CEDAW Committee declares sexual harassment communication inadmissible (M.S. v. The Philippines)

M.S. was employed between 1998 and 2000 as Director of the Market and Communications Department of a telecommunications company in the Philippines. On 27 June 2000, she resigned from the company after reportedly being sexually harassed repeatedly by G, the company’s Chief Operating Officer. 

In May 2001, M.S. initiated criminal proceedings in the National Bureau of Investigation against G and S, her immediate supervisor, for sexual harassment and acts of lasciviousness. The Office of the City Prosecutor initially dismissed the complaint for lack of probable cause, but, in April 2003, found merit in her allegations against G. A motion for reconsideration, filed by S and G, was denied in May 2004. However, in March 2005, after G filed a petition for review, the Metropolitan Trial Court dismissed the criminal case because G had died.  

In addition to the criminal proceedings, in December 2001, M.S. initiated unfair dismissal proceedings with the Labour Arbiter. In April 2003, the Arbiter dismissed the case on the basis that M.S. had resigned voluntarily and had not sufficiently substantiated her claim that she was forced to resign due to harassment. M.S. appealed unsuccessfully to the National Labour Relations Commission, but was successful in her appeal to the Court of Appeals. That Court annulled the earlier decisions, finding that M.S. had been constructively dismissed. However, the Supreme Court reinstated the decision of the National Labour Relations Commission that M.S. had not been dismissed unfairly. A motion for reconsideration, filed by M.S, was denied.

M.S. then submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed she was a victim of a violation by the Philippines of articles 1, 2(c), 2(f), 5(a) and 11(1)(f) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with General Recommendation No. 19 on violence against women.

M.S. claimed that the Supreme Court’s decision was based on gender myths and stereotypes. This, she claimed, led to the failure to uphold her rights to non-discrimination in the workplace and workplace health and safety as well as to discriminatory and unequal treatment by the Court. She further claimed that the State Party’s failure to abolish discriminatory customs and practices and eliminate harmful gender stereotyping had impaired her rights to a fair trial and to access an effective remedy for workplace sexual violence.

State Party’s observations on admissibility

It is unclear from the CEDAW Committee’s decision if the State Party contested the admissibility of the communication. However, the State Party did argue that the decision in question was not discriminatory, but, rather, was based on M.S.’s failure to substantiate her claim.

Majority’s decision on admissibility

A majority of the CEDAW Committee found that the communication was insufficiently substantiated and declared it inadmissible under article 4(2)(c) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol to CEDAW). 

The majority concluded that M.S.’s main aim was to challenge “the manner in which the national courts, and the Supreme Court in particular, assessed the circumstances of her case and applied national law”. In so concluding, it emphasized that the CEDAW Committee “does not replace the national authorities in the assessment of the facts, nor does it decide on the alleged perpetrator’s criminal responsibility”. The majority went on to explain that 

it is generally for the courts of … States parties … to evaluate the facts and evidence or the application of national law in a particular case, unless it can be established that this evaluation was biased or based on gender harmful stereotypes that constitute discrimination against women, was clearly arbitrary or amounted to a denial of justice [emphasis added].

In the majority’s view, there was nothing to suggest that the examination of M.S.’s case by Filipino courts, including the Supreme Court, suffered from any such defects. Moreover, it concluded that,

even if it could be argued that some aspects of gender-based stereotypes may appear to be indicated in the Supreme Court’s decision, they do not suffice, per se, to demonstrate that they have negatively affected the court’s assessment of the facts and the outcome of the trial, or to corroborate the author’s claims of a violation of articles 1, 2(c) and (f), 5(a) and 11 (1)(f), of the Convention for purposes of admissibility.

Individual (dissenting) opinion of CEDAW Committee member Patricia Schulz 

CEDAW Committee Patricia Schulz issued an individual (dissenting) opinion. Like the majority, she declared the communication inadmissible. However, she concluded that it was an abuse of the right to submit a communication and, therefore, declared it inadmissible under article 4(2)(d) of the Optional Protocol to CEDAW.

In Schulz’s view, M.S. had substantiated her claim for the purposes of admissibility. She had done this, Schulz explained, by identifying passages from the national decisions that pointed to “gender stereotyping in action”. Schulz also noted the failure of the State Party to explain these passages.

