Decision on merits; Subjects: WOMEN'S RIGHTS, GENDER-BASED VIOLENCE, SWITZERLAND; [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/91/D/169/2021
Convention on the Elimination
of All Forms of Discrimination
against Women
Distr.: General
21 July 2025
Original: English
25-12060 (E) 150825
*2512060*
Committee on the Elimination of Discrimination
against Women
Views adopted by the Committee under article 7 (3) of
the Optional Protocol, concerning communication
No. 169/2021*,**,***
Communication submitted by:
K.J. (represented by counsel)
Alleged victim:
The author
State Party:
Switzerland
Date of communication:
10 May 2021
References:
Transmitted to the State Party on
19 May 2021 (not issued in document
form)
Date of adoption of views:
4 July 2025
Subject matter:
Removal of a woman who is a survivor
of sexual and gender-based violence
under the Dublin III Regulation to
Greece
Procedural issues:
Exhaustion of domestic remedies; lack
of substantiation
Substantive issues:
Non-refoulement; gender-based
violence
Articles of the Convention:
2 (c)–(f), 3 and 12
Article of the Optional Protocol:
4 (1) and (2)
* Adopted by the Committee at its ninety-first session (16 June–4 July 2025).
** The following members of the Committee participated in the examination of the present
communication: Brenda Akia, Hiroko Akizuki, Hamida Al-Shukairi, Violet Eudine Barriteau,
Rangita de Silva de Alwis, Corinne Dettmeijer-Vermeulen, Nada Moustafa Fathi Draz, Yamila
González Ferrer, Madina Jarbussynova, Marianne Mikko, Mu Hong, Ana Peláez Narváez,
Jelena Pia-Comella, Bandana Rana, Elgun Safarov and Patsilí Toledo Vásquez.
*** A joint opinion of Committee members Hiroko Akizuki, Rangita de Silva de Alwis, Corinne
Dettmeijer-Vermeulen and Jelena Pia-Comella (dissenting) is annexed to the present views.
CEDAW/C/91/D/169/2021
25-12060
2/14
1.1 The communication is submitted by K.J., a national of Afghanistan, born in
1993. The author claims to be a victim of a violation by Switzerland of her rights
under articles 2 (c)–(f), 3 and 12 of the Convention. The Optional Protocol to the
Convention entered into force for Switzerland on 29 December 2008. The author is
represented by counsel, Stephanie Motz and Lea Hungerbühler.
1.2 On 19 May 2021, the Committee, acting under article 5 (1) of the Optional
Protocol, through its Working Group on Communications under the Optional
Protocol, requested the State Party to refrain from returning the author to Greece
pending consideration of her communication. On 20 May 2021, the State Party
informed the Committee that the State Secretariat for Migration had requested the
competent authority not to take any steps to transfer the author to Greece.
Facts as submitted by the author
2.1 The author belongs to the Hazara ethnic group in Afghanistan. As a young child,
she and her family were forced to flee from their home in Afghanistan to the Islamic
Republic of Iran. At the age of 17, her brother forcibly married her by custom to a
44-year-old man as his second wife in order to use her dowry to pay for surgery for
their severely sick mother.
2.2 The author was regularly mistreated, sexually abused and raped by her husband.
Owing to the patriarchal system in the Islamic Republic of Iran and the lack of
protection for victims of marital rape and domestic violence, she was unable to obtain
any protection. After a particularly violent rape, the author went to the police, who
told her that to prove that she had been raped, she would have to undergo a medical
examination, which in the Islamic Republic of Iran is possible only with the
agreement of the husband or legal guardian, which she refused as a result. Since the
author was unable to prove the incidents, she was forced to leave the police station
and went to her parents’ home. Shortly after having reported the sexual violence to
the police, the author received a letter1 stating that the investigation had been closed
as marital rape was not a punishable offence.
2.3 The author tried to stay with her parents to avoid living with her husband. After
a short period of time, her husband started blackmailing her parents: if she wanted to
stay with them, the parents had to pay back the dowry. Since they could not repay the
amount, the father sent the author back to her violent husband. Besides the sexual
violence, which occurred on a regular basis, her husband cut off her hair and
threatened to cut off other body parts if she didn’t “behave”. He also regularly choked
her with a belt up to the point at which she lost consciousness.
2.4 The domestic violence became so serious that her husband broke her hand while
attacking her with a chair. He forbade her to go to the hospital, even though she was
in intolerable pain. Her neighbours saw her suffering and later helped her to flee the
country.2
2.5 On the way to Greece, the author was violently raped near the Iraqi-Turkish
border by a friend of the smuggler, and upon her arrival in Greece, she realized that
she was pregnant. After finally reaching Lesbos in October 2017, she was raped two
more times within one month.3 After the first incident, she went to the police to report
the rape. Since she could not identify the offender, the police did not commence any
__________________
1 Presumably from the police, but the author does not specify.
2 No further information provided.
3 The author submitted a sexual violence medical certificate issued in Greece on 18 October 2017,
the date of the initial medical examination.
