Message: Anna Belousova v. Kazakhstan. Message No. 45/2012. The opinion was adopted by the Committee on the Elimination of Discrimination against Women on July 13, 2015.
In 2012, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Kazakhstan.
The Committee's legal position: The Committee recalls that, in accordance with paragraph 6 of its General Recommendation No. 19, the concept of "discrimination" as defined in article 1 of the Convention covers gender-based violence against women, including acts that, inter alia, cause harm or suffering of a mental or sexual nature, constitute a threat of such acts or compulsion. In addition, according to paragraph 17 of this recommendation, employment equality can be seriously violated when women are subjected to gender-based violence, such as sexual harassment in the workplace, and such discrimination is not limited to measures taken by or on behalf of Governments. On the contrary, according to article 2 (e) of the Convention, States parties may also be held responsible for the actions of private individuals if they fail to exercise due diligence to prevent violations of rights or to investigate and punish acts of violence, as well as to provide compensation, as indicated in paragraph 9 of the recommendation (paragraph 10.4 of the Opinion).
In this regard, the Committee recalls that paragraph 36 of General recommendation No. 28 states that, in accordance with subparagraph (e) of article 2: States parties should also take measures to ensure the elimination of discrimination against women and the equality of women and men in practice. These measures include measures that enable women to complain about violations of their rights under the Convention and to have access to effective remedies... The obligations imposed on States parties require them to establish the legal protection of women's rights on an equal basis with men, to ensure, through competent national courts and other State institutions, effective protection of women from any act of discrimination, and to take all appropriate measures to eliminate discrimination against women by any person (paragraph 10.8 of the Opinion).
The Committee emphasizes that the full implementation of the Convention requires States parties not only to take measures to eliminate direct and indirect discrimination and improve the de facto status of women, but also to change and transform gender stereotypes and eliminate unlawful stereotyping of the roles of men and women, the root cause and consequence of discrimination against women. Gender stereotypes are perpetuated through various means and institutions, including laws and legal systems, and can be perpetuated by government actors in all branches and at all levels of government, as well as by private actors (paragraph 10.10 of the Opinion).
The Committee recalls that, in accordance with paragraphs 17 and 18 of its general recommendation No. 19, equality in employment can be seriously violated when women are subjected to gender-based violence, such as sexual harassment in the workplace, which includes undesirable sexually motivated behaviors such as physical contact and harassment, direct or indirect sexual comments. and the compulsion to engage in sexual intercourse, expressed in words or actions. Such behavior can be humiliating and can pose a health and safety problem. It is discriminatory when a woman has reasonable grounds to believe that her objections will harm her employment status, including employment or promotion, or when such behavior creates a hostile workplace environment (paragraph 10.12 of the Opinion).
The Committee's assessment of the factual circumstances of the case: The Committee notes that the author has worked as a technical officer at an elementary school in the village of Pertsevka since 1999 and that her employment contract was extended annually for each academic year without exception until 2011. In January 2011, A., who was appointed the new director of the school in December 2010, invited the author to enter into an intimate relationship with him and made it clear in a veiled way that the continuation of her work would depend on acceptance of his proposal. The Committee takes note of the author's version that sexual harassment by A. It also continued that in May 2011, when she still categorically refused to enter into an intimate relationship with A., the latter also tried to extort money from her, demanding an amount of 10,000 tenge, and after the author refused to pay this amount, her employment contract was not renewed. The Committee further notes that neither the State party nor any of the authorities to which the author filed complaints provided any explanation for the sudden non-renewal of her employment contract. The Committee has duly considered the State party's argument that the employment contract with the author was not extended due to the closure of the school, but notes that, according to the author, the school continued to operate after May 2011, at least until September 2012, and this claim has not been challenged by the State party (paragraph 10.2 of the Opinion).
The Committee recognizes that it is for the State party's authorities and courts to assess the facts and evidence in specific cases (See communication No. 28/2010, R.K.B. v. Turkey, Opinions adopted on 24 February 2012, paragraph 8.4.). However, in the present case, in order to determine whether the author had the opportunity to practice the principle of equality between women and men and her human rights and fundamental freedoms, the Committee must address two issues: whether the State party's authorities exercised due diligence in investigating the author's allegations and whether the State party violated its obligation to effective protection of the author from gender-based violence (paragraph 10.5 of the Opinion).
