Failure to ensure de facto equality in employment a violation of CEDAW (R.K.B. v. Turkey)


R.K.B.’s employer, a hairdressing salon, terminated her contract of employment.  It also allegedly threatened to spread rumours that R.K.B. had extramarital affairs in order to pressure her to sign a document stating that she had received all of her work entitlements and precluding her from suing for unfair dismissal.  R.K.B. did not sign the document, but claimed that she felt threatened to do so. 

R.K.B. filed a claim before the Kocaeli 3rd Labour Court for severance pay and other damages.  The employer sought to have the matter dismissed, claiming (inter alia) that it fired R.K.B. because she had a relationship with a male colleague (Mr. D.U.), displayed this sexual relationship, and behaved contrary to its business ethics.

R.K.B. then added sex/gender discrimination as an additional action, in accordance article 5 of the Labour Act of 2003.  She claimed that, despite the contention of her former employer that it had dismissed her because of her alleged relationship with Mr. D.U., it had not also terminated his employment and that this difference in treatment was because she was a woman.  The two actions were consolidated.

The Court held that R.K.B. had been terminated unlawfully and awarded her severance allowance and payments in lieu of notice.  However, it held that her former employer had not violated the equal treatment principle in the Labour Act.  R.K.B. appealed to the Court of Cassation, arguing that the Labour Court’s decision violated the principle of equal treatment guaranteed by the Labour Act and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  The appeal was later dismissed, without any reference to the claim of discrimination.  

R.K.B. then submitted a communication to the Committee on the Elimination of Discrimination against Women (Committee) in which she claimed that Turkey had violated articles 1, 2(a), 2(c) (state obligations), 5(a) (stereotyping), 11(1)(a) and 11(1)(d) (equality in employment) of CEDAW.  She submitted that the courts had failed to apply the legal guarantee of equal treatment, and protect her against discrimination, in practice.  She also submitted that they had based their decisions on gender stereotypes related to marital affairs, rather than law and fact.

Turkey’s observations on admissibility

Turkey submitted that the communication should be declared inadmissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), because it was incompatible with CEDAW (art 4(2)(b)), ill-founded and insufficiently substantiated (art 4(2)(c)).

Committee’s admissibility decision

The Committee opted to determine admissibility and merits together.

CEDAW Committee’s views

The Committee concluded that Turkey had violated articles 2(a) and 2(c) of CEDAW, read with article 1, as well as articles 5(a), 11(1)(a) and 11(1)(d).  Committee member Pramila Patten issued a concurring opinion. 

General obligations of States Parties

The Committee determined that, although Turkey had introduced legal guarantees of gender equality, it had failed to ensure the practical realisation of those guarantees and the effective protection of women against discrimination, in violation of articles 2(a) and 2(c) of CEDAW, read with article 1. 

In reaching this determination, the Committee condemned the failure of both courts to “give due consideration to the clear prima facie indication of infringement of [the] equal treatment obligation in the field of employment.”  It also condemned the Labour’s Court’s “very narrow interpretation” of the equal treatment principle.

Freedom from wrongful gender stereotyping

The Committee concluded that the courts’ decisions were based on gender stereotypes that condoned extramarital affairs by men but not women, in violation of article 5(a) of CEDAW.  It explained that the Labour Court had allowed its reasoning to be influenced by stereotypes when it failed to challenge and reject the discriminatory evidence submitted by the employer, and scrutinised the moral integrity of R.K.B. and not that of her male colleagues.  The Committee further explained that the Court of Cassation perpetuated gender stereotypes when it failed to address the gender-related aspects of R.K.B.’s complaint.  In finding Turkey in violation of article 5(a), the Committee affirmed that CEDAW requires States Parties to “modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and consequence of discrimination.”  

Right to equality in employment

The Committee determined that the behaviour of the employer, including the threats it made when terminating R.K.B.’s contract, violated the principle of equal treatment.  Turkey’s failure to hold the employer accountable for that behaviour, the Committee found, violated articles 11(1)(a) and 11(1)(d) of CEDAW.  The Committee clarified that the obligation of employers to refrain from discrimination and, concomitantly, states’ obligation to prevent, redress and remedy such discrimination, extends beyond the termination of employment to arguments made in unfair dismissal cases.

