Message: I.V. v. Denmark. Message No. 51/2013. The decision was adopted by the Committee on the Elimination of Discrimination against Women on March 2, 2015.
In 2013, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Denmark.
Subject of the message: insufficient validity.
Substantive issue: deportation to China.
The Committee's legal positions: The Committee recalls its general recommendation No. 28 on the basic obligations of States parties under article 2 of the Convention, in which it affirmed that the obligations of States parties apply without discrimination to both nationals and non-nationals, including refugees, asylum seekers, migrant workers and persons with disabilities. stateless, within their territory or under de facto control, even if they are not located within the territory. As the Committee has pointed out, States parties are responsible for all their actions affecting human rights, regardless of whether the affected persons are located on their territories (paragraph 8.4 of the Decision).
The Committee recalls that article 1 of the Convention defines discrimination against women as any distinction, exclusion or restriction based on gender that is intended to weaken or nullify the recognition, enjoyment or exercise of women's human rights and fundamental freedoms in political, economic, social, cultural, civil or any other field. The Committee further recalls its general recommendation No. 19, which explicitly defines violence against women as discrimination against women and states that gender-based violence is a form of discrimination against women and includes acts causing harm or suffering of a physical, mental or sexual nature, threats of such acts, coercion and other forms of infringement of freedom. With regard to the State party's argument that, unlike other human rights treaties, the Convention does not directly or indirectly address issues of expulsion when there is a threat of torture or other serious threats to life and personal integrity, the Committee recalls that in the same recommendation it determined that such gender-based violence makes it difficult or nullifies women's enjoyment of a number of human rights and fundamental freedoms, including, among others, the right to life, the right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment, the right to freedom and security of the individual, as well as the right to equal protection under the law (paragraph 8.5 of the Decision).
The Committee further notes that, according to international human rights standards, the principle of non-refoulement imposes an obligation on States to refrain from returning persons to a jurisdiction where they may be subjected to serious human rights violations, in particular arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment. The principle of non-refoulement is also an integral element of the asylum procedure and the international refugee protection system. The essence of this principle is that the State cannot force a person to return to a territory where he or she may be subjected to persecution, including on gender grounds and motives. Gender-based forms of harassment are harassment directed against women as such or disproportionately affecting women (paragraph 8.6 of the Decision).
The Committee recalls that, in accordance with article 2 (d) of the Convention, States parties must refrain from committing any discriminatory acts or actions against women and ensure that public authorities and institutions act in accordance with this obligation. This obligation to act positively implies the obligation of States parties to protect women from a real, personal and foreseeable risk of being subjected to serious forms of gender-based violence, regardless of whether such consequences occur outside the territorial borders of the expelling State party: if a State party takes a decision against a person under its jurisdiction, the inevitable and predictable consequence of which will be a violation of the rights of this person under the Convention in another jurisdiction, the State party itself may become a violator of the Convention. For example, a State party would itself violate the Convention if it sent a person back to another State in a situation where it could have been foreseen that this would lead to serious acts of gender-based violence. The possibility of anticipating the consequences would mean that the State party had committed a violation, even though the consequences would only occur after some time. The severity of gender-based violence is determined by the circumstances of each individual case and assessed by the Committee individually based on the merits of the case, provided that the author has submitted credible arguments to the Committee, having sufficiently substantiated his allegations (paragraph 8.7 of the Decision) (See communication No. 33/2011, M.N.N. v. Denmark, decision on inadmissibility adopted on July 15, 2013 (that is, after the registration of this communication), paragraph 8.10.).
The Committee recalls that, in accordance with the recently adopted general recommendation No. 32 on the gender aspects of refugee status, asylum, citizenship and statelessness of women, articles 1-3, paragraph (a), articles 5 and 15 of the Convention establish the obligation of States parties to ensure that women are not discriminated against throughout the process of consideration. applications for asylum from the moment of arrival at the border. Women seeking asylum have the right to expect their rights to be respected in accordance with the Convention.; They have the right to non-discriminatory and respectful treatment and respect for their dignity throughout the asylum application procedure (paragraph 24). The Committee also recalls that a gender perspective should be applied at all stages of the asylum application procedure and that women seeking asylum whose application for asylum has been refused should be returned with dignity and non-discrimination (paragraphs 24-25) (paragraph 8.9 of the Decision).
The Committee's assessment of the factual circumstances of the case: The Committee notes the author's claim that she fears gender-based violence by representatives of organized criminal groups if she returns to China and that the Chinese authorities will not protect her from such acts. The Committee also notes that the State party's authorities have invalidated her claim that the Chinese authorities will not be willing or able to protect her from attacks by loan sharks, given the fact that she has never sought any protection while in China. The Committee notes that the author of the communication does not agree with the factual conclusions of the State party's authorities that she never asked the Chinese authorities for help and did not provide any obvious evidence that the Chinese authorities were unable or unwilling to protect her from representatives of organized crime (paragraph 8.8 Solutions).
