case of Tahere Mohammdi Bandboni and Others v. Switzerland. Opinions of the Committee on the Elimination of Discrimination against Women dated May 15, 2023. Communication No. 173/2021.
In 2021, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Switzerland.
As seen from the text of the Opinions, the author of the message is Tahere Mohammdi Bandboni, a citizen of the Islamic Republic of Iran. She submitted the message on her own behalf and on behalf of her family: husband Amir Taher and two children, Aran Amir Younes and Ayana Mohammdi Bandboni. She claimed that the State party had violated her rights under articles 1-3, 15 and 16 of the Convention: if deported, she would face an imminent risk of being subjected to gender discrimination in the Islamic Republic of Iran, as well as the risk of death and torture (paragraph 1.1 of the Opinions).
The Committee's legal position: In general, it is for the authorities of the States parties to the Convention to assess the facts and evidence or assess the application of domestic law in a particular case, unless it can be established that such an assessment was biased or based on gender stereotypes that discriminate against women, was clearly arbitrary or amounted to a refusal in justice. The Committee reiterates that, in carrying out its assessment, States parties should pay sufficient attention to the fact that, in the event of deportation, a person may be at real and personal risk of torture (paragraph 7.5 of the Opinion).
The applicant had no opportunity to seek protection from the Iranian authorities due to discriminatory legal practices in the Islamic Republic of Iran and the strong protection situation of the patriarchal family. From the Committee's point of view, the decision of the police or the judge may be important for a real chance to receive protection (paragraph 7.2 of the Opinions).
The Committee recalls that, as indicated in paragraph 29 of General recommendation No. 32, according to international law, it is the State authorities of the country of origin that have the primary responsibility to ensure the protection of their citizens, including to enable women to enjoy their rights enshrined in the Convention, and only when such protection is not available, We can talk about ensuring international protection of fundamental human rights, the realization of which is under serious threat. The Committee recalls that, although the burden of presenting arguments on her asylum application usually lies with the applicant, the duty to establish and assess all relevant facts is shared between the applicant and the examiner. The threshold for the admissibility of asylum applications should be determined not in terms of probability, but in terms of the permissible likelihood that the applicant has good reason to fear persecution or that she will become a victim of persecution upon return (paragraph 7.7 of the Opinions).
The Committee's assessment of the factual circumstances of the case: the author's allegations that, if returned, she would be subjected to gender-based and life-threatening forms of violence by her father and brothers and that the Iranian authorities would not be able to provide her with effective protection have been noted. She will not have the opportunity to seek protection from the Iranian authorities due to discriminatory legal practices in the Islamic Republic of Iran and the strong protection position of the patriarchal family.... The Committee took note of the fact that the author's father was accompanied by a police officer when he went to the house of Amir Taher's father (the applicant's husband) to get information about the couple and to find out the phone number to contact her. The Committee also took note of the author's claim that her father and brother threatened to harm her and kidnap her against her will if she did not return alone to the Islamic Republic of Iran (paragraph 7.2 of the Opinions).
The Committee recalled the State party's assertion that all the author's statements had been carefully examined by the State party's immigration authorities. He noted that the Federal Administrative Court assessed the author's story as credible and sufficiently substantiated. The Federal Administrative Court assessed the couple's allegations made during the internal proceedings as credible, which was at odds with the assessment of the State Secretariat for Migration Affairs. This argument was put forward by the author and set out in her communication submitted to the Committee, and was not disputed by the State party (paragraph 7.3 of the Views).
The Committee further noted that the Federal Administrative Court also ruled that there were doubts that the author would indeed be exposed to the alleged danger in the near future. The Committee noted the State party's statement that the author's alleged risk of being subjected to serious forms of gender discrimination in the event of expulsion is relevant in the context of the right of asylum and the principle of non-refoulement only if the person concerned cannot receive adequate protection in the country of destination. The Committee has noted the State party's recognition that in the Islamic Republic of Iran, respect for women's rights is not always guaranteed either in legislation, by the authorities, or in society. The Committee took note of the State party's argument that significant differences are possible depending on the specific circumstances of the case, and the assessment should be carried out separately on a case-by-case basis, since the abstract risk of discrimination is not a basis for concluding that the Islamic Republic of Iran as a whole is unable or unwilling to protect women at risk The risk of violence (paragraph 7.4 of the Opinion).
