CEDAW Committee declares domestic violence asylum communication inadmissible (S.O. v. Canada)

S.O. claimed she was subjected to domestic violence in Mexico in 2008-2009 and that police took no action to protect her each time she reported the violence. She later left Mexico, when her lawyer told her she could not obtain protection in Mexico. After S.O. left, her abusive partner contacted her family and friends to find out where S.O. was and assaulted her mother when she refused to disclose S.O.’s whereabouts.

In 2011, S.O. applied for refugee protection in Canada on the grounds that she would face a real, personal and foreseeable risk of serious forms of gender-based violence, if returned to Mexico. Canada undertook a pre-removal risk assessment, a procedure used when an applicant has applied for refugee protection previously.

In December 2012, Canada rejected S.O.’s application. It did not dispute that S.O. was a victim of domestic violence and had sought protection from Mexican authorities. However, it concluded that she had a reasonable internal flight alternative within Mexico and had failed to show that she was unable to live apart from her abusive former partner in another part of the country.

In January 2013, S.O. applied to the Federal Court for leave to seek judicial review of the decision, claiming that an internal flight alternative was not an aspect of state protection. She also filed a motion to stay her removal, while the judicial review was pending. In February 2013, the Federal Court dismissed the motion to stay the removal, concluding that the finding of an internal flight alternative was within the spectrum of possible conclusions, in light of the facts and law in the case. In June 2013, the Court dismissed the application for leave to seek judicial review without reasons.

In February 2013, S.O. submitted an individual communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed that her deportation to Mexico would constitute a violation by Canada of articles 1 to 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with the Committee’s General Recommendation No. 19. Among other things, S.O. claimed that: she would be subjected to domestic violence, if deported; Mexican authorities had previously failed to protect her against such violence; and her claim for protection was denied based on the erroneous assessment that protection for gender-based violence victims is available if she relocated to another part of Mexico.

In March 2013, the Committee granted S.O’s request for interim measures and requested the State Party not to deport her while the case was pending.

State Party’s observations on admissibility

The State Party contested the admissibility of the communication of three grounds.

Firstly, it claimed that S.O. had failed to exhaust all available 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 noted that S.O. had failed to apply for permanent residence on humanitarian and compassionate grounds.

Secondly, it claimed that CEDAW does not contain an obligation of non-refoulement and disputed the Committee’s interpretation of CEDAW in M.N.N. v. Denmark to the effect that this obligation can be included in the treaty. It therefore submitted that S.O.’s claim that Canada has an obligation of non-refoulement is incompatible with CEDAW, pursuant to article 4(2)(b) of the Protocol.

Thirdly, it claimed that the communication was manifestly ill-founded or S.O. had not sufficiently substantiated her claim that she would face risk of torture or risk to life, if returned to Mexico.

Committee’s decision on admissibility

The Committee determined that S.O. had failed to sufficiently substantiate her claim and declared the communication inadmissible under article 4(2)(c) of the Protocol.

Sufficiently substantiate claim

The Committee determined that S.O. had failed to sufficiently substantiate her claim that her removal from Canada to Mexico would expose her to a real, personal and foreseeable risk of serious forms of gender-based violence and therefore violate articles 1 to 2 of CEDAW, read with General Recommendation No. 19. It explained that S.O. had not provided sufficient information to show, for the purposes of admissibility:

  • that she would face a real, personal and foreseeable risk of serious forms of gender-based violence, if deported to Mexico
  • why she could not relocate within Mexico, if she had to leave her home city to avoid further violence by her former partner
  • what remedies she pursued in Mexico after unsuccessfully filing complaints with the police.

The Committee further determined that S.O. had not explained why and how she considers the State Party violated her rights under article 3 of CEDAW.

Although finding the communication inadmissible, the Committee also made comments in respect of two other inadmissibility grounds.

S.O. had exhausted domestic remedies

The Committee concluded that S.O. had exhausted all available domestic remedies when she sought a stay of deportation and judicial review of the negative pre-removal risk assessment before the Federal Court. While noting the possibility of applying for permanent residence on humanitarian and compassionate grounds, the Committee concluded that it was not necessary to do so to satisfy the exhaustion requirement, as doing so would not halt S.O.’s deportation.

The complaint was compatible with, and covered by, CEDAW

The Committee rejected the State Party’s argument that CEDAW does not contain an obligation of non-refoulement. It stressed that, under article 2(d), States Parties must refrain from discriminating against women and ensure public authorities and institutions act accordingly. Recalling it jurisprudence, it further stressed that article 2(d) requires States Parties to protect women against a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether it would occur outside territorial boundaries. Additionally, the Committee recalled that gender-based violence is a form of discrimination against women. However, it affirmed that what amounts to serious forms of gender-based violence triggering the protection afforded under article 2(d) depends on the circumstances of each case and needs to be determined by it on a case-by-case basis at the merits stage.

Communication No. 49/2013, UN Doc. CEDAW/C/59/D/49/2013 (2014)

Decision

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CEDAW Committee declares domestic violence and child custody communication inadmissible (T.N. v. Denmark)

T.N., a U.S. citizen, married a Danish national and had two children with him. She claimed he subjected her to domestic violence while they were in Germany and told her she would not be allowed to see their children if she did not return to Denmark with him. She went to Denmark, where she claimed the violence continued. T.N. said she reported the violence to Danish police on several occasions, but that they failed to take appropriate action to protect her and her children. She alleged the violence continued to worsen and that her husband threatened that she would not see their children again, if she left him.

In 2010, T.N. took her children and went to a shelter, where they lived for a few months. The police confiscated their passports, at the request of her husband. She claimed that the same officers refused to make a report on the domestic violence or note her injuries. She was unable to file a domestic violence complaint at the police station because the officer did not speak good English. T.N. claimed there was no further follow-up by the police.

