35/30/Add.3 Report of the Special Rapporteur on violence against women, its causes and consequences, on her mission to Argentina
Document Type: Final Report
Date: 2017 Apr
Session: 35th Regular Session (2017 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-05980(E)
Human Rights Council Thirty-fifth session
6-23 June 2017
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on violence against women, its causes and consequences, on her mission to Argentina
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on violence against women, its causes and consequences, Dubravka
Šimonović, on her visit to Argentina from 14 to 21 November 2016. The Special
Rapporteur examines the gaps and challenges faced by Argentina in fulfilling the State
obligation to eliminate violence against women, its causes and consequences, and
recommends measures for preventing and combating violence against women in the
country.
United Nations A/HRC/35/30/Add.3
A/HRC/35/30/Add.3
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Report of the Special Rapporteur on violence against women, its causes and consequences, on her mission to Argentina*
Contents
Page
I. Introduction ................................................................................................................................... 3
II. General context ............................................................................................................................. 3
III. Manifestations of violence against women, its causes and consequences ..................................... 4
A. Femicides or gender-related killings of women .................................................................... 4
B. Violence against women, including domestic violence ........................................................ 5
C. Sexual violence, including rape ............................................................................................ 6
D. Sexual harassment ................................................................................................................ 6
E. Sexual education, legal abortion, early pregnancy and maternal mortality .......................... 7
F. Specific groups at risk .......................................................................................................... 8
IV. Incorporation and implementation of international and regional frameworks
on violence against women ........................................................................................................... 11
A. International framework on violence against women and human rights ............................... 11
B. Regional framework on violence and human rights ............................................................. 12
C. United Nations monitoring mechanisms ............................................................................... 12
V. State responsibility and measures to address violence against women ......................................... 13
A. Legislative framework .......................................................................................................... 13
B. Policy framework .................................................................................................................. 16
C. Institutional framework: national machinery and independent institutions .......................... 16
VI. Conclusions and recommendations ............................................................................................... 17
* Circulated in language of submission and in Spanish only.
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I. Introduction
1. At the invitation of the Government, the Special Rapporteur on violence against
women, its causes and consequences, Dubravka Šimonović, visited Argentina from 14 to 21
November 2016.
2. During her eight-day mission, the Special Rapporteur visited the autonomous city of
Buenos Aires and the Provinces of Buenos Aires, Tucumán and Corrientes. She met with
the President and representatives of the National Women’s Council, the Minister of Foreign
Affairs, representatives of the Ministries of Health, Education, Social Development and
Security, the National Audit Office, the Office of the Under-Secretary for Social
Development, the Office of the Prison System Ombudsman, the Office of the Under-
Secretary for Relations with the Judiciary, the Office of the Under-Secretary for Prison
Management, the Domestic Violence Office of the Supreme Court of Justice, the Public
Prosecution Office of the Nation, the Secretariat of the National Council for Bioethics and
Human Rights, the Public Defence Office of the Nation and the Public Defence Office of
the City of Buenos Aires. She also met with the following: the Under-Secretary for Gender
and Diversity and representatives of the provincial Public Defence Office in the Province of
Buenos Aires; the Mayor of San Miguel de Tucumán, representatives of the Observatory on
Violence against Women and the Working Group on Gender-based Violence in the
Province of Tucumán; and the National Council for Women and representatives of 30
municipal departments for women in the Province of Corrientes.
3. The Special Rapporteur also met with representatives of the Office of the National
Ombudsman and held consultations with over 100 non-governmental organizations
(NGOs), representatives of academic institutions in Buenos Aires, Tucumán and Corrientes
Provinces and United Nations officials.
4. The Special Rapporteur expresses her gratitude to the Government for its excellent
cooperation and to the civil society organizations, academics and other stakeholders for
their valuable input. She would like to thank in particular the women and girls who shared
with her their personal stories, placing their trust and some of their hopes in her hands. She
would also like to thank the United Nations country team, the Resident Coordinator — who
personally supported the Men for Equality network — and the Human Rights Adviser for
the assistance extended prior to and during the mission.
II. General context
5. Argentina is a federal State with a complex structure and a division of competencies
among the federal Government, 23 provinces and the autonomous city of Buenos Aires,
which have their own constitutions, laws and executive, legislative and judicial authorities.
The governance of certain areas relating to gender equality and violence against women, in
particular health, education and large sectors of criminal law, are within the jurisdiction of
the provinces and the autonomous city of Buenos Aires. The complex government structure
and division of competencies result in particular challenges in implementing State
obligations under international human rights instruments on women’s rights and violence
against women, such as the Convention on the Elimination of All Forms of Discrimination
against Women and the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women (Convention of Belém do Pará).
6. The federal structure results also in different levels of government being responsible
for different aspects of women’s rights and in a large variety of protocols on the enjoyment
of those rights and mechanisms for their implementation. As such, victims are faced with a
real institutional maze when trying to seek protection and free themselves from situations of
violence.
7. Virtually all stakeholders with whom the Special Rapporteur met referred to the
strong prevalence of a “machismo” culture, which permeates the entire society and creates
an environment of tolerance with regard to violence against women. Entrenched patriarchal
attitudes and gender stereotypes coupled with a lack of uniform incorporation and
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implementation of international and national standards in this area have resulted in violence
against women, especially domestic violence, being treated as a private matter rather than
as a public concern.
III. Manifestations of violence against women, its causes and consequences
A. Femicides or gender-related killings of women
8. The Ni Una Menos movement attracted national and world attention to the femicide
situation in Argentina, and the Government of Argentina made important strides in
addressing and collecting data on femicide.
9. Article 80 of the Criminal Code was amended in 20121 to include femicide as a
separate category of aggravated homicide. It provides for life imprisonment for a
perpetrator who kills his ascendant or descendant relative, spouse or former spouse or
person with whom he has or has had an intimate relationship, even if they were not living
together at the time of the crime.
10. In 2015, the first National Femicide Registry was established by the Women’s
Office of the Supreme Court of Justice. The registry collects data on the number and ages
of and the relationship between victims and accused, the number of minor dependents of
the victim and whether previous complaints of violence had been made against the accused.
According to its data, there were 225 femicides in 20142 and 235 in 2015, 70 per cent of
which were family related.3 Such data are crucial for preventing family-related or femicides
committed by an intimate partner. In 2014, 228 persons were charged with femicide, of
which 27 were convicted — a very low conviction rate.4
11. The Special Rapporteur noted that the above femicide data included only cases for
which judicial proceedings had been initiated and left out a significant number of other
cases, such as when the perpetrator committed suicide. Other sources pointed to a higher
number of femicides. According to non-governmental sources, there were 277 femicides in
2014 and 286 in 2015.5 The Special Rapporteur also noted that there were no data on
redress provided to victims.
12. Article 80 (4) and (11) of the Criminal Code provides for the crime of femicide on
the basis of gender, sexual orientation, gender identity or expression or when perpetrated as
gender violence as aggravated homicide. However, the Special Rapporteur received reports
that the judicial system had shown strong resistance to enforcing those provisions and that
prosecutions and sentences for such crimes were extremely rare.6 It was estimated that
transgender people in Argentina had a life expectancy of 35 years. 7 A survey conducted in
2012 by the National Institute for Statistics and Censuses indicated that 83 per cent of
transgender persons and transvestites surveyed had suffered serious violence and
discrimination by the police.8 In September and October 2015, three transgender women,
leaders and activists in lesbian, gay, bisexual, transgender and intersex organizations, were
1 Argentina, Criminal Code, Law No. 11.179 of 21 December 1984, last amended 19 December 2012.
Available at www.wipo.int/wipolex/en/details.jsp?id=12934.