Although Committee member Patten agreed with the Committee’s findings in relation to article 11, she did not endorse its reasoning.  She explained:

Article 11 … contains the most comprehensive provision on the right of women to work and … defines the core elements of the right to work, which includes the right to job security, the right to equal benefits and equality of treatment in the evaluation of quality of work.  Article 11 requires States parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service.  …  [T]he author has lost her job despite a finding by the court of the unjustified and unlawful termination of her employment.  I therefore conclude that the State party has failed to guarantee the author’s substantive equality at work, that the acts and doings of the employer and his agents has resulted in a denial of the author’s right to employment as well as a denial of job security.   

Communication No. 28/2010, UN Doc. CEDAW/C/51/D/28/2010 (13 April 2012)

Decision


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Domestic violence asylum claim inadmissible (M.P.M. v. Canada)


M.P.M., a Mexican national, sought asylum in Canada in 2006.  M.P.M. claimed that she was entitled to asylum because she is a victim/survivor of domestic violence and was seeking to escape her abusive ex-husband, a Mexican police officer.

Canadian authorities dismissed M.P.M.’s claim on the basis that she had failed to establish that she was a refugee, within the meaning of the Convention relating to the Status of Refugees.  Authorities concluded that M.P.M. had falsely claimed to be a victim/survivor of domestic violence in order to obtain asylum in Canada and failed to provide credible and consistent evidence to support a claim of asylum.  An application for judicial review and a separate application for a pre-removal risk assessment were also dismissed.

M.P.M. did not file an application to prevent her deportation on humanitarian and compassionate grounds because of the low success and cost of such applications.  In addition, she believed that Canadian authorities would dismiss such an application, since it would be based on the same arguments included in her previous unsuccessful applications.

M.P.M. subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (Committee) in which she claimed, inter alia, that there were substantial grounds for believing that her life and safety were at real risk if deported to Mexico.  M.P.M. submitted that Canada had violated articles 2(c), 2(d) and 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by discriminating against her in her asylum claim and failing to ensure equal protection of her rights.  In addition, she submitted that the failure of Canadian authorities to take her vulnerable situation fully into account constituted a violation of article 15 concerning equality in legal and civil matters.  M.P.M. also claimed that Canada had violated article 16 of equality in marriage and family relations, but she failed to identify the basis of that claim.

M.P.M. returned to Mexico voluntarily in 2010 after submitting her communication to the Committee.

Canada’s observations on admissibility

Canada challenged the admissibility of the communication under articles 4(1), 4(2)(b) and 4(2)(c) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).

First, it claimed that the voluntary return of M.P.M. to Mexico rendered her claim that Canada would violate her rights in CEDAW if it deported her to Mexico moot.  Second, it claimed M.P.M. had not exhausted all available domestic remedies and had failed to raise the substance of her claim of sex discrimination before national authorities, as required by article 4(1) of the Optional Protocol.  Third, similar to its arguments in Guadalupe Herrera Rivera v Canada, the State Party argued that the communication was incompatible under article 4(2)(b) of the Protocol, as the aforementioned provisions of CEDAW do not guarantee a right not to be deported and CEDAW does not apply extraterritorially.  Fourth, Canada claimed that its authorities had determined that there was no merit to M.P.M.’s claim and she had failed to submit new evidence to the Committee to support her claim.  Last, Canada claimed that the failure of M.P.M to demonstrate that its system for processing asylum claims was ineffective rendered her communication insufficiently substantiated under article 4(2)(c) of the Protocol.

Committee’s admissibility decision

The Committee concluded that the communication was ill-founded and not sufficiently substantiated and, thus, declared it inadmissible under article 4(2)(c) of the Optional Protocol.  In doing so, it noted the voluntary return of M.P.M. to Mexico, her failure to explain her return to the Committee or follow-up her communication, the absence of any reports of violence since her return to Mexico, and her failure to provide new evidence to the Committee to substantiate her claim.  Having declared the communication inadmissible on this basis, the Committee declined to consider Canada’s other objections to the admissibility of the communication.

