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The Committee on
the Elimination of Discrimination against Women, established under article
17 of the Convention on the Elimination of All Forms of Discrimination
against Women,
Meeting on 27 January 2006
Adopts the following:
Decision on Admissibility
1.1 The author of the communication dated 20 August 2004, is Ms. Rahime
Kayhan, born on 3 March 1968 and a national of Turkey. She claims to be a
victim of a violation by Turkey of article 11 of the Convention on the
Elimination of All Forms of Discrimination against Women. The author is
represented by counsel, Ms. Fatma Benli, Attorney at law. The Convention and
its Optional Protocol entered into force for the State party on 19 January
1986 and 29 January 2003, respectively.
The Facts as Presented
2.1 The author, a teacher of religion and ethics, is married and the mother
of three children between the ages of two and 10. She has worn a scarf
covering her hair and neck (her face is exposed) since the age of 16,
including while studying at a State university.
2.2 On 26 September 1991, the author was hired to work at Bursa Karacabey
Imam Hatip High School, a State school under the Ministry of Education. She
began to teach at Erzurum Imam Hatip High School on 12 September 1994 and
taught at that institution for the next five years until her transfer to
Mehmetcik Middle School. She wore a headscarf when she got her first
appointment and when she was photographed for her identification cards (for
example on her driver's license, teacher ID, health insurance card, etc).
2.3 On 16 July 1999, she received warnings and then a deduction was taken
from her salary (1/30) for wearing a headscarf. The author appealed against
this penalty and, during the proceedings Amnesty Law No. 4455 came into
effect and the warnings and penalty were removed from her record.
2.4 On 13 January 2000, the author received a document stating that an
investigation had begun into a claim that she did not obey regulations on
appearance, that she entered the classroom with her hair covered and that
she spoiled the peace, quiet, work and harmony of the institution with her
ideological and political objectives. She was asked to submit a written
statement.
2.5 On 8 February 2000, the author defended herself by pointing out that she
had in no way acted in a manner that would spoil the peace and quiet of the
institution. She had worked hard during the past eight years despite having
two infants, she had never had political or ideological objectives, she had
been praised so many times by the inspectors for her teaching successes and
was a person who loved her country and was devoted to the republic and
democracy and that she aimed to help raise Turkish youth to be devoted to
their country and nation.
2.6 On 29 March 2000, the Ministry of Education informed the author that she
had the right to study her file and defend herself orally or be defended by
counsel.
2.7 The author responded by sending the sworn statements of ten persons who
claimed that the accusations and imputations against her were untrue. Her
lawyer made written and oral statements to the Higher Disciplinary Council,
stating that the allegations against the author were untrue and that there
were no indications that she had "spoiled the harmony in the investigation
report". If she were to be punished, it would amount to a violation of
national and international principles of law, including freedom to work, of
religion, conscience, thought and freedom of choice. It would also be
discrimination and a violation of the right to develop one's physical and
spiritual being. 2.8 The author states that on 9 June 2000, she was
arbitrarily dismissed from her position by the Higher Disciplinary Council.
The Council's decision suggested that the author's wearing of a headscarf in
the classroom was the equivalent of "spoiling the peace, quiet and work
harmony" of the institution by political means in accordance with article
125E/a of the Public Servants Law No. 657. As a result, she permanently lost
her status as a civil servant. The author lost, inter alia, her means of
subsistence to a great extent, the deductions that would go toward her
pension entitlement, interest on her salary and income, her education grant
and her health insurance. She would be unable to teach in a private school
as well while wearing a headscarf allegedly because the private schools in
Turkey depend on the Ministry of National Education. Nobody would want to
employ a woman who had been given the gravest of disciplinary penalties.
2.9 On 23 October 2000, the author appealed to Erzurum Administrative Court
demanding that the dismissal be cancelled because she had not violated
article 125E/a of the States Officials Act by wearing a headscarf. At most
she should have been reprimanded or condemned - not dismissed. She claims
that the penalty lacked a legitimate purpose and was not a necessary
intervention for a democratic society.
2.10 On 22 March 2001, Erzurum Administrative Court refused the appeal,
finding that her punishment did not violate the law.
