Trafficking communication inadmissible (Zhen Zhen Zheng v. The Netherlands)


Zhen Zhen Zheng (ZZZ), a Chinese national, was trafficked to the Netherlands for the purposes prostitution.  In April 2003, after escaping and after being put out on the street by a woman who took her in and forced her to do heavy housework, ZZZ applied for asylum in the Netherlands.   ZZZ was pregnant at the time of her asylum application.    

In May 2003, Dutch authorities dismissed ZZZ’s asylum claim because ‘she could not give details about her trip from China to the Netherlands, did not have identity documents and waited for eight months before applying for asylum.’  Subsequent appeals proved unsuccessful.

That same month, Dutch authorities dismissed ZZZ’s application for a residence permit as a minor or on the ground of her motherhood.  The authorities reasoned that China offers sufficient care to minors and has sufficient and adequate facilities for single mothers and their children.  Subsequent appeals also proved unsuccessful.

In 2006, ZZZ filed a new application for asylum in the Netherlands based on special circumstances, including the length of time she had spent in the country.  Her initial application and appeals were denied.  An appeal for judicial review remained pending before the District Court.

In January 2007, ZZZ submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that the Netherlands had violated her rights in article 6 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  Article 6 provides that

States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women. 

The Netherlands’ observations on admissibility

The Netherlands challenged the admissibility of the communication on two grounds.

Failure to exhaust domestic remedies

First, the Netherlands claimed that ZZZ had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol.  It submitted that ZZZ could have further appealed the decision to deny her a residency permit, she had not raised the substance of the alleged violation of article 6 of CEDAW at the domestic level, and the judicial review of her special circumstances application for asylum was still pending.   

Failure to sufficiently substantiate allegations

Second, the Netherlands submitted that ZZZ had failed to sufficiently substantiate her claim, as required under article 4(2)(c) of the Optional Protocol.  According to the State Party, she referred ‘[i]n very general terms to article 6 of the Convention and [failed] to indicate how the article was violated in the concrete case.’ 

CEDAW Committee’s admissibility decision (majority)

A majority of the CEDAW Committee determined that ZZZ had failed to exhaust domestic remedies and, on that basis, declared the communication inadmissible under article 4(1) of the Optional Protocol.

The majority reasoned that ZZZ had not sought a residency permit based on her status as a victim of trafficking (which was possible in the Netherlands) or raised the substance of her claim concerning article 6 of CEDAW before the Dutch authorities.  The majority explained that ‘the author must have raised in substance at the domestic level the claim that he/she wishes to bring before the Committee so as to enable domestic authorities and/or courts to have an opportunity to deal with such a claim.’

The majority further reasoned that ZZZ’s application for judicial review of her special circumstances application for asylum was still pending at the time the Committee considered the communication.  It concluded that, as ZZZ had not put forward any convincing arguments to demonstrate that the remedy of judicial review had been unreasonably prolonged or was unlikely to bring effective relief, she was not exempt from the requirement in article 4(1) of the Optional Protocol to exhaust domestic remedies.

The Committee did not consider whether the communication was admissible under article 4(2)(c).

Individual opinion (dissenting)

Committee members Dairiam, Neubauer and Pimentel issued a dissenting opinion in which they determined that the communication was admissible and a violation of article 6 of CEDAW had occurred. 

In dismissing the Netherlands’ claim that ZZZ had failed to exhaust domestic remedies, the minority concluded that neither the asylum proceeding nor the resident permits proceeding were relevant to the claim before the Committee, which concerned human trafficking.  In so doing, the minority emphasized that

it is incumbent upon the State party to protect victims of an international crime such as trafficking in persons and to have law enforcement officials adequately trained so as to identify victims of such crime and inform them of the avenues under which they can seek protection.

The Committee members also stressed that ‘victims of trafficking find themselves in a very vulnerable situation and that they should receive guidance on the use of the appropriate remedies.’

In response to the State Party’s claim that ZZZ had not sufficiently substantiated her claim that she was a victim of trafficking, the minority concluded that there was sufficient evidence before the Dutch authorities that should have led them to suspect that she was a trafficking victim.  They also noted the existence of factors, such as ZZZ being illiterate and orphaned at a very young age, which had impacted her ability to retell her story of being trafficked in detail. 

In finding a violation of article 6 of CEDAW, the dissenting Committee members concluded that

[i]n light of the nature of the crime of trafficking and the difficulty for victims, who are often uneducated and traumatized, to report precisely and with great details their experience, we are of the view that [the Immigration and Naturalization Service] did not act with the due diligence that the author’s situation required by failing to recognize that she might have been a victim of trafficking in human beings and accordingly inform her of her rights ….  Under the Palermo Protocol, such a duty is clearly established under article 6. 

Communication No. 15/2007, UN Doc. CEDAW/C/42/D/15/2007 (26 October 2009)