1.1 The author of the communication is N.M., an Ethiopian citizen born in 1988. She claims that her deportation to Ethiopia would violate her rights under articles 3, 5 and 7 of the Convention on the Elimination of All Forms of Discrimination against Women. The Convention and its Optional Protocol entered into force for the State party in 1983 and 2000, respectively. The author is represented by counsel, Tag Gottsche.

1.2The author’s application for asylum was rejected by the Danish Immigration Service on 4 August 2014. The Refugee Appeals Board dismissed the appeal against that decision on 24 November 2014. On 3 December, the Committee, acting through its Working Group on Communications, requested that the State party refrain from expelling the author to Ethiopia pending the consideration of her case by the Committee, pursuant to article 5 (1) of the Optional Protocol and rule 63 of the Committee’s rules of procedure.

Facts submitted by the author

2.1The author is a Muslim woman from Jijiga, Ethiopia. She is married to a man who is alleged to belong to the Ogaden National Liberation Front, a movement that claims to be fighting for the self-determination of people in the Ogaden area and that is perceived as a terrorist organization by Ethiopian authorities. The author was not an active member but was supportive of the movement. Since her husband’s activities were secret, she did not know exactly what his role in the organization was, but states that he was a member of the militia.

2.2In August 2013, the police came to the author’s house and arrested the author’s husband. Two weeks later, she was also taken into custody. She was interrogated about her husband’s activities and whereabouts. The author did not know where he was because she had not seen him since the police arrested him and took him from their home. She was kept in detention for three weeks and tortured every day. She was blindfolded, beaten and subjected to simulated drowning. She was also told that she would be killed if she did not provide information about her husband.

2.3In September 2013, one day around sunset, while being taken out of her cell to be tortured, the author heard shots outside. The police and guards fled. She escaped through a door that had been left open. She ran all night until she reached her aunt’s house. She did not go to her family home since she feared that she could be found there. She stayed only one night at her aunt’s house. Given that she feared for her life if she were to stay in her homeland, the author’s aunt organized and paid for her trip to Denmark.

2.4On 15 March 2014, the author arrived in Denmark without travel documents and applied for asylum the next day. On 4 August, the Immigration Service rejected her asylum claim. On 24 November, the Refugee Appeals Board upheld the decision on the basis of inconsistencies in the author’s account of the facts. The Appeals Board did not refer to the country situation. The Board noted that the applicant had mentioned being held in a “cell” and then a “yard” at the time of fleeing and that her account of torture seemed constructed and not personally experienced. According to the author, the State party did not investigate her allegations further. The other element that the Board noted was her unclear explanation about her departure (she did not know how much her trip had cost and had not seen the travel documents).

2.5 In connection with the manner of her escape, the author submits that she was locked in a cell for most of the time. At the time of her escape, she was just outside the room and was able to escape through the yard. The soldiers ran through the gate and left it unlocked, which made it possible for her to escape. The interpreter may have used different expressions for “cell” or “yard” at meetings with the Immigration Service and the Refugee Appeals Board, but at all times the author meant that she was in the yard at the time of her escape. The author provided a diagram showing the place of detention and her escape route in accordance with her account.

2.6 Regarding the torture, the author explains that it took place while she was blindfolded and her head was placed under cold water, a practice known as waterboarding. This made her feel as though she was drowning. She was struck with wooden objects, which left bruises. She explained it the only way she knew how. It did not leave scars. She states that people from her area suspected of supporting the Ogaden National Liberation Front are tortured and killed.

2.7 Regarding the travel documents, the author explains that her aunt paid for her departure and an agent was holding the documents on the way. The author does not know how much it cost or how it was planned. She has never seen the documents and has no recollection of ever having said otherwise.

2.8 The author claims that she was exposed to much stress and pressure during the interview with the Immigration Service in Denmark and that is why her explanation may have seemed unconvincing. As a result of the present situation in the Ogaden area, there should be no doubt that she would be at great risk of persecution if returned because she is married to a member of the Ogaden National Liberation Front and therefore would be suspected of supporting the organization. She would be at risk of being killed. No consideration has been given to the psychological and physical effects of the torture to which she was exposed or to the situation in the Ogaden area, nor have any attempts been made to investigate the author’s claims. The author further states that it appeared that the Refugee Appeals Board sought to identify the smallest inconsistency upon which to base a finding of lack of credibility in order to allow it to dismiss the case. This does not take account of the stress that asylum seekers experience upon arrival. The author states that she has exhausted domestic remedies.