2 Argentina, Supreme Court of Justice of the Nation, Registro Nacional de Femicidios de la Justicia
Argentina, 2014. Available at http://old.csjn.gov.ar/om/docs/femicidios_2014.pdf.
3 Argentina, Supreme Court of Justice of the Nation, Registro Nacional de Femicidios de la Justicia
Argentina, 2015. Available at www.csjn.gov.ar/om/docs/femicidios_2015.pdf.
4 Argentina, Supreme Court of Justice of the Nation, Registro Nacional de Femicidios de la Justicia
Argentina, 2014.
5 La Casa del Encuentro, “Femicidios”. Available at www.lacasadelencuentro.org/femicidios.html.
6 Akahatá and others, “Situación de los derechos humanos de las personas travestis y trans en la
Argentina” (October 2016), p. 11. Available at http://tbinternet.ohchr.org/Treaties/CEDAW/
Shared%20Documents/ARG/INT_CEDAW_NGO_ARG_25486_S.pdf.
7 Ibid., p. 2
8 Ibid., p. 5
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murdered.9 By the end of 2015, no one had been charged with their deaths.10 In 2013, the
Trans Murder Monitoring Project reported that 19 transgender people had been murdered.11
13. The Special Rapporteur received information that the deaths of many women had
been preceded by failures in the prevention system, such as inaction when urgent protection
was requested, fragmented recording of incidents of domestic violence, the use of
reconciliation mechanisms between victims and aggressors, inefficient enforcement and
monitoring of the protection measures granted, lack of thoroughness in collecting and
evaluating evidence, the presence of stereotypes or minimizing the seriousness of the
facts.12
14. The Special Rapporteur welcomed the initiative of the Office of the National
Ombudsman to establish a femicide observatory, as she had recommended in September
2016,13 to collect and publish data on femicide and to analyse cases of femicide in order to
determine failures or gaps in protection with a view to improving legislation or its
implementation. Considering the initiatives taken by several NGOs and the Government to
collect and analyse femicide data, the Special Rapporteur encourages all of them to
cooperate and harmonize the collection of data and analysis of cases.
B. Violence against women, including domestic violence
15. The Special Rapporteur was concerned that there were no nationwide statistics on
violence against women and domestic violence in Argentina. The Domestic Violence
Office indicated that, in 2015, it had received 11,348 reports of domestic violence, 65 per
cent of which involved women victims and 14 per cent, girl victims. 14 However, those
numbers probably represented only a fraction of the actual amount of cases. According to
non-governmental sources, 55.8 per cent of the female population in Buenos Aires had been
subjected to psychological violence, 22.3 per cent to physical violence and 15 per cent to
sexual violence by an intimate partner during their lifetime.15 However, only 1 out of 10
victims had turned to a public institution to seek help.16
16. The Domestic Violence Office stated that, of the 11,348 cases registered in 2015, 99
per cent had been referred to the civil justice system and 74 per cent to the criminal justice
system. No data were available on how many of those proceedings had resulted in
prosecutions and convictions. According to the Women’s Office, charges had been brought
against 236 people in respect of the 235 femicides registered in 2015 but, by the end of
2015, there had only been 7 convictions, while 29 per cent of the cases were at the trial
stage, 51 per cent remained at the investigation stage, 14 per cent had been terminated for
procedural reasons and there were no acquittals.17
9 Amnesty International, “Argentina must investigate horrific wave of attacks against trans activists”
(14 October 2015). Available at https://www.amnesty.org/en/latest/news/2015/10/argentina-must-
investigate-horrific-wave-of-attacks-against-trans-activists/.
10 Amnesty International, “Argentina 2016/2017”. Available at https://www.amnesty.org/en/
countries/americas/argentina/report-argentina/.
11 Organization for Economic Cooperation and Development (OECD), “Social Institutions and Gender
Index: Argentina”. Available at www.genderindex.org/sites/default/files/datasheets/AR.pdf.
12 Argentina, Public Defence Office of the Nation and Amnesty International, “Femicidio y Debida
Diligencia: Estándares internacionales y practicas locales” (2015). Available at www.mpd.gov.ar/pdf/
publicaciones/biblioteca/Libro%20 femicidio%20Final%20con%20tapa%20e%20isbn.pdf.
13 See A/71/398, para. 82 (c).
14 Argentina, Supreme Court of Justice of the Nation, Registro Nacional de Femicidios de la Justicia
Argentina, 2015.
15 Latin American Justice and Gender Team, “Las cifras de la violencia” (Buenos Aires). Available
from www.ela.org.ar/a2/index.cfm?fuseaction=MUESTRA&codcontenido=2463&plcontampl=
6&aplicacion=app187&cnl=14&opc=9.
16 Ibid.
17 Argentina, Supreme Court of Justice of the Nation, Registro Nacional de Femicidios de la Justicia
Argentina, 2015, pp. 7-8.
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17. Problems identified by victims and stakeholders18 in addressing domestic violence
included lack of support for victims who denounced their aggressors (although many were
told not to go home after submitting their report); insufficient free legal aid services; weak
enforcement of protective measures under Law No. 26.485 on comprehensive protection to
prevent, punish and eradicate violence against women in the settings where they conduct
their interpersonal relationships (hereafter the Law on violence against women); the use of
standard approaches, which did not accurately evaluate the particularities of each situation;
the conduct of hearings in civil courts, where both denouncers and aggressors had to appear
without any protection for the alleged victims from direct encounter; the lack of
specialization of some interdisciplinary teams; fragmentation between civil and criminal
justice and the lack of gender expertise on the part of judges; the lack of adequate measures
adapted for women in terms of age, gender identity, sexual orientation, geographic location
or ethnicity; and the lack of shelters, which made it difficult for victims to leave the house
of the aggressor.
C. Sexual violence, including rape
18. Rape, including spousal rape, is a crime in Argentina. Under article 119 of the
Criminal Code, the act of sexually abusing a person of either sex who is under 13 years of
age, or when the act involves violence, threats, coercive or intimidating abuse of a
relationship of dependence, authority or power, or when advantage is taken of the fact that
the victim, for whatever reason, is unable to consent freely to the act, is punishable by
imprisonment of six months to four years.19 The Special Rapporteur was concerned that the
article set the minimum age of consent at only 13 years and that the definition of rape was
not based directly on lack of consent, but rather on use of force. She was also concerned
that nationwide statistics on rape were not available and that there were no disaggregated
data on rape of indigenous women and women with disabilities, or on rape and hate crimes
against lesbian, gay, bisexual, transgender and intersex persons, or on investigations,
prosecutions and convictions of perpetrators of such crimes and redress provided to victims.
19. The statute of limitation had been removed for sex crimes committed against
children under 14 years of age. However, recently developed international standards in that
area require States to ensure that the statute of limitation for initiating legal proceedings
with regard to rape and other sexual violence allows for the initiation of proceedings after
the victim has reached the age of majority (i.e., 18 years of age).
20. The Special Rapporteur received reports that the attitude of the police, hospital
employees and judges towards survivors of sexual violence sometimes revictimized them.20
D. Sexual harassment
21. The Special Rapporteur heard numerous reports that women often experienced
discriminatory, aggressive and/or violent conduct, such as verbal abuse, touching and
indecent assault in public spaces. Such incidents reportedly occurred every day and
restricted women’s autonomy and rights, but they were generally neither recognized nor
perceived as crimes and therefore were not always reported, much less punished. There
were no statistics to enable the dimensions of this problem to be gauged nationally.21
22. Sexual harassment in the workplace was a widespread phenomenon, but it was
widely accepted as normal and few complaints had been made.
18 Argentina, Public Defence Office of the Nation, Acceso a la justicia para mujeres víctimas de
violencia en sus relaciones interpersonales (2015). Available at www.mpd.gov.ar/pdf/publicaciones/
biblioteca/Informe%20G%C3%A9nero%202015%20con%20tapa%20e%20isbn.pdf.
