In the final post of her series, Visiting Fellow and women’s human rights lawyer Gema Fernández Rodríguez de Liévana highlights the need for a gender perspective to be applied to admissibility decisions.
Admissibility and jurisdiction remain two significant hurdles for applicants seeking to obtain justice in regional and international courts. Often, applications are rejected without any reasons being provided. When decisions do grapple with admissibility issues it is important to understand the courts’ and treaty bodies’ approach. The decision of the Committee on the Elimination of Discrimination against Women (CEDAW or ‘the Committee’) in X and Y v Georgia is particularly interesting given that the applicant had previously applied to the European Court of Human Rights (ECtHR) in Strasbourg, and thus provides insight into what the ‘same matter’ means in this context.
In X and Y v Georgia, the State challenged the admissibility of the communication before CEDAW because two years earlier the lawyers acting for X and Y had applied to the ECtHR. The Strasbourg Court had found the case inadmissible as manifestly ill-founded.
The lawyers acting for X and Y argued that the case focused on the gender-specific impact of domestic violence and the structural gender discrimination component, whereas the application to the ECtHR had focused on the personal impact of the abuse suffered by Y and her brother and on the harm caused to X. The issue for the Committee was whether the application before the ECtHR constituted the ‘same matter’ as the communication to the Committee and, if so, whether the ECtHR had in fact ‘examined’ it.
When examining the admissibility of X and Y v Georgia, the Committee first considered the application before the ECtHR. It noted that before the ECtHR, there had been no complaint about discrimination, and no argument of a violation of article 14 (prohibition of discrimination), whereas discrimination based on sex was at the heart of the matter it was now being asked to examine. The Committee found that it could not be said that the ‘same matter’ had been examined and it was thus not precluded from considering the case.
The Committee’s approach on admissibility
The Committee has been faced with this situation on two other occasions. In N. S. F. v. The United Kingdom the State challenged admissibility, on the grounds that the domestic remedies had not been exhausted, that the same matter had been examined by the ECtHR and that the claims were not sufficiently substantiated. The State also referred to the concept of ’same matter’ and maintained that, since the application had been held inadmissible by Strasbourg on the basis that it “did not disclose any appearance of a violation of the rights and freedoms set out in the Convention”, the communication to CEDAW was likewise inadmissible. The Committee found the communication inadmissible due to the failure to exhaust the domestic remedies, but did not engage with the State’s submissions on the question of ‘same matter’.
The Committee also considered the ‘same matter’ issue in Rahime Kayhan v. Turkey, which concerned the prohibition of the Islamic headscarf in the work place. The State argued that Strasbourg had examined a similar case in which a woman claimed that she was unable to complete her education because of a headscarf ban, and the ECtHR had ruled that there had been no violation of article 9 (freedom of thought, conscience and religion). Relying on the Human Rights Committee (HRC) case-law (Fanali v. Italy), the Committee stated that the ‘same matter’ concept had to be understood as including the same claim concerning the same individual. Consequently, it concluded that the communication was not inadmissible.
The Committee’s decision in context
The Committee’s decision to find the X and Y v Georgia admissible was undoubtedly correct. However, when its reasoning is analysed with reference to other treaty bodies, the decision seems narrow. The Committee could have taken a broader approach to the issue of admissibility. It could have made the decision on the basis that the inadmissibility finding made by the ECtHR was not a decision on the merits and simply a procedural decision. In so doing, it would have followed the more flexible approach of the HRC. [A thorough analysis of the extensive jurisprudence of the HRC on ‘same matter’ can be found here].
In LESK v The Netherlands the same matter had previously been considered by the European Commission on Human Rights. As the case was not under simultaneous examination elsewhere, the HRC considered that it did not matter that it had previously been declared inadmissible by another body. This is because, unlike the OP to the CEDAW – that precludes the Committee from examining communications where the “same matter has been or is being examined under another procedure of international investigation or settlement”—the OP to the ICCPR only requires that “the same matter is not being examined”. Interestingly, some European States have entered a reservation to the OP, blocking the HRC from acting as an ‘appeals’ body from the ECtHR. However, the HRC has interpreted these reservations narrowly by looking carefully at what should be understood by (a) the ‘same matter’ and (b) ‘has been examined’. The HRC has stated that the ‘same matter’ must be understood as relating to the same author, the same facts and the same substantive rights (Althammer et al. v. Austria). It has also emphasised that where a complaint to another international fora, such as the ECtHR, was dismissed on procedural grounds without examination of the merits, it could not be said to have been ‘examined’ so as to exclude the Committee’s competence (Dietmar Pauger v. Austria).
In short, the reservation only applies if the ECtHR has given substantive consideration to the application and consequently does not apply when the Court dismisses a case on purely procedural grounds —such as a non-exhaustion of domestic remedies (Peterson v Germany). Further, the reservation will not apply if a claim is such that it falls within the International Covenant on Civil and Political Rights and outside the scope of rights under the ECHR.
This is of particular interest for right to non-discrimination claims, since the HRC clearly stated that the independent right to equality and non-discrimination embedded in the Covenant provides a greater protection than the accessory right to non-discrimination contained in the ECHR. Consequently, it has considered that, even where the right had been claimed before the ECtHR and has been dismissed, it was not precluded from examining the matter (Althammer et al. v. Austria). A review of the HRC’s case-law after the entry into force of Protocol No. 12 to the ECHR in April 2005 reveals no substantial changes to this standard.
Consequently, a broader approach by the CEDAW Committee would be in line with the HRC and would also be consistent with a gender aware approach to admissibility issues. As this case demonstrates, other courts and bodies not specialised in gender may not fully understand the gender implications of an application. Applicants may often be faced with going to an international treaty body after having their decision declared inadmissible by a regional court. In these circumstances, it is important that CEDAW does not unnecessarily narrow its interpretation of the ‘same matter’.
More from this series: