Decision on merits; Subjects: WOMEN'S RIGHTS, WOMEN MIGRANTS, FORCED PROSTITUTION, TRAFFICKING IN PERSONS, CZECHIA; [CEDAW: Frauenrechtskonvention, Übereinkommen zur Beseitigung jeder Form von Diskriminierung der Frau; Convention sur l'élimination de la discrimination à l'égard des femmes]
Volltext (verifizierbarer Originaltext)
United Nations
CEDAW/C/86/D/152/2019
Convention on the Elimination
of All Forms of Discrimination
against Women
Distr.: General
4 December 2023
Original: English
23-24076 (E) 110124
*2324076*
Committee on the Elimination of Discrimination
against Women
Views adopted by the Committee under article 7 (3) of the
Optional Protocol, concerning communication
No. 152/2019*,**
Communication submitted by:
S.I. (represented by counsel, Zuzana
Pavelková, of Organization for Aid to
Refugees (OPU))
Alleged victim:
The author
State party:
Czechia
Date of communication:
9 December 2019 (initial submission)
References:
Transmitted to the State party on
16 December 2019 (not issued in
document form)
Date of adoption of Views:
24 October 2023
* Adopted by the Committee at its eighty-sixth session (9–27 October 2023).
** The following members of the Committee participated in the examination of the present
communication: Brenda Akia, Nicole Ameline, Marion Bethel, Leticia Bonifaz Alfonzo,
Rangita de Silva de Alwis, Corinne Dettmeijer-Vermeulen, Esther Eghobamien-Mshelia, Hilary
Gbedemah, Yamila González Ferrer, Daphna Hacker Dror, Nahla Haidar, Rosario G. Manalo,
Marianne Mikko, Maya Morsy, Ana Peláez Narváez, Elgun Safarov, Natasha Stott Despoja,
Genoveva Tisheva and Jie Xia.
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1.1 The communication is submitted by S.I., a national of Japan, born on 11 August
1981. The author claims that the State party violated her rights under articles 2, 6 and
12 of the Convention by continuously disregarding her health status and her
vulnerability as a potential victim of human trafficking during her detention and
deportation proceedings. The Optional Protocol to the Convention entered into force
in the State party on 26 February 2001. The author is represented by counsel.
1.2 On 16 December 2019, when the communication was registered, the Committee,
through its Working Group on Communications under the Optional Protocol and
pursuant to article 5 (1) of the Optional Protocol and rule 63 of the rules of procedure
of the Committee, decided not to grant the author’s request that the State party
(a) transfer her to a non-custodial arrangement with regular access to health
professionals; (b) have her claim of being a victim of human trafficking and her
current health situation evaluated by experts; and (c) refrain from removing her to her
country of origin while her communication was under consideration by the
Committee.
Facts as submitted by the author
2.1 On 7 July 2019, the author was arrested by a police patrol in Prague owing to
allegations of theft in a local supermarket. She first gave the police a false name and
date of birth but disclosed her real identity after the Japanese embassy was contacted.
On the same day, the police issued a deportation order, including a one-year entry ban
to the European Union. For the purpose of administrative expulsion, she was
transferred to the immigration detention centre of Bĕlá-Jezová, where she has been
detained since that day. The police justified the detention by the fact that she did not
present any valid identity document or visa and that she could try to escape.
2.2 On 7 August 2019, the author appealed the decision of her deportation and
explained that two years before, in Japan, she had been drugged without her
knowledge (by drinking tea) during a job interview. When she woke up, she realized
that she had been tricked by what she describes as “mafia networks”. While
unconscious, she was raped and pictures of her body were taken. She was forced into
prostitution, under the threat that the pictures would be published. The author stresses
that given the traditional culture of Japan, she was afraid to resist and feared that her
father would kill or banish her should the pictures be published. She was beaten at
some point by the “mafia”. She went to the Japanese police and was told that forced
prostitution had been abolished and that they could not help her. The “mafia” gave
her false identity documents and sold her abroad. 1 The author travelled from Turkey
to Morocco where she was forced to recruit other women. She managed to escape and
fled to Europe. The author tried to regularize her situation in the Netherlands where
she applied for resident status and asked to be recognized as a victim of human
trafficking. The authorities of the Netherlands reviewed her case but refused to grant
her the status of a victim of human trafficking and to include her in a protection
programme.2 She then left the Netherlands and travelled without documents within
different European countries until she reached Czechia in July 2019.
2.3 Owing to aggressive behaviour, the author was hospitalized without her consent
in the Kosmonosy Psychiatric Hospital between 25 and 31 July 2019. She was
examined repeatedly by various health professionals upon her own request and the
request of the ombudsperson. The medical examinations established that the author
suffered from a long-term mental health condition which deteriorated rapidly in
situations of external stress, notably involving deprivation of liberty. She suffered
from combined eating disorders (anorexia and bulimia) and other forms of
__________________
1 The communication mentions that the author was sold “probably in Bulgaria or Turkey”.
2 The author does not know the reasons for the refusal.
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psychological disorders3 and was rapidly losing weight.4 The health-care professional
noted a direct correlation between her detention and her current mental and physical
health status. It was stated that “in case of progression of malnutrition, serious
complications and even death may arise”. Moreover, the author had been previously
diagnosed with a mild form of Asperger syndrome.
2.4 According to the author, during her hospitalization and at the detention centre,
she was subjected to coercive behaviour, including the “use of security belts” and
sedatives without her approval. Since this reminded her of other traumatic events, she
refused further hospitalization and agreed to ad hoc examinations. On 28 August
2019, in a second medical report, it was stated that her health had deteriorated and
that she was “clearly suffering due to her stay in detention” and that “it would be
appropriate to release her”. On 30 September 2019, a third medical report was issued
in which it was stated that the author had been expressing suicidal thoughts and that
hospitalization at the Kosmonosy Psychiatric Hospital would be appropriate.