19 Argentina, Criminal Code, Law No. 11.179 of 21 December 1984, last amended 19 December 2012.
20 United States of America, Department of State, “Argentina 2015 human rights report”. Available at
www.state.gov/documents/organization/253197.pdf.
21 In an informal online survey of the Ni Una Menos movement, 97 per cent of the women reported that
they had been subjected to some form of sexual harassment over the past 12 months.
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E. Sexual education, legal abortion, early pregnancy and maternal
mortality
23. Law No. 26.150 (2006) established the National Programme for Comprehensive Sex
Education and stipulates that all students have the right to receive comprehensive sexual
education in all public and private educational institutions. However, reportedly, there has
been a persistent lack of resources since the law was enacted and its implementation has
faced resistance from families and teachers. In addition, the law has not been implemented
in several provinces. 22 The unavailability of comprehensive sexual education has
constituted an obstacle for women and girls to enjoy, on a basis of equality, the rights to
decide freely and responsibly on the number and spacing of their children and to have
access to information, education and the means to enable them to exercise those rights, as
provided for under article 16 (e) of the Convention on the Elimination of All Forms of
Discrimination against Women.
24. Abortion is criminalized under article 85 of the Criminal Code.23 Both the person
performing the abortion and the woman who causes her own abortion or gives her consent
for the abortion to be performed may be sanctioned. However, article 86 provides that an
abortion performed by a qualified medical doctor with the consent of the pregnant woman
is not punishable if it is done in order to avoid danger to the life or health of the mother and
if the danger cannot be avoided by other means; or if the pregnancy is a result of rape or
assault to a woman with a mental disability or mental illness, and her legal representative
consents to the abortion. The general criminalization of abortion, with certain unclear and
narrowly defined exceptions, coupled with the practice of medical practitioners of seeking
judicial authorization before performing an abortion, rendered abortions unavailable, even
under the exceptions.
25. The Supreme Court of Argentina, in a landmark ruling on 13 March 2012,24 stated
that prior judicial authorization was not necessary for an abortion to be performed in cases
of rape and that provincial governments should ensure access to legal abortions in such
cases. Based on that ruling, in June 2015, the Ministry of Health issued the “Protocol for
the comprehensive care of persons with the right to the legal interruption of pregnancy”.25
However, to date, only 8 of the 24 provincial jurisdictions had issued protocols on non-
punishable abortions.26 In October 2015, the Office of the Ombudsman issued resolution
No. 65/1527 recommending that the provincial health authorities issue protocols compliant
with the national protocol.
26. The absence of protocols in the majority of the provinces, coupled with the frequent
refusal of doctors to perform abortions based on conscientious objection, resulted in a high
number of unsafe abortions and contributed to high maternal mortality in Argentina. 28
According to some estimates, half a million illegal abortions took place every year in
Argentina, representing about 40 per cent of all pregnancies.29 The Special Rapporteur
22 Notably, the Province of Corrientes declared itself the “pro-life province” in 2015 and is not
implementing the federal law.
23 Argentina, Criminal Code, Law No. 11.179 of 21 December 1984, last amended 19 December 2012.
24 See Argentina, Supreme Court of Justice, F., A. L. s/ medida autosatisfactiva, decision adopted on 13
March 2012.
25 Argentina, Ministry of Health, Protocolo para la atención integral de las personas con derecho a la
interrupción legal del embarazo. Available at http://despenalizacion.org.ar/pdf/publicaciones/
ProtocoloANP2015.pdf.
26 According to the Office of the National Ombudsman, eight provinces have fully complied with the
Supreme Court ruling; eight have complied partially; and eight do not have protocols, namely,
Catamarca, Corrientes, Formosa, Mendoza, San Juan, San Luis, Santiago del Estero and Tucumán.
27 Argentina, Office of the National Ombudsman, resolution DPN No. 65/15 of 5 October 2015.
Available at www.dpn.gob.ar/documentos/20160927_30933_556933.pdf. 28 Silvina Ramos and others, “A comprehensive assessment of maternal deaths in Argentina: translating
multicentre collaborative research into action”, Bulletin of the World Health Organization, vol. 85,
No. 8 (August 2007). Available at www.who.int/bulletin/volumes/85/8/06-032334/en/.
29 Human Rights Watch, “Abortion: Argentina”. Available at https://www.hrw.org/legacy/women/
abortion/argentina.html.
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received reports of women who had miscarried and sought help in public hospitals and who
had been reported to the police as having undergone illegal abortions and subsequently
faced criminal prosecution. 30 Such legislation prevents women from seeking necessary
medical care and assistance and contributes to maternal mortality.
27. The Special Rapporteur was informed that a draft law on voluntary interruption of
pregnancy had been submitted to the House of Representatives.
28. Many women and girls had difficulties accessing reproductive health services,
including contraception and voluntary sterilization, which might potentially lead to
unwanted or life-threatening pregnancies. 31 The public health system should, by law,
provide free contraceptives, but the Special Rapporteur received reports that women and
girls, in particular those in poor areas, were often unaware of the possibility of obtaining
free contraceptives and that contraceptives were not always available.32
29. The Special Rapporteur was concerned that, every year, over the past five years,
more than 3,000 girls under the age of 15 had given birth in Argentina33 and the majority of
the pregnancies were the result of rape or abuse. Pregnancy and motherhood at such an
early age, in particular if unwanted, has profound consequences on the lives of girls, not
least because pregnancy usually results in drop out from the education system and
condemns the girls and their babies to a life of poverty and marginalization.
F. Specific groups at risk
1. Indigenous women
30. While the Constitution guarantees some indigenous people’s rights,34 the Special
Rapporteur received reports that indigenous women often suffered multiple forms of
discrimination, including on the grounds of their status as indigenous, as women and as
lower income earners. Historically they have been excluded from development
opportunities in northern Argentina and face challenges in educational attainment. For
example, illiteracy among the indigenous population stood at 3.8 per cent, compared with
1.9 per cent for the rest of the population.
31. Studies showed that 47.7 per cent of indigenous people in Argentina did not have
access to health insurance35 and indigenous women were discriminated against when trying
to access medical services in health centres in some cities, including owing to the fact that
they might not speak Spanish.36 Many indigenous women lived in isolated rural areas far
from medical centres, where public transportation was scarce and even ambulances for
emergencies were not always available. For the most isolated communities, external
communication might be limited to certain times of the day, and when the electricity supply
was off, there was no telephone signal to communicate or report an emergency, which
30 See, for example, the case of Belén, March 2014 in ANDHES and others, “Evaluation of compliance
with the Convention on the Elimination of All Forms of Discrimination against Women in Argentina”
(October 2016). Available at http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/
ARG/INT_CEDAW_NGO_ARG_25466_E.pdf.
31 Human Rights Watch, “Argentina: Events of 2015” in World Report 2016. Available at
https://www.hrw.org/world-report/2016/country-chapters/argentina.
32 Human Rights Watch, “Protecting women from unsafe abortions in Argentina” (13 April 2011).
Available at https://www.hrw.org/news/2011/04/13/protecting-women-unsafe-abortions-argentina.
33 CLADEM, INSGENAR and Catolicas por el Derecho a Decidir, “Evaluation on the fulfilment of the
Convention on the Elimination of All Forms of Discrimination against Women” (October 2016).
Available from http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/
ARG/INT_CEDAW_NGO_ARG_25469_E.pdf.
34 See article 75 of the Constitution of Argentina.
35 Verónica Raffo, “In Argentina, a road that connects the present and the past of indigenous women”,
blog (World Bank, November 2014). Available at http://blogs.worldbank.org/transport/argentina-
road-connects-present-and-past-indigenous-women.