Nevertheless, Schulz concluded that M.S.’s delays in initiating proceedings at the domestic level and in submitting her communication to the CEDAW Committee were fatal to her case.

Whilst there is no statute of limitations in the Philippines for sexual harassment proceedings, Schulz concluded that the Supreme Court had rightly determined that, by taking 18 months to initiate such proceedings, M.S. failed to act “expeditiously”. At the same time, Schulz was careful to stress the importance of appropriate limitation periods in sexual violence cases and criticised jurisdictions with short limitation periods. She acknowledged, for instance, that victims in such jurisdictions “risk being denied access to justice if they need a longer time than these statutes foresee to recover from the trauma they have experienced before being able to face a judicial procedure…”.

Schulz also acknowledged that there is no limitations period on submitting communications under the Optional Protocol to CEDAW. Nevertheless, she emphasised the importance of submitting communications in a timely fashion. In Schulz’s view, the five-year delay in submitting the communication and M.S.’s failure to explain why the delay might be considered reasonable abused the right to submit a communication. Schulz explained: “I find that the author should have submitted her communication in a shorter delay than she did, or else she should have explained why she was not able to act more rapidly”.

Schulz went on to call for the introduction of a 1-year limitation period (with justifiable exceptions) to submit communications to the CEDAW Committee. In her view, such a period would appropriately balance the needs of victims and States Parties, help to harmonise treaty procedures and protections, ensure legal security for State Parties and claimants, and facilitate the administration of justice.

Communication No. 30/2011, UN Doc. CEDAW/C/58/D/30/2011 (2014) 

Decision (advanced unedited version)

 

Asylum communication concerning sexual harassment and religious persecution declared inadmissible (M.S. v. Denmark)

 

M.S. is from Rawalpindi, Pakistan, and belongs to the Christian minority of Anglo-Indians.  M.S. claims she is a victim of religious discrimination and sexual harassment in Pakistan.

M.S. claims that, when she was about 16 years old, A.G. asked to date her and threatened her with reprisals when she refused his request.  According to M.S., A.G.’s brother, a high-ranking Pakistani police officer, then arrested her brother and her family had to pay a bribe to secure his release. 

M.S. subsequently moved to another location in Pakistan.  M.S. claims that A.G. verbally assaulted her at work, forcing her to resign.  M.S. took another job, but says she resigned when her boss subjected her to sexual harassment.  M.S. took another job and claims her superiors subjected her to sexual harassment.  In addition, A.G. told her boss that he was in a relationship with her and her family was involved in prostitution.  M.S. subsequently left her job because she felt humiliated.

In 2007, M.S. travelled to Denmark on an au pair visa.  M.S. claims that A.G. continued to harass her via telephone.  One day he told M.S. to contact her family in Pakistan.  She says that, upon contacting her family, she learned that Pakistani police had arrested her elder brother without grounds for doing so and beat him badly.

In March 2008, M.S. returned to Pakistan to care for her ill mother.  M.S. met her husband during this time and they married, despite threats from A.G.  M.S. claims that A.G. and his friends broke into her home several months later, verbally abused her and threatened her with imprisonment.  In October 2008, M.S. claims Pakistani police arrested her husband and younger brother, based on false allegations made by A.G.  They spent a week in prison, where they were ill treated, before relatives paid a bribe to secure their release.  M.S. claims that A.G. continued to harass her throughout this period and threatened to kidnap her newly born daughter from hospital.

In 2009, M.S. and her family travelled to Denmark on tourist visas.  After arriving in Denmark, they sought asylum, claiming that they feared persecution by A.G., life-threatening sexual assaults, and the murder of M.S.’s husband in connection with the false accusations brought against him by the authorities.  They also claimed they were not safe in Pakistan because A.G. belonged to a high-ranking family and his brother was a high-ranking police officer. 

In 2009, the Immigration Service rejected the asylum application.  In 2012, the Refugee Appeals Board upheld the decision of the Immigration Service and rejected their asylum application.  The Board found that A.G. had sexually harassed M.S and A.G., his brother and the local police had abused M.S. and her family over a number of years.  However, it concluded that it was reasonable for M.S. and her family to take up residence elsewhere in Pakistan, where they would be safe from A.G.  It further concluded that it had not been established that M.S. and her family had been subjected to religious persecution.  It subsequently ordered that M.S. and her family be deported to Pakistan.