2.5 On 3 October 2019, the Regional Police Directorate of Prague issued a second
detention order prolonging the author’s detention for an additional 60 days in the
Bĕlá-Jezová detention centre. The decision stated that, after verification, the Japanese
authorities had indicated that there was an arrest warrant was issued against her owing
to alleged use of false identification in Japan. On 16 October 2019, upon the
recommendation of the ombudsperson, the author was examined at the General
University Hospital in Prague. It was stated that she suffered from severe malnutrition
and atypical eating disorders which necessitated psychiatric treatment. However, on
29 October 2019, contrary to the other assessments, the general practitioner at the
detention centre stated that the author’s life was not in danger. Further examination
by an expert registered with the court was considered to be more appropriate than
long-term hospitalization.
2.6 On 1 December 2019, the police extended her detention by 30 days and stressed
that her deportation would occur between 16 and 20 December 2019, without a further
medical examination being requested.
Exhaustion of remedies
2.7 The author’s appeal of 6 August 2019 of the legality of her detention before the
Prague Municipal Court was denied on 20 August 2019. Her appeal of 29 August
2019 to the Supreme Administrative Court was dismissed on 13 November 2019.
While the author could have challenged this decision before the domestic
Constitutional Court, she maintains that the proceedings would have taken several
months, which would not be appropriate in her case, and that lodging a constitutional
complaint was therefore not an effective remedy.
2.8 On 14 October 2014, she filed a second appeal against her detention, presenting
her medical reports and requesting an assessment of her mental health by an expert
registered with the court. The Prague Municipal Court heard her on 29 October 2019,
without ordering an assessment by a medical expert, and dismissed her case. On
27 November 2019, the author appealed the decision, which is pending. 5 The author
petitioned the police authorities on three occasions. The petitions were all dismissed
__________________
3 Namely, dysphoria, resonance, considerable tension, negativism, affective lability, marked
paranoia, delusionality, divisive thinking and inability to maintain one line of communication.
4 On 16 October 2019, it was stated in a medical report that she weighed 37 kg and that her height
was 164 cm.
5 At the time of submission of the communication to the Committee.
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and on 29 November 2019, she filed another request for an administrative review with
the Regional Police Directorate of Prague. The decision is pending. 6
2.9 In respect of the deportation, the author filed an appeal on 16 July 2019, which
was dismissed. She then appealed at the Regional Court and later at the Supreme
Administrative Court on 27 November 2019. The latter appeal is pending. Since her
deportation is planned and enforceable by the police, the author does not believe that
any of the mentioned legal actions could provide her with effective remedy.
2.10 The author submitted a request for interim measures to the European Court of
Human Rights which was denied on 6 December 2019. The author argues that as she
had not submitted a full application to the European Court of Human Rights, 7 the
matter has not been examined by the Court.
Complaint
3.1 The author claims that the severity of her health situation, as well as her
vulnerability as a victim of human trafficking, has been continuously disregarded by
the authorities of the State party. She stresses that this is due to the deeply embedded
stereotypes associated with eating disorders and human trafficking victims. As a
woman and an undocumented foreign national with a long-term history of serious
mental health disorders, who is currently malnourished and at risk of serious damage
to her health and to her life and who is without access to adequate health
professionals, her continued stay in detention and her deportation are putting her at
real risk of severe and irreparable harm, including long-term physical and mental
health consequences leading potentially to her death. She outlines that her detention
is in violation of article 12 in conjunction with article 2 of the Convention. The failure
to establish her status of victim of human trafficking during the deportation
proceedings violates her rights under article 6 in conjunction with article 2 of the
Convention.
3.2 She adds that at no point in the proceedings did the police take a sufficient
initiative to verify her health status. She claims that there is a real risk of serious and
irreparable harm if she is not released and transferred to a non-custodial environment
where her health condition could be treated as soon as possible, as well as if she is
deported without verification of her claims of being a victim of human trafficking and
without establishment of her status by experts.
State party’s observations on admissibility and the merits
4.1 On 15 June 2020, the State party submitted its observations on admissibility and
the merits. It recalled the author’s contention that the State party had violated her
rights under article 6 of the Convention, by not exercising due diligence in
considering her status as a victim of sexual violence and human trafficking when
deciding on her detention and expulsion, and under article 12, by contravening the
prohibition of gender-based discrimination, especially concerning access to health
care, as the specific ailment she suffers from is gender dependent. She claims that the
authorities disregarded her deteriorating mental and health condition during her
detention and did not provide access to specialized medical care, thereby putting her
life in jeopardy, which constitutes a form of torture.
4.2 In this regard, the State party notes that the specifics of the violations are not
detailed and indicates that the exact scope of the alleged violations and the necessary
examination remain uncertain. The State party argues that as the author has shown a
__________________
6 At the time of submission of the communication to the Committee.
7 The author provides a copy of her exchanges with the European Court of Human Rights.
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loss of interest and has lost contact with her legal representatives, the communication
could be discontinued.
4.3 The State party challenges the author’s allegations that during her expulsion and
detention processes, the domestic authorities violated her rights under article 6 of the
Convention by not acknowledging her status as a victim of trafficking in women and
sexual exploitation, despite their duty to validate or refute her status. Under article 6
of the Convention, States parties are obliged to take comprehensive measures to
eliminate all forms of trafficking in women and exploitation of women in prostitution.
4.4 Concerning admissibility, the State party argues that the author’s claims should
be deemed inadmissible owing to (a) the failure to exhaust all possible domestic
remedies; (b) incompatibility with the subject matter; and (c) the claims’ being
baseless and unfounded.
4.5 The State party notes that, in accordance with article 4 (1) of the Optional
Protocol, it is essential for the author to exhaust all available domestic remedies
unless they are prolonged or ineffective. Authors must fully utilize the available and
effective domestic legal solutions that allow them to seek rectification before
approaching the Committee. The State party argues that the author failed to exhaust
all domestic solutions against her expulsion or detention. The State party contends
that the author could have used various remedies, both preventive and compensatory,
related to her claims of being a human trafficking victim.
4.6 The State party argues that the author could have sought remedies for expulsion,
including a petition to an administrative court, an application for international
protection under the Asylum Act or an application for a residency permit owing to her
status as an alleged victim. However, she failed to make timely applications or use
these options effectively.
4.7 Concerning detention, the State party argues that the author could have sought
preventive remedies such as a constitutional appeal or application for international
protection under the Asylum Act. She lodged a constitutional appeal only after
communicating with the Committee and did not apply for international protection.