36 Argentina, Bureau of Indigenous Peoples, Report (21 April 2016).
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limited access to support services. 37 Poorly maintained roads and lack of public
transportation hampered access to legal aid and courts.
32. Indigenous women faced serious problems in accessing justice. 38 The Special
Rapporteur learned of the gang rape of a 12-year-old Wichí girl with severe developmental
delay, in November 2015 in the Province of Salta. The mother of the victim had filed a
report but they did not receive any legal assistance, nor were any Wichí language
interpreters made available during the proceedings. In another case, a Quechua-speaking
indigenous woman had been arrested for the murder of her husband and there were no
indigenous language interpreters available during the proceedings, in which she alleged that
she had acted in self-defence as her husband had beaten her until she was unconscious and
nearly killed her.
2. Migrant women
33. Reportedly, more than half of the 1,805,957 migrants living in Argentina are
women. 39 Migrant women were restricted to working in stereotypically female sectors
subject to exploitation and irregular labour conditions. Their post-secondary or university
qualifications were not recognized and self-employment was not a recognized ground for
obtaining a resident permit. Access to justice to claim employment rights was a difficult
process and many faced judicial officers who were prejudiced against the migrant
population.40 The lack of family ties for migrant women leads to isolation, which fosters
situations of violence. Relationships formed on the basis of unequal power and a social and
legal environment that does not adequately sanction gender-based violence further
aggravates the situation of migrant women.41
3. Transvestites and transgender women
34. Law No. 26.743 (2012) on gender identity guarantees all persons the right to
recognition of their gender identity; to the free development of their person according to
their gender identity; to be identified according to their self-perceived gender identity in
documents proving their identity in terms of the first name(s), image and sex recorded. A
person can request to amend his or her sex and change his or her first name accordingly by
filing a simple form. For persons under 18 years of age, the request must be made through
his or her legal representative with his or her explicit agreement, or judicial authorization
must be obtained.42 The law guarantees access to health care, including hormonal treatment
and surgical procedures for total or partial genital reassignment, if the person has health
insurance coverage for these procedures. Law No. 26.618 (2010) on same-sex marriage
provides for same-sex couples to have the same marital rights as heterosexual couples,
including adoption and inheritance rights.43
35. Despite those positive legal developments, transvestites and transgender persons
continued to be subjected to violence based on discrimination against persons with
unconventional gender identities. Recently, there had been an increase in police persecution
of individuals based on racial profiling combined with transphobia. Figures from the Public
Defence Office of the City of Buenos Aires regarding District 134 showed that, in 2015, out
of a total of 805 criminal charges relating to the sex trade, 543 had been brought against
37 ANDHES and others, “Evaluation of compliance with the Convention on the Elimination of All
Forms of Discrimination against Women in Argentina” (October 2016).
38 Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia
and related intolerance, on his visit to Argentina (forthcoming).
39 ANDHES and others, “Evaluation of compliance with the Convention on the Elimination of All
Forms of Discrimination against Women in Argentina” (October 2016), among others.
40 Ibid.
41 Argentina, Office of the Ombudsman of the Province of Buenos Aires, Gender Violence Observatory,
Monitoreo de Políticas Públicas y Violencia de Género 2014/2015. Available at
https://www.defensorba.org.ar/publicaciones/informe-ovg-2014-2015/download/Informe-Anual-
OVG-2014-2015-Monitoreo-de-Politicas-Publicas-y-Violencia-de-Genero.pdf.
42 Argentina, Law No. 26.743 (2012) on gender identity.
43 Argentina, Law No. 26.618 and Decree No. 1054/10 on egalitarian marriage.
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transgender Peruvians working on the streets, with no regard for their self-perceived gender
identity.44 In Argentina, transvestites and transgender women were widely associated with
crimes such as selling of illegal substances or offering sex services in public, both of which
were criminalized in some provinces. In Jujuy and Tucumán Provinces, for instance, arrests
of transgender women were characterized by police abuse and violence.
36. In Tucumán Province, Law No. 5140 on police violations, which governs
misdemeanours, continued to be implemented, even though it had been declared
unconstitutional by both the national and provincial Supreme Courts of Justice. Article 19
of the Law criminalizes the behaviour of “prostitutes exhibiting themselves at the doors or
windows of their houses, or strolling through the streets stopping, calling or enticing
passers-by” and transgender women were disproportionally charged under that provision.
37. The Special Rapporteur received reports that Law No. 23.737 on illegal substances
was one of the laws used to justify discriminatory police practices. The Protocol on
conducting searches in facilities and of individuals, issued by the Ministry of Security,
enabled security forces to stop and search individuals without a judicial order on the basis
of their “police instinct”, in violation of the Code of Criminal Procedure.45 The police in
Buenos Aires reportedly intervened on the basis of their instincts (for example, when they
saw a transvestite standing in the street, climbing into or getting out of a car, talking to
other people, etc.). Those arrested were charged with selling illegal substances — an
offence for which no bail was allowed — based on the testimony of the arresting police
officers. Data from Court No. 4 in La Plata showed that 91 per cent of transgender women
and transvestites arrested had been accused of violating Law No.23.737.46 The total number
of transgender women deprived of their liberty was unknown, as that segment of the
population was not always reflected in official records and they were sometimes forced to
hide their identity in the face of discrimination and sexual and other forms of violence.47
38. The Special Rapporteur received reports that transgender women were treated by
prison officers in ways that failed to respect their gender identity. Transgender persons with
a self-perceived feminine identity and transvestites were usually searched by male
penitentiary staff, often in the presence of several of them. In male prisons, regulations
forbade items, such as female clothing and make-up, articles that enable transgender
women and transvestites to express their gender identity through their physical appearance.
4. Women deprived of their liberty
39. The Special Rapporteur visited a detention facility for women and observed that the
women were detained in relatively good conditions. Those who had children under the age
of 4 were incarcerated with their children, a day-care facility was available for preschool
children, and health-care facilities for children and women were in place.
40. Despite those positive observations, the Special Rapporteur was concerned that
women in pretrial detention were held together with convicted women, which raised serious
concerns under article 10 (2) of the International Covenant on Civil and Political Rights.
Moreover, women in pretrial detention were detained based on court-issued detention
orders of unlimited duration and the length of detention prior to conviction appeared, in
many cases, to exceed two years. None of the women interviewed seemed to be aware of
complaint mechanisms against ill-treatment or torture.
44 Akahatá and others, “Situación de los derechos humanos de las personas travestis y trans en la
Argentina” (October 2016).
45 Ibid., p. 8. On 4 September 2016, about 25 Peruvian and Ecuadorian transvestites and transgender
women were detained during a police raid, taken to a police station, where 4 of them spent more than
one week under arrest. One of them had less than 1 gram of a narcotic substance. On 12 September
2016, the Court of Appeals and Guarantees, in a decision known as the “Zambrano verdict”, annulled
the police procedure, considering it “degrading in the extreme”.
46 Ibid., p. 7.
47 ANDHES and others, “Evaluation of compliance with the Convention on the Elimination of All
Forms of Discrimination against Women in Argentina” (October 2016).
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11
41. Although the Special Rapporteur only had data on the number of women in federal
penitentiaries (7.03 per cent of the total inmate population, according to the Federal
Penitentiary Service), she received reports that the overall number of women in detention
had been increasing in the past few years.48 Reportedly more than 50 per cent of the women
deprived of their liberty were imprisoned for breach of Law No. 23.737, which governs
drug trafficking, and the investigations appeared to focus on prosecuting women who were
being used as “mules” to transport different illegal substances. The implementation of Law
No. 23.737 at the provincial level had led to an overrepresentation of women imprisoned
for that offence in the correctional services, in particular in Buenos Aires, Córdoba and
Salta Provinces.
