TrialWatch^®

The work of WJW and its partners revealed major flaws and shortcomings at every step of the justice process. Survivors are repeatedly failed and exposed to re-traumatization, leading to disillusionment with the system. 92% of women surveyed reported that they had less trust in the system after going through the criminal justice process than they had before reporting.

Urgent reform and adequate funding is needed at every phase of the process to ensure not only access to justice for survivors of gender-based violence, but also that survivors are met throughout with a system that provides the care, respect, and dignity they deserve. The Department of Justice and Constitutional Development, the Department of Health, the South African Police Service, and the Thuthuzela Care Centers (TCCs) are among the main entities that can help survivors of gender-based violence pursue a path in which they feel supported, protected, and respected.

Increased accountability and survivor-centered training for the police, medical practitioners, prosecutors, judges, and others working with survivors in the justice system is an immediate necessity. So too is enhanced accessibility to and provision of survivor-centered services in police stations, hospitals, TCCs, courts, and at every touchpoint for survivors in their fight for justice.

WJW shared the findings of this research project with the relevant Western Cape and South African government representatives. The Western Cape Government responded to WJW on December 5:

This is invaluable research that the Western Cape Government will be able to put to good use for our residents. While tragically it confirms much of what we already know, we deeply appreciate constructive efforts to better understand the scourge of gender-based violence (GBV) so we can work even more closely with our partners both in civil society and in other spheres of government to combat this scourge. This kind of empirical data can only strengthen the on-the ground knowledge and experience of our officials and help us improve the work we currently do. We welcome research that adds to our body of knowledge and provides concrete evidence that highlights the various challenges survivors of GBV face.

Read the full response from the Western Cape Government here.

WJW and its partners continue to build on this work and fight for justice and accountability for gender-based violence survivors, including through strategic litigation and advocacy.

Our research showed that six systemic barriers to justice cut across every stage of the process:

1. Misconduct of officials
Many survivors reported misconduct of police and judicial officials. Although national legal and policy frameworks explain the responsibility of officials in gender-based violence cases, survivors reported that these officials failed to meet their obligations during each stage of the justice process. Such conduct replicates the harmful social and cultural norms that underpin gender-based violence. This contributes to cases being dropped, and can reinforce gender-based violence in their communities. 85% of women surveyed reported police incompetence.

2. Mistrust of police and the justice system
Survivors reported a lack of faith in the criminal justice system, particularly the police. This mistrust often arises from numerous experiences of police not taking their cases seriously and failed attempts to prosecute their perpetrators. Lengthy investigations and court proceedings, significant delays, and low conviction rates contribute to survivors’ lack of faith in the system. These factors compound an already widespread mistrust in state institutions and deters some people from ever reporting gender-based violence incidents.

3. Lack of cross-institutional coordination
Survivors reported lack of coordination between relevant institutions and actors in the justice system—including police, medical, judicial, and social services—creating barriers to justice. While processes are in place to facilitate referral between different parts of the system, survivors reported how relevant actors often did not complete such processes, completed them incorrectly, or did not properly share information. This results in survivors being redirected repeatedly in ways that place significant time, resource, and emotional burden on them, as well as jeopardizing their cases due to missing evidence and incomplete forms. Often, the practical burdens of connecting different actors within the justice system fall to survivors, rather than to the authorities.

4. Lack of adequate infrastructure, resourcing, and services
An overburdened justice system with insufficient capacity, lack of effective protection to ensure survivors’ safety, limitations in police resources, and inadequate public infrastructure were all cited as barriers to justice. For instance, 79% of survivors surveyed mentioned lack of resources for police services.

5. Geographic and socio-economic factors
Survivors and key people working in the sector stressed that a survivor’s ability to access the criminal justice process depends largely on their socio-economic status and where they live. Women in rural or disadvantaged areas may need to travel long distances to reach a police station, health center, or court and lack access to public transport. Without the financial resources to bear the cost of transport themselves, many survivors in locations without easily accessible infrastructure do not make it into the system at all or drop out when they repeatedly face barriers in accessing justice. 87% of survivors surveyed reported that they did not have the financial resources they would need to access police services, the health clinic, and the courts.

