Cases submitted to CEDAW Committee under the communications procedure

Full information available at: http://www2.ohchr.org/english/law/jurisprudence.htm

B.J. vs. Germany, CEDAW/C/36/D/1/2003. The author of the communication claimed that an unwanted divorce had had a negative impact on her financial situation. The woman stated that, generally, laws regulating divorce systematically discriminated against older women who divorce after long marriages and do not receive sufficient compensation.

On 14 July 2004 the communication was determined inadmissible. This was due to the fact that the divorce proceedings became final prior to the entry into force of the OP-CEDAW. Also, the complainant failed to exhaust domestic remedies, as some of the claims at national level had not been definitively settled at the time of filing the communication.

A.T. vs. Hungary, CEDAW/C/36/D/2/2003. The author claimed that the State breached its positive obligations under the convention by failing to provide effective protection from her former husband from whom she had suffered severe and regular domestic violence. As far as exhaustion of all domestic remedies, there were still other available remedies, but they were not likely to bring effective relief and were not timely, given the circumstances of abuse. Another crucial fact was that the author had no possibility of obtaining temporary protection while criminal proceedings were in progress and that the defendant had at no time been detained. On 26 January 2005 the Committee determined that a violation of the Convention had taken place and made recommendations to the State Party regarding the author (victim) as well as recommendations of a general nature.

Dung Thi Thuy Nguyen vs. The Netherlands, CEDAW/C/36/D/3/2004. The author claimed to be a victim of discriminatory maternity benefits, which gave her less than full compensation for loss of income during her pregnancy. Ms. Nguyen argued that under the CEDAW it was the State’s obligation to ensure women were not financially disadvantaged due to pregnancy. The communication was found admissible on the grounds that the author’s maternity benefits came into effect after the entry into force of the Optional Protocol and that domestic remedies had been exhausted. However, no violation of the convention was found. The committee stated that the CEDAW does not protect pregnant women from loss of full income because it leaves to States Parties a certain margin of discretion to devise a system of maternity leave benefits.

A. S. vs. Hungary, CEDAW/C/36/D/4/2004. The author, a Roma woman, claimed to have undergone forced sterilization when she came into the hospital for an emergency caesarean section to remove her dead fetus. This communication was found admissible and was decided on its merits. The committee agreed that all domestic remedies had been exhausted and found that the facts being the subject of the communication, despite having occurred prior to the entry into force of the OP in Hungary, were of a continuous nature. Moreover, the committee stated a failure of the State Party, through the hospital personnel, to provide appropriate information and advice on family planning, which constitutes a violation of the author’s right under the CEDAW. Also, the committee considered that in this case, the State Party did not ensure that the author gave her fully informed consent to be sterilized. Therefore, specific recommendations regarding compensation for the author and on taking further measures in relation to women’s reproductive health were made to the State Party.

Şahide Goekce (deceased) v. Austria, CEDAW/C/39/D/5/2005. This was a case relating to domestic violence which ended in the death of the victim at the hands of her husband. The authors claimed that Sahide Goekce was a victim of a violation by the State Party under CEDAW, when the State Party failed to take appropriate measures to protect Sahida’s right to personal security and life and failed to prosecute her husband as an extremely violent and dangerous offender under criminal law. There was also lack of coordination between law enforcement and judicial personnel. The committee held the complaint admissible. The police were found to be accountable for failing to exercise due diligence to protect Sahide Goekce. The committee also stated that the perpetrator’s rights cannot supersede women’s human rights to life and physical and mental integrity and that the public prosecutor should not have denied the request of the police to arrest the perpetrator.