42. Many of the imprisoned women were mothers and heads of households. Although
Law No. 26.472 (2009) on custodial sentences provides for the possibility of women with
children to serve their sentences under house arrest, that option was underutilized.49 The
Special Rapporteur received reports that, in the Province of Buenos Aires in particular,
there had been repeated cases of degrading and violent body searches of women and forced
nudity in prison, and that complaints against such ill-treatment had resulted in reprisals.
5. Women with disabilities
43. The Special Rapporteur received reports that women with psychosocial disabilities
faced significant obstacles to accessing justice, such as the widespread practice of indefinite
institutionalization in public or private mental institutions that sealed off relations with
other people and limited access to complaints mechanisms; the prevalent practice of
restricting the exercise of legal capacity, making it impossible to bring actions or participate
in legal proceedings on their own behalf; and the prejudices of public officials who tended
to doubt the credibility of their testimonies. Although Argentina had ratified the Convention
on the Rights of Persons with Disabilities, in 2008, and adopted Law No. 26.657 on mental
health, in 2010, those had not been fully implemented.
44. The Special Rapporteur received reports that services for victims of domestic
violence were often not accessible to women with physical disabilities, shelters were not
equipped to receive women in wheelchairs, and the 144 helpline could not be used by deaf
women.
IV. Incorporation and implementation of international and regional frameworks on violence against women
A. International framework on violence against women and human rights
45. Article 75 (22) of the Constitution gives international treaties precedence over
national laws and allows for their direct application by the authorities and domestic courts.
Argentina has ratified the international women’s rights treaty, the Convention on the
Elimination of All Forms of Discrimination against Women and its Optional Protocol and
the other core United Nations treaties on human rights, namely, the International
Convention on the Elimination of All Forms of Racial Discrimination, the International
Covenant on Economic, Social and Cultural Rights and its Optional Protocol, the
International Covenant on Civil and Political Rights and its two Optional Protocols, the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and its Optional Protocol, the Convention on the Rights of the Child and its
three Optional Protocols, the International Convention on the Protection of the Rights of
All Migrant Workers and Members of their Families, the Convention on the Rights of
Persons with Disabilities and its Optional Protocol and the International Convention for the
Protection of All Persons from Enforced Disappearance, as well as the multilateral
48 Ibid. In October 2016, there were at least 3,125 women deprived of liberty; in the past 15 years, the
number of women prisoners has increased by 32 per cent.
49 Ibid.
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Agreement Establishing the Fund for the Development of the Indigenous Peoples of Latin
America and the Caribbean.
46. The Special Rapporteur welcomed the fact that at least three universities in
Argentina had introduced gender studies and that the Ministry of Education had plans to
include gender equality in the school curricula. However, she noted that there was no
specific education on the Convention on the Elimination of All Forms of Discrimination
against Women, nor on the general recommendations and the jurisprudence of the
Committee on the Elimination of Discrimination against Women under the Optional
Protocol to the Convention, with regard to gender-based violence.
B. Regional framework on violence and human rights
47. Argentina has also ratified the Convention of Belém do Pará, the American
Convention on Human Rights, the Inter-American Convention against All Forms of
Discrimination and Intolerance, the Inter-American Convention against Racism, Racial
Discrimination and Related Forms of Intolerance, the Inter-American Convention on the
Elimination of All Forms of Discrimination against Persons with Disabilities, the Inter-
American Convention on International Traffic in Minors, the Inter-American Convention
on the Forced Disappearance of Persons, the Inter-American Convention on the
International Return of Children, the Inter-American Convention to Prevent and Punish
Torture, the Inter-American Convention on the Granting of Civil Rights to Women, the
Inter-American Convention on the Granting of Political Rights to Women and the
Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights. Argentina has also recognized the competency of the
Inter-American Court of Human Rights and Commission on Human Rights.
48. Argentina was among the countries working to integrate the Latin American Model
Protocol for the investigation of gender-related killings of women, 50 which sets out
guidelines for conducting an effective criminal investigation of gender-related killings, in
accordance with States’ international obligations, into its legal system. The Specialized
Unit on Violence against Women of the Public Prosecution Office of the Nation, in
collaboration with the Argentine Forensic Anthropology Team, had conducted a survey of
protocols in other countries in the region and was working on systematizing the guidelines
for action by public prosecution offices.
C. United Nations monitoring mechanisms
49. In November 2016, the Committee on the Elimination of Discrimination against
Women examined the periodic report of Argentina and expressed concern 51 about the
persistence of discriminatory stereotypes regarding the roles and responsibilities of women
and men in the family and in society; intersecting forms of discrimination and the deep-
rooted machismo culture, which underpin gender-based violence against women; sexual
abuse at school and sexual harassment in the workplace; institutional, procedural and
practical barriers faced by women in accessing justice; the persistence of gender-based
violence against women in the private and public spheres; the increasing number of
femicides; regional disparities in the provision of redress for victims; the lack of
information on the accessibility of shelters for older women, women belonging to ethnic
minorities, migrant and refugee women and women with disabilities; hate crimes against
lesbian, bisexual, transgender and intersex persons, including reports of harassment by the
police, murders of transgender women and the killing of lesbian, gay, bisexual, transgender
50 Office of the United Nations High Commissioner for Human Rights and the United Nations Entity for
Gender Equality and the Empowerment of Women, Latin American Model Protocol for the
investigation of gender-related killings of women (femicide/feminicide). Available at
www.un.org/en/women/endviolence/pdf/LatinAmericanProtocolForInvestigationOfFemicide.pdf.
51 See CEDAW/C/ARG/CO/7.
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and intersex activists; and the absence of data on the number of complaints about such
crimes, investigations, prosecutions and convictions of perpetrators.
50. Other United Nations treaty bodies also made recommendations on combating
violence and discrimination against women.52
51. Relevant recommendations from the universal periodic review 53 that had been
accepted by Argentina included addressing the issue of unduly protracted detentions and
promoting the use of alternative measures to pretrial detention, in particular for pregnant
women and young children; pursuing efforts to combat all forms of discrimination against
women; ensuring redress for victims of domestic violence, as well as the prosecution of
perpetrators.
V. State responsibility and measures to address violence against women
A. Legislative framework
52. In addition to article 75 of the Constitution, which gives international treaties
precedence over national laws, article 37 provides for “actual equality of opportunities for
men and women to elective and political party positions” by “means of positive actions in
the regulation of political parties and in the electoral system”. Article 75 (23) gives
Congress the power to legislate and promote positive measures guaranteeing true equal
opportunities and treatment, the full benefit and exercise of the rights recognized by the
Constitution and by the international treaties on human rights that are in force, particularly
with regard to children, women, the elderly and disabled persons.
53. Article 1 of Law No. 24.417 (1994) on protection against family violence defines
domestic violence as physical injury or psychological abuse by a member of the victim’s
family group. However, under that Law, domestic violence remains a misdemeanour that is
handled in civil, rather than criminal, courts. Only if the act involves a “crime against
sexual integrity” is it punishable under the Criminal Code 54 by up to 20 years’
imprisonment.55
54. Law No. 26.485 (2009) on violence against women defines domestic violence as any
act by a member of the family group, regardless of where it occurs, that harms the dignity,
well-being, physical, psychological, sexual or economic integrity, freedom, including
reproductive freedom and the right to the full development of women. Family group means
the group originating in kinship by blood or by affinity, marriage, civil union, couple or
courtship, including ongoing and terminated relationships. The state of living together is
not a requirement (art. 6 (a)). The Law incorporates the concept of comprehensive
protection and makes reference to other forms of violence that women suffer outside the
family or domestic setting.