2.11 On 15 May 2001, the author appealed against the decision of Erzurum
Administrative Court to the State Council, and claimed that in order to
apply article 125E/a of the Public Servants Law No. 657, a concrete act to
upset public order will have had to be committed. There was no evidence of
the author committing such an act. She had covered her head and thus had
violated the Regulation relevant to the Attire of the Personnel working in
Public Office and Establishments. 2.12 On 9 April 2003, the Chair of the
12th Department of the State Council rejected this appeal, upholding the
judgment of the Erzurum Administrative Court on grounds that it was
justified in procedure and law. The author was notified of the final
decision on 28 July 2003.
The Complaint
3.1 The author complains that she is a victim of a violation by the State
party of article 11 of the Convention on the Elimination of All Forms of
Discrimination against Women. By dismissing her and terminating her status
as a civil servant for wearing a headscarf, a piece of clothing that is
unique to women, the State party is said to have violated the author's 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.
Allegedly she is one of more than 1,500 women civil servants who have been
dismissed for wearing a headscarf.
3.2 The author also claims that her right to a personal identity includes
her right to choose Islamic attire without discrimination. She considers
that the wearing of a headscarf is covered by the right freedom of religion
and thought. Had she not considered the headscarf so important and vital,
she would not have jeopardized her family's income and future. The author
considers that the act of forcing her to make a choice between working and
uncovering her head violates her fundamental rights that are protected in
international conventions. She believes it to have been unjust, legally
unforeseeable, illegitimate and unacceptable in a democratic society.
3.3 The author complains that the action taken against her was arbitrary
because it was not grounded in any law or a judicial decision. The only
dress code is the so-called Regulation relevant to the Attire of the
Personnel working in Public Office and Establishments of 25 October 1982,
which specifies that "Heads should be uncovered at the work place" (art. 5).
It is alleged that this regulation no longer applies in practice and that
persons who have disobeyed it have not been warned or disciplined.
3.4 The author also claims that the punishment for violating article 125A/g
of the Public Servants Law No. 657 on the issue of clothing is a warning
(for the first infraction) and condemnation (for a repeated infraction).
Instead of this, the author was allegedly punished for the crime of
"breaking the peace, silence and working order of the institutions with
ideological and political reasons" without evidence of her having committed
the offence. She maintains thus that the decisions of the Erzurum
Administrative Court and the State Council were based on the application of
the wrong provision. They do not answer the question of why the acts of the
defendant were considered political and ideological actions. She questions
why the administration had permitted her to wear a headscarf for nine years
if it had been an ideological action.
3.5 The punishment to which she was subjected restricted her right to work,
violated equality among employees and fostered an intolerant work
environment by categorizing persons according to the clothes that they wear.
She claims that had she been a man with similar ideas, she would not have
been so punished.
3.6 Having been unjustly expelled from the civil service and her teaching
position, the author feels compelled to have recourse to the Committee and
requests it to find that the State party has violated her rights and
discriminated against her on the basis of her sex. She further requests the
Committee to recommend to the State party that it amend the Regulation
relevant to the Attire of the Personnel working in Public Office and
Establishments, prevent the High Disciplinary Boards from meting out
punishment for anything other than proven and concrete offences and lift the
ban on wearing headscarves. 3.7 As to the admissibility of the
communication, the author maintains that all domestic remedies have been
exhausted with her appeal to the State Council. She also states that she has
not submitted the communication to any other international body.
The State Party's Submission On Admissibility
4.1 By submission of 10 May 2005, the State party argues that domestic
remedies have not been exhausted in that the author did not bring an action
in accordance with the Regulation on the Complaints and Applications by
Civil Servants, which was adopted by decree 8/5743 of the Council of
Ministers on 28 November 1982 and published in the Official Gazette on 12
January 1983. Moreover, she did not bring an action before the Turkish
Parliament (Grand National Assembly) under article 74 of the Constitution
and she did not use the remedy provided under section 3 (Remedies against
Decisions), article 54 of the Law on Administrative Judicial Procedures.