Communication No. 25/2010, UN Doc. CEDAW/C/51/D/25/2010 (13 April 2012)

Decision 

* This summary was prepared using an unofficial English translation of the decision.  Please check against the Committee’s decision for accuracy.

 


Failure to protect woman against domestic violence a violation of CEDAW (V.K. v. Bulgaria)

 

V.K., a Bulgarian national, claimed that her husband, F.K., subjected her to varied forms of domestic violence.  In 2006, V.K. moved to Poland with her husband and their children.  In 2007, following continued abuse, V.K. filed an application for protective measures and financial maintenance with the Warsaw District Court, but the proceedings went unresolved.  F.K. reportedly continued to abuse V.K., which included attempting to strangle her. 

In June 2007, F.K. initiated divorce proceedings against V.K. and claimed custody of their children.  Again, the abuse continued.  Police were called on multiple occasions in response to F.K.’s abusive behaviour and local hospitals issued several medical certificates to V.K.  V.K. subsequently sought refuge for herself and the children in a shelter and legal assistance from a local women’s rights centre.  F.K. later denied V.K. access to her son for a two-month period and abused the centre’s staff on several occasions in an attempt to determine the location of his daughter.  V.K. eventually succeeded in finding her son and, shortly thereafter, returned to Bulgaria to seek protection against further abuse. 

V.K. was unable to seek immediate refuge because the only shelter in southern Bulgaria was overcrowded.  She succeeded in obtaining an immediate protection order under the Bulgarian Law on Protection against Domestic Violence.  However, domestic courts refused to grant her a permanent order because, in their view, there was no imminent threat to her life or health or that of her children, since she had not been subjected to domestic violence in the month prior to applying for the order.   

In October 2008, V.K. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee).  She claimed that Bulgaria’s failure to provide her effective protection against domestic violence constituted violations of articles 1 (definition of discrimination), 2(a)-2(c) and 2(e)-2(g) (state obligations), 5 (wrongful gender stereotyping) and 16 (equality in marriage and family relations) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with General Recommendation No. 19 (violence against women).  V.K. alleged that, despite the adoption of the Law on Protection against Domestic Violence, Bulgarian courts ‘continue to neglect their obligation to punish perpetrators of domestic violence’ and that ‘lack and inadequacy of legal training are among the reasons for the failure of the judicial system … to provide her with effective protection against domestic violence.’  Among other things, V.K. also claimed that Bulgaria had failed to adopt a comprehensive approach to addressing gender stereotyping, and ensure that victims/survivors have access to immediate protection against violence, including refuges.

Interim measures

On 12 February 2009, the CEDAW Committee requested Bulgaria to take interim measures to avoid irreparable damage to V.K. and her children while the communication was under consideration.  It further requested Bulgaria to ensure the protection and physical integrity of V.K. and her children.

Bulgaria’s observations on admissibility

Bulgaria contested the admissibility of the communication on several grounds.

Insufficiently substantiated

Bulgaria claimed that V.K. had failed to sufficiently substantiate the allegations in her communication, as required by article 4(2)(c) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  According to the State Party, V.K. had made ‘sweeping allegations of a general nature without direct relevance to her case.’

Extraterritoriality

Bulgaria further claimed that most of the alleged incidents took place in Warsaw, Poland, which was outside of its jurisdiction.  

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible, after finding that V.K. had ‘provided sufficient elements to substantiate her claims for purposes of admissibility.’

Bulgaria’s observations on the merits

In its observations on the merits, Bulgaria claimed that it had taken appropriate measures to provide adequate protection against domestic violence, including by adopting its Law on Protection against Domestic Violence.  It further claimed that V.K. had failed to provide sufficient evidence to substantiate a permanent protection order.    

CEDAW Committee’s views

The Committee concluded that Bulgaria had failed to protect V.K. effectively against domestic violence, in violation of articles 2(c)-2(f) of CEDAW, read in conjunction with article 1, and article 5(a), read in conjunction with article 16(1) and General Recommendation No. 19.

Freedom from gender-based violence against women

In its views, the CEDAW Committee reiterated that gender-based violence against women is a form of discrimination that States Parties are required to eliminate.  It further reiterated that States Parties have a due diligence obligation to prevent, investigate, punish and remedy acts of violence committed by private actors.