The Committee expressed concern about the persistence in the Islamic Republic of Iran of deeply entrenched practices of gender-based violence and discriminatory patriarchal stereotypical ideas about the roles and responsibilities of women and men in the family and society, which place excessive emphasis on the traditional role of women, which leads to undermining the social status of women, their safety and security, independence, educational opportunities and development professional career. The Committee noted with concern the increase in gender-based violence and patriarchal attitudes in government departments, including law enforcement agencies, as well as the fact that the Iranian authorities openly and increasingly challenge gender equality (paragraph 7.6 of the Opinions).
The Committee indicated that it was the responsibility of the State party to conduct an individual assessment of the real, personal and foreseeable risk that the author would be subjected to gender-based harassment and violence related to the "protection of honor". On the one hand, the vulnerability of the author as a Shiite Muslim of Persian origin, who disobeyed her father's will, "dishonored" her family by becoming pregnant out of wedlock, was beaten during pregnancy, death threats and forced to have an abortion, and entered into a religious marriage with the father of her child, a Sunni Muslim of Kurdish origin from Iraq, who was not accepted her family, because of his ethnic origin and belonging to a religious denomination, was recognized by the Federal Administrative Court. On the other hand, the constant institutionalized discrimination of women and girls in public and private life, enshrined in the civil and criminal law and practice of the Islamic Republic of Iran, patriarchal values and misogynistic behaviors permeating many segments of Iranian family life, as well as the reluctance of law enforcement agencies to intervene in cases involving domestic violence and crimes of "honor", have not been sufficiently considered in the context of the present case (paragraph 7.6 of the Opinions).
The Committee took note of the author's claim that she had no opportunity to seek protection from the Iranian authorities, given their discriminatory practices and the influential status of her family. The Committee noted that the State party had assessed whether the Iranian authorities were indeed unable to provide the author and her family with adequate protection upon their return. The Committee pointed out that the State party should not have completely rejected the author's claims that she could not seek protection from the authorities of the Islamic Republic of Iran before her departure and that she would not be able to do so upon her return solely on the grounds that the author had never sought protection from the authorities and therefore did not give They did not have the opportunity to provide her with protection, while not taking into account the reasons why she did not contact the authorities. The Federal Administrative Court took into account all the facts stated by the author, but considered the author's fears that she would not be able to obtain protection from the authorities to be "pure guesswork". The Federal Administrative Court, in particular, considered the circumstances conducive to obtaining protection to be the fact that the author was a resident of a large city, had an education and would enjoy the support of her husband's family. Moreover, the Federal Administrative Court did not attach any importance to the fact that the author's father was accompanied by a policeman when finding out her whereabouts (paragraph 7.7 Opinions).
The Committee indicated that the State party recognized the author's vulnerable position, but concluded that the Iranian authorities could provide her with protection. Taking into account the level of tolerance for violence against women in the Islamic Republic of Iran and the level of incitement to such acts, the Committee found that, in view of the circumstances of the case, a more thorough risk assessment should have been carried out in connection with the capabilities of the Iranian authorities, including law enforcement agencies, to ensure the protection of women and girls (paragraph 7.8 of the Opinion).
The Committee concluded that the State party had failed to take due account of the real, personal and foreseeable risk of serious forms of gender-based violence that the author would face if she returned to the Islamic Republic of Iran (paragraph 7.9 of the Opinion).
The Committee's conclusions: the State party has not fulfilled its obligations and that the removal of the author of the communication would constitute a violation of articles 1-3, 15 and 16 of the Convention (paragraph 8 of the Views).