The Committee further takes note of the author's claim that she is a victim of gender discrimination with regard to the right to access justice, as compared to male asylum seekers, a larger number of female asylum seekers are denied asylum by the authorities of the State party on the grounds of the "obvious unfounded" application. The Committee also takes note of the author's statement that her detention as a victim of gender-based violence in a Danish prison for several months without the opportunity to receive treatment for her injury constitutes a violation of the Convention by the State party and the State party is under an obligation to ensure that effective legal protection measures are taken for victims of gender-based violence, and They also have the opportunity to receive medical services and compensation. ... The Committee notes that the author, represented by a lawyer, did not inform the Committee of her whereabouts or whether she had been deported to China. In these circumstances, and in the absence of any other information on the matter in the case, the Committee considers that the author has not provided sufficient justification for the purposes of admissibility of the claim that her expulsion from Denmark to China would expose her to a real, personal and foreseeable risk of a serious form of gender-based violence (paragraphs 8.8, 8.9 Solutions).
The Committee's conclusions: The Committee concludes that the communication is inadmissible within the meaning of article 4, paragraph 2 (c), of the Optional Protocol (paragraph 8.9 of the Decision).
Message: X. and Y. against Georgia. Message No. 24/2009. The opinion was adopted by the Committee on the Elimination of Discrimination against Women (hereinafter referred to as the Committee) on July 13, 2015.
The Committee's legal position: The Committee recalls that, in accordance with paragraph 6 of its General recommendation No. 19, discrimination within the meaning of article 1 of the Convention includes gender-based violence against women. Such discrimination is not limited to acts committed by or on behalf of the Government. On the contrary, according to article 2 (e), States parties may also be held responsible for the actions of individuals if they fail to take appropriate measures to prevent violence and violations of rights or to investigate and punish violence, as well as to provide compensation (paragraph 9) (paragraph 9.3 of the Decision).
The Committee's assessment of the factual circumstances of the case: The Committee notes that X. submitted several complaints of violence against her and her children by her husband to various authorities <1>. All of her complaints to the police resulted in police officers making a written commitment from her husband not to commit further violence against her and her children, even when, in at least one case, she was given a medical certificate stating that she had suffered superficial injuries as a result of her husband's beating.. The Committee notes that, despite repeated written commitments from her husband, violence against the authors and other children continued to occur, with the competent authorities failing to take appropriate measures to stop it. The examination of X.'s initial complaint was terminated after she withdrew it, and the criminal prosecution authorities decided not to investigate, despite the serious nature and gravity of the charges. All subsequent complaints from X. They were rejected, and the criminal prosecution authorities decided that there was no corpus delicti in the husband's actions, while the judicial authorities ruled that the cases were unfounded. These statements were not refuted or disputed by the State party, which simply noted that lawyer X. He failed to refute the evidence gathered by the prosecutor's office during numerous investigative activities, thereby creating very high demands on the burden of proof in the domestic violence case (paragraph 9.6 of the Decision) (see, in particular, V.K. v. Bulgaria, footnote 13 above, paragraph 9.9.).
The Committee considers that, taken together, the above-mentioned irrefutable facts indicate that the authorities of the State party have not fulfilled their duties and have not taken appropriate legislative and other measures, including sanctions, prohibiting violence against women as a form of discrimination against women; they have not established legal protection of women's rights on an equal basis with the help of competent courts and other State institutions , women have not been effectively protected from discrimination.; have not refrained from committing discriminatory acts or actions against women and have not ensured that public authorities and institutions act in accordance with this obligation; have not taken all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; and have not taken all appropriate measures, including legislation, to change or Repealing existing laws, regulations, customs, and practices that discriminate against women. It also considers that the above-mentioned facts indicate that the State party has not fulfilled its responsibilities and has not taken all appropriate measures to change the social and cultural patterns of behavior of men and women in order to achieve the elimination of prejudice and the abolition of customs and all other practices that are based on the idea of the inferiority or superiority of one of the gender or stereotypical perception of the roles of men and women (paragraph 9.7 of the Decision).
The Committee's conclusions: Acting under article 7 (3) of the Optional Protocol and in the light of the above considerations, the Committee considers that the State party has failed to comply with its obligations and has thereby violated the authors' rights within the meaning of articles 2 (b) to (f), read in conjunction with articles 1 and 5 (a). The Convention, as well as the Committee's general recommendation No. 19 (paragraph 10 of the Decision).
The Committee makes the following recommendations to the State party:
(a) With regard to the authors of the communication: provide the authors with adequate financial compensation commensurate with the severity of the violations of their rights;
(b) General provisions;
(i) Take measures to ensure that victims of domestic violence and their children are provided with timely and adequate assistance, including housing and psychological support;
(ii) Strengthen awareness-raising campaigns and implement a zero-tolerance policy with regard to violence against women and, in particular, domestic violence;
(iii) Ratify the Convention on Preventing and Combating Violence against Women and Domestic Violence;
(iv) Ensure mandatory professional training for judges, lawyers and law enforcement officials, including prosecutors, on the application of the Law on the Prevention of Domestic Violence, including on the definition of domestic violence and gender stereotypes, as well as adequate training on the Convention, its Optional Protocol and the Committee's general recommendations; In particular, general recommendation No. 19.