1.The author is a national of the Russian Federation, born in 1985. She sought asylum in Denmark and her request was rejected. She claims that her deportation would amount to a violation by Denmark of articles 2 (d)–(f), 5 (a) and 16 (1) (d) of the Convention on the Elimination of All Forms of Discrimination against Women. The author is represented by counsel, Jytte Lindgard, NHG Advokater, Denmark.
Facts as submitted by the author
2.1The author is a Russian citizen of Chechen origin. She arrived in Denmark on 12 November 2013 and applied for asylum. The Danish Immigration Service rejected her application on 5 October 2014. On 16 January 2015, on appeal, the Danish Refugee Appeals Board confirmed the decision of the Service.
2.2Before the Danish asylum authorities, the author claimed that she had faced problems in Chechnya during her first marriage, when she was living with her husband and his parents. In October 2005, while her husband and his parents were at work, Chechen rebels came to the house asking for food. The rebels later left the house. The next day, the author’s husband and his father were arrested and allegedly tortured by the authorities for three days. The author wanted to move to her parents’ house, but her father ordered her to return to her husband’s house. The rebels came again some six weeks later, asking for food and taking all the clothes, shoes and other items belonging to the author’s husband. The author called her father-in-law, who was at work, and asked him to return home immediately, but he refused, and he and her husband did not come home until the following weekend.
2.3In 2006, after the rebels’ second visit, the author’s father allowed her to move to her parents’ house and seek a divorce. The Chechen authorities started to summon her for interrogations every six weeks. They asked her to provide them with information about the rebels, including on their whereabouts, their movements and whether they had recruited new members. They also interrogated her about specific people and asked her to enquire about them. She refused initially, but acquiesced when the authorities threatened her.
2.4In the middle of 2010, her father was arrested. While the author was in the house with her mother and daughter, her father called and told her that he had been arrested and that she should come to the Department of Internal Affairs in Grozny. When the author arrived, she was received by two Russian soldiers who took her to the cell in which her father was being kept. The cell was inside a large room in which the author saw about six or seven officials. The soldiers left and the author’s father was released. The officials then began interrogating the author about the rebels. They tortured her by tying her hands and legs and raping her one by one. They left her lying and tied up on the floor for approximately one hour. They then allowed her to go to the bathroom and clean up, before releasing her. After a month, she felt nauseous and, suspecting that she was pregnant, she took abortion pills.
2.5Some six weeks later, the author was again summoned and interrogated. As she refused to reveal any information, she was again tied up and raped. She cried and told them that the last time she had become pregnant and that she would not inform on other people. The officials replied that they would treat her in that manner every time she was summoned if she refused to cooperate. When she agreed to cooperate, they stopped the torture and made her sign a piece of paper, which she did without reading. They continued calling her every six weeks and she either invented information or gave information about the rebels’ visits. On an undetermined date in 2011, the authorities called her and she again provided false information. The authorities found out that she was lying, so they shaved her eyebrows and cut her hair very short. Thereafter, the author always provided information about the rebels’ visits to her neighbours.
2.6In April 2013, the author remarried and the authorities did not summon or visit her again until September, when officials appeared at her house asking for food. The next day, when her husband was at the market, the officials went to the author’s house and asked for her husband. They went to the market and arrested him. He was detained for a couple of days and tortured, forcing him to cooperate with the authorities. Thereafter, the author, who was pregnant, fled the country.
2.7The author has one daughter with her first husband and one son with her second husband. Her son was born in Denmark and currently lives with her. After she remarried, she left her daughter with her first husband’s family, as is the custom in Chechnya, according to the author. At the time of submission of the communication, she had no contact with her second husband, but she believed that he had divorced her, given her absence.
2.8The author states that she did not tell the Danish Immigration Service that she had been raped because she was ashamed, as victims of rape are stigmatized in Chechnya. She mentioned it only at the appeal stage, before the Refugee Appeals Board.
Complaint
3.1The author claims that her deportation to the Russian Federation would amount to a violation by Denmark of her rights under articles 5 (a) and 16 (1) (d) of the Convention because the family of her second husband would take her son away from her, in accordance with the custom in Chechnya whereby, in case of divorce, the children stay with the husband’s family.