4.2 The State party contends that the same matter has been examined by
another procedure of international investigation. In particular, the
European Court of Human Rights examined a similar case in which the
applicant, Leyla Sahin claimed that she was unable to complete her education
because of wearing a headscarf and that this constituted a violation of the
European Convention on Human Rights. The Court ruled unanimously that
article 9 of that Convention (freedom of thought, conscience and religion)
was not violated and that there was no need to further examine the claims
that article 10 (freedom of expression), article 14 (prohibition of
discrimination) and article 2 of Protocol No. 1 Additional to that
Convention (education) were violated.
4.3 The State party argues that the facts that are the subject of the
communication occurred prior to the entry into force of the Optional
Protocol for Turkey in 2002. The author was dismissed on 9 June 2000 and her
communication is therefore inadmissible in accordance with article 4,
paragraph 2 (e) of the Optional Protocol.
4.4 The State party also submits that the communication violates 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.
The attire of civil servants is specified in the Regulation relevant to the
Attire of the Personnel working in Public Office and Establishments, which
was prepared in conformity with the Constitution and the relevant laws. This
regulation applies to male and female civil servants and both sexes face the
same disciplinary and legal actions as the author faced and there is no
element of the regulation - content or application - that constitutes
discrimination against women. Rulings of the High Courts, such as the
Constitutional Court of the Council of State, underline the obligation of
civil servants and other public employees to abide by the dress code. When
persons (male and female) join the public service, they take office being
aware of the relevant provisions of the Constitution, other legislation and
case law. It is an obligation for them to abide by the dress code. It is
clear that Ms. Kayhan acted consistently against the relevant legislation,
namely article 129 of the Constitution, articles 6/1 and 19 of Law No. 657
on Civil Servants, and article 5a of the Regulation relevant to the Attire
of the Personnel working in Public Office and Establishments. The relevant
Court decided that Ms. Kayhan insisted on coming to work and to her lectures
with her head covered despite warnings and penalties. She was therefore
discharged from service in accordance with article 125/E-a of Law No. 657 on
Civil Servants (spoiling the peace and order of the work place for political
and ideological reasons). Her religious beliefs are only her own concern and
she has the right to act and dress as she wishes in her private life.
However, as a public employee, she must abide by principles and rules of the
State. In accordance with the public nature of her work, she is obliged to
follow the laws and regulation mentioned above. There has been no
discrimination in the disciplinary actions taken against the author, nor is
there any contradiction in the law. In the implementation of the relevant
norms and the case law, no discrimination is made between men and women. The
Constitutional Court has already made rulings in this respect, which form
the basis for the application of the laws and other norms in Turkey. In the
light of these rulings, it should be noted that the ban on the headscarf in
the workplace for female public employees does not constitute discrimination
against them, but aims at achieving compliance with the laws and other
regulations in force. The rules on attire for those in public service (women
and men) are clearly defined by the provisions of the laws and regulations.
Therefore, it is known that for those wishing to join public service, there
are rules for attire.
4.5 For the stated reasons, the State party considers that the author's
communication should be deemed inadmissible within the context of
discrimination.
The Author's Comments on the State Party's Observations on Admissibility
5.1 The author maintains that she applied to the administrative court when
she was dismissed and lost her status as a civil servant and appealed to the
State Council after the administrative court ruled against her. She argues
that the State Council is the highest body to which she could appeal. She
lost that appeal. She could not bring an action to have the dress code for
civil servants rescinded because there is a 60-day deadline for such an
action from the moment that a regulation is published in the Official
Gazette or as soon as the treatment at issue has ended. The Regulation
relevant to the Attire of the Personnel working in Public Office and
Establishments was published in the Official Gazette on 12 January 1983 -
when the author was 15-years old and not yet a civil servant. She considers
that she need not exhaust this remedy as she has already gone the judicial
route, claiming that the treatment to which she was subjected was unjust.
5.2 The author claims that an appeal to Parliament is not a remedy that she
need exhaust vis-�-vis the discrimination that she suffered because a remedy
must offer exact and clear solutions - not only in theory but in practice.