CEDAW/C/91/D/169/2021
3/14
25-12060
investigation. Nor did they send her to a specialized aid organization for victims of
sexual violence. After the second rape, she therefore did not inform the police.
2.6 In November 2017, she had an illegal abortion in Athens. A few months later, in
response to threats from her husband, who claimed to be following her, she moved to
Athens, where she was raped again, this time on the streets of the city. She tried to
make a complaint at the police station. Again, no assistance of any kind was provided
to her. After this incident, she returned to Lesbos, since she felt less unsafe there.
2.7 On an unspecified date, the author applied for asylum in Greece. On 25 October
2018, the author had her asylum interview in Athens and, on 5 November 2018, was
granted refugee status. Owing to that status, the housing, financial aid and other
support that she was receiving came to an end on 31 August 2019. As a result, the
author was forced to fend for herself on the streets, with no protection from sexual
and physical assault. Furthermore, she was no longer able to get any medical or
mental health treatment, which she urgently required, because the services were
available only to asylum-seekers, not to recognized refugees. In addition, she was told
that her violent husband had followed her to Athens and was looking for her. When
she asked for help in that regard, no support was provided.4 As a consequence, she
was again forced to flee in order to have her basic needs covered and to obtain
protection from gender-based violence.
2.8 On 14 September 2019, the author arrived in Switzerland. 5 She applied for
asylum two days later. On 19 September 2019, as a result of a search using the
Eurodac system, it transpired that she had been granted refugee protection in Greece.
In her interview under Regulation (EU) No. 604/2013 of the European Parliament and
of the Council of 26 June 2013 establishing the criteria and mechanisms for
determining the member State responsible for examining an application for
international protection lodged in one of the member States by a third-country
national or a stateless person (Dublin III Regulation), she was asked to provide
summary reasons as to why she could not be removed to Greece as a safe third
country. The author raised the fact that she had been raped and stated that, during the
year and a half that she had spent in Greece, she had not felt safe on a single day or
night. On 1 October 2019, the author was summarily interviewed by the State
Secretariat for Migration. On 21 October 2019, the Greek authorities responded
positively to the Swiss readmission request.
2.9 On 10 January 2020, the State Secretariat for Migration conducted an interview
with the author, during which she was able to raise her particular vulnerability as a
survivor of sexual and gender-based violence as a factor that had not been sufficiently
assessed. On 14 January 2020, the basic medical service in the asylum camp assessed
the author to be displaying psychological problems including depression, prescribed
her medication and recommended that she undergo further medical examinations. On
20 January 2020, the State Secretariat for Migration ordered her removal from
Switzerland on the basis of the readmission agreement with Greece, asserting that the
author came under the protection of the Office of the United Nations High
Commissioner for Refugees and women’s organizations. The author submits that the
State Secretariat for Migration failed to consider that, despite the presence of such
organizations in Greece, she still experienced gender-based violence, was repeatedly
raped and followed by her husband and hence would face great danger if returned to
Greece.
__________________
4 No details provided as to whom or which authority the author asked for assistance.
5 The author took a direct flight from Athens to Switzerland with her Greek passport for
foreigners and Greek identity card for foreigners.
CEDAW/C/91/D/169/2021
25-12060
4/14
2.10 On 28 January 2020, the author appealed to the Federal Administrative Court,
claiming extreme vulnerability as a woman who had been a victim of gender-specific
persecution and who was suffering from post-traumatic stress disorder. She requested
the annulment of the decision of the State Secretariat for Migration of 21 January
2020 and the acceptance of her asylum application or, alternatively, a reassessment.
From a procedural point of view, she requested that the proceedings be conducted free
of charge and that an advance on costs be waived. In a judgment dated 3 February
2020, the Court dismissed the appeal on the basis that Greece was a safe third country
and that the author would therefore be able to obtain the necessary medical treatment
there, finding that the presumption of safety had not been rebutted. Concerning the
author’s fear of gender-based persecution, as her husband was looking for her and she
would face dangerous living conditions in Greece, the Court stated that Greece was
bound by the rule of law and had a functioning police and justice system. The Court
therefore dismissed the appeal on the grounds that Greece was a safe third country.
The author was hospitalized from 11 February to 3 March 2020 owing to a major
depressive episode.6
2.11 On 24 March 2021, the State Secretariat for Migration denied the author’s
request for reconsideration, on the grounds that adequate medical treatment facilities
were available in Greece. On 16 April 2021, the author appealed the decision to the
Federal Administrative Court. She argued that a removal would put her at risk of
gender-based violence, torture and inhuman treatment owing to the lack of social,
medical and legal support and police protection available, in combination with her
particularly vulnerable situation and the fact that she would be homeless. Her appeal
was dismissed the same day. On 30 April 2021, the author applied for reconsideration
of that decision, since the Court had not considered the evidence submitted previously
about the sexual and gender-based violence to which she had been subjected in
Greece. In an interim decision dated 5 May 2021, the Court confirmed its decision
withdrawing suspensive effect and noting that the mentioned evidence would be of
no relevance.