The State party highlights that the author did not use any compensatory domestic
solution, such as the State Liability Act, which could have provided redress for
unlawful detention decisions.
4.8 The State party asserts that an administrative petition challenging the
deportation order issued against her was available to the author. The author did submit
an administrative petition and made errors regarding the venue and timing. Despite
the error related to the venue, the Prague Regional Court sent the petition to the
appropriate venue, the Prague Municipal Court. However, because the petition was
filed late, the Prague Municipal Court could not review it on its merits, leading to the
final and enforceable status of the deportation order. If the petition had been submitted
on time with valid claims, the court could have reversed the expulsion decision.
Furthermore, the State party notes that, even if the petition was rejected, the author
had rights to multiple avenues of appeal, including the Constitutional Court. The State
party also notes that the courts do consider human trafficking risks when reviewing
decisions of the police on expulsion of foreign nationals.
4.9 The State party contends that owing to not having filed the petition on time, the
author failed to utilize all available domestic remedies. Furthermore, the author never
raised claims of gender-based discrimination or human trafficking during domestic
proceedings, making her claim to the Committee inadmissible.
4.10 The State party notes that the author never applied for international protection
in Czechia despite having been advised of this option, and the risk of her secondary
victimization by the mafia in her home country. The State party also notes that, if she
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had applied, her expulsion would have been halted until the proceedings for
international protection were concluded. The State party thus contends that the
application for international protection would have been an effective remedy against
expulsion, which the author did not pursue.
4.11 Regarding the extension of the author’s detention, the State party notes that the
proceedings on an appeal are still pending, further undermining the author’s case for
admissibility, as not all domestic remedies have been exhausted.
4.12 The State party notes that in article 4 (2) (b) of the Optional Protocol, it is stated
that communications incompatible with the provisions of the Convention will be
inadmissible. The State party contends that proactive screening for every individual
to determine if that individual is a victim of trafficking or sexual violence is not
necessitated under article 6 of the Convention. Only when an individual presents a
plausible, substantiated claim should the State verify or deny that person’s status as a
victim. The author’s claim of being a victim of sexual violence and trafficking was
noted by domestic authorities. However, the State party believes the claim, given its
context, was not adequately substantiated, deeming it expedient and speculative. The
State party asserts that States have wide discretion in determining their mechanisms
for identifying victims. The key is having an effective identification mechanism,
which the State party claims to have.
4.13 The State party notes that under article 4 (2) (c) of the Optional Protocol, it is
stated that a communication will be declared inadmissible by the Committee if it is
clearly without foundation or not adequately backed up. The State party emphasizes
that the internal findings brought forth during the expulsion and detention processes
did not support the author’s claim of being a potential victim. The State party
therefore argues that there were never any valid suspicions regarding victim status in
the context of her expulsion and detention. As the issue of a potential breach of article
6 of the Convention, owing to the non-consideration of the status of victim of human
trafficking during the expulsion and detention processes, is intertwined with the
overall merit of the communication, the State party has looked to the merits of this
issue.
4.14 As to the merits, the State party stresses that it had never prejudged how
domestic authorities might have assessed the author’s claim for protection under the
Asylum Act or the Residence Act, had she provided a plausible declaration of being
a human trafficking victim. Administrative courts did not review the author’s
deportation owing to errors by her legal counsel. The police, when processing the
expulsion, continually checked for signs that someone might be a victim of human
trafficking or sexual violence. According to the State party, the author’s claims, when
contrasted with police findings, appeared speculative and self-serving. The author’s
assertions, for example, of having a travel document under a false name and travelling
without a valid document, were refuted by police findings. The author also tried to
present herself as a human trafficking victim in the Netherlands without success.
4.15 The State party highlighted several discrepancies in the author’s narrative,
including contradictions regarding her travel document; intentions to secure,
unnecessarily, a new document in Berlin, when Japan had a diplomatic mission in
Prague; the non-alignment of the author’s profile with typical profiles of human
trafficking victims; the author’s cooperative behaviour and mental stability during the
proceedings; the eventual discovery of her real identity and the inconsistencies in her
story; her previous failed claim in the Netherlands and the possibility that the story
had been rehearsed; evidence suggesting that she was avoiding a return to Japan
owing to an existing arrest warrant; proper police procedures in the presence of
indications of human trafficking; the possibility of identification as a victim through
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international protection procedures; and the potential for identification through non
governmental organizations or specialized organizations.
4.16 The State party underscores that non-governmental organizations cooperate
with domestic authorities for the purpose of identification of potential victims. In this
case, no suspicions arose regarding the author’s being a trafficking victim and no
documents were provided by any specialized organization to support her claims.
Thus, she could not be granted victim rights.
4.17 The State party notes that the decision to detain the author was made by the
same authority that decided her expulsion, with the State party emphasizing the
author’s unreliability based on her inconsistent claims and the available evidence
against her. The State party points out that the first-instance police authority had
considered measures alternative to detention but given the circumstances, such as the
author’s false information, an arrest warrant and her stay in countries belonging to
the European Union without seeking protection, those alternatives were ruled out.
4.18 The State party’s observations on article 12 of the Convention concern the
author’s allegations that the domestic authorities violated the Convention by not
properly considering her health during her detention. Specifically, the author claims
that she was not transferred to an appropriate facility for treatment and lacked access
to specialized health care. The State party refutes those claims.
4.19 As to admissibility, the State party argues that the author’s complaint should be
declared inadmissible owing to her not having exhausted all available domestic
remedies and the complaint’s being manifestly ill founded.
4.20 The author’s main grievances are the lack of a proper examination of her health
during detention and not having been transferred to a suitable health facility. The State
party distinguishes, however, between the provision of adequate health care and the
consideration of health in decisions about detention, arguing that the release from
detention does not necessarily result in an improvement in health.
4.21 The State party notes that the only remedies the author sought went against the
decisions of the police authority and a request to end her detention. The State party
argues that remedies chosen by the author were seen as unsuitable since they did not
directly address the alleged breach of the Convention regarding health-care provision.
While the domestic authorities could consider whether her health was too poor for
detention, they could not ensure adequate health care.