Fatma Yildirim (deceased) v. Austria, CEDAW/C/39/D/6/2005. This was a case relating to domestic violence which ended in the death of the victim at the hands of her husband. The authors argued that the state party had failed to take appropriate measures to protect Fatma Yildrim’s right to life and personal security as a victim of domestic violence. Poor communication between the police and the Public prosecutor did not adequately allow the prosecutor to assess the danger posed by Fatma’s husband. There was a lack of due diligence since the criminal justice system, particularly prosecutors, considered domestic violence as a minor offence. Hence criminal law was not applied to such violent behavior because law enforcement authorities did not take the danger seriously. The committee found that Fatma had made positive and determined efforts to save her life and failure to detain her husband was considered to be a breach of the State Party’s due diligence obligation to protect Fatma. Once again, the committee held that a perpetrator’s basic rights, such as the presumption of innocence, private and family life, right to personal freedom cannot supersede women’s human rights to life and to physical and mental integrity.

Cristina Muñoz-Vargas y Sainz de Vicuña v. Spain,CEDAW/C/39/D/7/2005. The author claimed that the State Party had discriminated against her on the basis of sex by denying her the right as a first born child to succeed her late father to the nobility title. The committee held this communication inadmissible. Firstly, the Committee held that the cause of action (the discrimination) ended before the State became a party to the convention. Secondly, concurring opinions of the committee members stated that nobility titles were neither human rights nor fundamental rights and their nature was purely symbolic. On this basis the communication was found inadmissible.

Rahime Kayhan vs. Turkey, CEDAW/C/34/D/8/2005. The author, who is a school teacher and a national of Turkey, claimed to have suffered discrimination when she was dismissed from her employment at a State school for refusing to take off her headscarf while at work. The case was declared inadmissible because domestic remedies had not been exhausted. Ms. Kayhan did not argue discrimination on the basis of sex at the national level before submitting the communication to the Committee. The committee did not agree with the State Party’s claim that the communication was inadmissible because the European Court of Human Rights had examined a case that was similar, as the author was a different individual. As far as ratione temporis (the rule that the a violation must occur after the entry into force of the OP), although Ms. Kayhan’s employment was terminated before the entry into force of the Optional Protocol, the effects of this termination continued.

N.S.F. vs. The United Kingdom, CEDAW/C/38/D/10/2005. This is the case of a Pakistani woman who is fighting her deportation from the UK back to Pakistan, where she claims to fear for her life at the hands of her former husband and where she says the Pakistani government is unable to protect her. The communication was held inadmissible on the ground that the complainant had not yet sought judicial review from the UK High Court to fight her deportation. Moreover, the author had not yet raised the issue of discrimination on the basis of sex at the national level. The committee requested interim measures of protection.

Constance R. Salgado vs. The United Kingdom, CEDAW/C/37/D/11/2006. The author alleged that she had suffered sex-based discrimination on account of not being able to pass her British nationality onto her son, who was born in Colombia, because the nationality laws at the time stated that nationality only passed from the father, not the mother. The Committee held that the communication was inadmissible. The original discrimination against Ms. Salgado occurred when she first tried to obtain British citizenship for her son, and ceased to exist the day her son turned the age of majority. Both of the facts occurred prior to the entry into force of the Optional Protocol. Also, Ms. Salgado never exhausted all reasonably available domestic remedies, which enable a State Party to remedy an alleged violation before the same issue may be raised before the Committee.

Zhen Zhen Zheng vs. The Netherlands, CEDAW/C/42/D/15/2007. The author, a Chinese asylum seeker, claimed to be a victim of a violation by the State Party which failed to protect her from trafficking and being forced into prostitution. The committee decided that the communication was inadmissible because all domestic remedies had not yet been exhausted. There were dissenting opinions of three committee members which argued the admissibility of this communication on the grounds that the State Party failed to exercise due diligence and failure to provide the victim with any guidance on the use of appropriate remedies.

More information available in the publications of IWRAW Asia Pacific (English only):

An analysis of cases No 6- 10 under the communications procedure of the OP-CEDAW

An analysis of the first five cases under the communications procedure of the OP-CEDAW

http://www2.ohchr.org/english/law/jurisprudence.htm