* Adopted by the Committee at its seventy-second session (18 February–8 March 2019).

* * The following members of the Committee participated in the examination of the present communication: Gladys Acosta Vargas, Hiroko Akizuki, Nicole Ameline, Gunnar Bergby, Marion Bethel, Louiza Chalal, Naéla Mohamed Gabr, Hilary Gbedemah, Nahla Haidar, Dalia Leinarte, Rosario G. Manalo, Lia Nadaraia, Aruna Devi Narain, Ana Peláez Narváez, Rhoda Reddock, Elgun Safarov, Wenyan Song, Genoveva Tisheva, Franceline Toé-Bouda and Aicha Vall Verges.

Background

1.1The author is A.R.I., a citizen of the Russian Federation, of Chechen origin, born in 1995. She unsuccessfully sought asylum in Denmark and claims that her deportation to the Russian Federation would violate her rights under article 2 (c)–(f) and article 5 (a) of the Convention. The Convention and its Optional Protocol entered into force for Denmark on 21 May 1983 and 22 December 2000, respectively. The author is represented by counsel, Jytte Lindgård.

1.2When registering the communication on 22 September 2015, the Committee, acting under article 5 of the Optional Protocol and rule 63 of the Committee’s rules of procedure, requested that the State party refrain from deporting the author, pending the consideration of her case by the Committee. On 24 September 2015, the Danish Refugee Appeals Board suspended the author’s deportation.

Facts as submitted by the author

2.1Prior to her arrival in Denmark, the author lived in a small town near Grozny, Chechnya, Russian Federation. She had been studying medicine for almost a year when the armed conflict broke out in Chechnya. The author was not a member of any political or religious organizations and had not sympathized with the Chechen rebel movement. However, her cousin was a member of the movement.

2.2In June 2014, the author was asked by her cousin’s mother to treat her cousin for a bullet wound in his leg. The author was unable to provide sufficient treatment and advised that he be taken to the hospital, but her cousin’s father refused, because he would be arrested given that he was a rebel. The author gave them the phone number of her friend’s mother, who was a surgeon. The surgeon attended to the author’s cousin on the same day and said that she would return the following morning with her equipment. The author later returned to home. In the early hours of the following morning, the authorities arrived at the author’s house, arrested her and her younger brother and detained her for three days.

2.3In detention, she was interrogated, kicked and pushed. She was asked about her own, her brother’s and her cousin’s involvement with the “gang”, i.e., the Chechen rebel movement. She denied being a member of any “gang”. The authorities presented her with a “declaration of cooperation” and told her to sign it if she was innocent. She signed the document without reading its contents. That night, her second night in detention, a man entered her cell and verbally and sexually abused her, telling her that if she informed anyone about the incident, she would not see daylight again. The following day, her third day in detention, the authorities did not interrogate the author; instead, they delivered food to her and promised that they would release her, because “her family had been so kind”. That evening, the author was released near a mosque in her town, where she was met by her mother and uncle, who had paid a ransom for her release. The author spent the night with her grandmother and, the following day, was taken to another uncle’s house outside her town. After spending one and a half to two months in hiding with her uncle, she left the Russian Federation on 13 August 2014.

2.4The author indicates that being a victim of sexual abuse is considered shameful in her culture. The news of her sexual abuse by the authorities had circulated in her town, and she was therefore regarded as a “touched woman”. Her older brother told her mother that her sexual abuse was a shame on the family and that he intended to kill her to restore the family’s honour, a practice known as so-called “honour killing”. The author also indicates that she fears returning to her town because the document she signed appeared to show that she had collaborated with the Chechen authorities.

2.5On 15 August 2014, the author arrived in Denmark and applied for asylum on the same day. The Danish Immigration Service interviewed her on 30 January 2015 and 18 June 2015. On 26 June 2015, the Service rejected her asylum claim, finding that she would not be at risk of persecution, the death penalty, torture or inhumane or degrading treatment or punishment under sections 7 and 31 of the Aliens Act of Denmark should she be returned to the Russian Federation. It indicated that her story seemed “fabricated” and “unlikely”, rejected her claim that many in the community would know about her sexual assault and concluded that she was not at risk of “specified and individual pursuit” by Chechen authorities. On 19 August 2015, the author appealed to the Refugee Appeals Board. On 31 August 2015, the Board rejected the author’s appeal, finding that she would not be at risk under section 7 of the Aliens Act should she be returned to the Russian Federation. The Board found her story to be “untrustworthy”, in particular her claims that Chechen authorities continue to be interested in her and that her family would persecute her. Pursuant to the decision, the author was required to leave Denmark within 15 days.