She maintains that the only remedies to which she is obligated to resort to
are judicial remedies. The author also maintains that she need not resort to
using the procedure governed by article 54 of the Administrative procedural
law. She considers this to be an extraordinary remedy because it entails a
review of the decision in question by the same authority that has issued the
decision. Therefore, it is not de facto possible to obtain an effective
result by addressing the 12th Department of the State Council. By way of
substantiation, the author claims that the claims of two other applicants, a
laboratory assistant and a nurse, were dismissed because there were was "no
reason for correction of decisions" by the very same Department of the State
Council. The author believes this procedure to be a waste of time and a
pecuniary burden.
5.3 The author maintains that her complaint is not the same matter that has
been examined under another procedure of international investigation or
settlement. She has not applied to other international bodies. The applicant
before the European Court of Human Rights, Leyla Sahin, is a different
individual and the case has different characteristics. The purpose and
characteristics of the Convention on the Elimination of All Forms of
Discrimination against Women and the European Convention on Human Rights are
completely different. Furthermore, the right to work is not covered under
the latter instrument and thus, a petition before the European Court of
Human Rights should not be considered the same matter as a communication
brought to the attention of the Committee.
5.4 The author argues that her communication is not time-barred because the
impact of the discrimination she suffered has continued after the Optional
Protocol came into force for Turkey. The author was expelled from the civil
service and will never again be able to take up her former duties. She
cannot work as a teacher in a private school either and has been deprived of
any social security and lost her health insurance.
5.5 The author argues that the violations of which she complains are
protected rights under the Convention on the Elimination of All Forms of
Discrimination against Women. She maintains that the discrimination to which
she was subjected occurred because she wore a headscarf. A male or a female
who violated another rule of the Regulation relevant to the Attire of the
Personnel working in Public Office and Establishments would likely be able
to continue to work. The author did not conduct herself in a manner that
could justify her exclusion from public service. The punishment meted out in
her case for disobeying the dress code should have been a warning or a
reproach, but she was dismissed. The author claims that the harsh punishment
itself is indicative of the discrimination to which she has been subjected.
She maintains that banning the veil denies women their capacity to decide,
tarnishes their dignity and offends the notion of gender equality. The ban
on wearing a headscarf generates inequality among women in work and
education.
Additional Comments of the State Party on Admissibility
6.1 The case of Leyla Sahin before the European Court of Human Rights and
the author's communication are the same in essence, irregardless of one
being a student and the other a teacher. Regardless of gender, individuals
are free and equal to wear what they will. In the public sphere, they must
abide by the rules.
6.2 The State party explains that under Turkish Administrative Law,
administrative acts create a new state of law and have immediate legal
consequences. Suits of law do not have the effect of suspending the
decisions. Courts set aside such decisions. Ms. Kayhan was dismissed on 9
June 2000 by decision of the High Disciplinary Board of the Ministry of
National Education. This decision stripped her of her status as a civil
servant. Therefore, the relevant date to be taken into account in deciding
whether article 4, paragraph 2 (e) of the Optional Protocol would bar the
admissibility of the communication would be 9 June 2000 - that is prior to
the entry into force of the Optional Protocol for Turkey.
6.3 The State party maintains that the communication is incompatible with
the Convention in accordance with article 4, paragraph 2 (b) of the Optional
Protocol. The State party considers baseless the claim made by the author
that she would still be employed had she been a man or had she failed to
comply with any other provision of the dress code for civil servants. The
author was dismissed because it was discovered that her stance stemmed from
her political and ideological opinions. The same sanctions would apply to
male civil servants whose actions were undertaken for political and
ideological reasons. Gender is not a consideration and does not affect the
sanction and therefore, there is no discrimination based on sex.
6.4 The State party argues that there is no discrimination against women
concerning their participation in social life, education and involvement
with work in the public sphere. Statistics on the number and percentage of
women who work in schools and academic institutions clearly indicate this
assertion. Many women hold high public posts, such as judges, governors,
high-level administrators, deans and presidents of universities, including
the President of the Constitutional Court and the President of the Turkish
Institution for Scientific and Technical Research (TUBITAK).