3.2She also claims that her deportation would amount to a violation by Denmark of articles 2 (d) and (f) and 5 (a) because, if she were deported to the Russian Federation, she would be in danger of being subjected to rape and other types of abuse and discrimination by the Chechen and Russian authorities and her family would probably not protect her because of the shame that she had brought by being raped.
3.3She claims that her deportation would also amount to a violation of article 2 (e), as she would be at risk of reprisals from the rebels because she acted as an informer. In that connection, she refers to the Committee’s general recommendation No. 19 (1992) on violence against women to support her claim.
State party’s observations on admissibility and the merits
4.1By a note verbale dated 3 August 2015, the State party submitted its observations on admissibility and the merits and requested the Committee to lift its request for interim measures of protection. The State party submits that the communication should be considered inadmissible under article 4 (2) (c) of the Optional Protocol, as the author has failed to establish a prima facie case and the case is thus manifestly ill-founded. Should the communication be declared admissible, the State party submits that the author has not established that there are substantial grounds to believe that her return to the Russian Federation would constitute a violation of the Convention.
4.2The State party recalls the facts of the case and provides information on the composition, independence and prerogatives of the Refugee Appeals Board and the legal basis for its decisions and the proceedings before it, in particular regarding the assessment of evidence and background information on the human rights situation in the country of origin concerned.
4.3The State party submits that, insofar as the author relies on the Convention having extraterritorial effect, the Convention has such an effect only when the woman to be returned will be exposed to a real, personal and foreseeable risk of serious forms of gender-based violence. As the author has failed to substantiate that she faces such a risk if forcibly returned to the Russian Federation, the communication should be declared inadmissible, as manifestly ill-founded, under article 4 (2) (c) of the Optional Protocol.
4.4Should the Committee find the communication admissible, the State party submits that the author has failed to produce new and specific information on her situation in addition to the information on the basis of which the Refugee Appeals Board denied her asylum request. The State party 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. The majority of the members of the Board considered that the author’s statements seemed unlikely and non-credible, as she made inconsistent statements about the incidents that occurred between 2005 and 2013. They also found that, on her asylum request form and in her first interview with the Danish Immigration Service on 11 February 2014, she mentioned only the incidents that took place in 2013, whereas in the second interview with the Service on 11 August 2014 and at the hearing before the Board of 16 January 2015, she provided information about other incidents that took place between 2005 and 2013, alleging that she was raped and tortured by the Chechen authorities and forced to provide intelligence about the rebels to the authorities.
4.5The State party also finds that the author has failed to credibly explain why she mentioned the alleged incidents between 2005 and 2013 only in her statement at the asylum interview on 11 August 2014. It also questions the credibility of the author’s claim that she found it difficult to make a statement through a male interpreter on the violent abuse that she had allegedly suffered as, despite having several opportunities, she opted not to make a statement earlier on those incidents. Moreover, she stated in the first interview conducted by the Danish Immigration Service on 11 February 2014 that she had never been arrested, detained, the subject of a search warrant, charged or punished in her country of origin and that she had had no conflict with the authorities or with any private individuals other than the incident in September 2013.
4.6The State party refutes the author’s argument that the Refugee Appeals Board failed to take the Convention into account and ignored her rights under the Convention. The State party stresses that the Board always examines asylum applications in the light of the international human rights treaties, including the Convention, to which Denmark is a party. It underlines that the Board always takes into consideration the relevant asylum seeker’s particular situation, including cultural differences, age and health, and that, if it has doubts about the asylum seeker’s credibility, the Board always assesses to what extent the principle of the benefit of the doubt should be applied. It refutes the author’s argument that the Board failed to take into account the violent and frightening incidents described by the author, as it is possible to note from its decision that the Board took into account that there may have been interpreting problems and that it may have been difficult for the author to make a statement on the sexual abuse that she allegedly suffered.