2.6The Danish Immigration Service and the Refugee Appeals Board questioned the author on why her mother had raised money for her flight out of the Russian Federation instead of using it to pay the ransom for her younger brother’s release. According to the author, her mother was aware of what a woman was exposed to when arrested by authorities, and what could happen if she was arrested again, and therefore considered it important to get her out of the country. The author indicates that she has had limited contact with her mother since her departure, but that her mother has informed her that she is still being sought and that the family still receives summonses addressed to her.

2.7The author explains that she has exhausted all domestic remedies, because the decisions of the Board are final and cannot be appealed in court. The matter is not being examined under another procedure of international investigation or settlement.

Complaint

3.1The author claims that her deportation to the Russian Federation would violate her rights under article 2 (c)–(f) and article 5 (a) of the Convention.

3.2The author claims that her deportation would constitute a violation by the State party of article 2 (c) and (d) of the Convention, given that she informed the Danish authorities that the Chechen authorities regard her as someone who assists the Chechen rebel movement, of which her cousin is a member. She refers to a report produced by the Danish Immigration Service, in which it is indicated that female family members of suspected rebels were at high risk of being raped, losing their jobs and having fabricated cases brought against them and that incidents of rape were rarely reported because the community’s knowledge of the rape caused further problems for the victim.

3.3The author also claims that her deportation would constitute a violation of article 2 (f) of the Convention, as she is at “real risk” of an honour killing committed by her older brother. She submits that the Chechen authorities do not effectively protect against such a risk, as an honour killing is considered a traditional ritual. The author does not provide further details as to her claim that her deportation would violate article 2 (e) and article 5 (a) of the Convention.

3.4According to the author, the Refugee Appeals Board based its decision on a perceived lack of credibility of her version of events, without assessing the personal risk she might face if she were to be deported. She submits that the Board did not consider whether there had been an infringement of the Convention, even though she raised the issue in proceedings before it.

3.5The author argues that, even though the Board, in its refusal, did not mention that she could take up residence elsewhere in the Russian Federation, this would be impossible for a Chechen woman in her situation. She refers to a report by the Danish Refugee Council, in which it is indicated that it is very difficult, if not impossible, for Chechens to obtain residence elsewhere in the Russian Federation. The author indicates that Chechens must be registered with the local authorities in order to remain legally in a given place and that the Chechen authorities often seize identification documents to prevent such registration. Furthermore, she submits that, if a Chechen woman leaves her family and attempts to establish herself elsewhere, she would not be able to rely on support and would continue to be in trouble.

State party’s observations on admissibility

4.1By a note verbale dated 18 November 2015, the State party submitted its observations on the admissibility of the communication. It requests that the Committee consider the admissibility of the communication separately from the merits. The State party submits that the communication should be considered inadmissible under article 4 (2) (c) of the Optional Protocol, because it is manifestly ill-founded and the author has failed to establish a prima facie case for the purpose of admissibility.

4.2The State party recalls the key facts of the case and the Refugee Appeals Board decision of 31 August 2013. It also provides information on the organization and jurisdiction of the Board, the legal basis for its decisions and the proceedings before it.

4.3The State party observes that the author fails to explain her claim that her deportation would violate article 2 (e) and article 5 (a) of the Convention. It submits that the author merely disagrees with the Refugee Appeals Board assessment of her credibility and is requesting that the Committee reassess her case. The State party argues that she fails to identify any irregularity in the decision-making process or any considerations that the Board failed to properly take into account; rather, in submitting a communication to the Committee, she is seeking to use the Committee as an appellate body to reassess the factual circumstances that she put forth to support her asylum request. It also observes that the author has failed to produce any new and specific information on her situation in addition to the information on the basis of which her asylum claim was rejected. With reference to the case law of the Human Rights Committee, the State party recalls that the Committee on the Elimination of Discrimination against Women should give considerable weight to the facts articulated by the Board, which is better placed to assess the factual circumstances of the author’s case. It recalls that the Board, after making a thorough assessment of the author’s credibility, specific circumstances and available background information, found that she would be unlikely to face persecution or abuse justifying asylum if she were to be deported.

4.4The State party rejects the author’s claim that the Refugee Appeals Board failed to take the Convention into account in its assessment of her case. It reiterates that the Board is legally obliged to consider the international obligations of Denmark and underlines that the fact that the Board made no explicit reference to the Convention in its decision does not mean that its provisions were not taken into account.

Author’s comments on the State party’s observations on admissibility

5.1On 22 January 2016, the author submitted her comments on the State party’s observations on admissibility. She reiterates that she would risk gender-based persecution if she were to be returned to the Russian Federation.

5.2The author submits that the practice of honour killing has become more prevalent in Chechnya in recent years and that perpetrators rarely face any legal consequences. She indicates that the President of Chechnya, Ramzan Kadyrov, has publicly endorsed the practice and made other discriminatory statements regarding women. The author reiterates that her family still believes that she is a “touched woman”, which allows them to kill her. She claims that she would be at risk of being the victim of an honour killing if she were to be deported.

5.3The author provides new information that the Chechen authorities often visit her mother’s house to search for her, which she claims substantiates her fear of being subject to further sexual abuse by those authorities. On 14 January 2016, the author produced two police summonses, dated 9 and 21 April 2015. She was also informed about the visits by the authorities in a telephone conversation with her mother on or around 17 January 2015. Her mother explained that the Chechen authorities had arrested the author’s older brother shortly before 31 December 2015 and detained him for two days. The author’s mother also stated that she was unaware of the whereabouts of the author’s younger brother.

5.4Furthermore, the author submits that the conflict in Chechnya has worsened. President Kadyrov reacted strongly to the “Grozny attacks” of 4 December 2014 and has targeted insurgents’ relatives by ordering that they be expelled from Chechnya and that their homes be destroyed. The author observes that, one month after President Kadyrov made that statement, at least 15 homes were destroyed. She recalls that she is seeking asylum because she is “officially” considered to be “at least a supporter of the rebels”, given that she treated her cousin, a Chechen rebel, for an injury allegedly received during a conflict with the Chechen authorities.

5.5The author submits that the above information confirms the information she provided to Danish authorities in her asylum request, proving her credibility. She observes that it is difficult to provide evidence, owing to the risk of abuse by both the Chechen authorities and her family. She recalls that the State party cannot return an asylum seeker to his or her country of origin if there is an imminent danger that he or she will be subject to abuse. She refers to the case of A v. Denmark, in which the Committee noted that States parties should take into account that the threshold for accepting asylum applications should be measured not against the probability, but against the reasonable likelihood that the claimant has a well-founded fear of persecution or that she would be exposed to persecution upon her return. She highlights that she had been subjected to rape and cruel and inhumane treatment, amounting to torture. The author refers to the decision of the Committee against Torture in Rong v. Australia, in which it noted that complete accuracy was seldom to be expected by victims of torture. She also refers to an individual opinion of the Human Rights Committee in P.T. v. Denmark, according to which, as a general approach to interpreting the matters submitted to it, that Committee must decide for the option most favourable to the alleged victim in case of doubt.

5.6Furthermore, the author rejects the State party’s submission that the Refugee Appeals Board considered the Convention in its decision of 31 August 2015. She refers to M.N.N. v. Denmark and A v. Denmark, in which the Committee on the Elimination of Discrimination against Women held that a State party would violate the Convention if it returned a person to another State where it was foreseeable that serious gender-based violence would occur. The author recalls that her mother has informed her that her brother intends to commit an honour killing.

State party’s observations on the merits

6.1By a note verbale dated 22 December 2016, the State party submitted its observations on the merits of the communication. The State party reiterates that the communication should be considered inadmissible under article 4 (2) (c) of the Optional Protocol, because it is manifestly ill-founded and the author has failed to establish a prima facie case for the purpose of admissibility. Should the Committee find the communication to be admissible, the State party submits that the author has not sufficiently established that she would be exposed to a real, personal and foreseeable risk of serious forms of gender-based violence if she were to be returned to the Russian Federation.

6.2The State party recalls the author’s submissions dated 17 September 2015 and 22 January 2016. It observes that they seem to provide no new and specific information on her situation in addition to the information on the basis of which the Refugee Appeals Board denied her asylum claim, and it therefore refers to its observations dated 15 November 2015. The State party reiterates that the Board thoroughly examined the author’s claims in the context of her background and found them to be inconsistent and “non-credible”.

6.3The State party recalls that the Refugee Appeals Board, in its decision of 31 August 2015, found that the author had failed to establish that she would risk persecution or abuse under sections 7 (1) and (2) of the Aliens Act were she to be returned to Chechnya.

6.4The State party recalls that the Refugee Appeals Board rejected the author’s asylum request because it did not consider her account of the events to be credible or likely. It refers to a report produced by the Danish Immigration Service in January 2015, in which it was indicated that “it would be very rare, if at all, that the Chechen authorities pay attention to distant relatives and such relatives would not be punished or exposed to beatings or torture”. Given that the author entered Denmark with a genuine temporary passport issued by the authorities in Grozny on 4 August 2014, the State party considers it unlikely that authorities would have issued her a document allowing her to leave the Russian Federation if they were still interested in her. Furthermore, the State party recalls that the Refugee Appeals Board rejected her claim that she was at risk of being the victim of an honour killing. Given the author’s claim that she only told her mother about the rape and that her mother denied the rumours circulating in the town, the State party considers it unlikely that her brother would have nevertheless believed those rumours. It also considers it unlikely that the author’s brother was the only person who wanted to kill her and that the rest of the author’s family either had not heard the rumours or remained willing to help her despite having done so.

6.5In relation to the summonses dated 9 April 2015 and 21 April 2015, which the author produced on 22 January 2016, the State party submits that the author had sufficient opportunity to produce new information during the asylum proceedings. It recalls that she had been aware of the summonses since 26 June 2015 and considers it peculiar that she only produced them on 14 January 2016.

6.6The State party recalls that the author, in her submission dated 17 September 2015, rejected the assessment of facts and evidence by the Refugee Appeals Board but did not demonstrate that the assessment was arbitrary or amounted to a denial of justice. It reiterates that the author failed to identify any irregularity in the Board’s decision-making process or any considerations which the Board had failed to properly take into account. Furthermore, the State party observes that the author did not dispute the Board’s credibility assessment. In relation to credibility assessments in general, it refers to cases before the European Court of Human Rights and communications submitted to the Human Rights Committee, in which it was reasoned that the State party is better placed to assess the facts and evidence of the author’s case and his or her credibility. The State party therefore relies on the Board’s decision of 31 August 2015, which was made following a comprehensive examination of the author’s case, during which she was given the opportunity to present her views, both in writing and orally, with the assistance of legal counsel. The State party reiterates that the author would not risk persecution or abuse justifying asylum should she be returned to the Russian Federation and that her deportation would not constitute a violation of the Convention.

6.7The State party rejects the author’s claim that the Refugee Appeals Board failed to take the Convention into account in its assessment of her case. It reiterates that the Board considers the Convention as a standard part of its assessments and that the fact that the Board made no explicit reference to the Convention in its decision does not mean that its provisions were not taken into account. The State party refers to the views adopted by the Committee in the case of P.H.A. v. Denmark, in which it is indicated that the Committee considered that the author had not substantiated how the reference to the Convention raised issues separate from those already considered by the Board in the context of the author’s asylum claim.

6.8The State party maintains that the author has failed to establish a prima facie case for the purpose of admissibility and that, pursuant to article 4 (2) (c) of the Optional Protocol, it is manifestly ill-founded and should be declared inadmissible. Should the communication be declared admissible, the author’s return to the Russian Federation would not constitute a violation of the Convention. The State party further draws attention to the statistics on the jurisprudence of the Danish immigration authorities, which show significant recognition rates for asylum claims submitted by members of the 10 largest national groups of asylum seekers that were decided by the Board between 2013 and 2015.

Author’s comments on the State party’s observations on the merits

7.1On 28 February 2017, the author submitted her comments on the State party’s observations on the merits of the communication.

7.2She reiterates that the Chechen authorities continue to visit her family in Chechnya and to summon her for questioning. She indicates that she has difficulty talking to her mother, who fears that her phone is being tapped and is afraid of the author’s older brother. The author recalls that there is a risk that her older brother may persecute her, as he perceives that her rape by the Chechen authorities is a disgrace to the family. Furthermore, the author indicates that her younger brother, who was arrested and detained at the same time as she was, has not yet been released. Neither she nor her mother know his exact whereabouts, whether he remains imprisoned or whether he is even alive.

7.3The author indicates that her older brother was detained twice, on 23 December 2015 and on 28 June 2016, because of her. According to the author, the Chechen authorities have harassed and threatened him since she left Chechnya, calling him by telephone to summon him for questioning, and he has since gone into hiding. She also indicates that a new chief of the Chechen district police unit has exacerbated the situation. She refers to a report by the Norwegian Country of Origin Information Centre, Landinfo, dated 4 October 2016, in which it is indicated that family members and supporters of insurgents are still subjected to reactions from the Chechen authorities, that family members are kept under surveillance and threatened into giving information about their relatives, in addition to experiencing a variety of sanctions, and that a climate of fear persists in Chechnya. In the report, it is also indicated that medical treatment of insurgents is regarded as a criminal and punishable act under Russian criminal law. The author submits that the situation is particularly difficult for female supporters or alleged supporters of insurgents, given that women risk violence, sexual harassment and sexual assault by the Chechen authorities.