Complaint

3.1The author alleges that she risks being tortured again or killed if she is sent back to Ethiopia because she is married to a member of the Ogaden National Liberation Front, and for this reason alone she too is considered to be a member and supporter.

3.2 The author therefore claims that Denmark is in violation of articles 3, 5 and 7 of the Convention.

3.3 The author claims that, pursuant to article 3, she must be ensured the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men.

3.4 She further claims a violation of her rights under article 7 of the Convention, under which she is entitled to freely participate in non-governmental organizations and associations concerned with the public and political life of her country since she is not able to choose her own political affiliation. The Ethiopian authorities consider her to be a member of the Ogaden National Liberation Front only because of her marriage, in violation of article 7 (c), which can also be understood as the right not to participate in non-governmental organizations. She does not have the same opportunities to freely participate in non-governmental organizations and she cannot enjoy her human rights on an equal basis with men.

3.5 She also asserts that, pursuant to article 5, States parties must take appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

3.6 She also states that, owing to the conditions in Ethiopia, her removal to Ethiopia would violate article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).

State party’s observations on admissibility and the merits

4.1 On 3 June 2015, the State party submitted its observations on the admissibility and the merits of the communication.

4.2 The State party asserts that the Refugee Appeals Board was unable to accept any part of the applicant’s statements as fact. It emphasizes her inconsistent statements on crucial elements of her grounds for asylum, including her exact location at the time of her escape. According to her asylum screening interview, she was in a cell when she heard shooting and the guards ran away. At that point, she ran out through the open cell door. According to her statements at the substantive asylum interview and at the Appeals Board hearing, however, she was outside the cell when the soldiers ran away, and she had been able to leave the building through an open door. The Board further emphasized that she replied evasively to the question of how the torture was carried out and she had also been unable to give any information as to how the torture affected her. Against that background, the Board assessed her account of the torture to be fabricated and not reflective of personal experience. Finally, the applicant made inconsistent statements regarding the travel documents. At the asylum screening interview on 26 March 2014, she stated that the agent had shown her both the passport and the tickets, whereas at the substantive asylum interview on 12 June 2014 and at the Board hearing, she stated that she did not know what documents had been used because she had not seen them. The Board therefore found that she had failed to render probable her grounds for asylum and that, accordingly, she had failed to render probable that she would risk persecution pursuant to section 7 (1) of the Aliens Act or be in need of protection pursuant to section 7 (2) of the Act if she were returned to Ethiopia.

4.3 The State party further provides a comprehensive description of the organization, composition, duties, prerogatives and jurisdiction of the Refugee Appeals Board and the guarantees for asylum seekers, including legal representation, the presence of an interpreter and the possibility for an asylum seeker to make a statement on appeal. It also notes that the Appeals Board has a comprehensive collection of general background material on the situation in the countries from which Denmark receives asylum seekers, updated and supplemented on a continuous basis from various recognized sources, all of which it takes into consideration when assessing cases.

4.4 Referring to the Committee’s decision in M.N.N. v. Denmark the State party refers to the extraterritorial effect of the Convention only where it is foreseeable that serious gender-based violence would occur upon the author’s return. It therefore submits that the risk of such violence must be real, personal and foreseeable. In this connection, the State party asserts that the author has failed to establish a prima facie case for the purposes of the admissibility of her communication to the Committee under article 4 (2) (c) of the Optional Protocol in that it has not been substantiated that the author would be exposed to a real, personal and foreseeable risk of serious forms of gender-based violence if she were returned to Ethiopia. It therefore asserts that the communication is inadmissible because it is manifestly ill-founded.

4.5 Should the Committee find the communication to be admissible and proceed its consideration on its merits, the State party asserts that the author has not sufficiently substantiated that she would be exposed to a real, personal and foreseeable risk of serious forms of gender-based violence if returned to Ethiopia.

4.6 The State party notes that the author has not provided any information in her communication to the Committee that had not been before the national authorities and, therefore, all circumstances before the Committee have been duly considered by the State party’s authorities in the decision of 24 November 2014.

4.7 The State party refers to section 40 of the Aliens Act which states that an alien must provide such information as is required for deciding whether his or her claim falls within section 7 of the Act. It is therefore incumbent upon the asylum seekers to substantiate their grounds for seeking asylum. The State party further refers to paragraphs 195 and 196 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, which states that “the relevant facts of the individual case will have to be furnished in the first place by the applicant himself” and that “it is a general legal principle that the burden of proof lies with the person submitting the claim”. In this regard, the State party further refers to the jurisprudence of the Human Rights Committee, whereby a complaint was found inadmissible for the failure to adduce sufficient evidence in support of a claim under articles 6 and 7 of the International Covenant on Civil and Political Rights in relation to a deportation to Pakistan.

