CEDAW - K.J. v. Switzerland, Communication No. 169/2021, 04/07/2025
| Country of applicant: | Afghanistan |
| Court name: | Committee on the Elimination of Discrimination against Women |
| Date of decision: | 04-07-2025 |
| Citation: | CEDAW, K.J. v. Switzerland, Communication No. 169/2021, CEDAW/C/91/D/169/2021, 4 July 2025 |
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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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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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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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." |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
The removal of the author to Greece would amount to a breach of Articles 2 (c)-(f), 3, and 12 of the Convention on the Elimination of All Forms of Discrimination against Women, because the Swiss authorities failed to consider her vulnerable status as a survivor of gender-based violence (GBV) and the real, personal, and foreseeable risk that the author would face as an unaccompanied victim of such violence and suffering from PTSD and depression.
Facts:
The applicant is an Afghan woman, whose family fled to Iran when she was young, and was married at 17 years old to a 44-year-old man, who regularly mistreated, sexually abused and raped her. Domestic violence and mistreatments became so serious that her neighbours helped her flee to Greece. On her way, she was violently raped by a friend of the smuggler, and realized that she was pregnant. She was also raped twice more in the same month after reaching Lesbos, but the police did not investigate the matter as she could not identify the offender. Consequently, she had to undergo an illegal abortion. In response to receiving threats from her husband who claimed to be following her, the author moved to Athens, where she was raped again on the streets. She returned to Lesbos after feeling unsafe in Athens and receiving no assistance from the police.
Subsequently, the author applied for asylum in Greece, and was granted refugee status. However, owing to that status, the housing, financial aid and other support that she had received previously, ended. As a result, she was forced to live on the streets, with no protection from physical and sexual assault, and was no longer able to obtain medical or mental health treatment, which she urgently required. Consequently, she fled Greece and arrived in Switzerland, hoping to obtain protection from GBV. The author applied for asylum, but was asked to provide reasons as to why she cannot be removed to Greece as a safe third country. In her interview with the State Secretariat for Migration, she raised her particular vulnerability as a survivor of sexual and gender-based violence, as well as psychological problems including post-traumatic stress disorder (PTSD) and depression, which were not sufficiently assessed. An appeal to the Federal Administrative Court was was dismissed on the basis that Greece is a safe third country. Subsequently, the State Secretariat for Migration also denied the author’s request for reconsideration on the grounds that adequate medical treatment facilities were available in Greece.
Decision & reasoning:
The issue before the Committee was 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 took note of the author’s undisputed claim that she is a survivor of severe GBV, the sustained violence leading to her mental health deterioration, and in affect her acute vulnerability ascertained by several medical reports issued by the State Party.
The Committee noted that under Article 2 (d) of the Convention, State Parties should refrain from practicing discrimination against women, and further, the non-refoulement principle obliges States to refrain from returning a person to a jurisdiction where they may face serious human rights violations, including torture and inhuman or degrading treatment. The Committee observes that Switzerland rejected the author’s claims of being raped thrice in Greece as she had introduced it later in the proceedings. However, the Committee noted that the State Party should have given sufficient weight to the real and personal risk that a person might face if deported, and that they should have conducted an individualized assessment of the real, personal, and foreseeable risk that the author would face as an unaccompanied victim of severe GBV and suffering from PTSD and depression. Furthermore, the State Party also failed to consider the author’s vulnerable status as a refugee, and accordingly, the Committee found that it was not sufficient for the State Party to dismiss the author’s claims.
Outcome:
The Committee concluded that under Article 7 (3) of the Optional Protocol to the Convention, the removal of the author would amount to a breach of Articles 2 (c)-(f), 3, and 12 of the Convention.
Additionally, the following recommendations were made to the State Party:
(a) Concerning the author of the communication:
(i) Reopen her asylum request, taking into account the Committee’s views;
(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.
Observations/comments:
This summary was written by Archana Pingal during her participation in the Migration Law Clinic of Gent University.
Relevant International and European Legislation:
Other sources:
Committee on the Elimination of Discrimination against Women (CEDAW), General Recommendation No. 35 (2017) on gender-based violence against women, updating General Recommendation No. 19, CEDAW/C/GC/35, 26 July 2017.