A member of the Bolivian Parliament (“Applicant”) brought an action before the Constitutional Court to challenge the constitutionality of several provisions of the Bolivian Criminal Code. The Applicant contested the constitutionality of the following Articles:
• Article 56 (preventing imprisoned women, but not men, from working outside the prison)
• Article 58 (enabling women to serve jail sentences of less than two years through home arrest)
• Article 245 (providing a mitigating factor for instances where any man provides false information about a newborn to the civil registry in order to protect the honor of his wife, mother, daughter, or sister)
• Article 250 (punishing any man who abandons a pregnant woman to whom he is not married)
• Article 254 (punishing homicide carried out in a state of “violent emotion” or following “honorable motives” with a lesser term of imprisonment)
• Article 258 (punishing infanticide aimed at concealing the mother’s “fragility or dishonor”)
• Articles 263 – 266 (criminalizing abortion, with specific articles for those that result in injury or death or are “honoris causa,” and providing exceptions to the prohibition on abortion where the pregnancy results from rape or other criminal acts, and where abortion is necessary to protect the woman’s health or life)
• Article 269 (punishing anyone who regularly performs abortion)
• Articles 315 and 317 (criminalizing the abduction of a person with the intention of forced marriage, and reducing the sanction when marriage is entered into with the person’s consent).
In the Applicant’s view, these provisions contain patriarchal and sexist elements contravening the constitutional principle of equality and prohibition of gender discrimination (Articles 8 and 14 of the Constitution), the fundamental right to life and physical integrity (Article 15), the right to health (Article 35), the rights of the child (Article 58), the equal duty of both spouses with respect to the home and the children (Article 64), sexual and reproductive rights (Article 66), the principle of direct applicability of all constitutional rights (Article 109), and the right to effective judicial protection (Article 115).
The Bolivian Constitutional Court (“Court”) declared the partial or total unconstitutionality of Articles 56, 245, 258, and 266 of the Bolivian Criminal Code. Specifically:
• The Court determined that the difference in treatment between imprisoned men and women in Article 56 (preventing imprisoned women, but not men, from working outside the prison) constitutes gender discrimination and therefore violates the Bolivian Constitution.
• The Court then found that Article 245 (allowing a mitigating factor when any man provides false information relating to a newborn to the civil registry in order to protect the honor of his wife, mother, daughter, or sister) is based on a sexist social construct, amounts to discrimination on grounds of gender and as such is unconstitutional.
• The Court held that Article 258’s (punishing infanticide aimed at concealing the mother’s “fragility or dishonor”) reference to the mother’s fragility or dishonor is based on a patriarchal conception of women and is contrary to the constitutional principle of equality regardless of gender.
• The Court also held that the requirement of judicial authorization for the abortion exception and the initiation of legal action in cases of rape or other criminal acts in Article 266 is unconstitutional. According to the Court, these obstacles to women’s access to a safe and lawful abortion in the cases allowed by Article 266 violate both international human rights treaties as well as domestic case law and the Bolivian Constitution.
The Court upheld the constitutionality of Articles 58, 250, 263 and 269 of the Bolivian Criminal Code. The Court held that:
• Article 58 (enabling women to serve sentences of less than two years through home arrest) can be interpreted in a way that is compatible with the Constitution, (i.e. the woman does not have to be the owner of the house and only needs to demonstrate that she lives there).
• Similarly, the Court dismissed Applicant’s argument that Article 250 (punishing any man who abandons a pregnant woman to whom he is not married) discriminates against married pregnant women abandoned by their husbands. In the Court’s view, this provision can be interpreted as covering the abandonment of both married and unmarried pregnant women.
• The Court held that Article 263 is constitutional. This resolution acknowledges that although the fetus has a right to life or at least of life that will potentially be achieved with birth, this life is of a lesser value than that of a person who has been born. The Court recognized that protection of life is gradual and incremental in its development from an ovule to the time of birth.
• The Court concluded that Article 269 (punishing anyone who regularly performs abortion procedures), is compatible with the Constitution insofar as the law only permits abortion in the cases described in Article 266 of the Penal Code.
Finally, the Court held that the challenge was inadmissible with respect to Articles 254, 315, and 317 of the Criminal Code, insofar as the Bolivian legislature had amended those provisions (in a sense that addressed the applicant’s claims) while the action was pending, and as regards Articles 264 and 265, since the applicant failed to put forward clear and specific arguments.