4.8 The State party reiterates the reasons upon which the lack of credibility finding was based, including inconsistencies in crucial elements of the story and the superficiality of statements regarding torture. On that basis, the Refugee Appeals Board could not accept as fact the statement of the author. The diagram provided by the author could not change the assessment made by the Appeals Board.

4.9 The State party finds no basis for the author’s assertion that she was subjected to stress or pressure during her interviews with the Danish Immigration Service.

4.10 With respect to the author’s assertion that the Refugee Appeals Board made no investigation into the dangerousness of her situation, the State party reiterates that it is incumbent upon the author to substantiate her grounds for seeking asylum. Moreover, the Appeals Board made a thorough assessment of the author’s credibility, the background information available and the author’s specific circumstances.

4.11 In connection with the author’s assertion that the physical and mental consequences of the torture that she suffered had not been taken into account during the asylum proceedings, the State party asserts that if an asylum seeker’s statements are characterized by inconsistencies, expansions or omissions, the Refugee Appeals Board will attempt to clarify the reasons. It observes in this respect that, when assessing the credibility of an asylum seeker, the Appeals Board will take into account the asylum seeker’s particular situation, including cultural differences, age and health. However, inconsistent statements made by the asylum seeker in relation to crucial elements of his or her grounds for asylum may weaken the asylum seeker’s credibility. If in doubt, the Board will always assess to what extent the principle of the benefit of the doubt should be applied. In response to the author’s submission that the Board will normally find asylum seekers non-credible based on the smallest of inconsistencies, the State party submits that this is incorrect; instead, an overall assessment is made based on all matters before it, including the asylum seeker’s statements and personal appearance before the Board in conjunction with other available information. It emphasizes in this respect whether the statements are coherent, likely and consistent. If inconsistent statements are made, the Board will also consider the situation of the particular asylum seeker, including his or her health.

4.12 The State party asserts that the Refugee Appeals Board made its decision on the basis of a procedure during which the author had the opportunity to present her views, both orally and in writing, to the Appeals Board with the assistance of legal counsel. She was allowed to make a statement at the hearing and to answer questions. Her counsel and the representative of the Danish Immigration Service were then allowed to make closing speeches, whereupon the author was given the opportunity to make a final statement.

4.13 The State party finds that the Refugee Appeals Board included all relevant information in its decision and that the submission to the Committee has not brought to light any new information substantiating that the author would be at risk of being tortured or killed if returned to Ethiopia. The State party therefore agrees with the assessment of the case made by the Appeals Board and also refers to the fact that no satisfactory explanation has been given for the inconsistent statements made by the author on crucial elements of her grounds for asylum and for her vague replies to questions about the torture to which she was allegedly subjected.

4.14 In relation to the author’s contention that, owing to the general conditions in Ethiopia, her return to the Ogaden area would constitute a violation of article 3 of the European Convention on Human Rights, the State party observes that it falls outside the purview of the Committee to rule on article 3 of the European Convention. However, it finds reason to observe that the general conditions in the Ogaden area are not such that everyone returned to that area might be deemed to be at real risk of abuse, in contravention of article 3 of the European Convention. In its assessment, the Refugee Appeals Board took into consideration available background information on Ethiopia, and such comprehensive material as was available to the Appeals Board was found not to lead to a different assessment. The State party therefore relies entirely on the assessment made by the Board on conditions in the country.

4.15 In summary, the State party finds that the Refugee Appeals Board took all relevant information into account when making its decision and that the author’s communication has not brought to light any information that would substantiate the claim that she would risk being tortured or killed if returned to Ethiopia. It further refers to the jurisprudence of the European Court of Human Rights in which the European Court accepts that, as a general principle, the national authorities are best placed to assess, not just the facts but, more particularly, the credibility of witnesses since it is they who have an opportunity to see, hear and assess the demeanour of the individual concerned. It also cites the European Court’s jurisprudence regarding due process guarantees which characterize examinations by the State party and underlines the need for authors to identify irregularities in the decision-making processes of the State party or any risk factor that the State party’s authorities fail to take properly into account, without which it would be found that there had been no violation. The State party reiterates the national processes by which a decision was taken in the author’s case and states that her communication reflects the fact that she merely disagrees with the assessment of credibility made by the Appeals Board without having identified any irregularity in the decision-making process or any risk factors that the Board failed to properly take into account. It therefore submits that the author is attempting to use the Committee as an appellate body to have the factual circumstances of her case reassessed. The State party submits that the Committee must give considerable weight to the findings of fact made by the Board, which is better placed to assess the factual circumstances in the author’s case.