The Committee notes that the first body to investigate the author's complaints of sexual harassment by A. was a three-member commission of the Rudn City Education Department. During the investigation, this commission did not invite the author to submit her version of the story. The second investigation was conducted on 9 June 2011 by another commission set up by the Rudny City Department of Education, which concluded that the author's allegations were unfounded. ... The Committee notes the author's claim that she was not given a proper opportunity to clarify her complaints. Moreover, in connection with the author's complaint of 13 June 2011, the investigator of the Rudny City Department of Internal Affairs decided on 21 June 2011 not to institute criminal proceedings on the author's complaint, despite the fact that two witnesses testified that they had heard a conversation between the author and A., during which he mentioned an intimate relationship and He demanded money (paragraph 10.6 of the Opinion).
The Committee notes that after considering the author's appeal in connection with the refusal to institute criminal proceedings, the Rudny City Prosecutor's Office referred the author's case to the Rudny City Department of Internal Affairs for further investigation. Subsequently, on August 16, 2011, the same investigator again decided not to initiate criminal proceedings. After that, the author appealed several times against the decision not to institute criminal proceedings, but this did not lead to any results. The Committee notes the author's claim that the national authorities did not take into account the testimony of two witnesses and the audio recording of A.'s claims. The Committee also notes the author's argument that during the proceedings in the civil action brought against her by A., the domestic courts refused, without any justification, to interview several witnesses who could testify in favor of the author or to attach to the case as evidence an audio recording of A.'s claims... The Committee notes the State party's statement that the audio recording was examined, but the State party has not provided any information on how the recording was examined or whether its authenticity was confirmed (paragraph 10.7 of the Opinion).
In the light of the above, the Committee is of the opinion that in the present case, the State party's authorities and courts did not give due consideration to the author's complaint of gender-based violence, which manifested itself in the form of sexual harassment in the workplace, as well as to the evidence supporting this complaint, and that they thus failed to comply with their duty to take into account gender factors in the consideration of a complaint. Moreover, in the context of the present case, the national authorities and the courts failed to pay due attention to clear and obvious evidence of a violation of the obligation to provide equal employment opportunities. Being subordinate to A., the author was in a vulnerable position, and the extension of her employment contract was entirely at A.'s discretion (paragraph 10.8 of the Opinion).
In the present case, the authorities did not investigate the reasons why the author's employment contract was not extended after more than 10 years of service. ... The Rudn City Court cited the fact that the author did not file complaints about alleged sexual harassment while she continued to work, but did so only after her dismissal, as a circumstance reducing the credibility of her accusation. In circumstances that demonstrate a lack of willingness to take into account the vulnerability of the author's position as a woman who is the sole breadwinner in the family and at the same time subordinate to A., and in the light of the above conclusion, the Committee confirms that the State party has violated its obligations under article 2 (e), interpreted in conjunction with article 1, of the Convention, and that the State party's institutions did not pay due attention, taking into account the gender aspects of the case, to the author's complaint about gender-based violence in the workplace and the evidence supporting this complaint, and that, thus, They did not pay due attention to the clear and obvious evidence of a violation of the obligation to provide equal employment opportunities. The Committee is of the opinion that, by failing to investigate the author's complaint of sexual harassment promptly, appropriately and effectively, even though the civil action brought by A. against the author was completed in less than three weeks, and by failing to consider the author's case from a gender perspective, the national institutions allowed so that the course of their reasoning when making decisions is influenced by stereotypes (paragraph 10.10 Opinions).