55. The Law on violence against women coexisted with other civil and criminal laws
that were not fully aligned with it or that contained contradictory provisions. For example,
Law No. 26.485 proscribes mediation or negotiation in cases of gender-based violence (art.
9 (e)). However, article 6 of Law No. 13.433 on criminal mediation states that mediation
may be used in cases relating to events arising for reasons of family or coexistence.56 In
addition, the national Law on violence against women was not universally implemented in
52 See CERD/C/ARG/CO/21-23; CCPR/C/ARG/CO/5; CRPD/C/ARG/CO/1; E/C.12/ARG/CO/3; and
CRC/C/ARG/CO/3-4.
53 See A/HRC/8/34.
54 Argentina, Criminal Code, Law No. 11.179 of 21 December 1984, last amended 19 December 2012.
55 OECD, “Social Institutions and Gender Index: Argentina”. Available at www.genderindex.org/
sites/default/files/datasheets/AR.pdf.
56 Argentina, Office of the Ombudsman of the Province of Buenos Aires, Gender Violence Observatory,
Monitoreo de Políticas Públicas y Violencia de Género 2014/2015.
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14
all the provinces; for example, the autonomous city of Buenos Aires applied its own law on
domestic violence.
56. Article 26 of the Law on violence against women sets out urgent preventive
measures and provides that, at any stage of the proceedings, the intervening judge may
order one or more of the following preventive measures: prohibit the alleged perpetrator
from approaching the woman’s place of residence, work, study, recreation or habitual
attendance; order the alleged perpetrator to cease all acts of disturbance or intimidation
directly or indirectly carried out against the woman; order the immediate restitution of
personal effects to the petitioner, if necessary; prohibit the alleged aggressor from buying
and possessing weapons and confiscate those in his possession; provide security measures
at the woman’s home; order any other measures necessary to ensure the safety of the
woman, to stop the situation of violence and to avoid the repetition of any act of
disturbance, intimidation, aggression or mistreatment. The judge may impose more than
one measure at a time and shall set the duration of the measures according to the case.
57. However, other laws were not fully in line with those provisions of the Law on
violence against women. For example, article 2 of Law No. 24.417 on protection against
family violence states that a judge may prohibit the perpetrator from accessing the home
and the places of work or study of the victim, but makes no mention of other places, such as
the homes of relatives or places of recreation, which leaves the woman vulnerable if she is
somewhere that is not explicitly provided for in the law.
58. Article 32 of the Law on violence against women provides that, in the event that the
perpetrator fails to comply with the measures ordered, the judge may evaluate the
suitability of modifying or extending them or ordering others. In the event of a new breach
by the perpetrator, the judge can apply any of the following sanctions: issue a warning to
the perpetrator; inform the perpetrator’s organization, institution, syndicate, professional
association or workplace of his violent behaviour; order the perpetrator to undertake
therapy with a view to modifying his violent behaviour. If the non-compliance consists of
disobedience or another offence, the judge shall draw it to the attention of a judge with
jurisdiction in criminal matters. Article 239 of the Criminal Code 57 provides for
imprisonment of 15 days to one year for a person who resists or disobeys a public official in
the legitimate exercise of his functions or the professional who is providing him or her with
assistance, whether at his or her request or under a legal obligation. Although article 239 of
the Criminal Code could be invoked as a basis for detention and prosecution of individuals
violating protection orders, the violations were often interpreted by civil judges as atypical
conduct rather than as a crime, so that they were neither reported nor prosecuted.
59. Despite the existence in law of a variety of preventive measures, the Special
Rapporteur received numerous reports that the enforcement of protection orders was weak
and that, after obtaining a protection order, victims did not receive adequate assistance from
the police and were therefore revictimized.
60. The Special Rapporteur was informed that, in numerous cases, police officers
refused to take reports from victims of domestic violence; victims had to report instances of
violence several times before obtaining a restraining order; some cases of violence were
still reported by the police as a family conflict and no lethality risk assessment was
conducted; the police did not provide adequate assistance and information about shelters or
restraining orders to victims of domestic violence; and investigations were halted when a
victim withdrew her statement.
61. The Special Rapporteur also received reports that women often had to file several
complaints for different incidents of domestic violence and initiate legal proceedings in
different courts — for example, the family court, the court of justice of the peace to obtain
protective measures, the criminal court for threats, injuries, attempted murder or murder —
without any connection necessarily being made between the cases. Reportedly, the Supreme
57 Argentina, Criminal Code, Law No. 11.179 of 21 December 1984, last amended 19 December 2012.
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15
Court of Justice, following the issuance of an opinion by the Attorney General’s Office,58
had ruled that facts relating to gender-based violence between the same parties must be
reviewed by a single court; however, that ruling was yet to be implemented. The President
of the Supreme Court of Justice of the Province of Buenos Aires59 issued a resolution that
cases brought by the same party should be joined, but it had been interpreted in different
ways with the result that cases brought by women victims were still being brought before
different instances.60 The dispersion of judicial proceedings hampered the follow-up of
cases and the analysis of the problem. In addition, although there were multidisciplinary
teams working to assist victims of domestic violence in many areas of the country, there
was a protection gap relating to the lack of long-term integration and protection services.
62. Under the Code of Criminal Procedure,61 prosecution for sexual offences, including
rape is not conducted ex officio by the public authorities. That means that no criminal
action to prosecute and punish perpetrators of rape, even in the case of a child victim, can
be taken without a private action or complaint being filed by the victim. That type of
regulation sends the wrong message that rape and sexual violence are private matters and
not serious public concerns that require ex officio prosecution.
63. Law No. 27.210 (2015) created and regulates the work of the body of lawyers for
victims of gender-based violence62 within the Ministry of Justice and Human Rights, which
provides free legal counselling. The implementation of the Law was in its initial stages and
stakeholders had already raised concerns about its funding. The Ministry of Justice and
Human Rights had also issued a regulation establishing Access to Justice Centres staffed
with multidisciplinary teams of lawyers, psychologists and social workers, and which were
intended to provide assistance to the most vulnerable communities to resolve issues relating
to housing, work, social pensions and violence against women.63
64. The Public Prosecution Office of the City of Buenos Aires had established a system
to provide assistance for accessing justice to victims, of whom 70 per cent were victims of
domestic violence and 87 per cent were women. It included five specialized prosecution
units entrusted with investigating domestic violence; interdisciplinary units entrusted with
providing assistance to victims; registration of cases of domestic violence within its
jurisdiction; mechanisms for strategic and operational coordination with key actors; inter-
jurisdictional cooperation and coordination mechanisms with national and provincial
judiciaries. At time of the Special Rapporteur’s visit, however, the jurisdiction of the
Buenos Aires office had been limited to less serious instances of domestic violence. The
Public Defence Office of the City of Buenos Aires provided free legal assistance to women
seeking access to social housing in order to leave violent relationships.
65. The Special Rapporteur received reports that legal aid was provided to victims by
different governmental and non-governmental bodies and organizations, but that the needs
were much greater than the capacity of the available services. That was particularly
alarming, considering that one third of the country’s population lived below the poverty
line and women in impoverished communities were not only the most likely victims of
violence, but also the least likely to afford legal assistance.
58 Argentina, Supreme Court of Justice, G., C. L. s/ Lesiones Agravadas, CCC 667/2015/1/CS1.
Available at www.mpf.gob.ar/dictamenes/2015/AGilsCarbo/septiembre/
G_C_L_CCC_6667_2015.pdf. 59 Argentina, Supreme Court of Justice of the Province of Buenos Aires, resolution No. 346/14.
60 Argentina, Office of the Ombudsman of the Province of Buenos Aires, Gender Violence Observatory,
Monitoreo de Políticas Públicas y Violencia de Género 2014/2015.