Turning to the facts, the Committee noted that Bulgaria’s adoption of the Law on Protection against Domestic Violence was a necessary measure to provide protection against domestic violence.  However, it explained that, in order for V.K. to enjoy gender equality in practice, ‘the political will that is expressed in such specific legislation must be supported by all State actors, including the courts, who are bound by the obligations of the State party.’  The Committee concluded that the failure of Bulgarian courts to issue V.K. a permanent protection order and the unavailability of shelters in southern Bulgarian had meant that V.K. was denied equality in practice. 

The refusal of the courts to issue a permanent protection order was central to the Committee’s finding that Bulgaria had violated article 2 of CEDAW.  In its view, the refusal was based on the assumption that there was no imminent threat to the life or health of V.K. and her children because they had not been subjected to domestic violence in the month prior to applying for the order.  The Committee noted, however, that CEDAW

does not require a direct and immediate threat to the life or health of the victim.  Such violence is not limited to acts that inflict physical harm, but also covers acts that inflict mental or sexual harm or suffering, threats of any such acts, coercion and other deprivations of liberty.   

It noted further that, while applications for an immediate protection order require ‘a direct, immediate or impending threat to the life or health of the aggrieved person,’ no such threat is required to issue a permanent protection order. 

The Committee determined that Bulgaria’s courts had ‘applied an overly restrictive definition of domestic violence that was not warranted by the Law and was inconsistent with the obligations of the State party under article 2 (c) and 2 (d) [of] the Convention….’  It explained:

Both courts focused exclusively on the issue of direct and immediate threat to the life or health of the author and on her physical integrity while neglecting her emotional and psychological suffering.  Moreover, both courts unnecessarily deprived themselves of an opportunity to take cognizance of the past history of domestic violence….  The courts also applied a very high standard of proof by requiring that the act of domestic violence must be proven beyond reasonable doubt, thereby placing the burden of proof entirely on the author, and concluded that no specific act of domestic violence had been made out on the basis of the collected evidence.  The Committee observes that such a standard of proof is excessively high and not in line with the Convention, nor with current anti-discrimination standards which ease the burden of proof of the victim in civil proceedings relating to domestic violence complaints.          

In addition, the Committee concluded that the unavailability of domestic violence shelters in Bulgaria amount to a violation of articles 2(c) and 2(e) of CEDAW. 

Freedom from wrongful gender stereotyping

In its views, the CEDAW Committee reiterated the links between wrongful gender stereotyping and the freedom from gender-based violence against women as well as the right to a fair trial.  Affirming its findings in Karen Tayag Vertido v. The Philippines, the Committee noted that States Parties are accountable under CEDAW for judicial decisions that are based on gender stereotypes, rather than law and fact.  “Stereotyping,” the Committee said, “affects women’s right to a fair trial and the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence.”

Considering the facts, the Committee found that the refusal to grant a permanent protection order was based on gender stereotypes related to domestic violence.  It also found that the divorce proceedings had been influenced by gender stereotypes related to the roles and behaviours expected of men and women within marriage and family relations.  According to the Committee, reliance on these gender stereotypes amounted to discrimination and also resulted in the re-victimization of V.K, in violation of articles 2(d) and 2(f) of CEDAW as well as article 5(a), read in conjunction with article 16(1) and the Committee’s General Recommendation No. 19 on violence against women.

Communication No. CEDAW/C/49/D/20/2008 (17 August 2011)

Decision


Gender stereotyping in rape trial a violation of CEDAW (Karen Tayag Vertido v. The Philippines)

 

In 1996, Karen Tayag Vertido worked as Executive Director of the Davao City Chamber of Commerce and Industry in the Philippines.  She filed a complaint against the then President of the Chamber, Jose B. Custodio, accusing him of raping her.  She alleged that the accused offered her a lift home following a business meeting one evening and that, instead, raped her in a nearby hotel. 

In April 2005, after the case had languished in the trial court for eight years, Judge Virginia Hofileña-Europa acquitted the accused of raping Ms Vertido, citing insufficient evidence to prove beyond all reasonable doubt that the accused was guilty of the offence charged.   Her Honour based her decision to acquit on a number of ‘guiding principles’ from other rape cases and her unfavourable assessment of the Ms Vertido’s testimony based, among other things, on her failure to take advantage of perceived opportunities to escape from the accused.