Women residing in areas where criminal gangs operate, such as townships and informal settlements in the Cape Flats region of the Western Cape, are not only vulnerable to gender-based violence but face further barriers to justice. Gangs intimidate victims and witnesses, preventing them from seeking recourse from the criminal justice system. Many survivors and witnesses—particularly in communities with high levels of gang violence—are influenced by widespread intimidation not to continue with their cases.

6. Victim’s lack of awareness of laws and their rights
According to key people working in the sector and survivors, most survivors have little to no knowledge or understanding of their rights, the law, or criminal justice processes related to gender-based violence—even after having engaged with the system in some way. This hampers access to justice from initial entry into the system when reporting to police or accessing services to trial proceedings. For instance, 83% of survivors surveyed said they did not know about services and support available to them.

Legacies of colonialism and apartheid are among the key factors contributing to the high rates of gender-based violence in the Western Cape and to the way survivors who report their abuse are treated.  The UN Special Rapporteur on violence against women and girls, noted how South Africa is deeply influenced by its violent past characterized by divisions of race, class, and gender. Socio-economic inequality in South Africa—the highest in the world according to the World Bank—and harmful socio-cultural norms, such as misogyny, are also key contributors to gender-based violence. 93% of women surveyed reported socio-economic factors as key drivers of gender-based violence in their communities.

In addition, limited opportunities for young men and a growing underground economy, spurred by government policies to control alcohol and drugs, have enhanced the power of gangs and contributed to the normalization of violence in South African communities.

A 22-year-old woman from Mamre, who wished to remain anonymous, had several difficulties when reporting her story to the police in 2020. She said she had been sexually assaulted by the perpetrator, but police doubted her narrative. A detective asked her if she had said “no” to her rapist, or even whether she was sure that she did not “want it.” She was able to open a case and receive a case number, but the detective told her he would visit her perpetrator – who was in prison at the time – to ask him if he knew her.

She reported later receiving a message from the detective stating that the perpetrator denied knowing her, and because of his denial, the detective was “unsure as to how we are going to proceed with the case.” Shortly thereafter, the perpetrator was granted bail. She never heard from the detective again.

More than four years later, she is still waiting for justice. Her case ultimately went to trial but, just as she was about to take the stand, the perpetrator dismissed his fourth lawyer, further delaying the trial.

After CFJ Co-Founder George Clooney issued highly publicized calls for a boycott of hotels controlled by the Sultan of Brunei to protest new laws that would have allowed gay men to be stoned to death in Brunei, Brunei backed off on enforcement of the law.

CFJ participated in a landmark case before the African Court of Human and Peoples’ Rights to challenge Tanzania’s policy of expelling and banning married and pregnant girls from school.  This policy impacts more than 1 in 4 Tanzanian girls who are either pregnant or married before the age of 18. After the case was initiated the government announced a reversal of this discriminatory policy in a major U-turn that will benefit a quarter of the population of adolescent girls in the country.

In Nigeria, TrialWatch monitored the first case to be tried under the country’s draconian ‘Same Sex Marriage Prevention Act,’ which criminalizes direct or indirect “public show[s] of same sex amorous relationship[s]” with up to ten years imprisonment. While the case, brought against 47 men arrested at a hotel bar, was eventually struck out, TrialWatch reporting exposed its abusive nature.

Several defendants said they were mistreated in custody, and others were forcibly ‘outed’ by being paraded in public by the authorities. And despite being given numerous opportunities by the court, the prosecution produced no relevant evidence. Even though the case was ultimately dismissed, the defendants suffered serious consequences, including loss of their jobs, estrangement from their families, stigmatization, physical violence, and legal fees.

In Russia, TrialWatch published a preliminary report on the case against LGBTQ+ activist Yulia Tsvetkova, after which she was acquitted. Ms. Tsvetkova, a 26-year-old women’s and LGBTQ+ rights activist from Siberia, was charged with pornography for posting artistic images of female genitalia as part of a body-positive women’s empowerment campaign and faced up to six years in prison.