61 Argentina, Code of Criminal Procedure, Law No. 23.984 of 21 August 21 1991, last amended 19
December 2012. Available at www.wipo.int/wipolex/en/text.jsp?file_id=294237.
62 Argentina, Law No. 27.210 (2015).
63 See www.jus.gob.ar/accesoalajusticia.aspx.
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B. Policy framework
66. The National Women’s Council had established a free helpline (144) operated by
psychologists and lawyers 24 hours a day, 7 days a week, which provided advice and
information on assistance available to victims of violence. The helpline received an average
of 9,000 calls per month and had experienced challenges in expanding its national coverage
and coordinating its services with emergency assistance services and complaint procedures.
The Special Rapporteur was informed that the helpline was being expanded in cooperation
with the Office of the Under-Secretary for Gender and Diversity of the Province of Buenos
Aires. However, several NGOs and victims stated that the capacity of the helpline was
insufficient, that it did not provide information in indigenous languages and that it was not
adapted for deaf women.
67. At the time of the Special Rapporteur’s visit, there were 87 State-run shelters for
victims of domestic violence in Argentina, as well as several shelters operated by NGOs.
The Special Rapporteur visited several of those shelters and met staff who were devoted to
their work and delivering much needed assistance and services. In one province, however,
there was not a single shelter in operation. The Special Rapporteur received information
that there were no shelters in rural and remote areas of the country. She noted that there
were only a few shelters available throughout the country for victims of trafficking.
68. In July 2016, the Government announced its National Action Plan for 2017-201964
with the mission to guarantee the right of every woman to a life free of violence and to
achieve the implementation of Law No. 26.485 on violence against women. The Plan set
out the three-year budget, of which 80 per cent was earmarked for the construction of 36
comprehensive protection homes (shelters). It comprised 69 measures and 137 actions and
had been validated by 50 public institutions from all three branches of government. The
Plan proposed the incorporation of a gender-based perspective at the educational level; the
conducting of mass awareness-raising campaigns to increase the profile of the emergency
helpline (144) for victims; and increased spending on women’s rights initiatives in various
government agencies. Stakeholders had raised concerns that information about the
resources provided by the various national ministries involved in the Plan was not available
and it was not clear whether the budget would be sufficient to ensure financing of the
activities included in the Plan.65
C. Institutional framework: national machinery and independent
institutions
69. The National Women’s Council is the governing body responsible for developing
public policies on prevention, punishment and eradication of violence against women. The
strategic priorities of the Council include eradication of all forms of violence against
women and girls; economic empowerment and promotion of the autonomy of women;
political empowerment, participation and equality for women in all areas of decision-
making. The Council worked in the areas of gender violence, women and health,
employment, communication and politics66 and had important responsibilities regarding the
implementation of Law No. 26.485.
70. The Special Rapporteur welcomed the Council’s efforts to promote and monitor the
implementation of the State’s international obligations relating to gender equality and
violence against women and to coordinate its work with that of the provincial and
municipal Women’s Offices with a view to implementing national plans in the area of
gender equality and the 2017-2019 National Action Plan. She was, however, concerned
64 Argentina, Plan Nacional de Acción para la Prevención, Asistencia y Erradicación de la Violencia
Contra las Mujeres 2017-2019. Available at https://www.argentina.gob.ar/sites/default/files/
consejo_nacional_de_mujeres_plan_nacional_de_accion_contra_violencia_genero_2017_2019.pdf.
65 ANDHES and others, “Evaluation of compliance with the Convention on the Elimination of All
Forms of Discrimination against Women in Argentina” (October 2016).
66 See www.cnm.gov.ar/.
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17
about the lack of systematic and institutionalized coordination between the federal and
provincial governments, in particular with regard to the work of the Council and the
provincial and municipal offices in areas relating specifically to women across the country.
71. The Ministry of Justice and Human Rights assists the President of the Republic and
the Chief of Cabinet in their functions and relations with the judiciary, the National
Ombudsman and the Council of Magistrates, and in updating national legislation. The
Ministry provides legal advice and coordinates government activities relating to human
rights. In 2011, the Ministry created the National Coordinating Commission for Actions for
the Elaboration of Sanctions against Gender Violence with the objective of implementing,
in conjunction with other national mechanisms, the provinces, municipalities and social
organizations, action relating to the development of sanctions against gender violence. The
Commission also develops assessment programmes necessary for the implementation of
Law No. 26.485.67
72. The national human rights institution in Argentina is the Office of the National
Public Defender (Ombudsman), an independent institution with full functional autonomy,
which has been accredited with “A” status by the Global Alliance of National Human
Rights Institutions.68 However, Argentina has not had an Ombudsman since 2009.
73. In accordance with Law No. 27.149 (2015), the National Public Defence Office is an
institution for the defence and protection of human rights, which guarantees access to
justice and comprehensive legal assistance in individual and collective cases in accordance
with the principles, functions and provisions established in the Law. It promotes all
measures for protecting and defending the fundamental rights of individuals, especially
those who are vulnerable situations.
74. The Domestic Violence Office was created in 2006 by the Supreme Court of Justice
with the aim of facilitating access to justice for people who have been affected by domestic
violence and are in especially vulnerable situations. Several other institutions, notably the
Ministries of Justice, Health, Education and Security, and the Public Prosecution Office of
the Nation had responsibilities relating to combating violence against women at both the
federal and the provincial levels in Argentina.
VI. Conclusions and recommendations
75. The Special Rapporteur acknowledges the current political will of the
Government and all stakeholders, especially non-governmental organizations, to
improve legislation and policies on preventing violence, provide services to victims in
a holistic and coordinated manner and prosecute perpetrators. However, despite the
adoption of progressive laws and policies to address gender-based violence and the
constitutional provision regarding the predominance and direct applicability of the
Convention on the Elimination of All Forms of Discrimination against Women and the
Convention of Belém do Pará, gender-based violence, including femicide, continues to
violate women’s human rights owing to a systemic and overarching shortcoming —
the lack of systematic and uniform incorporation and implementation of
international, regional and national standards and policies in the 2017-2019 National
Action Plan on women’s rights and violence against women.
76. The Special Rapporteur points out that violence against women is rooted in
inequalities and discrimination against women. Her visit to Argentina was conducted
at almost the same time as the examination of the seventh periodic report of Argentina
by the Committee on the Elimination of Discrimination against Women, which
provided an excellent opportunity for the Government and other stakeholders to
situate prevention and elimination of violence against women into the broader context
of elimination of different forms of discrimination against women, as recommended
by the Committee. The Special Rapporteur’s recommendations are focused on causes
67 See www.jus.gob.ar/areas-tematicas/violencia-de-genero.aspx.
68 See www.ohchr.org/Documents/Countries/NHRI/Chart_Status_NIs.pdf.
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18
and consequences and the elimination of violence against women and, as such, they
interconnect with and complement the recommendations of the Committee. The
Special Rapporteur looks forward to continuing a fruitful dialogue with the
Government and other stakeholders on the implementation of the action-oriented
recommendations made in the present report.
