In 2007, N began working for L in his hotel in Mongolia. In 2008, she also began working as his personal housekeeper.
In 2008, L raped N, after which she became pregnant. N filed a complaint with police, but they released L after questioning him. L told N she could not do anything to him because he was wealthy, well connected and had her passport and other key documents. L then forced N to return to his house, locked her in a small room, and sexually and physically abused her regularly.
N escaped two months later and complained to police, but, as she had nowhere to go, returned to L’s house. L told N he had bribed the police and that they would not protect her. Her again abused her.
In February 2009, N escaped again. She stayed with a former colleague, before two men forcibly returned her to L. N later escaped, but, in March 2009, two men again forcibly returned her to L. L then tried to induce a miscarriage by forcing N to take pills and, when that did not work, by beating her.
In June 2009, after escaping a further time, N travelled to, and sought asylum in, the Netherlands. In March 2011, the Immigration and Naturalization Service denied her asylum claim on the basis that there was no reason to believe that Mongolia is unable to protect N effectively. N appealed the decision unsuccessfully.
N then submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed that the denial of her asylum claim by the Netherlands violated articles 1, 2(e), 3 and 6 of the Convention on the Elimination of All Forms of Discrimination against Women. In particular, she claimed that: she experienced gender-based violence in Mongolia; Mongolian authorities are reluctant to address abuse against women; and the Netherlands was required under CEDAW to grant her asylum claim to protect her against discrimination and, by denying the claim, had failed to protect her rights.
State Party’s observations on admissibility
The Netherlands challenged the admissibility of the communication on several grounds.
It claimed that the communication was inadmissible ratione materiae and that the CEDAW Committee lacked jurisdiction to consider the communication. It submitted that it cannot be held liable for violations of CEDAW by Mongolia and that CEDAW should not be interpreted as encompassing the non-refoulement principle.
The State Party also claimed that N had failed to exhaust domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Specifically, it submitted that N had failed to raise a claim of sex discrimination as part of her asylum claim and that it had, therefore, not been afforded an opportunity to address and remedy the alleged violation.
The State Party also made several submissions on the communication’s merits.
CEDAW Committee’s decision on admissibility
The CEDAW Committee concluded that N had failed to sufficiently substantiate her claim and, therefore, declared the communication inadmissible under article 4(2)(c) of the Optional Protocol.
Sufficiently substantiated (art 4(2)(c))
In line with article 4(2)(c) of the Optional Protocol, the CEDAW Committee concluded that N had failed, for the purposes of admissibility, to sufficiently substantiate her claims that:
- the denial of her asylum application by the Netherlands exposed her to a personal and foreseeable risk of serious gender-based violence
- Mongolian authorities have failed, or would fail, to protect her effectively against such violence.
The Committee determined that, based on the facts, it was not open to it to conclude that: Mongolia lacked an effective legal system capable of prosecuting and sanctioning L; N was at risk of persecution by L; or Mongolia was unable to protect N against such a risk, if returned. According to the Committee, N had failed to show:
- how the denial of her asylum application violated her CEDAW rights
- that L was still a real threat to her
- that Mongolian authorities had not protected her previously and that there was a real risk they could not protect her effectively, if she was returned
- why she had not followed-up her complaints with the police or complained to the prosecuting authorities or courts.
Notwithstanding its decision to declare the communication inadmissible under article 4(2)(c), the CEDAW Committee addressed several other admissibility criteria.
Exhaustion of domestic remedies (art 4(1))
The Committee concluded that N had satisfied the exhaustion of domestic remedies requirement in article 4(1) of the Optional Protocol.
It explained that even assuming N had not specifically alleged sex discrimination at the national level, she had raised gender-based violence, sexual slavery and physical abuse, “directed against her as a woman …when seeking asylum and that the competent authorities had thus an opportunity to examine those claims”. It also noted that the State Party had not challenged the suggestion that there is no other procedure available domestically that N could have used to raise a sex discrimination claim in substance.
Ratione materiae, ratione loci and extraterritoriality
The CEDAW Committee declared itself competent to examine the communication, having regard to the definition of gender-based violence against women and its jurisprudence on the applicability of CEDAW ratione materiae, ratione loci and extraterritorially.
Communication No. 39/2012, UN Doc. CEDAW/C/57/D/39/2012 (12 March 2014)