2.12 Referring to her health issues, the author submits that she is suffering from
serious mental health issues and was diagnosed with post-traumatic stress disorder,
episodic panic disorder and a medium to severe depressive episode. The author is
extremely destabilized, which led to inpatient treatment of several weeks from
February to March 2020 due to suicidal ideation. After the inpatient therapy, the
doctors considered it essential for her to continue with the therapy and to establish a
stable setting for such therapy. In November 2020, she was again hospitalized in the
trauma department for about four months. In a medical report of March 2021, it was
highlighted that long-term medical treatment and therapy were urgently required.
2.13 The author affirms that most refugees who are returned to Greece by other
European countries are taken back to Athens. In Athens, she would be exposed to a
serious and real risk of sexual and gender-based violence. Young unaccompanied
women in particular are at real risk of exploitation and sexual abuse, without any legal
or physical protection by the police – even more so if they do not speak Greek.
Complaint
3.1 The author claims that the State Party has failed to undertake an individualized
and gender-sensitive assessment of her asylum and reconsideration applications in
breach of her rights under articles 2 (e) and (f) and 3 of the Convention, as well as in
__________________
6 Subsequently, as shown in a crisis intervention report of 7 October 2020, a moderate depressive
episode, post-traumatic stress disorder and a panic disorder were diagnosed.
CEDAW/C/91/D/169/2021
5/14
25-12060
connection to the Committee’s general recommendation No. 32 (2014) on the gender-
related dimensions of refugee status, asylum, nationality and statelessness of women. 7
3.2 The author further claims that the State Party authorities have decided to remove
her to a State where she will face a real, serious and personal risk of gender-based
violence and a lack of needed medical treatment in breach of articles 2 (c)–(f), 3 and
12 of the Convention. She claims that the removal of recognized refugees with a
particular vulnerability to Greece, with its desolate living conditions and inadequate
medical treatment options, would violate the refoulement prohibition. 8
3.3 She further affirms that her removal would amount to torture and ill-treatment
in violation of her rights under articles 2 (c)–(f), 3 and 12 of the Convention in the
light of her being a highly vulnerable, suicidal survivor of severe sexual and gender-
based violence and that, in Greece,9 she would be uprooted from her stable therapy
setting and would have no access to housing, mental health, medical, legal or social
support and would be exposed to a serious and real risk of further serious sexual and
gender-based violence – including threats from her husband – without any State
protection.
3.4 The author claims that her removal to Greece entails a real risk of torture or
inhuman and degrading treatment and further sexual and gender-based violence in
violation of the refoulement prohibition as guaranteed under the Convention because
of the combination of above-mentioned case-specific factors going beyond the
deplorable general situation for refugees in Greece.
State Party’s observations on admissibility and the merits
4.1 On 25 January 2022, the State Party provided its observations regarding
admissibility and the merits, focusing on several key factual clarifications and legal
arguments. It offers a detailed account of the author’s circumstances in the Islamic
Republic of Iran and the legal proceedings that ensued.
4.2 The State Party highlights that the author did not raise the issue of sexual
violence in Greece or invoke the guarantees of the Convention during her ordinary
asylum and appeal proceedings or in the request for reconsideration. These issues
were mentioned only in her appeal to the Federal Administrative Court on 16 April
2021, long after the initial proceedings. The Court noted that the author ’s allegation
that she had been a victim of sexual violence in Greece must be considered as having
been made subsequently and was thus implausible. Consequently, the Court dismissed
her appeal as inadmissible on 18 May 2021, citing the untimeliness of the allegations
without a plausible justification and her failure to pay the advance on costs.
4.3 The State Party argues that the author’s complaints to the Committee are
inadmissible because she did not exhaust domestic remedies by failing to raise these
issues earlier in the domestic proceedings. Moreover, the State Party points out that
the author’s communication to the Committee is insufficiently substantiated, as
required under article 4 (2) (c) of the Optional Protocol. The Committee, in its
jurisprudence, has emphasized that it does not replace national authorities in assessing
facts or evidence unless the assessment was biased, based on gender stereotypes or
arbitrary, or amounted to a denial of justice.
__________________
7 See R.S.A.A. et al. v. Denmark (CEDAW/C/73/D/86/2015).
8 Human Rights Committee, O.A. v. Denmark (CCPR/C/121/D/2770/2016), para. 8.9 ff.; and
Committee against Torture, A.N. v. Switzerland (CAT/C/64/D/742/2016), paras. 7.3 and 8.8.