With regard to the author's complaint of a violation by the State party of her rights under article 11 of the Convention, in the light of the information provided by the author and the State party, the Committee considers that the author's complaint concerns issues covered by paragraphs 1 (a) and (f) of article 11 of the Convention. In the light of its findings of a violation of article 2 (e), interpreted in conjunction with article 1 of the Convention, the Committee notes the author's claim that in January 2011, the principal of the school, A., invited her for a conversation. During this conversation, he made it clear in a veiled way that the continuation of her work would depend on her entering into an intimate relationship with him, to which she categorically refused. After that, A. continued to harass the author, sexually harassing her, and since she continued to refuse, he offered her to pay him 10,000 tenge if she wanted to keep her job at the school. Given that the author refused to meet these requirements, she was notified in May 2011 that her employment contract would not be extended for the next academic year. The school continued to operate until September 2012. The Committee notes the author's statement that, as a result of the termination of her employment contract and the civil action brought against her by A. after she filed complaints of harassment, which resulted in a ruling by the Rudny City Court ordering her to pay compensation to A. and apologize to him at a general meeting of the school staff, she became depressed and applied seek psychological help at the crisis center for the protection of women from violence. In this regard, the Committee notes that on March 29, 2012 The author was diagnosed with depression and post-traumatic stress disorder (paragraph 10.11 of the Opinion).
The Committee is of the opinion that the pressure exerted on the author and the nature of the threats and harassment, as well as the attempts to extort money, are due to the fact that she is a woman in a subordinate and powerless position, and constitute a violation of the principle of equal treatment. The Committee considers that the employer's obligation to refrain from gender discrimination, including harassment, did not end with the termination of the author's employment contract. The Committee notes that A. initiated a civil action against the author for libel, which resulted in a court order for the author to pay compensation for moral damage to A. and to publicly apologize to him. As a result, the author became depressed and began suffering from post-traumatic stress disorder. In these circumstances, the Committee considers that A.'s appeal the contact with the author, expressed in the requirement that she enter into an intimate relationship with him - her supervisor - if she wants to continue working at the school, and in the refusal to extend her employment contract for the next academic year, was a violation of the author's rights to work and to equal treatment and constituted gender discrimination in accordance with paragraphs 1 (a) and (f) of article 11 of the Convention. As a result, the author suffered a violation of her rights provided for in these provisions, which was not eliminated by the State party's institutions in a prompt, appropriate and effective manner (paragraph 10.13 of the Opinion).
The Committee's conclusions: Acting under article 7 (3) of the Optional Protocol and in the light of the above considerations, the Committee considers that the State party has failed to comply with its obligations under article 2 (e), interpreted in conjunction with articles 1, 5 (a) and paragraphs 1 (a) and (f) of articles 11 of the Convention, and recommends that the State party:
(a) With regard to the author of the communication: provide appropriate reparation, including adequate financial compensation, for the moral and material damage caused to the author as a result of the violation of her rights under the Convention, including compensation:
- i) for the loss of income between September 2011 and September 2012, when the primary school in the village of Pertsevka was closed;
(ii) For the legal costs and expenses incurred in connection with the author's numerous complaints against A., as well as for all expenses incurred in connection with the civil action brought by A.;
(iii) for the suffering caused by sexual harassment and extortion attempts, as well as the public apology that the author was forced to make to A., which in This caused her to suffer from depression and post-traumatic stress disorder.;
- b) in general:
(i) Urgently adopt comprehensive legislation, in particular in the field of labor relations, to combat sexual harassment in the workplace, in accordance with the Committee's general recommendation No. 19, which should include a comprehensive definition of sexual harassment in the workplace in accordance with international norms and standards, providing effective procedures for filing and handling complaints, means of legal protection and sanctions;
(ii) Ensure that, when implementing the provisions of article 351 of the Criminal Code, victims are not required to sign any statement if such a statement may actually constitute an obstacle to the exercise of their right to access justice.;
(iii) Take the necessary measures and activities to raise awareness among the general public, including in rural areas, about sexual harassment in the workplace as a criminalized act, and promote policies to combat such harassment, covering both public and private employment.;
(iv) Conduct regular and gender-sensitive training for judges, lawyers and law enforcement officials on issues related to the Convention, its Optional Protocol, as well as jurisprudence and the Committee's general recommendations, in order to ensure that stereotypical attitudes are eliminated from decision-making;
(v) Take effective measures to ensure the practical implementation of the Convention by all national courts and other public institutions in order to provide women with effective protection against all forms of gender-based discrimination in employment;
(vi) Ratify the Convention on Preventing and Combating Violence against Women and Domestic Violence, taking into account the State party's cooperation with the Council of Europe (paragraph 11 of the Opinion).