In March 2012, M.S. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) on behalf of herself, her husband and their two minor children.  M.S. alleged that deporting her and her family to Pakistan would constitute a violation by Denmark of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), specifically articles 1, 2, 3, 5, 12 and 16, read in conjunction with General Recommendation No. 19.  M.S. claimed that there was a risk that, if deported to Pakistan, she would be subjected to sexual harassment by A.G.  She further claimed that Pakistan authorities were unable to provide effective protection to her and her family against such harassment.   

Acting in accordance with article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), the CEDAW Committee granted interim measures and asked the State Party to refrain from deporting M.S. and her family while it considered her communication.   

State Party’s observations on admissibility 

The State Party challenged the admissibility of the communication on several grounds.

Incompatibility / extraterritoriality (arts. 2, 4(2)(b))

The State Party claimed that the communication was incompatible with CEDAW and should be declared inadmissible ratione loci and ratione materiae under 4(2)(b), read together with article 2, of the Optional Protocol.  More specifically, it claimed M.S. sought to apply CEDAW in an extraterritorial manner and that, while the alleged violations may be imputable to Pakistan, they are not imputable to Denmark because no Danish authority had discriminated against M.S. and her family. 

While the State Party accepted that M.S. and her family were residing temporarily in Denmark, the State Party asserted that “their claims rest not on any treatment that they will suffer in Denmark, or in an area where Danish authorities are in effective control or as a result of the conduct of Danish authorities, but rather on consequences that they may suffer if they are returned to Pakistan.”  The State Party rejected M.S.’s claim that its decision to deport her and her family to a place where they will allegedly suffer discriminatory treatment engaged its legal responsibility under CEDAW.  In doing so, it argued that “the return of women who arrive in Denmark simply to escape from discriminatory treatment in their own country, however objectionable that treatment may seem, cannot constitute a violation of the Convention.”  “States parties,” it said, “cannot be obliged under the Convention to return aliens only to countries whose legal systems are compatible with the principle of non-discrimination enshrined in the Convention.”

Absence of legal standing (art. 2)

The State Party claimed that the communication should be declared inadmissible in relation to M.S.’s husband and son because they lacked legal standing under article 2 of the Optional Protocol.  It submitted that they could not claim to be victims under CEDAW because they are male: “[w]hile the term ‘women’ is not clearly defined in the Convention, it is clear that adult males and boys cannot be regarded as women and, as a consequence, cannot be considered victims of a violation of the Convention.”  

Failure to substantiate claim (art. 4(2)(c))     

The State Party further claimed that the communication should be declared inadmissible under article 4(2)(c) of the Optional Protocol because M.S. had failed to substantiate her claim sufficiently.  It asserted that M.S. had not clearly identified or explained the rights under CEDAW on which she relied, but had instead simply listed several articles of the treaty.  It further asserted that it was unclear which violations M.S. claimed would occur if deported to Pakistan and that she had failed to substantiate her claim that her rights would be violated if so deported.

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication inadmissible under article 4(2)(c) of the Optional Protocol on the basis that M.S. had failed to “sufficiently substantiate, for the purposes of admissibility, her claim that her removal to Pakistan would expose her to a real, personal and foreseeable risk of serious forms of gender-based violence.” The CEDAW Committee also concluded that the sexual harassment alleged by M.S. was of a “sporadic nature” and, as such, did not constitute systematic harassment amounting to gender-based violence.

The Committee did not make any determinations in respect of the remaining grounds of inadmissibility raised by the State Party.  It did, however refer to its views in M.N.N. v. Denmark concerning the extraterritorial application of CEDAW.

Communication No. 40/2012, UN Doc. CEDAW/C/55/D/40/2012 (2013)

Decision  

Treatment of woman in detention violated CEDAW (Inga Abramova v. Belarus)

 

The Lenin District Court of Belarus found Inga Abramova guilty of ‘minor hooliganism’ for hanging ribbons and posters calling for participation in the ‘European March.’  It subsequently ordered her to serve five days administrative arrest. 

