The case of A.L.P., AME. and F.F.B. v. the Republic of Korea. Opinions of the UN Committee on the Elimination of Discrimination against Women dated December 4, 2023. Communication No. 139/2018.
In 2018, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to the Republic of Korea.
The authors of the communication stated that article 2 (d) of the Convention on the Elimination of All Forms of Discrimination against Women (Convention) had been violated. They argued that the State party was responsible for the failure of law enforcement and immigration authorities to effectively investigate cases of gender-based violence that constituted gender discrimination. The Committee found that the authors of the communication had been subjected to gender discrimination by both non-State and State actors, and therefore considered that the State party had violated the authors' rights under articles 2 (c) to (f), 5 (a), 6 and 15 (1) of the Convention.
Legal positions of the Committee: The Committee recalls its General recommendation No. 38 (2020) on trafficking in women and girls in the context of global migration, in which it indicates that States parties should use all appropriate means to eliminate trafficking in persons and exploitation of prostitution, by ensuring the availability of laws, systems, regulations and financing to do so The exercise of this right is effective, not illusory (paragraph 4). The Committee also recalls that States parties have positive obligations to identify victims of trafficking, regardless of the lack of self-identification of the victim (para. 38) (para. 9.4 of the Opinions).
In its General recommendation No. 38 (2020), the Committee confirms that discrimination against women and girls includes gender-based violence, the prohibition of which has become one of the principles of customary international law. While noting the gender-based nature of various forms of trafficking in women and girls and their consequences, including in terms of harm caused, the Committee recognizes that trafficking in persons and exploitation of prostitution of women and girls are clearly rooted in structural gender discrimination, which constitutes gender-based violence, and are often exacerbated in the context of population displacement, migration and increasing globalization economic activity (paragraph 10) (paragraph 9.5 of the Opinion).
The Committee notes that States need to take measures to ensure the legitimate rights and protection of victims of trafficking, regardless of their immigration status or willingness to cooperate with law enforcement agencies. The Committee reports that victims of trafficking in persons should have the right to temporary residence, including work permits, which is in the interests both of providing victims of trafficking with the opportunity to recover and rebuild their lives, and of effectively prosecuting traffickers by encouraging victims to act as witnesses and testify in court in the course of criminal proceedings against traffickers (paragraph 9.7 of the Opinion).
The Committee recalls that the obligation of States parties under article 2 (e) of the Convention to eliminate discrimination by any public or private entity includes the obligation to ensure that women can file complaints about violations of their rights under the Convention and have access to effective remedies, as indicated in its General recommendation No. 28 (2010), concerning the basic obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (paragraph 36). The Committee also refers to its General recommendation No. 33, which states that article 15 of the Convention provides that women must have equality with men before the law and enjoy equal protection of the law (paragraph 6). The repeated victimization of women in the criminal justice system affects their access to justice due to increased vulnerability to psychological and physical violence and threats during detention, interrogation and detention. The Committee emphasizes that women are also disproportionately prosecuted because of their position or status, for example because they engage in prostitution, are migrants, have abortions or belong to other groups that are discriminated against (paragraph 9.9 of the Opinion).
The Committee's assessment of the factual circumstances of the case: the authors' arguments that the State party failed to ensure that law enforcement, investigative, immigration and judicial authorities did not discriminate against them, as well as to provide compensation for acts of gender discrimination committed by non-State actors, are taken into account. The Committee took into account the authors' claim of ineffective investigation of cases of gender-based violence, which constituted gender discrimination, since the police twice detained and interrogated them as potential traffickers, instead of providing them with protection as victims, and the courts denied that the authors were victims of forced prostitution and human trafficking, guided by gender stereotypes and bias. The Committee noted the authors' claim that the police investigation focused on their prostitution, rather than on their vulnerability and violations committed against them, while the courts emphasized the lack of complete physical isolation rather than analyzing indirect evidence indicating the presence of a coercive and threatening environment. The Committee stated that stereotypical representations by police and court officials about the behavior of victims of trafficking in human beings did not allow the authors of the communication to be identified as victims of trafficking in human beings for the purpose of sexual exploitation (paragraph 9.2 of the Opinion).