4.22 The State party argues that the author had preventive and compensatory
remedies available to address the claim of inadequate health care during detention,
positing that the available remedies align with requirements of adequacy and
effectiveness under the Convention.8 The State party argues that if the author had
believed her health care was insufficient, she could have lodged a complaint with the
Ministry or against the health service provider under the law on health services and
could have approached the Constitutional Court thereafter.
4.23 The State party emphasizes that the author had the opportunity to challenge the
decision concerning her detention through a constitutional appeal based on a violation
of fundamental rights. The State party notes that the author filed a constitutional
__________________
8 The State party indicates that on 2 December 2019, the Ministry medical institution provided
information about the author’s health in connection with the author’s request for the European
Court of Human Rights to issue an interim measure. According to this information, the author’s
health improved: she visited the surgery twice a day on a regular basis and was taking the
recommended medicines and substitute nutrition in the form of nutritional drinks (Nutridrink
Compact Protein and Nutridrink Compact, whose flavours she selected), which helped prima
facie to stop weight loss (she still refused to be weighed). Hospitalization was not needed. Her
condition was stabilized, her life was not put at risk and she was fit for air transfer to Japan.
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appeal against her detention after reaching out to the Committee, implying that the
author recognized the appeal as an effective remedy. If the Constitutional Court
recognizes a violation of the author’s rights, she can pursue satisfaction for an
unlawful decision and seek compensation.
4.24 Regarding the extended detention, the State party notes that an appeal process
is ongoing. The State party also notes that the Supreme Administrative Court has, in
the past, reversed decisions on the extension of detention, especially when the
detainee’s health is a significant factor. The State party therefore argues that the
appeal process should be seen as an effective remedy.
4.25 The State party argues that the author approached the Committee prematurely,
regarding both the duration of her detention and the consideration of her health, and
that the Committee should thus find the author’s claims inadmissible.
4.26 On the merits, the State party notes that States are obliged to eliminate
discrimination against women in the context of women’s access to health-care
services, ensuring that they have the right to health care. Focus should be placed on
vulnerable groups such as migrant women, refugee women and those with mental
disabilities. Quality health-care services should be ensured, including informed
consent, confidentiality and sensitivity to women’s needs. Coercion is prohibited.
States have a duty to protect the well-being and health of individuals in their custody
and provide the required adequate medical care.
4.27 The State party asserts that the author was given adequate general and
specialized health care, with regular examinations, medication, and dietary
adjustments, as required. The State party maintains that it treated the author equitably
and denies any breach of article 12 and other, associated articles of the Convention
with respect to health-care provision.
4.28 The State party insists that the author received suitable medical care during her
detention, even when she refused to cooperate with the medical staff. The State party
contends that coercion in treatment would have been inappropriate unless the author
had been at immediate risk. The State party emphasizes that the author was in a
facility intended for women and other vulnerable groups, with access to primary
health care and specialized services, if required. From 25 to 31 July 2019, the author
received specialized care in a hospital for a psychotic disorder and was released in a
stabilized condition. She was assessed on several other occasions, with treatments
provided as needed. The State party therefore rejects the claim that the care provided
to the author was inadequate or biased and states that the author received specialized
care, although she often refused further cooperation.
4.29 Regarding the author’s detention, the State party notes that detention should be
used only in exceptional cases, for limited periods and based on individual necessity
and reasonableness. Detained individuals should have remedies for challenging their
detention, and conditions should adhere to international human rights standards. The
State party notes that failing to address the specific needs of women in detention
might constitute a breach of the Convention.
4.30 The State party notes that while detention for administrative expulsion of
foreign nationals is permissible, factors such as individual circumstances and
potential evasion should be considered. If an individual claims trauma, depression or
maltreatment due to detention, the individual must show an exacerbating factor
beyond typical detention conditions. The State party acknowledges that detaining a
mentally ill person without providing necessary care might violate their rights,
especially if it results in irreversible damage.
4.31 The State party acknowledges the psychological distress that detention can
cause, especially when a person is to be expelled to a country where that person faces
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legal repercussions. The State party insists, however, that the author was housed in a
facility designed for vulnerable individuals. The facility had been renovated in 2015
to be less prison-like, with detainees being provided with amenities and privacy. The
decision to detain the author was based on individual circumstances, which included
providing a false identity, the existence of an arrest warrant in her country of origin
and unauthorized stays in multiple countries.
4.32 The State party claims to have considered the author’s health during her
detention. The State party contends that, while initial evaluations indicated no health
issues, her health was monitored and addressed throughout her stay. Even later
medical reports did not suggest an immediate risk to the author’s life or severe health
complications. It was noted, however, that continued malnutrition might lead to
complications but the author declined further treatment. The possibility of using less
severe measures instead of detention was considered, but the author’s lack of
accommodation or funds in Czechia made this infeasible. The State party concludes
that the author’s health was considered consistently and there was no indication of
gender-based discrimination.
4.33 In the light of the above, the State party requests that the Committee declare the
communication inadmissible in relation to the alleged violation of article 6 of the
Convention for the non-exhaustion of domestic remedies, for being incompatible
ratione materiae and for being manifestly ill founded or not sufficiently substantiated.
In the absence of such a finding, the State party requests that the Committee hold that
article 6 was not violated. Similarly, the State party requests that the Committee
declare the alleged violation of article 12 inadmissible owing to the non-exhaustion
of domestic remedies, for being incompatible ratione materiae or for being manifestly
ill founded or not sufficiently substantiated. In the absence of such a finding, the State
party requests that the Committee hold that article 12 in conjunction with article 2 of
the Convention was not violated.
Author’s comments on the State party’s observations on admissibility and
the merits
5.1 The author’s legal representative provides evidence of their communication
with the author through emails and letters. The representative explains that the author
has given full and informed consent to the continuation of the proceedings in her
absence and that her mental health status and the circumstances of the case may make
it difficult for her to maintain regular contact. 9
5.2 The representative provides information about further developments in the
author’s case since the initial submission. The new developments encompass
additional information relating to the circumstances of the author’s deportation;
additional documents obtained from the Kosmonosy Psychiatric Hospital relating to
the author’s first hospitalization, which may explain the reasons for later non
cooperation with other health experts; the ombudsperson’s assessment of her
complaint; a judgment of the Supreme Administrative Court relating to the first
prolongation of her detention; a judgment of the Constitutional Court relating to the
initial decision to detain her; and the application for compensation for non-pecuniary
damage under the State Liability Act.