Ms Vertido subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee).  She alleged that the acquittal of Mr Custodio breached the right to non-discrimination, the right to an effective remedy, and the freedom from wrongful gender stereotyping, in violation of articles 2(c), 2(d), 2(f) and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 

In her communication, Ms Vertido claimed that the trial judge’s decision had no basis in law or fact, but ‘was grounded in gender-based myths and misconceptions about rape and rape victims … without which the accused would have been convicted.’  She further claimed that ‘a decision grounded in gender-based myths and misconceptions or one rendered in bad faith can hardly be considered as one rendered by a fair, impartial and competent tribunal,’ and that the Philippines had ‘failed in its obligation to ensure that women are protected against discrimination by public authorities, including the judiciary.’

The Philippines’ observations on admissibility

The Philippines contested the admissibility of the communication on the basis that Ms Vertido 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).  It claimed that Ms Vertido had failed to avail herself of the special remedy of certiorari. 

Ms Vertido’s comments on the Philippines’ observations

Ms Vertido countered that she was not required to exhaust the remedy of certiorari, as it could only be sought by the ‘People of the Philippines,’ represented by the Office of the Solicitor General.  In addition, she submitted that, even if the remedy were available to her, it would have been ineffective in redressing her particular complaint of discrimination. 

CEDAW Committee’s admissibility decision

The CEDAW Committee declared the communication admissible, dismissing the suggestion made by the Philippines that Ms Vertido was required by article 4(1) of the Optional Protocol to exhaust the remedy of certiorari.           

Views

The CEDAW Committee concluded that, in failing to end discriminatory gender stereotyping in the legal process, the Philippines had violated articles (2)(c) and 2(f) of CEDAW, and article 5(a) read in conjunction with article 1 and General Recommendation No. 19 (violence against women).  The Committee declined to consider whether or not article 2(d) had been violated, finding that it was less relevant to the case than the other articles alleged to have been violated. 

Committee member Ms Yoko Hayashi issued a separate, concurring opinion.

Right to an effective remedy (art. 2(c))

The CEDAW Committee affirmed that implicit in CEDAW and, in particular article 2(c), is the right to an effective remedy.  It explained that ‘for a remedy to be effective, adjudication of a case involving rape and sexual offenses claims should be dealt with in a fair, impartial, timely and expeditious manner.’ 

The Committee determined that the Philippines had failed to comply with its obligation to ensure Ms Vertido’s right to an effective remedy.  It noted that her case had languished in the trial court for approximately eight years before a decision was made to acquit the accused and that, consequently, it could not be said that Ms Vertido’s allegation of rape had been dealt with in ‘a fair, impartial, timely and expeditious manner.’     

Freedom from Wrongful Gender Stereotyping (arts. 2(f) and 5(a))

In finding violations of articles 2(f) and 5(a), the Committee affirmed that CEDAW requires States Parties to ‘take appropriate measures to modify or abolish not only existing laws and regulations, but also customs and practices that constitute discrimination against women’.  It also stressed that

stereotyping affects women’s right to a fair and just trial and that the judiciary must take caution not to create inflexible standards of what women or girls should be or . . . have done when confronted with a situation of rape based merely on preconceived notions of what defines a rape victim….

The majority determined that the trial judge had expected a certain stereotypical behaviour from the author and formed a negative view of her creditability because she had not behaved accordingly.  It went on to say that the trial judge’s decision contained ‘several references to stereotypes about male and female sexuality being more supportive for the credibility of the alleged perpetrator than for the creditability of the victim’.

Recommendations

Having found violations of articles (2)(c), 2(f) and 5(a) of CEDAW, the CEDAW Committee called on the Philippines to provide appropriate compensation to Ms Vertido.  It also made a number of general recommendations aimed at redressing the systemic nature of many of the violations.  These included taking effective steps to ensure that decisions in sexual assault cases are impartial and fair and not affected by prejudices or stereotypes.

Communication No. 18/2008, UN Doc. CEDAW/C/46/D/18/2008 (22 September 2010)

Decision