The Committee found that the authors of the communication were initially treated as criminals and not as victims of crime. In addition, the fact that they were victims of human trafficking was not investigated or prosecuted because of their initial admission that they were engaged in prostitution, as well as because of their alleged freedom of movement and possession of mobile phones. The circumstances of coercion (such as the seizure of a passport, threats and physical violence against the authors of the communication by the owner of the club, the availability of E-6-2 visas) were not taken into account. This perception of freedom of movement and ownership of mobile phones has led to the fact that courts, including immigration courts, have not recognized them as victims of human trafficking. The Committee noted that the authors' disadvantaged and vulnerable situation was compounded by fear of persecution for prostitution, imminent deportation and possible revenge against their family members, as well as coercion and violence against them (paragraph 9.7 of the Opinion).
The Committee pointed out that, according to the authors, they were recruited through deception and fraud and were subjected to sexual exploitation, including prostitution, as they received E-6-2 visas (arts and entertainment industry) after auditioning with the expectation of working as singers. The Committee found that the exploitation continued with the use of threats, force, coercion, deception and abuse of a vulnerable position; the authors' passports were seized; they were subjected to verbal bullying, physical violence and sexual harassment by the owner of the club; and they were constantly under the threat that disobeying the orders of the club owner would lead to their deportation, and contacting the police would be useless. The Committee took note of the facts that should have caused concern to the State party's authorities about the victim status of the authors of the communication (high percentage of E-6-2 visa holders among victims of trafficking; passports kept by the owner of the club; sexual exploitation, which the authors described during the second investigation; the location of the club near the military base of the United States of America, near which there were many holders of E-6-2 visas, the escape of the authors after the first detention), and considered that ignoring these facts was evidence of the inability of the State party to identify the authors as victims of human trafficking, which in turn was an act of gender discrimination regarding them (paragraph 9.8 of the Opinions).
The Committee took into account the authors' claim that they had not been provided with equality before the law or effective remedies for violations of their rights. The Committee took note of the authors' claim that their rights under articles 2 (c) to (f), 3 and 15 (1) of the Convention had been violated because the State party had not provided them with access to justice and remedies. The Committee found that, according to the authors, the expulsion order restricted their access to justice, as it did not allow them to participate in judicial proceedings in the State party. He noted the allegation that the judicial authorities had failed to take into account their vulnerability and controls when determining whether forced prostitution had taken place. The Committee noted that the authors were visited by offenders and their lawyers during their detention (paragraph 9.9 of the Opinions).
The Committee has taken into account the authors' claim that the State party's judicial authorities discriminated against them because of their position as foreign migrant women with an E-6-2 visa. The Committee noted that the authors of the communication had been detained and detained twice and that an expulsion order had been issued and upheld against them. The Committee took note of the authors' claim that the State party could have granted them legal resident status allowing them to remain in the country of destination during the trial in order to ensure departure... justice for damages after the completion of criminal proceedings. The Committee noted that States parties should take all appropriate measures, including legislation, to curb all forms of trafficking in women and exploitation of prostitution. He acknowledged that the alleged trafficking of the authors of the communication, which led to their sexual exploitation, had not been investigated, prosecuted and convicted. He noted that the root causes of this phenomenon lay in structural gender discrimination, which constitutes gender-based violence and is often exacerbated by displacement, migration and the increasing globalization of economic activity. The Committee concluded that the State party had not guaranteed the authors of the communication access to justice and appropriate remedies, and thus the State party had violated the authors' rights under article 2 (c), (d) and (f), article 5 (a), article 6 and article 15 (1). The Convention (paragraph 9.10 of the Opinions).
The Committee's conclusions: The authors of the communication were subjected to gender discrimination by both non-State and State actors, and therefore it is recognized that the State party violated the rights of the authors of the communication in accordance with article 2 (c)- (f), article 5 (a), article 6 and article 15 (1) of the Convention (paragraph 10 Opinions).