5.3 The ombudsperson’s report10 on the inquiry into the detention of vulnerable
persons for the purpose of deportation points, in the case of the author, to several
failures of the authorities: in deportation and detention proceedings, there is generally
__________________
9 In August 2023, the Secretariat requested information from the author’s representative regarding
the last contact with the author (it dates from 2021).
10 Dated 18 February 2020.
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no effective mechanism in place to identify victims of trafficking and to address their
claims of being victims of trafficking; the police did not take the necessary steps to
verify whether the author was a victim of trafficking in human beings as soon as they
became aware that this might be the case; the police did not identify in a timely
manner the author’s vulnerability with respect to her health problems and disabilities,
including autism and an eating disorder; the police did not determine on time that the
detention had become illegal and contrary to the obligations under article 3 of the
European Convention on Human Rights; the detention had reached a level of ill
treatment; an effective mechanism for detecting various forms of vulnerability cannot
be limited to the initial stage of the proceedings (that is, to the first detention
decision); and even when prolonging the detention, the police are obliged to examine
whether new facts have emerged which could affect the lawfulness of the continuation
of detention. While the author’s detention between 3 October and 16 December 2019
was later found to be unlawful by the Supreme Administrative Court, the
ombudsperson’s report suggests that the detention had ceased to be lawful at an earlier
date.
5.4 On 16 December 2019, the author applied for preliminary measures with the
Supreme Administrative Court, which was at that time reviewing her cassation
complaint in respect of the second detention order. This petition was dismissed by the
Court on 19 December 2019.
5.5 On 20 July 2020, the Constitutional Court dismissed the author’s constitutional
complaint (relating to her detention) as manifestly ill founded. In the view of the
Constitutional Court, the author has not been exposed to inhumane or degrading
treatment as a result of her detention.
5.6 On 21 May 2020, the Supreme Administrative Court quashed the decision of the
Prague Municipal Court of 3 October 2019 on prolonging the author’s detention. The
Supreme Administrative Court argued, inter alia, that in the proceedings relating to
the prolongation of a person’s detention, the police are obliged to consider the
detainee’s vulnerability when new information suggesting vulnerability concerns
arise. The Court pointed out that victims of human trafficking are not obligated to
inform the police of their status during the first encounter or to present any proofs in
support of their claims. In the case of persons who claim to be victims of trafficking,
the authorities should use trained staff to identify those victims in accordance with
article 10 of the Council of Europe Convention on Action against Trafficking in
Human Beings. The Supreme Administrative Court stated that, owing to her
deteriorating health status, the author should have been transferred to an alternative
facility, specifically the Zastávka reception centre, which can serve as an alternative
to detention.
5.7 Following the decision of the Supreme Administrative Court relating to the first
prolongation of the author’s detention, on 9 November 2020, her representative filed
on behalf of the author a request for compensation for non-pecuniary damage under
the State Liability Act.11 The results of these proceedings are pending.
5.8 The representative argues that the author’s experience during her hospitalization
in the Kosmonosy Psychiatric Hospital had led to her later refusal to cooperate with
the medical authorities, as the treatment received can be categorized as degrading
under international standards and in violation of domestic law. The author was
accompanied to the hospital by about five security guards, both men and women. She
was under the impression that the visit was an ad hoc outpatient visit, not one that
would lead to hospitalization. She claimed that she had not been informed about the
__________________
11 Law No. 82/1998 Coll., Act on Liability for Damages Caused in the Exercise of Public Powers
by a Decision, or Improper Official Conduct.
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purpose of the visit. She did not remember signing any documents or consent form
prior to the visit or the hospitalization. She had a short conversation with the doctor
in the waiting room. Afterwards, she was placed in the room made ready for her,
without any further examination prior to her placement, and no information was
provided to her regarding the purpose of the placement or its length. She believes that
she was provided with sedatives, after which she slept for about 2.5 days. She was
confined to the bed with security belts to limit her freedom for at least three days at
the time of her entry into the hospital and later for at least one additional day during
her stay. During the initial period when the security belts were used, she was not
allowed to go to the bathroom and she had no option but to wet herself on at least one
occasion. She found these circumstances very stressful, as she was paying a great deal
of attention to her hygiene. Such treatment would be deeply degrading and
humiliating for any human being, let alone a person with several pre-existing
vulnerabilities who, owing to language and cultural barriers as well as her mental
health condition, has limited opportunities to communicate with the personnel to
make her needs known. The author’s account corresponds to the information in the
medical file and explains the low level of her trust in the health personnel in general.
5.9 Moreover, the author has been provided with various types of medical
tranquillizers. Without questioning whether the use of such medication was
appropriate for her health condition, it is important to view this event in the context
of the author’s story of how she became a human trafficking victim. She claimed to
have been provided with sedatives in her tea, after which she fell asleep, was raped
and had pictures taken of her nude body. In consequence, an event in which she was
provided yet again with sedatives without her consent must have been traumatizing
for her, as it reawakened memories of the past trauma. The author later refused to
cooperate with health authorities and refused further hospitalization.
5.10 The author has been deprived of legal representation in proceedings relating to
the legality of her forced hospitalization. It was possible for the District Court in
Mladá Boleslav to assess only the legality of forced hospitalization but not the legality
of the use of security belts. The author was informed that if she did not chose a legal
representative within three days, the court would appoint an attorney-at-law as her
guardian. However, as the author had been released on 31 July 2019 (that is to say,
five days after her hospitalization), on 1 August 2019, the District Court in Mladá
Boleslav decided to discontinue the proceedings. It accordingly did not appoint a
guardian or legal representative for the author. This mistake irreversibly affected the
author’s ability to challenge the legality of her forced hospitalization. The failure of
the medical professionals to inform the court about the use of security belts and the
failure of the District Court to appoint a guardian for the forced hospitalization
proceedings have irreversibly affected the author’s right to obtain a judicial review of
the legality of her forced hospitalization and the use of security belts.
5.11 At the beginning of August 2019, employees of a specialized organization were
invited, upon the author’s consent, to conduct an identification interview with her.