4.7The State party also observes that it is unlikely that, after having suffered very serious and violent abuse, the author continued to refuse to work as an informer. The State party further observes that it is unlikely that, for about seven years, the author was able to provide new information every second month and that she was in possession of information that was relevant to the authorities, as she “appears to be a very low-profile individual” and to have no affiliation with the rebel movement. It observes that the information provided in the report submitted by the author was taken into consideration by the Refugee Appeals Board when taking its decision.
4.8The State party concludes that the return of the author and her child to the Russian Federation will not constitute a breach of articles 2 (d)–(f), 5 (a) and 16 (1) (d) of the Convention because there is no basis for contesting the assessment made by the Refugee Appeals Board, according to which the author had failed to substantiate that she faced a risk of persecution or abuse in the Russian Federation, as it was based on a thorough assessment of the author’s credibility, the background information available and the author’s specific circumstances. The State party also recalls that, in her communication to the Committee, the author did not provide new information that was different from that already taken into account by the Board. It further claims that the author is seeking to use the Committee as an appellate body to have the factual circumstances of her claim for asylum reassessed by the Committee.
Author’s comments on the State party’s observations on admissibility and the merits
5.1On 11 December 2015, the author submitted her comments on the State party’s observations. Regarding admissibility, she underlines that it is not possible to know what would happen if she were to return to the Russian Federation, but it is obvious that there is a risk that she will be subjected to gender-based violence there.
5.2The author rejects the argument that the Convention has extraterritorial effect only when the woman to be returned will be exposed to a real, personal and foreseeable risk of serious forms of gender-based violence and refers to the language used by the Committee in this connection in its decision of 15 July 2013 in M.N.N. v. Denmark. She suggests that, in the present case, it should be obvious that the risk is foreseeable owing to her specific circumstances. She notes that members of the Refugee Appeals Board considered her explanations credible, as the decision was taken by majority and not by consensus.
5.3The author claims that her failure to mention in the first interview that she had been raped is explained by the fact that, in Chechnya, culture and tradition dictate that speaking openly about sexual abuse often results in the stigmatization of the victim and exclusion from society. She submits that it is understandable that she explained all the facts only at the hearing of the Refugee Appeals Board, at which she was accompanied by her own legal representative, who was a woman.
5.4The author rejects the argument of the State party that States are best placed to assess the factual circumstances of a case. She considers that the Committee is better placed, as a body that deals with issues and situations faced by women and has a full overview of all countries.
5.5The author further challenges the argument that national authorities are best placed to assess facts and evidence in a particular case. She underlines that she was subjected to several brutal rapes and to cruel and inhuman treatment amounting to torture and, therefore, the assessment of her case should have been conducted by people with a thorough training in assessing torture victims.
5.6The author submits that she has not been in contact with her family and her spouse because it may endanger them. She explains that she cannot tell her family about the repeated rapes because, in Chechen culture, a woman who has been raped is stigmatized and cast to the margins of society if the rape becomes known and her family will also be stigmatized and isolated.
5.7The author claims that the State party does not refer to the violation of article 16 (1) (d) that she alleged in her first submission. She repeats that, if returned to the Russian Federation, the family of her husband will take her son away from her.
5.8The author concludes that she faces a real, personal and foreseeable risk of being subjected to very serious forms of gender-based violence and discrimination in the Russian Federation.
Additional observations of the State party
6.1By a note verbale dated 19 August 2016, the State party submitted additional observations.
6.2The State party rejects the author’s allegations that it did not consider her claim of a violation of article 16, as it has provided sufficient arguments to sustain that it did not violate articles 2 (d)–(f), 5 (a) and 16 (1) (d) in its observations of 3 August 2015 (see paras. 4.4–4.8).
6.3It recalls that the author’s account of the grounds for her asylum application cannot be considered as fact. It also recalls its endorsement of the decision of the Refugee Appeals Board, in which it found that the author had failed to substantiate that, if returned to the Russian Federation, she would experience conflicts with the authorities, the rebels, her family-in-law or her own family. It refutes the argument that the Board failed to take sufficiently into account the author’s difficulty in talking about having been raped.