9 Reference is made to the recent decision by Switzerland to reconsider a comparable case
following a request by the Committee for interim measures (see M.M. v. Switzerland
(CEDAW/C/81/D/160/2020)).
CEDAW/C/91/D/169/2021
25-12060
6/14
4.4 The State Party provides details of the procedures followed in the author’s case,
noting that she applied for asylum in Switzerland on 16 September 2019 and was
individually interviewed on 1 October 2019, where she was given the opportunity to
present her case and any reasons against her transfer to Greece. During this interview,
the author stated that she had left the Islamic Republic of Iran owing to the
ill-treatment to which she was subjected by her husband, and mentioned the difficult
living conditions that she had experienced in Greece, the fear of her husband finding
her and her psychological problems, but she expressly stated that she had not
encountered any problems in Greece. The Swiss authorities, after considering her
statements and the conditions in Greece, concluded that Greece was a safe country
for the author, where she could receive protection and assistance. The State Party
submits that, in its judgment of 20 January 2020, the State Secretariat for Migration
stated that the medical problems claimed were not so serious that they could not be
adequately treated in Greece, which was a member State of the European Union. The
State Party maintains that the medical reports submitted in the context of the
reconsideration proceedings10 do not contraindicate a removal to Greece.
4.5 The State Party also notes that the domestic authorities, including the State
Secretariat for Migration and the Federal Administrative Court, conducted a thorough
and individualized examination of the author’s case, considering all relevant aspects,
including her health condition and the threats from her husband. The State Secretariat
for Migration noted that Greece had adequate medical infrastructure and that the
author could continue her treatment there. The Federal Administrative Court
confirmed these findings in its ruling of 3 February 2020 and again in its subsequent
decisions.
4.6 The State Party concludes that the author’s complaint to the Committee was
formulated in a very general manner and did not demonstrate, with concrete evidence,
that the national authorities’ assessment of her case was biased or arbitrary. The State
Party emphasizes that the domestic authorities did not ignore the author’s gender-
related arguments but concluded that her return to Greece was lawful and that Greece
could provide adequate protection for her as a recognized refugee.
4.7 The State Party also addresses the author’s claim that she would face inhuman
and degrading treatment in Greece. It argues that Greece, as a State member of the
European Union, is bound by European Union law, which ensures that refugees
receive adequate protection and assistance, including access to healthcare and
housing. It asserts that the Greek police could protect the author from any threats
posed by her husband and that Greece has the medical facilities necessary to treat her
condition. Furthermore, the State Party emphasizes that the European Court of Human
Rights has consistently held that Greece provides adequate protection to refugees and
that the Committee should not substitute its own assessment of the facts for that of
the national authorities.
4.8 Finally, the State Party submits that the author has not provided evidence to
substantiate her claim that she would face a real risk of inhuman or degrading
treatment if returned to Greece. It argues that the author’s general references to
reports on the situation in Greece do not sufficiently demonstrate that her return
would violate her rights under the Convention. The State Party concludes that the
__________________
10 Medical report of 3 March 2020 and discharge report of 17 March 2021: accounts of inpatient
psychiatric treatment from 11 February to 3 March 2020 and from November 2020 to March
2021. In the first report, it was indicated that the author had suffered experiences of abuse in the
Islamic Republic of Iran and Greece, without, however, elaborating on them. In the second, it
was indicated that, during the second treatment, the trauma-specific therapy showed very good
results with regard to improvements in post-traumatic stress disorder symptoms and in the
depressive symptomatology.
CEDAW/C/91/D/169/2021
7/14
25-12060
author’s communication should be declared inadmissible for failure to exhaust
domestic remedies and for lack of sufficient substantiation and that, even if it were
admissible, it should be dismissed on the merits, as the national authorities had
conducted a thorough and fair examination of her case.
4.9 In sum, the State Party submits arguments concerning: (a) the delay in raising
the complaint, as the author only mentioned her experiences of sexual violence in
Greece during a late stage in the Swiss domestic proceedings, specifically in her
appeal to the Federal Administrative Court on 16 April 2021, and this delay led the
Court to declare her appeal inadmissible, as it was out of time and lacked a substantive
basis for success; (b) the non-exhaustion of domestic remedies, as the author did not
pay the advance costs required for her appeal, resulting in its inadmissibility;
(c) insufficient substantiation, as the author’s communication to the Committee
lacked concrete details to support her claims, while the Swiss authorities had
conducted a thorough individual examination of her case, considering all relevant
aspects, including gender-related issues; (d) the assessment of the facts by national
authorities, as it is generally the responsibility of national authorities to assess the
facts, the evidence and the application of national law, unless the assessment was
arbitrary or discriminatory or constituted a denial of justice; (e) procedural fairness,
as the author had been given ample opportunity to present her case during the asylum
proceedings in the State Party, including a hearing with an interpreter, and the
domestic authorities had considered her arguments and evidence before concluding
that her return to Greece would be lawful and safe; (f) compatibility with international
standards, as Greece is obligated under European Union law to provide adequate
protection and support to refugees, including access to healthcare and housing, the
author could continue her medical treatment in Greece, and the Greek police could
protect her from any threats posed by her husband; (g) the contradictions in the
author’s statements, in particular regarding her claim that she had got remarried to a
Greek national, who had also mistreated her, the inconsistencies surrounding which
raised doubts about the credibility of her claims of sexual violence in Greece; and
(h) the author’s procedural rights, as those rights, including the right to be heard and
the opportunity to appeal decisions, were respected throughout the asylum process,
so the fact that she did not pursue those remedies to their conclusion does not
constitute a violation of the Convention.