Incorporation and direct application of international and regional standards
77. The Special Rapporteur recommends that the Government:
(a) Address the lack of systematic and uniform incorporation and direct
application of the Convention on the Elimination of All Forms of Discrimination
against Women and the Convention of Belém do Pará at the federal and provincial
levels, as provided for under article 75 of Constitution, and take measures to fully
incorporate those standards into all levels of its legal system by harmonizing its laws
accordingly;
(b) Harmonize relevant legislation at the provincial level in the areas of
criminal law, criminal procedure law, health, education and other areas relating to
women’s rights and violence against women with the Convention on the Elimination
of All Forms of Discrimination against Women and the Convention of Belém do Pará;
(c) Accelerate the incorporation and implementation of the Latin American
Model Protocol for the investigation of gender-related killings of women;
(d) Provide appropriate awareness-raising and training programmes on
women’s rights for government officials, members of the legislative bodies, the
judiciary, lawyers, law enforcement officers, social and health workers, teachers and
the general public in order to ensure that the Convention on the Elimination of All
Forms of Discrimination against Women and the Convention of Belém do Pará are
directly applied at the domestic level and that laws are applied in accordance with
international standards;
(e) Encourage universities to introduce, along with the gender studies
programmes, specific education on the Convention on the Elimination of All Forms of
Discrimination against Women, the general recommendations of the Committee on
the Elimination of Discrimination against Women and its jurisprudence under the
Optional Protocol to the Convention, the Convention of Belém do Pará and relevant
jurisprudence of the Inter-American Court of Human Rights.
Uniform implementation of Law No. 26.485 on violence against women at all levels
78. The Special Rapporteur recommends that the Government:
(a) Ensure endorsement and effective implementation by all provinces of
Law No. 26.485 on violence against women;
(b) Ensure compliance of all civil and criminal legislation at the federal and
provincial levels with the Law on violence against women so as to eliminate
contradictory provisions (see para. 55 above).
National mechanism or coordinating body on violence against women
79. The Special Rapporteur recommends that the Government:
(a) Consider giving the National Women’s Council ministerial rank in order
to make it more visible and enhance its capacity to promote and monitor the
implementation of policies on gender equality and on the elimination of violence
against women at the federal and provincial levels;
(b) Strengthen the coordinating role of the National Women’s Council and
provide it with adequate budgetary and human resources for implementing,
monitoring and evaluating the 2017-2019 National Action Plan.
Awareness-raising campaigns to overcome the machismo culture and discriminatory
stereotypes
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19
80. The Special Rapporteur recommends that the Government:
(a) Adopt a comprehensive strategy targeting women, men, girls and boys to
overcome the machismo culture and discriminatory stereotypes regarding the roles
and responsibilities of women and men in the family and in society;
(b) Continue systematic efforts to raise awareness about the different forms
of violence against women, in cooperation with civil society.
Office of the National Ombudsman
81. The Special Rapporteur recommends that the Government:
(a) Appoint an ombudsman immediately;
(b) Provide adequate financial resources to the Office of the Ombudsman to
enable it to fully comply with its mandate, especially with respect to its work on
violence against women and the femicide observatory;
(c) Encourage all relevant institutions to support and cooperate with the
Ombudsman and the femicide observatory.
Collection of data on femicide and other forms of violence against women
82. The Special Rapporteur recommends that the Government:
(a) Establish or support femicide observatories or watches in all provinces,
tasked with collecting data on all cases of femicide or gender-related killing of women
and analysing each case in order to identify any protection failures with a view to
improving and developing further preventive measures;
(b) Collect and publish disaggregated data at the federal and provincial
levels on all forms of violence against women, including transvestites, transgender
women, women with disabilities, indigenous women and migrant women, with
particular focus on femicide;
(c) Conduct regular surveys to assess the prevalence and trends of different
forms of violence against women, including sexual harassment.
83. The Special Rapporteur recommends that the Government revise the Criminal
Code to provide for ex officio prosecution for all acts of violence against women so
that investigations into or prosecution for such offences shall not be dependent upon a
report or complaint filed by the victim and for proceedings to continue even if the
victim withdraws her or his statement or complaint.
84. The Special Rapporteur recommends that the federal and provincial
governments, in particular the Ministries of Education and Health, provide adequate
funding for the implementation of Law No. 26.150 on the National Programme for
Comprehensive Sex Education and:
(a) Include sexual and reproductive health education in the curricula of all
schools throughout the country;
(b) Intensify efforts to distribute contraceptives free of charge, in particular
in informal settlements and low-income areas.
Reducing maternal mortality by, inter alia, ensuring access to safe legal abortions and
post-abortion services for women and girls
85. The Special Rapporteur recommends that:
(a) In the short term, as a matter of urgency, the provincial authorities
should adopt the necessary protocols regulating legal abortions in line with the
current Criminal Code and the Supreme Court interpretation on the matter, and in
line with general recommendation No. 24 (1999) on women and health of the
Committee on the Elimination of Discrimination against Women;
(b) The punitive measures criminalizing women who undergo abortions be
removed and a law regulating legal abortions be adopted, at least for pregnancies
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resulting from rape or incest; pregnancies in which the life or health of the pregnant
woman is at risk; pregnancies in which there is severe foetal impairment;
(c) Strict justification requirements be defined and applied to prevent the
blanket evocation of conscientious objection by medical practitioners refusing to
perform abortions;
(d) The federal and provincial Ministries of Health collect and disseminate
information regarding public health facilities that provide access to safe legal
abortions and post-abortion services.
Legislative and other measures
86. The Special Rapporteur recommends that the Government:
(a) Harmonize the definition of rape with international standards and
increase the age of sexual consent;
(b) Amend procedural legislation to ensure that the statute of limitation for
initiating legal proceedings in relation to gender-based violence offences, including
rape, covers a period of time that is sufficient and commensurate with the gravity of
the offence and allows for the initiation of proceedings after the victim has reached the
age of majority;
(c) In cases of femicide, adopt additional measures in relation to
perpetrators, such as withdrawal of their parental rights;
(d) Take legislative or other measures necessary to ensure that
investigations and judicial proceedings in relation to all forms of gender-based
violence are carried out without undue delay, taking into consideration the rights of
the victim during all stages of the proceedings;
(e) Make available information on legal remedies to women victims of
gender-based violence, including in indigenous languages and in formats accessible by
women with disabilities;
(f) Ensure that the body of lawyers for victims of gender-based violence and
the specialized units of the Access to Justice Agencies69 of the Public Prosecution
Office provide free legal aid services to all women who do not have sufficient means,
including interpretation for indigenous women and deaf women;
(g) Amend all laws that provide for mandatory participation of both parties
in dispute resolution processes, including mediation, to exclude such processes in cases
of violence against women and ensure that judges are trained to identify such cases.
87. The Special Rapporteur recommends that the Government ensure that, in all
places of detention, accused women are segregated from convicted women and are
subject to separate treatment appropriate to their status as non-convicted persons;
limit the use of pretrial detention, in particular of pregnant women and women with
young children, including by expanding recourse to precautionary measures;
accelerate the implementation of Law No. 26.472 on custodial sentences; provide
alternatives to detention for girls under the age of 18, pregnant women and mothers
with young children, taking into account the best interest of the child.
Investigation, prosecution, support services and protective measures
88. The Special Rapporteur recommends that the Government:
(a) Put in place guidelines for prompt and efficient investigation of gender-
based violence, integrating risk assessment and risk management by duly trained
personnel under specific protocols and with adequate technical resources;
(b) Expand and further improve the 24/7 national helpline (144) for victims
of violence; provide it with adequate staff and funding to enable it to cover all
69 Agencias Territoriales de Acceso a la Justicia.
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provinces and to cooperate, connect and work with provincial helplines to provide
assistance to all victims, including those in remote locations and speakers of
indigenous languages.
(c) Align provincial legislation with federal legislation; enforce protection
measures in a uniform manner; encourage judges and law enforcement officials to
consider failure to comply with a preventive order as being equivalent to disobeying a
public official in the legitimate exercise of his functions and an offence under article
239 of the Criminal Code, and report and prosecute it accordingly.
(d) Urgently assess the need for shelters and ensure that sufficient safe
shelters, funded by the State or the provinces, are available in every province and
easily accessible by all, including older women, indigenous women, migrant women,
refugee women and women with disabilities.