In June 2000, Ms Rahime Kayhan, a Turkish national, was terminated from her position as a public school teacher after she refused to stop wearing a headscarf. As a result of her termination, Ms Kayhan lost her status as a civil servant and related benefits. She unsuccessfully challenged the decision before domestic authorities.
Ms Kayhan subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed that the decision to terminate her employment for wearing a headscarf, a piece of clothing unique to women, constituted a violation of article 11 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Specifically, she claimed violations of ‘her right to work, her right to the same employment opportunities as others, as well as her right to promotion, job security, pension rights and equal treatment.’ Ms Kayhan further claimed that Turkey had violated her right to freedom of religion and thought.
Turkey’s observations on admissibility
Turkey challenged the admissibility of the communication on several grounds.
Failure to exhaust domestic remedies
First, Turkey claimed that Ms Kayhan had failed to exhaust all available domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).
Same matter already examined
Second, it claimed that the communication was inadmissible under article 4(2)(a) of the Protocol because the European Court of Human Rights had already examined the same matter. In support of its claim, Turkey cited the Court’s judgment in Leyla Şahin v. Turkey, which concerned a student’s right to wear a headscarf at university.
Facts predated entry into force of Optional Protocol for Turkey (ratione temporis)
Third, Turkey claimed that the Committee was required to declare the communication inadmissible under article 4(2)(e) because the termination of Ms Kayhan’s employment occurred prior to the entry into force of the Optional Protocol for Turkey.
Incompatibility (ratione materiae)
In a subsequent submission, Turkey claimed that the communication was incompatible with CEDAW and, thus, inadmissible ratione materiae under article 4(2)(b) of the Optional Protocol. According to Turkey, sex/gender was not a consideration in the decision to terminate Ms Kayhan’s employment.
CEDAW Committee’s admissibility decision
On 27 January 2006, the CEDAW Committee determined that Ms Kayhan had failed to exhaust domestic remedies and, consequently, declared the communication inadmissible under article 4(1) of the Optional Protocol.
Failure to exhaust domestic remedies
In declaring the communication inadmissible under article 4(1), the CEDAW Committee explained that the exhaustion of domestic remedies requirement
should guarantee that States parties have an opportunity to remedy a violation of any of the rights set forth under the Convention through their legal systems before the Committee considers the violation. This would be an empty rule if authors were to bring the substance of a complaint to the Committee that had not been brought before an appropriate local authority.
Whilst Ms Kayhan had pursued a variety of domestic remedies, the Committee concluded that her failure to raise sex discrimination as an issue for determination in domestic proceedings meant that she had not satisfied the exhaustion requirement. It explained:
In sharp contrast to the complaints made before local authorities, the crux of the author’s complaint made to the Committee is that she is a victim of a violation by the State party of article 11 of the Convention by the act of dismissing her and terminating her status as a civil servant for wearing a headscarf, a piece of clothing that is unique to women. By doing this, the State party allegedly violated the author’s right to work, her right to the same employment opportunities as others, as well as her right to promotion, job security, pension rights and equal treatment. The Committee cannot but conclude that the author should have put forward arguments that raised the matter of discrimination based on sex in substance and in accordance with procedural requirements in Turkey before the administrative bodies that she addressed before submitting a communication to the Committee.
Same matter had not already been determined
Although the Committee declared the communication inadmissible under article 4(1) of the Optional Protocol, it went on to dismiss Turkey’s claim that the communication should be declared inadmissible under article 4(2)(a). According to the Committee, the European Court of Human Rights had not previously examined the same matter because the complaints before the Committee and the Court concerned different subject matters and individuals. It explained that the communication before the Committee concerned the right of Rahime Kayhan to wear a headscarf at her workplace, whereas Leyla Şahin v. Turkey concerned the right of a different woman to wear a headscarf at her educational institution.
Effects of alleged violation were ongoing (ratione temporis)
The CEDAW Committee also dismissed Turkey’s claim that the communication should be declared inadmissible ratione temporis under article 4(2)(e) of the Optional Protocol. Although the Committee conceded that Ms Kayhan’s employment had been terminated prior to the entry into force of the Optional Protocol for Turkey, it found that the effects of the termination (e.g., loss civil servant status) were ongoing.
Communication No. 8/2005, UN Doc CEDAW/C/34/D/8/2005 (27 January 2006)