Our report details how the indictment against her was riddled with indicia of discrimination, suggesting for instance that the images she posted might create “a stereotype of female sexuality as an isolated phenomenon that exists outside of sexual relations with men.”  While the prosecution appealed her acquittal, and the Court of Cassation ultimately ordered her retrial, she was able to safely get out of the country in the meantime.

Evelyn Hernandez was prosecuted for aggravated homicide based on an obstetric emergency she suffered while giving birth. TrialWatch monitored her case, and she was ultimately acquitted. CFJ did not stop there and intervened in support of Salvadorian women more broadly in a landmark case before the Inter-American Court of Human Rights challenging El Salvador’s prosecution of women who have undergone obstetric emergencies.

The Court ordered $200,000 in compensation for the victim’s family, legal reforms to women’s healthcare, for women seeking treatment at hospitals, and training on gender bias for people working in the justice sector to prevent such abuses in the future.

Polish LGBTQ+ rights activists who were prosecuted for depicting the Virgin Mary with a rainbow halo on posters had their acquittal upheld by an appeals court following TrialWatch monitoring and TrialWatch Expert Professor Lisa Davis giving the trial a grade of “D”. One of the activists, Anna Prus, told the Clooney Foundation for Justice they all felt compelled to act in response to a display a church had put up for Easter which included a crucifix surrounded by wooden boxes with different sins written on them, including “LGBT” and “gender.”

In Russia, TrialWatch secured a key decision from the UN on the persecution of Crimean Tatar religious minorities. Server Mustafayev, a 32-year-old Crimean human rights defender, was prosecuted and convicted before a military court for membership in a terrorist organization: the charges were based on his involvement in Hizb ut-Tahrir, an Islamic political group that is banned in Russia but operates legally in Ukraine.

He was sentenced to 14 years in prison, with the TrialWatch Fairness Report finding that his trial was riddled with irregularities and that the authorities improperly applied Russian law to occupied Crimea.

TrialWatch and Gibson Dunn & Crutcher challenged Mustafayev’s conviction before the UN Working Group on Arbitrary Detention, which urged Russia to immediately release Mustafayev.

In Indonesia, TrialWatch reporting helped secure the acquittal of a Catholic woman unfairly targeted by the State. Suzethe Margaret, who had previously been diagnosed with schizophrenia, was charged with blasphemy after she ‘heard voices’ telling her that her husband was getting married at a mosque and, under this delusion, entered the mosque with her shoes on and with her dog—conduct prohibited by Islam.

The report on the case found that the blasphemy law was applied in a discriminatory manner: in particular, the authorities brought charges in the wake of calls from hardline groups that Ms. Margaret be punished and “[d]espite overwhelming evidence that Ms. Margaret’s diagnosed psychosocial disability was the cause of the incident.”

International pressure, including TrialWatch monitoring and reporting, contributed to her acquittal and the upholding of this decision on appeal, meaning that she did not have to serve jail time.

The presence of a monitor in the courtroom during the trial of 33-year-old indigenous land rights advocate Abelino Chub in Guatemala likely contributed to his acquittal after two years in detention, according to Chub’s lawyer. He was charged with aggravated usurpation and arson for allegedly burning trees and fields on a plantation run by a large banana and palm company. TrialWatch monitored the criminal proceedings against Chub in 2019 through its partners, the American Bar Association’s Center for Human Rights, and gave the proceedings an F: TrialWatch’s lowest grade.

The TrialWatch Fairness Report found that “Chub’s unjustified pretrial detention constituted a gross violation of human rights and there are indicia that his prosecution was motivated by improper considerations.”

In Uganda, TrialWatch helped secure the dropping of charges against Nicholas Opiyo, a prominent human rights lawyer. Mr. Opiyo was charged with money laundering – an example of how sometimes the charges brought could be a smokescreen for the true motivation of the trial.

TrialWatch reviewed the charge sheet and issued a statement raising concerns about the lack of detail given about the evidence and charges, calling on the authorities to ensure that any prosecution was well-founded on evidence and not an effort to stifle Mr. Opiyo’s work.