6.5 The State party submits that regular remedies are those to which an
applicant must resort within required time limits to appeal against a
decision or take it on review ("revision of judgment"). Article 54 of the
Administrative Trial Procedure Law (No. 2577) allows the parties to request
a "revision of judgment" within a 25-day time-limit. The grounds for the
remedy's use include: if the allegations or objections that impact the
merits are not dealt with; if there are contradictory elements; if there is
a mistake of law or a procedural irregularity; or for fraud or forgery that
impact the merits. The Divisions of the Council of State, General Assemblies
of Administrative Tax Trial Divisions and Regional Administrative Courts,
which have issued the decisions that will be reviewed, receive the
applications. Those judges who were involved in the decision-making cannot
participate when the (same) decision is being reviewed.
6.6 While the author claims that her appeal to the Council of State was
sufficient to satisfy the requirements of article 4, paragraph 1 of the
Optional Protocol, because the "revision of judgment" remedy is an
extraordinary remedy, the State party argues that "revision of judgment" is
a regular remedy within Turkish administrative law that should be utilized
after an appellate body has rendered a decision. That the author considers
the remedy to be ineffective is immaterial to the issue of exhaustion of
domestic remedies and reflects only the personal view of the author's
lawyer. The State party maintains that there are exemplary rulings by the
Council of State in favour of applicants for "revision of judgment" and that
the communication should be declared inadmissible for failure to exhaust
domestic remedies.
6.7 The State party refers to the author's claim that she had no possibility
of or right to complain in accordance with the Regulation on the Complaints
and Applications by Civil Servants. The State party submits that the
author's claim was based on an erroneous understanding of the procedure. The
author appears to have understood the State party to have argued that she
should challenge the Regulation relevant to the Attire of the Personnel
working in Public Office and Establishments with a view to obtaining its
annulment. The State party explained that it had not intended to give this
impression. The State party had argued that the author did not make use of
an avenue of complaint provided by the Regulation on the Complaints and
Applications by Civil Servants.
6.8 With regard to the remedy under article 74 of the Turkish Constitution,
the State party explains that requests and complaints concerning individual
authors or the [general] public or "the status of acts taken", shall be made
in writing to the competent authorities and to the Turkish Grand National
Assembly. The results - are made known to the petitioners in writing as
well. Law No. 3071 of 1 November 1984 sets out the procedure on the right to
petition. Those petitions that concern matters that fall within the
competence of the judiciary may not be considered under this procedure.
Petitions before the Turkish Grand National Assembly should be reviewed and
finalized within 60 days by the Commission for Petitions.
Issues and Proceedings before the Committee Concerning Admissibility
7.1 In accordance with rule 64 of its rules of procedure, the Committee
shall decide whether the communication is admissible or inadmissible under
the Optional Protocol.
7.2 In accordance with rule 66 of its rules of procedure, the Committee may
decide to consider the question of admissibility and merits of a
communication separately.
7.3 The Committee notes that the State party argues that the communication
ought to be declared inadmissible under article 4, paragraph 2 (a) of the
Optional Protocol because the European Court of Human Rights had examined a
case that was similar. The author assures the Committee that she has not
submitted her complaint to any other international body and points to the
dissimilarities between the case of Leyla Sahin v. Turkey and her own
complaint. In its early case law, the Human Rights Committee pointed out
that the identity of the author was one of the elements that it considered
when deciding whether a communication submitted under the Optional Protocol
to the International Covenant on Civil and Political Rights, was the same
matter that was being examined under another procedure of international
investigation or settlement. In Fanali v. Italy (communication No. 075/1980)
the Human Rights Committee held:
"the concept of 'the same matter' within the meaning of article 5 (2) (a) of
the Optional Protocol had to be understood as including the same claim
concerning the same individual, submitted by him or someone else who has the
standing to act on his behalf before the other international body".
The Committee on the Elimination of Discrimination against Women concludes
that the present communication is not inadmissible under article 4,
paragraph 2 (a) of the Optional Protocol to the Convention - already,
because the author is a different individual than Leyla Sahin, the woman to
whom the State party referred.
7.4 In accordance with article 4, paragraph 2 (e) of the Optional Protocol,
the Committee shall declare a communication inadmissible where the facts
that are the subject of the communication occurred prior to the entry into
force of the Protocol for the State party concerned unless those facts
continued after that date. In considering this provision, the Committee
notes the State party's argument that the crucial date was 9 June 2000, when
the author was dismissed from her position as a teacher. This date preceded
the entry into force of the Optional Protocol for Turkey on 29 January 2003.
