Should Guarantee That States Parties Have an Opportunity to Remedy a Violation of Any

Date: Mon, 26 Jun 2006 12:25:15 -0400
From: "REPROHEALTHLAW-L : Reproductive and Sexual Health Law Programme"
Subject: [RHLAW] CEDAW headscarf case: results & comment
Many thanks to Simone Cusack for submitting the following analysis:
Rahime Kayhan v Turkey, CEDAW, Communication No. 8/2005,
UN Doc CEDAW/C/34/D/8/2005, (27 January 2006)
Summary
The CEDAW Committee recently declared inadmissible a communication concerning the termination of a Turkish teacher for wearing a headscarf: Rahime Kayhan v Turkey(CEDAW, Communication No. 8/2005, UN Doc CEDAW/C/34/D/8/2005 (27 January 2006)).
Although the communication was declared inadmissible, the CEDAW Committee’s decision provides useful guidance with respect to the scope of the exhaustion of domestic remedies requirement. In order to satisfy this requirement, an author must ensure that she has sought to exhaust domestic remedies in relation to all aspects of the communication brought before the CEDAW Committee. In this connection, Rahime Kayhan v Turkeyhighlights the importance of addressing discrimination against women from the inception of domestic legal proceedings.
Background
The author, Ms Rahime Kayhan, a teacher in Turkey, was charged with the crime of “breaking the peace, silence and working order of the institutions with ideological and political reasons” for wearing a headscarf to her place of employment. As a result of this charge, Ms Kayhan was expelled from the civil service and her teaching position. Following her termination, Ms Kayhan unsuccessfully sought to challenge her termination in domestic courts in Turkey.
Ms Kayhan subsequently brought a complaint before the UN Committee on the Elimination of Discrimination Against Women (CEDAW Committee) alleging a violation of article 11 of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW Convention), concerning discrimination against women in employment.
Ms Kayhan submitted at [3.1] that by terminating her employment as a schoolteacher for wearing a headscarf, a piece of clothing unique to women, Turkey had violated “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”.
In making her complaint, Ms Kayhan sought a view from the CEDAW Committee that Turkey had violated her rights under article 11 of the CEDAW Convention. She also
requested, inter alia, that the CEDAW Committee recommend that Turkey amend the relevant domestic legislation and lift the ban on wearing headscarves.
State Party submissions on admissibility
In response, the Government of Turkey submitted that: Ms Kayhan had not exhausted all available domestic remedies; the same matter had already been examined by another procedure of international investigation, namely, the European Court of Human Rights; the facts which were the subject of the complaint occurred prior to the entry into force of the CEDAW Protocol for Turkey; and, the complaint violated the “spirit of the Convention because her claims are not relevant to the definition of discrimination against women as contained in article 1 of the Convention”.
CEDAW Committee’s view on admissibility
After considering these submissions, the CEDAW Committee concluded that the author’s communication was inadmissible under Article 4(1) of the CEDAW Protocol for failure to exhaust domestic remedies.
Exhaustion of domestic remedies
Commenting on the purpose of the exhaustion of domestic remedies rule, the CEDAW Committee noted [at 7.5] that this rule:

…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 the 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 previously pursued a variety of domestic remedies, she had failed to raise discrimination against women as an issue for determination, thereby denying Turkey the opportunity to address and remedy a violation of this particular right. Referring to the inherent discrepancy between the arguments raised during domestic proceedings and those advanced before it, the CEDAW Committee stated at [7.7] that it had no choice but to:

… 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.

In the context of the CEDAW Convention, this decision highlights the need to raise all possible grounds, including, in particular, the foundational claim of discrimination against women, which might later be relied upon in the event that a complaint is submitted to the CEDAW Committee.
Other grounds of admissibility
Commenting on the remaining grounds of admissibility, the CEDAW Committee dismissed Turkey’s submission that the present communication had previously been considered by another procedure of international investigation, noting that the earlier complaint to which it referred did not concern Ms Kayhan. The CEDAW Committee also commented that the effects of Ms Kayhan’s complaint, namely, the effects of the loss of her status, continued after the entry into force of the CEDAW Protocol for Turkey and that, consequently, the communication was not inadmissible on this ground.
This notwithstanding, the communication was deemed inadmissible for failure to exhaust domestic remedies.