UN Committee on the Elimination of Discrimination against Women - Z.E. and A.E. v. Switzerland, 171/2021, 4 July 2025
| Country of applicant: | Afghanistan |
| Court name: | Committee on the Elimination of Discrimination against Women |
| Date of decision: | 04-07-2025 |
| Citation: | CEDAW/C/91/D/171/2021 |
Keywords:
| Keywords |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
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Gender Based Persecution
Description
‘Gender-related persecution’ is used to encompass the range of different claims in which gender is a relevant consideration in the determination of refugee status. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that are assigned to one sex or another. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender-related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. Gender-related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/domestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals." |
Headnote:
The Committee, invoking the principle of non-refoulement and recognising gender-based violence as discrimination under Article 1 of the Convention, determined that removing the author to Greece would violate Articles 2 (c)-(f), 3, and 12 of the Convention due to the state party's failure to conduct an individualized, gender-sensitive, and trauma-informed assessment of the real and foreseeable risks the author faces as a woman experiencing gender-based violence.
Facts:
Author 1 (hereafter, the “author”) is an Afghan national who fled from Iran with her brother (also, “author 2”) and arrived in Greece in September 2018 and received refugee protection in May 2019. During her time in a refugee camp in Lesbos, the author had sustained rape but was not allowed to report the case to the authorities. Furthermore, the author’s husband arrived in Greece with the aim of killing her and her brother. Consequent to these events and losing financial aid and other support upon receiving refugee protection, they were forced to flee Greece and sought asylum in Switzerland in November 2019.
Following an Erodac search, the Swiss authorities sent a readmission request which was accepted by the Greek authorities on 20 November 2020, upon which the State Secretariat for Migration ordered the authors’ removal. On 25 March 2021, the authors appealed to the Federal Administrative Court, arguing that a removal would put author at risk of sexual abuse and inhuman treatment, which was dismissed, stating that Greece is a safe third country.
Decision & reasoning:
The Committee accepted the contention of the author that her removal to Greece would violate Articles 2 (c)-(f), 3, and 12 of the Convention. The Committee noted that under international human rights law, the principle of non-refoulement imposed a duty on States to refrain from returning a person to a jurisdiction where they might face a real and foreseeable risk of human rights violations, which includes sexual or gender-based violence, torture, or other cruel, inhuman, or degrading treatment or punishment. The Committee also considered that gender-based violence, which impairs the enjoyment of human rights for women is in fact discrimination within the meaning of Article 1 of the Convention. Hence, a State party would violate the Convention if it returned the author without conducting an individualized, gender-sensitive, and trauma-informed assessment to a State where it was foreseeable that she faces a serious gender-based violence, which in this case is Greece.
The Committee rejected the State’s argument that the author’s allegation was thoroughly examined. The Committee noted that while it is generally the duty of the authorities of the concerned State party to evaluate the facts, evidence, and application of national law; it affirms its authority to examine whether the State party’s handling of the author’s asylum application was arbitrary or otherwise flawed, particularly with respect to the assessment of the risk of serious gender-based violence. The Committee noted that although author 1 was interviewed by a woman, the interpreter was a man, thus not providing due consideration for her vulnerable status as a refugee and a victim of sustained gender-based violence with suicide ideation. Therefore, the Committee considered that a more thorough and individualised risk assessment was required in the author’s case. Accordingly, the Committee concluded that the removal of author 1 amounts to a breach of Articles 2 (c)-(f), 3, and 12 of the Convention.
Outcome:
The Committee concluded that the author’s removal would amount to a breach of Articles 2 (c)-(f), 3, and 12 of the Convention. The Committee also recommended that the State party reopen her asylum request and refrain from returning her to Greece.
Other sources:
Legal Provisions Cited
Convention on the Elimination of Discrimination against Women: Art 1, Art 2 (c), (d), (e), and (f), Art 3 and Art 12
Other Sources Cited
CEDAW General recommendation No. 35 (2017)
CEDAW General recommendation No. 32 (2014)
CEDAW General recommendation No. 19 (1992)
CEDAW Case Law Cited
Kayhan v. Turkey (CEDAW/C/34/D/8/2005)
M.A. v. Switzerland (CEDAW/C/80/ D/145/2019)
M.N.N. v. Denmark (CEDAW/C/55/D/33/2011)
N.S.F. v. United Kingdom of Great Britain and Northern Ireland (CEDAW/C/38/D/10/2005)
R.P.B. v. Philippines (CEDAW/C/57/D/34/2011)
R.S.A.A. et al v. Denmark (CEDAW/C/73/D/86/2015)
S.T.H. v. Switzerland (CEDAW/C/87/D/165/2021)
ECtHR Case Law Cited
M.S.S. v. Belgium and Greece (Application No. 30696/09)
N.H. and Others v. France (Application No. 28820/13)