Author’s comments on the State Party’s observations on admissibility and
the merits
5.1 The author disputes the State Party’s claim that she failed to exhaust domestic
remedies in her case, arguing that there is no requirement under the Convention to
raise issues of sexual violence in a specific domestic procedure. She asserts that she
did raise the issue in her appeal to the Federal Administrative Court and that the
authorities were already aware of her experiences of sexual and gender-based
violence from earlier medical reports11 and asylum procedures.
5.2 The author contends that the national authorities failed to thoroughly investigate
her claims or provide a supportive environment for disclosure, 12 arguing that this
failure led to an inadequate consideration of her vulnerability and risk of being
subjected to sexual and gender-based violence in the future. She also challenges the
State Party’s reliance on the theoretical commitments of Greece to international law
rather than assessing her specific situation. The author concludes that she has
__________________
11 The author argues that the sexual violence that she suffered in Greece was documented in a
medical report of 3 March 2020 and that her reporting of it could therefore not be described as
late, nor could her claims in that regard be described as implausible.
12 No further detail provided.
CEDAW/C/91/D/169/2021
25-12060
8/14
exhausted all available domestic remedies and sufficiently substantiated her claim of
procedural violations under the Convention.
5.3 The author argues that the State Party’s claims of a thorough and gender-
sensitive examination of her asylum case are inaccurate. The author contends that the
State Party merely referenced the theoretical legal obligations of Greece without
addressing specific evidence or reports, including medical documentation detailing
her experiences of sexual and gender-based violence. In its decisions, the State Party
did not adequately consider the actual conditions in Greece or the author’s specific
vulnerabilities.
5.4 The author asserts that the State Party failed to conduct a proper individualized
and gender-specific assessment, relying instead on generalized legal commitments by
Greece and not addressing the detailed medical and psychological evidence
submitted. She argues that the State Party’s approach disregarded the trauma that she
had experienced and the need for a supportive environment for full disclosure.
5.5 Furthermore, the author refutes the State Party’s claim that she did not raise
procedural violations or provide adequate details. She points out that she did raise
these issues in her appeals and that the State Party’s procedural shortcomings,
including inadequate risk assessments and lack of sensitivity to sexual and gender-
based violence, violated international and domestic legal standards.
5.6 In addition, the author highlights the deteriorating situation for refugees in
Greece, in particular for those with mental health issues and survivors of trauma.
Recent changes in Greek law and reports of inadequate support for such individuals
underscore the increased risk that the author would face if returned to Greece. The
author notes that the Swiss Federal Administrative Court has recently ruled that
returning vulnerable individuals to Greece is unreasonable, countering the State
Party’s claims about the compliance of Greece with international standards.
5.7 The author argues that, by relying on the theoretical obligations of Greece,
rather than addressing actual conditions or evidence, the State Party failed to provide
a proper assessment of her situation. Despite numerous reports highlighting the dire
circumstances for refugees in Greece, in particular survivors of sexual and gender-
based violence, the State Party has not presented any concrete evidence of the
effective implementation of Greek laws.
5.8 The author emphasizes her right to rehabilitation as a survivor of multiple
incidents of sexual and gender-based violence, irrespective of where these occurred.
She criticizes the State Party for not addressing her initial disclosure of sexual and
gender-based violence and for failing to consider the lack of adequate rehabilitation
services in Greece, which violates international obligations under the Convention on
the Elimination of All Forms of Discrimination against Women and the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
5.9 The State Party’s argument that the author’s symptoms of post-traumatic stress
disorder have improved and could be managed in Greece is challenged by the author,
who points out that evidence in support of the State Party’s affirmation that adequate
services are available is lacking. The author also disputes the State Party’s claim about
the handling of her health issues during the readmission process (claiming that the
State Secretariat for Migration had failed to inform the Greek authorities about her
vulnerabilities) and the potential for adequate protection from her husband’s threats
in Greece.
CEDAW/C/91/D/169/2021
9/14
25-12060
Issues and proceedings before the Committee
Consideration of admissibility
6.1 In accordance with rule 64 of its rules of procedure, the Committee must decide
whether the communication is admissible under the Optional Protocol. In accordance
with rule 72 (4), it is to do so before considering the merits of the communication.