6.4The State party also observes that, pursuant to its rules of procedure, the decisions of the Refugee Appeals Board are taken by a simple majority. The majority did not recognize as facts any elements of the author’s account of the grounds for her asylum application.
6.5It further observes that the background information provided by the author was known to the Refugee Appeals Board and was, therefore, included in its assessment of the appeal.
6.6The State party maintains that the author has failed to establish a prima facie case for the purpose of admissibility of her communication and that, pursuant to article 4 of the Optional Protocol, it should therefore be declared inadmissible. Should the communication be declared admissible, the State party reiterates its previous observations and recalls that the author has not established that there are substantial grounds to believe that returning her to the Russian Federation would constitute a violation of the Convention. It also reiterates its request for the interim measures of protection to be lifted. The State party draws attention to the statistics on the jurisprudence of the Danish immigration authorities, which show the significant recognition rates for asylum claims from the 10 largest national groups of asylum seekers on which decisions were pronounced by the Refugee Appeals Board between 2013 and 2015.
Author’s comments on the additional observations of the State party
7.On 24 October 2016, the author submitted additional comments. She refers to a report by the Norwegian Country of Origin Information Centre, dated 4 October 2016, in support of her claim that she cannot be safe in the Russian Federation and that she is at high risk of being subjected to gender-based violence and discrimination there, as it shows that there is still a climate of fear in Chechnya. In the report, it is indicated that the number of insurgents has fallen, which has reduced the pressure on family members. Nevertheless, family members of insurgents still experience threats from Chechen authorities.
Further observations of the State party
8.By a note verbale dated 30 March 2017, the State party submitted additional observations. It stresses that the author did not provide additional information regarding her allegations beyond the information submitted as the basis for the decision made by the Refugee Appeals Board. Accordingly, the State party refers to its previous observations, while also observing that the report cited by the author in her previous submission cannot lead to a different assessment of the case.
Author’s comments on the further observations of the State party
9.1By a letter dated 10 July 2017, the author submitted additional comments. She reiterates that the case is covered by the Convention.
9.2The author claims that the State party did not assess the content of the report that she referred to in her previous comments.
9.3The author emphasizes that at least one or two of the members of the Refugee Appeals Board found that she was credible and reiterates her claim that she could talk about having been raped only after she realized that in Denmark it was possible to talk about sexual abuse, whereas in her country doing so would have been shameful.
9.4The author further refers to a new country of origin information report released by the European Asylum Support Office in March 2017. According to the translation of the report provided by the author, the efforts of the Chechen authorities to enforce tradition and morality affect women more than men, putting them at increased risk of honour killings, underage marriages and violence.
Issues and proceedings before the Committee
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.
10.2The 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 the Refugee Appeals Board functions under the law as a court of appeal, in view of its nature as an independent, competent and quasi-judicial body, and that therefore, according to Danish law, no appeals against its decisions can be lodged before national courts. Accordingly, the Committee considers that it is not precluded by the requirements of article 4 (1) of the Optional Protocol from considering the matter.
10.3In 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.
10.4The Committee notes the author’s claim that her deportation to the Russian Federation with her child would constitute a violation by Denmark of articles 2 (d)–(f), 5 (a) and 16 (1) (d) of the Convention. The Committee also notes the State party’s argument that the communication should be declared inadmissible under article 4 (2) (c) of the Optional Protocol for lack of substantiation. In that regard, the Committee recalls the author’s claim that she is at risk of being subjected to violence by the Chechen/Russian authorities and from the rebels, if she is deported to the Russian Federation, because during her first marriage Chechen rebels visited the house where she lived, and she was subsequently forced to become an informer for the authorities and to provide intelligence regarding the activities of the rebels. The author fears that, if deported, the family of her second husband will take her son away from her as she assumes that her second husband has divorced her and, as is the custom in Chechnya, in case of divorce, the children stay with the husband’s family.
10.5The Committee recalls that, according to its jurisprudence, the Convention has extraterritorial effect only when the woman to be returned will be exposed to a real, personal and foreseeable risk of serious forms of gender-based violence.
