped notions about gender roles, thereby perpetuating de
facto discrimination against women in the family sphere.
Further, with regard to the question of compliance with the recommendations,
the State has provided no measures of reparation to the victim in response
to the findings and recommendations of the Commission.
82.
The petitioners have responded to the modification of Articles 109, 115,
131 and 255 by contending that the Convention requires that the decisions
at issue be taken by both spouses jointly, rather than autonomously as the
reforms permit. Because this
position was not developed in the proceedings prior to Report 86/98, and
because it has not been sufficiently sustained subsequently in relation
to the facts of the particular case and the experience of the victim, or
the normative content or jurisprudence of the system, the Commission finds
that the question has not been sufficiently defined in the case, and cannot
conclude that the reforms fail to satisfy the recommendations for this reason.
VI.
CONCLUSIONS
83.
On the basis of the foregoing analysis and conclusions, the Commission
finds that the recommendations issued in Report 86/98 have been complied
with in important measure. It
reiterates its conclusion that the State of Guatemala has not discharged
its responsibility for having violated the rights of María Eugenia Morales
de Sierra to equal protection, respect for family life, and respect for
private life established in Articles 24, 17, and 11 of the American Convention
on Human Rights in relation to the heading and paragraph one of Article
110 and paragraph four of Article 317.
The Commission accordingly finds the State responsible for having
failed to uphold its Article 1 obligation to respect and ensure those rights
under the Convention, as well as its Article 2 obligation to adopt the legislative
and other measures necessary to give effect to those rights of the victim.
VII.
RECOMMENDATIONS
84.
On the basis of the analysis and conclusions set forth in the present
report,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
To
reiterate its recommendations to the State of Guatemala that it:
1.
Adapt the pertinent provisions of the Civil Code to balance the legal recognition
of the reciprocal duties of women and men in marriage and take the legislative
and other measures necessary to amend Article 317 of the Civil Code so as
to bring national law into conformity with the norms of the American Convention
and give full effect to the rights and freedoms guaranteed to María Eugenia
Morales de Sierra therein.
2.
Redress and adequately compensate María Eugenia Morales de Sierra for the
harm done by the violations established in this Report.