The Committee notes that as a consequence of her dismissal, the author has
lost her status as a civil servant in accordance with article 125E/a of the
Public Servants Law No. 657. The effects of the loss of her status are also
at issue, namely her means of subsistence to a great extent, the deductions
that would go toward her pension entitlement, interest on her salary and
income, her education grant and her health insurance. The Committee
therefore considers that the facts continue after the entry into force of
Optional Protocol for the State party and justify admissibility of the
communication ratione temporis.
7.5 Article 4, paragraph 1 of the Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination against Women (the domestic
remedies rule) precludes the Committee from declaring a communication
admissible unless it has ascertained that "all available domestic remedies
have been exhausted unless the application of such remedies is unreasonably
prolonged or unlikely to bring effective relief". The domestic remedies 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 authors were to bring the substance of a complaint to the
Committee that had not been brought before an appropriate local authority.
The Human Rights Committee requires the same of authors of communications
submitted under the Optional Protocol to the International Covenant on Civil
and Political Rights FN1.
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FN1 See for example, Antonio Parra Corral v. Spain (communication No.
1356/2005), paragraph 4.2.
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7.6 The Committee notes that the first time that the author refers to filing
an appeal was in respect of a warning and a deduction in her salary for
wearing a headscarf at the school where she taught in July of 1999. She
stated that in her petition to the court she declared that the penalty for
her infraction should have been a warning and not a "higher prosecution". On
this occasion, the author did not raise the issue of discrimination based on
sex. The author was pardoned under Amnesty Law No. 4455. The next
opportunity to raise the subject of sex-based discrimination came in
February 2000, when the author defended herself while she was under
investigation for having allegedly entered a classroom with her hair covered
and "with ideological and political objectives she spoilt the peace, quiet
and work harmony of the institution". The author focused on political and
ideological issues in her defense. She challenged the Ministry of Education
to prove when and how she had spoilt the peace and quiet of the institution.
Her lawyer defended her before the Higher Disciplinary Council by arguing
over a mistake in law. Her lawyer also claimed that freedom of work,
religion, conscience, thought and freedom of choice, the prohibition of
discrimination and immunity of person, the right to develop one's physical
and spiritual being and national and international principles of law will
all be violated if the author were to be punished. When the author appealed
against her dismissal from State service to Erzurum Administrative Court on
23 October 2000 she based her claims on nine grounds - none of which were
discrimination based on her sex. On 15 May 2001, the author appealed to the
Council of State against the decision of Erzurum Administrative Court.
Again, she failed to raise sex-based discrimination. On 9 April 2003 the
last decision was handed down against the author. The Committee notes that
the author pursued no further domestic remedies.
7.7 In sharp contrast to the complaints made before local authorities, the
crux of the author's complaint made to the Committee is that she is a victim
of a violation by the State party of article 11 of the Convention by the act
of dismissing her and terminating her status as a civil servant for wearing
a headscarf, a piece of clothing that is unique to women. By doing this, the
State party allegedly violated the author's 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. The Committee cannot but
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. For this
reason, the Committee concludes that domestic remedies have not been
exhausted for purposes of admissibility with regard to the author's
allegations relating to article 11 of the Convention on the Elimination of
All Forms of Discrimination against Women.
7.8 The Committee notes that the State party drew attention to other
remedies that would have been available of which the author did not make use
- namely review ("revision of judgment"), the complaints procedure under
article 74 of the Turkish Constitution and a procedure under the Regulation
on the Complaints and Applications by Civil Servants. However, the Committee
considers that the information provided to it on the relief that might
reasonably have been expected from the use of these remedies is
insufficiently clear to decide on their efficacy in relation article 4,
paragraph 1 of the Optional Protocol. In any event the Committee considers
it unnecessary to make this determination or whether the communication is
inadmissible on any other grounds.
7.9 The Committee therefore decides:
(a) That the communication is inadmissible under article 4, paragraph 1 of
the Optional Protocol for failure to exhaust domestic remedies;
(b) That this decision shall be communicated to the State party and to the
author.
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