4.16 The State party therefore finds that there are no grounds for doubting, let alone setting aside, the findings of the Refugee Appeals Board, according to which the author has failed to establish sufficient grounds for believing that she would be at risk of being tortured or killed if returned to Ethiopia. Against that background, the State party submits that the author has failed to establish a prima facie case for the purpose of the admissibility of her communication under article 4 (2) (c) of the Convention and that, therefore, the communication is manifestly ill-founded and should be considered inadmissible.

4.17 Should the communication be deemed admissible, the State party submits that it had not been established that there were substantial grounds for believing that it would constitute a breach of articles 3, 5 and 7 of the Convention to return the author to Ethiopia.

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

5.1 On 25 August 2015, the author submitted her comments on the State party’s observations.

5.2 Reiterating her earlier statements, and in addition to her claim that she was subjected to stress and pressure in her interview with the Danish Immigration Service, the author adds that the Immigration Service asked her leading questions during her interview, which is strictly prohibited, and the pressure of which may have led to divergent statements.

5.3 In connection with the State party’s assessment that she is unable to provide details about how torture affected her, the author submits that, being only 26 years old, it was very difficult to express how she was affected and also that she found it traumatizing to explain her account again and again. She restates that the State party failed to take these psychological and physical effects of torture into account.

State party’s additional observations

6.1 On 27 January 2016, the State party submitted its additional observations.

6.2 Further to its observations of 3 June 2015, the State party refers to the author’s comments on being subjected to stress and pressure when interviewed by the Danish Immigration Service and to her statement that she was asked leading questions. The State party submits that it finds no basis for the author’s assertion that she faced stress and pressure during her interview. It observes that, when interviewing asylum seekers, immigration officers always consider the personal circumstances of interviewees, including their age and gender, to establish a supportive interview environment. Regarding being asked leading questions, the State party observes that the author’s representative before the Committee was also her counsel before the Refugee Appeals Board and notes that no claim was made before the Board that the author was subjected to stress or pressure or asked leading questions by the Immigration Service and, therefore, the State party finds no basis for these claims.

Issues and proceedings before the Committee

Consideration of admissibility

7.1In accordance with rule 64 of its rules of procedure, the Committee must decide whether the communication is admissible under the Optional Protocol.

7.2 The Committee notes that the author claims to have exhausted domestic remedies and that the State party has not challenged the admissibility of the communication on that ground. The Committee observes that, according to the information available to it, decisions of the Refugee Appeals Board are not subject to appeal before national courts. Accordingly, the Committee considers that it is not precluded by the requirements of article 4 (1) of the Optional Protocol from examining the communication.

7.3 In 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.

7.4 The Committee notes the author’s claim under article 3 of the European Convention on Human Rights and the State party’s observation that the European Convention is not within the purview of the Committee. Accordingly, the Committee considers that the claimed violation of the European Convention is inadmissible as being incompatible with the Convention under article 4 (2) (b) of the Optional Protocol.

7.5 In relation to the State party’s claim that the communication is manifestly ill-founded and contrary to article 4 (2) (c) of the Optional Protocol owing to lack of substantiation, the Committee takes note of the author’s claims that she is married to a member of the Ogaden National Liberation Front, to which she also provided support, that the Ethiopian authorities have labelled the Liberation Front a terrorist organization and that members of the organization are arrested and tortured by the authorities. It further notes her claims that the authorities came to their house, arrested her husband, took him away and returned two weeks later, questioning the author on her husband’s whereabouts, and arrested the author, taking her to a place of detention where she was tortured daily through beating and simulated drowning. She states that she escaped during an outbreak of shooting and ran to the house of her aunt, who facilitated her escape from the country. The author submits that, owing to the present situation in the Ogaden area and the fact that, given her marriage to a Liberation Front member, she is suspected of supporting the organization and is thus at great risk of being tortured or killed. She therefore claims that, if the State party returns her to Ethiopia, it would be in violation of its non-refoulement obligations on the basis that she risks serious forms of gender-based violence based on her marital and political status, under articles 3, 5 and 7 of the Convention. In this regard, the Committee finds that the author has provided sufficient substantiation of her claims for the purposes of admissibility and does not consider itself precluded from proceeding with the consideration of the communication on its merits.

Consideration of the merits

8.1 The Committee has considered the present communication in the light of all the information made available to it by the author and the State party, as provided for under article 7 (1) of the Optional Protocol.