10.6The Committee refers to its general recommendation No. 32 (2014) on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, in paragraph 21 of which it noted 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 arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment. The Committee further refers to its general recommendation No. 19, in paragraph 7 of which it noted that gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention, and that such rights include the right to life and the right not to be subjected to torture. The Committee has further developed its interpretation of violence against women as a form of gender-based discrimination, in its general recommendation No. 35 (2017) on gender-based violence against women, updating general recommendation No. 19, in paragraph 21 of which it reaffirmed the obligation of States parties to eliminate discrimination against women, including gender-based violence against women, stating that the obligation comprises two aspects of State responsibility for such violence, that which results from the acts or omissions of both the State party or its agents, on the one hand, and non-State actors, on the other.
10.7With respect to the author’s claim that she will be subjected to violence by the Chechen authorities and by the rebels, the Committee notes that the asylum authorities found inconsistent the author’s divergent statements regarding the year in which her father was arrested by the authorities, the summons from the police and the date on which her second spouse was arrested. The Refugee Appeals Board noted that, on her asylum application form and in her first asylum interview, conducted by the Danish Immigration Service on 11 February 2014, the author described only the incident of her spouse’s arrest in September 2013, whereas in her second interview, on 11 August 2014, she described another incident in October 2005 when rebels came to her home. The Board also noted that, in the second interview, she affirmed that the rebels had visited her only once and at the hearing before the Board, she further stated that, from 2006 to December 2012, the authorities had summoned her about 19 or 20 times as they wanted her to become an informer. The Board also noted that the author stated that she had been raped by a number of officials on two occasions during those interrogations and that her head had been shaved once.
10.8The Committee notes that the Refugee Appeals Board found that the author’s statements seemed unlikely, non-credible and fabricated for the occasion, after taking into account that there might have been problems of interpretation and after recognizing that it might have been difficult for the author to talk openly about the rapes for cultural reasons. The Committee also notes the State party’s submission that the Board considered the general country information in its assessment, including the report published by the European Asylum Support Office in September 2014 and the two reports published by the Norwegian Country of Origin Information Centre in 2014. The Committee further notes the State party’s observations, which remained undisputed by the author, that it seems unlikely that for about seven years the author was able to provide new information about the rebels every second month and that she was in possession of information that was relevant to the authorities, as she “appears to be a very low-profile individual” and to have no affiliation with the rebel movement. The Committee recalls that the author argued that in her first interviews she did not mention the incidents between 2005 and 2010 because in Chechen culture it is shameful for a victim to talk about the sexual abuse to which she has been subjected and that she felt safe talking about her experiences only when accompanied by her legal representative, who was a woman, at the hearing before the Board.
10.9With regard to the author’s fear that her son would be taken away by the family of her second husband, the Committee notes, based on the finding of the immigration authorities regarding the author’s lack of contact with her second spouse or other family members and her failure to attempt to establish contact with them, that there are no tangible indications to show that if returned to the Russian Federation, the family of the author’s husband would obtain custody of her son.
10.10The Committee observes that the author’s claims are in essence aimed at challenging the manner in which the State party’s authorities assessed the factual circumstances of her case, applied the provisions of the relevant legislation and reached their conclusions. The Committee recalls that, contrary to the author’s submissions, 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 in question was biased or based on gender stereotypes that constitute discrimination against women, was clearly arbitrary or amounted to a denial of justice. The Committee considers, however, that, after addressing all the claims presented by the author, the State party’s authorities found that her story lacked credibility owing to both inconsistencies and a lack of substantiation. The Committee notes that nothing on file demonstrates that there were such 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 failed in their duty to properly assess the risks that the author would face if deported.
10.11In the circumstances and in the absence of any other pertinent information on file, the Committee considers that the author has failed to substantiate sufficiently, for the purposes of admissibility, her claim that her removal to the Russian Federation with her minor child would expose her to a real, personal and foreseeable risk of serious forms of gender-based violence. Accordingly, the communication is inadmissible under article 4 (2) (c) of the Optional Protocol.
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.