Based on the interview, they could not decisively ascertain whether the author was a
victim of human trafficking. Their inability to confirm or refute the author’s assertion
of her status was influenced by her mental health and the fact that she came from a
region where the specialized organization did not have much experience. As of
7 August 2019, the police had knowledge of the fact that the author might be a victim
of trafficking. Until her deportation, however, the police did not take any steps of
their own to verify or refute her claims. In consequence, it has never been proved
beyond a reasonable doubt that the author was not a victim of human trafficking.
5.12 The representative refutes the State party’s arguments regarding the exhaustion
of domestic remedies and elaborates on the exhaustion of domestic remedies in
relation to violations of the author’s rights under articles 6 and 12 of the Convention.
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The author challenged her detentions through court reviews and administrative
remedies. With regard to the first detention order, the author pursued legal action but
her lawsuit was dismissed by the Prague Municipal Court and subsequent appeals
were rejected by the Supreme Administrative Court and the Constitutional Court. The
representative highlights the delays in the process and the author’s efforts to seek
redress. Similarly, with regard to the second detention order, the author engaged in
legal processes but the remedy came too late to have a practical effect, as she had
already been deported to Japan. The author also sought administrative remedies,
including submitting complaints to the ombudsperson and requesting administrative
reviews of her detention. However, these avenues were limited by legal provisions,
as the ombudsperson lacked the authority to order her release and the administrative
review process was constrained by timelines.
5.13 The author’s efforts to obtain effective remedies were hindered by the delays in
court proceedings and the questionable conduct of the police. The representative
underscores the author’s comprehensive efforts to exhaust all available domestic
remedies. The delays and limitations within the domestic system prevented her from
obtaining timely and effective relief for the harm that she had experienced. The
representative emphasizes that by the time of filing the communication to the
Committee, the author had utilized all remedies available to her up to that point.
5.14 On 7 July 2019, the first-instance police authority issued a deportation order
with a one-year entry ban for the author, who was detained on the same day. The
author appealed this decision on 16 July 2019. On 7 August 2019, she provided
additional reasoning. disclosing her victimization due to human trafficking in her
country of origin and outlining her exploitation by “mafia networks” in Japan,
including being drugged, sexually assaulted, coerced into prostitution and
photographed nude. The police were aware of the possibility that the author might be
a trafficking victim but failed to verify her claims before her deportation. Under the
Residence Act, the police were required to seek a binding opinion from the Ministry
of the Interior regarding her potential departure from the State party. This opinion
was based on initial police interactions and the subsequent appeal process, without
direct interviews conducted by the Ministry. The Ministry’s opinion confirmed the
feasibility of the author’s deportation based on the information provided. The author
contested this decision through the legal system, yet her lawsuit was dismissed owing
to a procedural oversight. Her cassation complaint was rejected by the Supreme
Administrative Court without a delving into the merits and she was not provided with
a legal representative owing to the Court’s belief that her complaint would not
succeed. The author’s legal representative emphasizes the challenges faced owing to
limited time and resources.
5.15 The representative argues that despite procedural complications, the domestic
courts were obligated to consider the case on its merits. Authorities failed to
adequately investigate the trafficking claims or conduct a comprehensive review.
Given the exhausting of all avenues for administrative and judicial review, the
author’s submission is deemed admissible for the deportation proceedings. The
representative highlights the systemic deficiencies in police and court procedures
which hinder protection for trafficking victims who do not immediately disclose their
situation.
5.16 In conclusion, the author’s submission should be considered admissible for the
deportation proceedings, given that she pursued various avenues of review. The
author’s case underscores the authorities’ failure to verify her trafficking claims and
emphasizes the obligation of domestic courts to address cases based on their merits.
The case also exposes gaps in the system’s ability to protect victims of trafficking
who delay disclosing their experiences.
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5.17 The representative further challenges the accessibility and effectiveness of the
alternative remedies suggested by the State party in relation to the author’s detention
and deportation. These proposed measures include applying for asylum, seeking a
protection residence permit and claiming damages under the State Liability Act. The
representative argues that these alternatives were either inaccessible to the author or
unlikely to be effective, given the circumstances of the case.
5.18 The State party suggests that as a preventive remedy, the author could have
applied for international protection under the Asylum Act to alleviate her situation.
However, as highlighted by the representative, there were barriers that made this
remedy inaccessible and ineffective. The Asylum Act requires that an individual
detained must apply for asylum within seven days of having been informed by the
police. However, this short time frame, combined with the shock and stress of
detention, prevents individuals from making informed decisions. Limited access to
information due to technical difficulties and language barriers further complicates
matters. Although there is a provision for belated applications, it is rarely accepted
unless there are extraordinary circumstances. The author’s vulnerability due to her
trafficking victimization makes the seven-day deadline unrealistic. Despite the access
to legal counselling, the time constraints hinder informed decision-making,
particularly for those facing acute mental distress. Even when the author consulted a
lawyer, her disoriented state and lack of trust in authorities affected her decision-
making. Therefore, the remedy of applying for international protection was
practically inaccessible owing to the short deadline and the author’s emotional state.
5.19 Even if the author would have managed to apply for international protection,
the representative questions its effectiveness. Vulnerable groups, such as victims of
trafficking, are subject to special attention under the Asylum Act. However,
identification by the Ministry of the Interior of vulnerable individuals is limited to
minors and families with children, leaving victims of trafficking overlooked. Even if
those victims are identified, doubts about their credibility arise if their statements
differ from the content of initial police interviews. The reliance of the Ministry on
police files and doubts cast on the credibility of asylum-seekers limit the effectiveness
of the asylum procedure. Moreover, the overly restrictive asylum and migration
policy of the State party makes obtaining international protection highly unlikely,
given the low approval rates.
5.20 In conclusion, the author’s ability to apply for asylum was hindered by the short
deadline and her vulnerable state. Even if she had managed to apply, the effectiveness
of the asylum procedure in addressing her detention or deportation concerns would
be questionable owing to the flawed identification process and the broader restrictive
policies.