6.2 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 the State Party’s
challenges to the admissibility of the communication on this ground, given that the
author raised her claims that she had been raped in Greece late in her appeal of 16 April
2021 to the Federal Administrative Court.
6.3 The Committee recalls its jurisprudence, in which it is established that authors
must have raised the claims that they wish to bring before the Committee in substance
at the domestic level 13 in order to give the domestic authorities and courts an
opportunity to take a decision thereon.14 It also notes that the author raised the issue
of sexual violence experienced in Greece in her appeal to the Federal Administrative
Court on 16 April 2021, thereby giving the national authorities the opportunity to
examine those claims.
6.4 The Committee also notes that the author underwent a full asylum procedure,
followed by a re-examination procedure; that her request for suspensive effect was
denied; and that she was ordered to pay a fee in the amount of 1,500 Swiss francs. In
this regard, the Committee takes note of the author’s contention that, as her request
for suspensive effect had been denied, the appeal to the Federal Administrative Court
did not constitute an effective remedy as defined in article 4 of the Optional Protocol.
The Committee considers that the author exhausted domestic remedies because she
had claimed specifically, although late, that she had been subjected twice to sexual
violence in Greece in her appeal (complaint and application for super-provisional
measures) to the Federal Administrative Court, which could have resolved the
substance of the claim brought before the Committee. Accordingly, the Committee
considers that it is not precluded by the requirements of article 4 (1) of the Optional
Protocol from examining the present communication.
6.5 The Committee notes the author’s claim that, by returning her to Greece, the
State Party would expose her to a real and personal risk of serious forms of gender-
based violence. In view of the information provided, in particular regarding the
author’s vulnerable situation as a survivor of sexual violence in the Islamic Republic
of Iran with recognized refugee status and the alleged failure of the national
authorities to conduct an individualized trauma-informed and gender-sensitive
assessment, the Committee considers that the author’s claims are sufficiently
substantiated for the purposes of admissibility. Accordingly, it proceeds with the
examination of the merits of the communication.
__________________
13 See Kayhan v. Turkey (CEDAW/C/34/D/8/2005), para. 7.7, M.A. v. Switzerland
(CEDAW/C/80/D/145/2019), para. 6.7, and S.T.H. v. Switzerland (CEDAW/C/87/D/165/2021),
para. 7.5.
14 See N.S.F. v. United Kingdom of Great Britain and Northern Ireland
(CEDAW/C/38/D/10/2005), para. 7.3, M.A. v. Switzerland, para. 6.7, and S.T.H. v. Switzerland,
para. 7.5.
CEDAW/C/91/D/169/2021
25-12060
10/14
Consideration of the merits
7.1 The Committee has considered the present communication in the light of all the
information made available to it by the author and by the State Party, in accordance
with the provisions of article 7 (1) of the Optional Protocol.
7.2 The Committee takes note of the author’s undisputed claim that she is a survivor
of severe gender-based violence that was inflicted on her from an early age in the
Islamic Republic of Iran and while fleeing near the Iraqi-Turkish border, for which
she was recognized as a refugee in Greece. The Committee also notes the author ’s
claim that she was subjected to gender-based violence in Greece – in Lesbos, where
she was raped twice within a month, and in Athens. The Committee takes note that
the sustained violence led to the deterioration of her mental health and that she suffers
from depression and has been diagnosed with post-traumatic stress disorder and
episodic panic disorder. The Committee observes that the author’s vulnerability in
terms of her mental health has been ascertained in several medical reports by
psychiatrists issued in the State Party.
7.3 The Committee reiterates that, according to its jurisprudence, the Convention
has extraterritorial effect only when the woman to be returned will be exposed to a
real, personal and foreseeable risk of serious forms of gender-based violence.15
7.4 The Committee recalls that, under article 2 (d) of the Convention, States Parties
undertake to refrain from engaging in any act or practice of discrimination against
women and to ensure that public authorities and institutions act in conformity with
that obligation. The Committee also recalls that, under international human rights law,
the non-refoulement principle imposes a duty on States to refrain from returning a
person to a jurisdiction in which he or she may face serious violations of human rights,
notably arbitrary deprivation of life or torture or other cruel, inhuman or degrading
treatment or punishment.16 In addition, the Committee considers that gender-based
violence, which impairs or nullifies the enjoyment by women of human rights and
fundamental freedoms under general international law or under human rights
conventions, is discrimination within the meaning of article 1 of the Convention and
that such rights include the right to life and the right not to be subjected to torture. 17
The Committee has further developed its interpretation of violence against women as
a form of gender-based discrimination in its general recommendation No. 35 (2017)
on gender-based violence against women, updating general recommendation No. 19,
reaffirming the obligation of States Parties to eliminate discrimination against
women, including gender-based violence against women, stating that the obligation
comprises two aspects of State responsibility for such violence, that which results
from the acts or omissions of both the State Party or its actors, on the one hand, and
non-State actors, on the other.18 A State Party would therefore be in violation of the
Convention if it returned a person to another State where it was foreseeable that
serious gender-based violence would be inflicted on that person. Such a violation
would also occur when no protection against the identified gender-based violence can
be expected from the authorities of the State to which the person is to be returned.