Responding to this pressure, prosecutors dropped the charges.

In Uganda, TrialWatch helped secure the dismissal of charges against 67 people following a raid on an LGBTQ+-friendly bar. From 2019 to 2022, TrialWatch sent monitors to observe the proceedings, and reported on the fact that the process was clearly motivated by homophobia as well as exposing serious fair trial violations in a report.

Among other things, the defendants were denied access to key evidence and subject to undue delays because of prosecutorial misconduct, prolonging the cases so that the defendants (who were on bail) had the charges hanging over them for several years.

Following the release of TrialWatch’s report, courts in three of the cases, covering more than 30 defendants, dismissed the charges on the basis of the prosecution’s conduct.

Askhat Zheksebaev, a 47-year-old opposition activist from Kazakhstan, was convicted and sentenced to five years in prison for peaceful social media posts and private messages in support of an opposition party. His sentence was later commuted to a suspended sentence but he was banned from public activism, had his assets frozen, and was subject to severe restrictions on movement. He subsequently fled to Kyrgyzstan, where he was arrested and detained.

After, TrialWatch published a Fairness Report on Zheksebaev’s trial , giving it a D, and sent a communication to the Kyrgyz government about the potential consequences he might face on returning to Kazakhstan, a Kyrgyz court released him so that he could seek asylum.

Russia’s long-running campaign against 45-year-old human rights lawyer Mikhail Benyash culminated in his March 2023 retrial and conviction for allegedly assaulting the police.

TrialWatch monitored the first trial against Benyash in 2019 as part of its focus on how Russia is stifling dissent.

Our Fairness Report was used by the defense in its successful appeal that resulted in the overturning of Benyash’s conviction. TrialWatch helped ensure that the appeal hearings remained public, despite the court’s initial efforts to close them, by submitting a letter to the court highlighting serious fair trial problems in the first instance proceedings and the need for transparency on appeal.

After Benyash was released from prison, he went on to represent anti-war protesters in Russia who were arrested following Russia’s invasion of Ukraine as well as soldiers who refused to fight in Ukraine.

34-year-old investigative journalist Muhammad Asrul was convicted of cyberdefamation under Indonesia’s notorious Electronic Information and Transactions Law and sentenced to three months in prison for reporting on alleged corruption by the son of a city mayor. Even though the Supreme Court of Indonesia ultimately upheld his conviction, he was not imprisoned, likely because of international pressure, including that of TrialWatch.

In addition to monitoring his trial, TrialWatch submitted an amicus brief urging the Indonesian Supreme Court to overturn the conviction of Asrul based on the press protections he was due under both international and domestic law.

Just days after the TrialWatch report was released on the trial of Dian Abdullah, a 65-year-old blogger who was tried for ‘offensive communication’ for criticizing the government and the monarchy’s management of the COVID-19 pandemic, the prosecution offered to settle the case for a fine.

TrialWatch has since leveraged the monitoring and reporting in Abdullah’s case to file an amicus submission in an affirmative challenge to the law under which she was convicted.

Soon after TrialWatch issued a press statement calling for the release of Shafiqul Kajol, a 52-year-old Bangladeshi photographer and editor of an independent news outlet, he was freed. Kajol is charged under Bangladesh’s draconian cybercrime law, the Digital Security Act, in three separate cases. The cases all relate to a story he shared on his Facebook page alleging a sex scandal involving several high-ranking politicians from the ruling party.

TrialWatch is monitoring ongoing proceedings against Mr. Kajol.

Ahmed Manseri, an Algerian blogger and human rights activist, was acquitted after TrialWatch monitored his trial. Mr. Manseri was charged with criminal defamation after he filed a criminal complaint alleging police abuse. His trial, graded a “D” by TrialWatch, was one of the first cases to be monitored by an international organization in Algeria in years.

The monitor reported “that the treatment of Mr. Manseri’s case differed significantly from the treatment of any other case heard that day” in that the judge took the time to ensure that Mr. Manseri’s rights were respected. And Mr. Manseri’s lawyer told CFJ that he doubted Mr. Manseri would have been allowed to go home but for the presence of the monitor.