Abramova claimed that, during her detention, a male staff member subjected her to a body search, touched her inappropriately, and threatened to strip her naked.  She further claimed that she had been detained in an underground cell in a detention facility staffed entirely by men.  According to Abramova, the facility housed persons detained on criminal charges as well as those under administrative arrest.  Among other things, Abramova also claimed that: she was only fed twice a day; the heating system was turned off, despite almost freezing temperatures; there was inadequate light and ventilation; other prisoners and male staff could watch her use the toilet; and, she was frequently subjected to humiliating comments. 

Following unsuccessful attempts to obtain redress at the domestic level, Abramova submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee), in which she alleged violations of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with article 1.  She also claimed breaches of articles 7 and 10(1) of the International Covenant on Civil and Political Rights and rule 53(3) of the Standard Minimum Rules for the Treatment of Prisoners.  

In her communication, Abramova submitted that she had been detained in poor, unhygienic and degrading conditions in a facility staffed exclusively by men.  She further claimed that she had been subjected to inhuman and degrading treatment and that the failure of Belarus to adapt its detention facilities for women constituted discrimination on the ground of sex.  Abramova also claimed that her ‘conditions of detention were worse than those of male prisoners, since she was the object of sexual harassment and was subjected to degrading treatment.’  

In a supplementary submission to the CEDAW Committee, Abramova clarified that her communication was concerned primarily with the discrimination she experienced as a woman detained at the aforementioned facility, rather than the conditions of her detention per se.  She also alleged that Belarus had violated article 7(b) of CEDAW, by hiring only men to work in its detention facilities.     

Belarus’ observations on admissibility

Belarus contested the admissibility of the communication on two grounds.

Failure to exhaust domestic remedies

First, it claimed that Abramova had failed to exhaust 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).  According to Belarus, Abramova had failed to submit any complaints concerning the conditions of her detention to the administration of the detention facility or the Minister of the Interior.

Failure to substantiate claims

Second, Belarus claimed that Abramova had failed to substantiate her claims under CEDAW, as required by article 4(2)(c) of the Optional Protocol.

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible. In doing so, it found that Abramova had ‘diligently pursued domestic remedies, by addressing her complaints to the competent authorities of the internal affairs organs, to the Prosecutor’s Office, as well as to the national courts.’  It also found that Abramova had sufficiently substantiated her claims for the purposes of admissibility. 

Belarus’ observations on the merits

Belarus rejected Abramova’s claims that it had violated CEDAW.  It submitted that: the cells at the detention facility where Abramova was detained were intended to house women; men, women and persons with previous convictions are detained separately; and, the facilities and services for detainees are adequate.

CEDAW Committee’s views

The CEDAW Committee found that Belarus’ treatment of Inga Abramova constituted discrimination and sexual harassment, in violation of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of CEDAW, read in conjunction with article 1 and the Committee’s General Recommendation No. 19 on violence against women.  In reaching its determination, the CEDAW Committee also took rule 53 of the Standard Minimum Rules for Treatment of Prisoners and the UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders into account.

In reaching its views, the CEDAW Committee reiterated that failure of detention facilities to adopt a gender-sensitive approach to the specific needs of women prisoners constitutes discrimination, within the meaning of article 1 of CEDAW.  Recalling rule 53 of the Standard Minimum Rules, which the Committee explained is consistent with the definition of discrimination against women in article 1 of CEDAW, the Committee noted:

(1)    In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.

(2)    No male member of staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.

(3)    Women prisoners should be attended and supervised only by women officers.

In its views, the CEDAW Committee reiterated that sexual harassment is a form of gender-based violence against women prohibited under CEDAW and that ‘respect for women prisoners’ privacy and dignity must be a high priority for the prison staff.’  It went on to conclude that the disrespectful treatment of Abramova, including inappropriate touching and unjustified interference with her privacy, constituted sexual harassment and discrimination.   

In its recommendations, the CEDAW Committee called on Belarus to provide appropriate reparation, including compensation, to Abramova.  It further recommended that Belarus take measures to, inter alia: protect the dignity, privacy and physical and psychological safety of women detainees; ensure access to gender-specific health care for women detainees; and, provide safeguards to protect women detainees from all forms of abuse, including gender-specific abuse.  

Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (27 September 2011)

Decision