What amounts to serious forms of gender-based violence depends upon the
circumstances of each case and must be determined by the Committee on a case-by-
__________________
15 See, for example, M.N.N. v. Denmark (CEDAW/C/55/D/33/2011), para. 8.10, and R.S.A.A. et al.
v. Denmark, para. 7.7.
16 General recommendation No. 32, para. 21.
17 General recommendation No. 19 (1992) on violence against women, para. 7.
18 General recommendation No. 35, para. 21.
CEDAW/C/91/D/169/2021
11/14
25-12060
case basis at the stage of consideration of the merits, provided that the author has
made a prima facie case by sufficiently substantiating her allegations. 19
7.5 In the present case, the Committee notes the State Party’s contention that all the
author’s allegations were thoroughly examined by the State Party’s immigration
authorities. At the same time, the Committee observes that the author ’s allegations
that she had been raped three times in Greece had been dismissed because the
authorities considered that she had brought those allegations late in the proceedings,
which affected her credibility.
7.6 In that connection, the Committee recalls that it is generally for the authorities
of States Parties to the Convention to evaluate the facts and evidence and the
application of national law in a particular case,20 unless it can be established that the
evaluation was biased or based on gender stereotypes that constitute discrimination
against women, was clearly arbitrary or amounted to a denial of justice. The issue
before the Committee is therefore whether there was any irregularity or arbitrariness
in the decision-making process regarding the author’s asylum application to the extent
that the State Party authorities failed to properly assess the risk of irreparable harm
to the author if she was returned to Greece under the Dublin III Regulation. The
Committee reiterates that, in carrying out their assessment, States Parties should give
sufficient weight to the real and personal risk that a person might face if deported.
7.7 In the present case, the Committee considers that it was incumbent upon the
State Party to undertake an individualized assessment of the real, personal and
foreseeable risk that the author would face as an unaccompanied woman victim of
severe gender-based violence suffering from post-traumatic stress disorder and
depression.
7.8 The Committee considers that the State Party did not appear to accord any due
weight to the author’s vulnerable status as a refugee and victim of severe gender-
based violence suffering from post-traumatic stress disorder and depression. The
Committee therefore considers that, given the author’s status as a recognized refugee
and survivor of gender-based violence and the time often required in order for victims
to be able to speak about such violence,21 it was not sufficient for the State Party to
dismiss her claim that she had been subjected to gender-based violence in Greece
merely because she had brought it later in the proceedings. In addition, the Committee
considers that the State Party has not examined in an individualized and sufficiently
thorough manner the foreseeable consequences for the author’s mental health if she
is forcibly removed from a country where she is currently in a stable therapy setting.
The Committee therefore considers that a more thorough risk assessment would have
been required by the exigencies of the case.
8.
Accordingly, acting under article 7 (3) of the Optional Protocol to the
Convention, the Committee concludes that the removal of the author would amount
to a breach of articles 2 (c)–(f), 3 and 12 of the Convention.
9.
The Committee makes the following recommendations to the State Party:
(a) Concerning the author of the communication:
(i)
Reopen her asylum request, taking into account the Committee’s views;
__________________
19 See A. v. Denmark (CEDAW/C/62/D/53/2013), para. 8.6, and R.S.A.A. et al. v. Denmark,
para. 7.8.
20 See, for example, R.P.B. v. Philippines (CEDAW/C/57/D/34/2011), para. 7.5, and R.S.A.A. et al.
v. Denmark, para.8.4.
21 European Court of Human Rights, M.S.S. v. Belgium and Greece, Application No. 30696/09,
Judgment, 21 January 2011 para. 254, and N.H. et al. v. France, Application Nos. 28820/13,
75547/13 and 13114/15, Judgment, 2 July 2020, para. 100.
CEDAW/C/91/D/169/2021
25-12060
12/14
(ii) Refrain from returning her to Greece while the reassessment of her case is
still pending;
(iii) Provide continued specialized medical support;
(b) General:
(i)
Take all measures necessary to ensure that victims of gender-based
violence with refugee status who are in need of protection are not returned to
the country of their first entry under the Dublin III Regulation without an
individualized, trauma-informed and gender-sensitive assessment of the real
risk of irreparable harm.
10. In accordance with article 7 (4) of the Optional Protocol, the State Party shall
give due consideration to the views of the Committee, together with its
recommendations, and shall submit to the Committee, within six months, a written
response, including information on any action taken in the light of the views and
recommendations of the Committee. The State Party is also requested to publish the
Committee’s views and recommendations and to have them widely disseminated in
order to reach all relevant sectors of society.