5.21 The representative dismisses another potential avenue for improving the
author’s situation pointed out by the State party, notably, inclusion in the Support
Programme, which offers assistance to victims of human trafficking. The State party
omitted crucial details, rendering this option impractical for the author. Inclusion in
the Support Programme requires fulfilment of specific criteria and cooperation with
law enforcement, requirements which the author could not have satisfied owing to the
unique circumstances of her trafficking experience.
5.22 Another option suggested by the State party is applying for a long-term
protection residence permit. This permit is intended for trafficking victims who are
cooperating with authorities in criminal proceedings. However, yet again, the author’s
situation did not align with the criteria, as her trafficking occurred outside the State
party. Her inability, being in detention, to initiate proceedings further complicated
this option.
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5.23 Ultimately, there’s no other established procedure in the State party for
identifying trafficking victims outside of criminal investigations. This leaves the
author trapped in a systemic protection gap, unable to access effective remedies. In
summary, both the Support Programme and protection residence permit options were
unavailable and inaccessible to the author given their specific circumstances and her
detention status.
5.24 The author sought damages as a compensatory remedy for her unlawful
detention from 3 October to 16 December 2019. She applied for compensation under
the State Liability Act after the Supreme Administrative Court ruled her detention
unlawful. The Act requires a competent authority to deem a decision unlawful before
a claim for compensation can be made. The author’s application for damages was
delayed while the legal representative re-established contact to inform her of
developments. However, the author could seek damages only for the specific period
stated, as preceding periods were deemed lawful by domestic courts. The author
couldn’t claim damages for forced hospitalization or deportation since no domestic
court had declared them unlawful. Seeking a decision from the Committee is vital for
the author in claiming compensation for the detention period. The finding of a
violation by the Committee could impact the compensation amount. The author
considers alternative remedies proposed by the State party to be unavailable,
inaccessible or ineffective for her case.
5.25 As to the State party’s assertion that the author’s submission is inconsistent with
the Convention (ratione materiae), the author’s representative refers to the State
party’s obligations under the Convention on the Elimination of All Forms of
Discrimination against Women, as defined by several general recommendations of the
Committee, including general recommendation No. 38 (2020) he on trafficking in
women and girls in the context of global migration. 12 In general recommendation
No. 38, the Committee notably emphasizes that all women, regardless of status, are
subject to the obligations of States under the Convention. In general recommendation
No. 38, the Committee highlights the obligation to identify marginalized women and
girls, including migrants and refugees, as rights bearers and states that States should
ensure the dignity, protection and fulfilment of rights throughout displacement and
facilitated access to asylum procedures for trafficking victims; underscores that
migration, particularly if irregular, can put at risk women’s rights and that States must
balance border control with human rights obligations; and calls for nuanced anti
trafficking
responses
and
gender-sensitive
migration
frameworks.
Victim
identification and protection, with a focus on gender sensitivity by professionals, are
crucial. The author’s situation aligns with these concerns, showing non-compliance
in her treatment and protection, as her claims were not adequately addressed, and that
she was not treated as a trafficking victim despite her claims and evidence.
5.26 The representative highlights key points of the case in the context of general
recommendation No. 38 on trafficking in women and girls: trafficking victims hold a
special status, with rights to assistance and protection from the State; identification is
crucial for implementing those rights under national law; trafficking victims require
immediate support services but often face restricted access and a lack of
comprehensive victim-centred assistance; while the author’s claims align with the
need for such services, specialized care was not provided owing to her claim’s being
disregarded by the authorities; eliminating discrimination in health-care access is
crucial, particularly for trafficked women at risk of physical and psychological harm,
and language and cultural barriers and fear of retaliation hinder access; the applicant
did not receive adequate health care despite her mental health challenges and potential
trafficking victim status; authorities must enhance early detection capacity of
__________________
12 In draft form at the time of submission.
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trafficking by professionals and provide protection and support for victims during
identification processes; government training for identifying trafficking victims was
lacking, leading to the applicant’s not being identified and receiving inadequate care;
protection and assistance should not be conditional upon cooperation with law
enforcement and victims must be protected against further rights violations; the
applicant’s treatment was not in line with these principles; she faced retraumatization
and inadequate care; States should provide linguistic and culturally appropriate
emergency and longer-term medical and social services accessible to all trafficking
victims, regardless of immigration status; adequate resources should be allocated for
shelters and crisis centres, with trained staff to assist women victims of trafficking;
victim assistance should be unconditional and respectful of cultural identity and
should provide support for building independent lives; human rights of women who
are victims of trafficking must be safeguarded, including protection from
retraumatization during legal and administrative procedures; the applicant’s
experience demonstrated a lack of required care and respect for her dignity by
authorities; women who are victims of trafficking should not be detained or charged
for irregular entry or stay resulting from their situation as victims of trafficking; the
author’s detention and the subsequent proceedings violated this principle; justice
systems can violate women’s rights and require effective legal services frameworks
for addressing gender-based violence, with consideration for diversity among victims;
and the approach of the authorities to the author’s claims did not consider that
diversity and violated her rights under the Convention.
5.27 The representative refers to other pertinent general recommendations of the
Committee. In general recommendation No. 32 (2014) of the Committee on the
gender-related dimensions of refugee status, asylum, nationality and statelessness of
women, it is underscored that under the Convention, women are safeguarded against
gender-based discrimination which extends to all women requiring international
protection, encompassing situations such as armed conflicts and trafficking. Gender
sensitive interpretation is crucial in refugee scenarios; and violence against women,
including trafficking, constitutes persecution. States should ensure equitable,
impartial asylum procedures for women and adopt a gender sensitive approach.
Gender can be a basis of recognition of social groups for granting refugee status.
Adequate training in gender sensitivity for border police and immigration officials is
essential for identifying and assisting women in need of international protection.
Gender-related persecution is inherent to trafficking; and victims should be able to
access asylum procedures without prejudice. The establishment of screening
mechanisms for identifying women with specific protection needs is recommended.
In its general recommendation No. 35 (2017) on gender-based violence against
women, updating general recommendation No. 19, the Committee underscores the
interconnection between discrimination against women and factors such as migration
status, deprivation of liberty and trafficking. Violence against women assumes diverse
forms; and detention leading to deteriorating health can be construed as arbitrary
deprivation of liberty and violence. States hold responsibilities in combating gender-
based violence, including offering legal protection and reparations to victims.