8.2 The Committee observes that the author claims that she is married to a member of the Ogaden National Liberation Front, to which she provided support during meetings, that the State authorities took her husband from their shared home and came back two weeks later to arrest the author. She claims that, once detained, she was tortured daily for three weeks and questioned about her husband’s whereabouts, eventually managing to escape when fighting broke out. She claims that she ran away and finally reached the home of her aunt, who arranged her escape the next day. She claims to fear that she would be rearrested and tortured upon her return on the basis of her husband’s affiliation with the Liberation Front. The author states that she was placed under stress and pressure during interviews and was asked leading questions, which may have led to the divergent statements referred to by the State party.

8.3 The Committee notes the State party’s submission that the author has failed to show substantial grounds for believing that she is in danger of being subjected to serious gender-based violence if returned to Ethiopia, that her claims have been reviewed by the Danish immigration authorities, and that the latter found that the author would not risk persecution as set out in section 7 (1) of the Aliens Act or be in need of protection status as set out in section 7 (2) of the Aliens Act if she were returned to Ethiopia, that the author did not provide a credible account of the above events, that she did not explain fully the divergences between the accounts of her escape, that her account of torture seemed superficial and constructed and that she made divergent statements regarding whether she had seen the documents used for her escape. It also notes the State party’s submission that it found no basis upon which to believe that the author was asked leading questions or was subjected to undue pressure during her interviews and that, therefore, the inconsistencies remained unexplained.

8.4 The Committee notes the author’s claims that her rights under articles 3, 5 and 7 of the Convention were violated in relation to her inability to choose her own political affiliation and the fact that, if returned to Ethiopia, she would be persecuted on the basis of her husband’s affiliation with the Ogaden National Liberation Front. The Committee observes that there is no claim that the State party directly violated the provisions of the Convention invoked but that, in fact, the violation claimed by the author in relation to the State party is that, in returning her to Ethiopia, she would face serious forms of gender-based violence at the hands of the Ethiopian authorities owing to discrimination based on these provisions.

8.5 The Committee refers to paragraph 21 of its general recommendation No. 32 (2014) on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, in which it states that, under international human rights law, the non-refoulement principle imposes a duty on States to refrain from returning a person to a jurisdiction in which he or she may face serious violations of human rights, notably the arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment. It is also stated therein that civil and political rights and freedoms, including the right to life and the right not to be subjected to torture or ill-treatment, are implicitly covered by the Convention, and thus States parties are under the obligation not to extradite, deport, expel or otherwise remove a person from their territory to the territory of another State where there are substantial grounds for believing that there is a real risk of irreparable harm. The principle of non-refoulement also constitutes an essential component of asylum and international refugee protection. The essence of the principle is that a State may not oblige a person to return to a territory in which he or she may be exposed to persecution, including gender-related forms, and grounds for persecution. Gender-related forms of persecution are those that are directed against a woman because she is a woman or that affect women disproportionately. That positive duty encompasses the obligation of States parties to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party. If a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention.

8.6 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. In that regard, the Committee notes that, in substance, the author’s claims are aimed at challenging the manner in which the State party’s authorities assessed the factual circumstances of her case, applied the provisions of legislation and reached conclusions. The issue before the Committee is therefore whether there was any irregularity in the decision-making process regarding the author’s asylum application to the extent that the State party’s authorities failed to properly assess the risk of serious gender-based violence in the event of her return to Ethiopia. In that regard, the Committee notes the author’s criticism that the State party’s authorities disregarded the relevance of her statements, her background and particular evidence regarding the torture that she had suffered. The Committee considers, however, that, after addressing all the components presented by the author, the State party’s authorities found that the author’s story lacked credibility owing to inconsistencies and a lack of substantiation. The Committee notes that nothing on file demonstrates that the examination by the authorities of the author’s claims suffered from any such irregularities as would lead to the conclusion that the State party failed to assess the risks faced by the author.

8.7In the light of the foregoing, while not underestimating the concerns that may legitimately be expressed with regard to the general human rights situation in Ethiopia, in particular concerning women’s rights, the Committee considers that nothing on file permits it to conclude that the State party’s authorities failed to give sufficient consideration to the author’s asylum claims. The Committee therefore considers that the authorities of the State party conducted the examination of the author’s asylum claim in a manner respecting its obligations under the Convention.

9. Acting under article 7 (3) of the Optional Protocol, the Committee concludes that the author’s asylum proceedings and the decision to proceed with her removal to Ethiopia do not constitute a breach of articles 3, 5 and 7 of the Convention.