CEDAW/C/91/D/169/2021
13/14
25-12060
Annex
Joint opinion of Committee members Hiroko Akizuki,
Rangita de Silva de Alwis, Corinne Dettmeijer-Vermeulen
and Jelena Pia-Comella (dissenting)
1.
We are of the opinion that the communication is inadmissible under article 4 (2) (c)
of the Optional Protocol.
2.
We have taken note of the author’s undisputed claim that she is a survivor of
severe gender-based violence inflicted upon her from an early age in the Islamic
Republic of Iran and while fleeing near the Iraqi-Turkish border, for which she has
been granted refugee status by Greece.
3.
We have noted the State Party’s argument that the author’s claim of a fear of
sexual and gender-based violence specifically in Greece was raised very late and
without a plausible explanation. We observe that her failure to justify the late
submission about the sexual and gender-based violence in Greece affected the
author’s credibility. We also note that the author had opportunities to raise her claim
about sexual violence suffered in Greece, together with claims of sexual violence
endured at the hand of her husband in the Islamic Republic of Iran, as well as at the
Iraqi-Turkish border, at an early stage of the asylum proceedings – in her interviews
with the State Secretariat for Migration in October 2019 and January 2020, in her first
appeal to the Federal Administrative Court in January 2020 and in her request for
reconsideration submitted to the State Secretariat for Migration in early 2021. In this
regard, we further note the author’s allegation that she did not have a supportive
environment in which to reveal the sexual violence that she had endured in Greece.
However, we observe that the author has failed to stipulate and substantiate the
specific conditions that would have prevented her from raising this claim earlier.
4.
We have noted the decision of the Federal Administrative Court of 5 May 2021
in conjunction with its decision of 16 April 2021, in which it stated that “according
to the crisis intervention report of 9 October 2020 of the Psychiatric Services Thurgau,
which is in the files, the complainant stated that she had married a Greek in Greece
who had abused her, which is why she had fled to Switzerland (cf. p. 3), that these
statements contradict earlier statements according to which the complainant was
primarily afraid of being tracked down in Greece by her husband who lived in Iran,
that in the complaint against the reconsideration decision, it is argued for the first
time that the complainant was the victim of rape twice on the island of Lesvos and
once in Athens, that contradictory information on the place and extent of the sexual
violence suffered was thus submitted in the course of the proceedings, that these
contradictions are capable of casting doubt on the complainant’s submissions”.
5.
We recall that it is generally for the authorities of States Parties to the
Convention to evaluate the facts and evidence in a particular case, 1 unless it can be
established that this evaluation was biased or based on gender stereotypes that
constitute discrimination against women or that it was clearly arbitrary or amounted
to a denial of justice. We consider that the fact that the State Party authorities took
this issue as an element undermining the credibility of the author ’s allegations in the
absence of a plausible explanation does not appear to be arbitrary, gender-biased or a
denial of justice.
6.
We note that the Convention must be interpreted in accordance with the general
principles of international law. In such interpretation, due account must be taken of
__________________
1 See, for example, R.P.B. v. Philippines (CEDAW/C/57/D/34/2011), para. 7.5, and K.I.A. v.
Denmark (CEDAW/C/74/D/82/2015), para. 9.6.
CEDAW/C/91/D/169/2021
25-12060
14/14
the context in which the Convention is applied, which, according to article 31 (3) (c)
of the Vienna Convention on the Law of Treaties, includes “any relevant rules of
international law applicable in the relations between the parties”, including the
Dublin III Regulation. However, we consider that it is not within the Committee’s
competence to assess whether national authorities applied or interpreted the
Dublin III Regulation correctly; rather, it is for the Committee to ensure that such
application or interpretation is in line with the State Party’s obligations under the
Convention.2 We note that the Dublin III Regulation provides that a State may not
transfer an applicant to an otherwise responsible State if it would expose him or her
to “a risk of inhuman or degrading treatment”, given “systemic flaws in the asylum
procedure and in the reception conditions for applicants” in that State. We consider
that States should interpret this provision in line with their obligations under the
Convention on the Elimination of All Forms of Discrimination against Women to
refrain from returning an individual where a real, personal and imminent risk exists
that he or she will be exposed to gender-based violence.
7.
We consider that the author has not sufficiently substantiated her claim or
developed the facts and arguments put forward, for the purposes of admissibility, to
demonstrate that she, as a woman who is a survivor of sexual and gender-based
violence, would face a real, personal and foreseeable risk of sexual violence, inhuman
and degrading treatment or living conditions and lack of access to adequate health
care if she were returned to Greece.
__________________
2 See, by analogy, Committee on the Rights of the Child, J.M. v. Chile (CRC/C/90/D/121/2020),
para. 7.4.