Establishment of effective measures to shield women complainants and witnesses of
violence is advised. In its general recommendation No. 24 (1999) on women and
health, the Committee focuses on women’s health; in this regard, States ought to
eliminate discrimination and guarantee health services tailored to women with
disabilities. Detention exacerbating the author’s health condition underscores
inadequacy of care during detention. In conclusion, the compatibility of the author’s
communication with the provisions of the Convention implies that it should not be
deemed inadmissible ratione materiae under the Optional Protocol to the Convention.
5.28 Further, the representative contests the State party’s argument that the
submission lacks a strong foundation and thus is insufficiently substantiated. The
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representative reiterates that the author’s rights have been violated under articles 2, 6
and 12 of the Convention owing to the actions and omissions of State authorities and
summarizes the key points made previously: The authorities ignored the author’s
serious health condition and her vulnerability as a potential victim of trafficking
during detention and deportation proceedings; detention worsened her health and
posed a risk to her physical and mental well-being; the worsening of her health was
directly linked to detention and the authorities failed to adequately address her
vulnerability; the police showed bias and a reliance on stereotypes in handling her
case, dismissing her claims as manipulative; the author’s status as a trafficking victim
remained unverified, as the authorities did not adequately establish it; police lacked
proper mechanisms for identifying trafficking victims during deportation and
detention proceedings; the author’s vulnerability as a woman with mental health
issues was not appropriately considered; pre-existing biases led the police to dismiss
her claims without proper evaluation; the author was extremely vulnerable owing to
her being a woman, an undocumented migrant and a possible victim of trafficking,
and to her having mental health issues; detention exacerbated her condition owing to
communication barriers and limited prospects and the authorities’ inaction posed
severe health risks; the representative emphasizes the aspect of gender, highlighting
the impact on women due to biases; and the issue at stake has a gendered nature, as
eating disorders as well as trafficking exert a disproportionate impact on women
owing to their gender, and owing to the deeply embedded stereotypes associated with
both phenomena, the author’s health condition and status as a potential victim of
trafficking were not taken seriously enough by the authorities, that is to say, she was
being exposed to forms of intersectional, or multiple, discrimination by virtue of the
fact that she was a woman, an undocumented migrant and a person with long-term
mental health difficulties who was suffering from a “women’s disease”.
5.29 The representative concludes that there are valid grounds to believe that the
author’s rights under the Convention were violated owing to the actions and inactions
of the State party and stands ready to provide further observations on the merits if the
communication is deemed admissible.
Issues and proceedings before the Committee
Consideration of admissibility
6.1 In accordance with rule 64 of its rules of procedure, the Committee is to decide
whether the communication is admissible under the Optional Protocol. In accordance
with rule 72 (4), it must do so before considering the merits of the communication.
6.2 In accordance with article 4 (2) (a) of the Optional Protocol, the Committee is
satisfied that the same matter has not been and is not being examined under another
procedure of international investigation or settlement.
6.3 In accordance with article 4 (1) of the Optional Protocol, the Committee shall
not consider a communication 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 Committee notes
that the author claims to have exhausted all available and effective domestic remedies,
while maintaining that other remedies brought up by the State party are prolonged
and ineffective. The Committee notes, however, that the State party has challenged
the admissibility of the communication on this ground and has specified the type of
judicial remedies available to the author.
6.4 The Committee takes note of the State party’s argument that the author
approached the Committee prematurely, regarding both the duration of her detention
and the consideration of her health. In this regard, the Committee observes that
several proceedings were indeed pending at the time of the submission of the
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communication (namely, an appeal against the Prague Municipal Court detention
decision, a request for an administrative review with the Regional Police Directorate
of Prague and an appeal of the author’s deportation at the Supreme Administrative
Court is pending). The Committee notes that the author has been represented through
the course of the judicial proceedings and has been provided with interpretation.
6.5 The Committee notes the State party’s argument that the author could have used
other domestic avenues related to her claims of being a victim of human trafficking,
both preventive and compensatory, against her detention and expulsion and could
have challenged the legality of her detention before the Constitutional Court. The
Committee notes notably the State party’s assertion that the author could have sought
remedies for expulsion, including a petition to an administrative court, an application
for international protection under the Asylum Act or an application for a residency
permit, owing to her alleged victim status, yet she failed to make timely applications
or use these options effectively.
6.6 The Committee takes note of the author’s submission that the proceedings would
have taken several months, which is not appropriate in her case, and that lodging a
constitutional complaint is therefore not an effective remedy. As to application for
international protection under the Asylum Act, or an application for a residency
permit, the Committee notes the author’s claim that those are also not effective
remedies given the specificities of her case.
6.7 The Committee observes, however, that doubts about the effectiveness of
domestic remedies do not absolve the author from exhausting them. 13 The Committee
finds that although there is no obligation to exhaust domestic remedies if they have
no chance of success, authors of communications must exercise due diligence in the
pursuit of available remedies and that mere doubts or assumptions about their
effectiveness do not absolve the authors from exhausting them. 14
6.8 In addition, the Committee takes note that on 21 May 2020, the Supreme
Administrative Court quashed the decision of the Prague Municipal Court of
3 October 2019 on prolonging the author’s detention and that on this legal basis the
author’s representative filed a request for compensation for non-pecuniary damage
under the State Liability Act. In the light of the information on file, the Committee is
of the opinion that the author has not established that the application of remedies by
the judicial courts in the State party is unreasonably prolonged or unlikely to bring
effective relief. The Committee therefore considers that the author has failed to
exhaust all available domestic remedies and declares the communication inadmissible
under article 4 (1) of the Optional Protocol.
6.9 In the light of this conclusion, the Committee does not deem it necessary to
examine any other grounds for inadmissibility.
7.
The Committee therefore decides:
(a)
That the communication is inadmissible under article 4 (1) of the Optional
Protocol;
(b)
That this decision shall be communicated to the State party and to the
author.
__________________
13 See CCPR/C/45/D/397/1990, para. 5.4; and CCPR/C/115/D/2048/2011, para. 8.3.
14 See D.C. v. Lithuania (CCPR/C/134/D/3327/2019), para. 8.3.