7.4The author recalls the State party’s statement, in its submissions dated 22 December 2016, that, even if the Committee declares the author’s communication to be admissible, the author can nevertheless be returned to the Russian Federation. The author reiterates that her deportation would constitute a violation of article 2 (c), (d) and (f) of the Convention. She underlines that, as a woman sought by Chechen authorities for assisting an insurgent, she would be at great risk of cruel and degrading treatment and sexual violence because of her gender if she were to be returned to the Russian Federation.

7.5The author recalls that the State party referred to a report produced by the Danish Immigration Service dated 15 January 2015. She submits that the report was produced before the Grozny attack of 4 December 2014 and only briefly mentions the tense situation after the attack. The author indicates that, after the attack, President Kadyrov stated that he would call for collective responsibility and punishment.

7.6The author refers to the decision of the Committee in Y.W. v. Denmark, in which it indicated that the Convention had extraterritorial effect and that article 2 (d) imposed an obligation to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions acted accordingly. In that case, the Committee also indicated that, if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that the person’s rights under the Convention would be violated in another jurisdiction, the State party itself might be in violation of the Convention.

7.7Responding to the State party’s submissions on the situation in Chechnya, the author submits that Chechnya is part of the Russian Federation but has a strong and independent government under President Kadyrov.

Further observations of the State party

8.On 10 July 2017, the State party informed the Committee that it would present no comments in response to the author’s submission of 28 February 2017. It maintains that the author’s communication is manifestly ill-founded and inadmissible. Should the Committee find the communication to be admissible, the State party submits that the author has not established that her return to the Russian Federation would be contrary to the Convention.

Issues and proceedings before the Committee

Request for interim measures

9.The Committee notes that, on 24 September 2015, following its request of 22 September 2015 under article 5 of the Optional Protocol and rule 63 of its rules of procedure, the State party, through the Refugee Appeals Board, suspended the deportation of the author. The Committee commends the State party for complying with the Committee’s request for interim measures not to deport the author pending the examination of her case.

Consideration of admissibility

10.1In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol. Pursuant to rule 66, the Committee may decide to examine the admissibility of the communication together with its merits.

10.2In accordance with article 4 (2) (a) of the Optional Protocol, the Committee is satisfied that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

10.3The Committee notes that the State party challenges the admissibility of the communication under article 4 (2) (c) of the Optional Protocol, on the basis that the author’s claims are manifestly ill-founded and not sufficiently substantiated.

10.4The Committee also notes that, in substance, the author’s claims are aimed at challenging the manner in which the State party’s authorities assessed the circumstances of her case, applied the provisions of national law and reached conclusions. The Committee recalls that it is generally for the authorities of States parties to the Convention to evaluate the facts and evidence or the application of national law in a particular case, unless it can be established that the evaluation was biased or based on gender stereotypes that constitute discrimination against women, was clearly arbitrary or amounted to a denial of justice. The Committee notes that nothing on file demonstrates that any such deficiencies characterized the examination by the authorities of the author’s claims regarding her fears as to the risks that she would face if she were to return to Chechnya. The Committee notes that, despite generalized statements made by the author’s counsel regarding perceived inefficiencies in the asylum procedures of the State party, they are not alleged to have amounted to, or provoked, discrimination or rendered decisions made by the authorities arbitrary in the author’s case. Moreover, it is for each sovereign State party to determine the nature, structure and procedures of its own refugee determination system, provided that the basic procedural guarantees set out in international law are respected.

10.5The Committee further notes that it must give important weight to the assessment conducted by the national authorities, unless it was found that the evaluation was clearly arbitrary or amounted to a denial of justice. In the present case, the Committee considers that nothing on file leads it to conclude that the Danish immigration authorities, and the Refugee Appeals Board in particular, have failed in their duties when examining the author’s case, or that their decisions were arbitrary or amounted to a denial of justice.

10.6The Committee notes that, in the present case, after addressing the claims as submitted by the author, the State party’s immigration authorities found that her story lacked credibility owing to both inconsistencies and a lack of substantiation. The Committee considers that nothing on file demonstrates that there were irregularities in the examination by the Danish authorities of the author’s claims that could lead to the conclusion that the State party’s authorities had failed in their duty to properly assess the risks that the author would face if deported to the Russian Federation.

11.The Committee therefore decides that:

(a)The communication is inadmissible under article 4 (2) (c) of the Optional Protocol;

(b)This decision shall be communicated to the State party and to the author.