In 2010, T.N. filed for divorce. The Regional State Administration of Mid-Jutland decided the children were to reside with T.N. until a court decision or an agreement on residence was reached. In custody proceedings before the Aarhus District Court, T.N. claimed her husband was violent towards her and their children when they lived together and continued to beat the children when he spent time with him under the joint custody arrangement.

In 2011, the Court ruled in favour of T.N.’s husband and granted him full custody. It based its decision on the absence of proof of any domestic violence and the Court’s assessment that the father would provide the children a better environment in which to live because he would not prevent them from seeing T.N. In 2012, the High Court of Western Denmark upheld the decision.

In September 2011, T.N. submitted a communication to the Committee on the Elimination of Discrimination against Women, in which she claimed that she and her daughters were victims of violations by Denmark of articles 1, 2, 5 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women. Specifically, she claimed that: she and her daughters were victims of discrimination on the grounds of sex, nationality and race; and the State Party had failed to protect her and her children against domestic violence, by not pursuing her abusive husband through the criminal justice system and not granting her custody of their children. She further claimed that the State Party’s police and judicial authorities are biased against female foreigners married to Danish men, evidenced in their giving credence to her husband’s version of events and disregarding her own.

In July 2012, the Committee granted T.N.’s request for interim measures under article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Among other things, it asked the State Party to take all measures necessary to ensure: the violence was taken into account and the rights and safety of T.N. and her children were not jeopardised, in the determination of child custody and visitation rights.

State Party’s observations on admissibility

Initially, the State Party contended that the Committee should reject the communication at the registration stage and not ask it to submit observations on the unstructured and voluminous documents submitted by T.N., which it claimed did not rely on any rights in CEDAW or specify the scope of the complaint. The State Party suggested that the communication relates mainly to ongoing litigation between T.N. and her husband.

The State Party went on to challenge the admissibility of the communication on several grounds. It contended that:

  • T.N. had made unsupported claims not raised in substance before the Danish authorities and which they therefore had not had the opportunity to address. It therefore submitted that the communication should be declared inadmissible under article 4(1) of the Protocol, for failure to exhaust domestic remedies
  • it was unclear which rights, if any, under CEDAW T.N. was relying on and that the communication was therefore incompatible with CEDAW and should be declared inadmissible under article 4(2)(b) of the Protocol. It noted that T.N. had alleged violations of a number of other international instruments
  • T.N. had failed to sufficiently substantiate her claim, in accordance with article 4(2)(c), as she had put forward unclear and generally unsupported claims and not identified or explained which CEDAW rights she was relying on or identified which state acts or omissions constituted a violation of CEDAW
  • for the reasons above, the communication should be declared inadmissible under article 4(2)(d) as an abuse of the right to submit a communication.

CEDAW Committee’s decision on admissibility

The Committee determined that T.N. had failed to substantiate her claims under articles 1, 2, 5 and 16 of CEDAW and declared the communication inadmissible under article 4(2)(c) of the Protocol.

Failure to sufficiently substantiate claim

The CEDAW Committee concluded that T.N. had not sufficiently substantiated her claim that the State Party had failed to investigate her allegations of domestic violence, for the purposes of admissibility. It explained that T.N. had submitted many unstructured documents, many without full translation, and that many of her arguments were not comprehensive, lacked consistency and were unsupported by documentation. By contrast, it explained, the State Party had provided detailed information about the police investigations it had conducted.  The Committee noted T.N.’s claim that she was a victim of gender-based discrimination during the custody proceedings, but concluded that she had also failed to substantiate that claim, for the purposes of admissibility.

Although the Committee determined that the communication had not been sufficiently substantiated, it also commented on several other grounds of inadmissibility.

No failure to exhaust domestic remedies

The CEDAW Committee concluded that although T.N. submitted her individual communication while custody proceedings were still pending in Denmark, it was not precluded from considering the communication under article 4(1) of the Optional Protocol, as the High Court of Western Denmark had since rendered a final decision. It further noted that T.N. had raised violations of article 2 of CEDAW at the domestic level and that authorities had an opportunity to consider the alleged violations.

The same matter had not been examined previously

The Committee condemned T.N. for submitting a complaint to the European Court of Human Rights while her communication was pending before it. However, it ultimately determined that the same matter had not been examined under another procedure of international investigation or settlement, in accordance with article 4(2)(a) of the Optional Protocol. According to the Committee, the Court’s decision, which declared T.N.’s complaint inadmissible, was limited to procedural grounds relating to admissibility and did not provide sufficient reasoning to allow it to consider that the Court had examined the case in the manner required by article 4(2)(a) of the Protocol.

Communication was compatible with CEDAW

The Committee concluded that since T.N. had alleged violations of CEDAW (in addition to referring to rights under other international instruments), her communication was compatible with the treaty in respect of those alleged violations, pursuant to article 4(2)(b) of the Optional Protocol.

Communication No. 37/2012, UN Doc. CEDAW/C/59/D/37/2012 (2014)

Decision

CEDAW Committee finds violations of CEDAW concerning domestic violence, child visitation rights and child support (Angela González Carreño v. Spain)

In 1999, Angela González Carreño left her husband, F.R.C., because he had subjected her to domestic violence over several years. She reported the violence to the authorities. A trial separation was ordered between Angela and F.R.C. Angela was given custody and guardianship of Andrea, their daughter, and F.R.C was ordered to pay child support. A limited regime of supervised visits between F.R.C. and Andrea was ordered.

The violence against Angela continued, some of which Andrea witnessed, and included repeated death threats. During his visits with Andrea, F.R.C. questioned Andrea about her Angela’s private life, spoke ill of Angela and made accusations about her. As a result, Andrea became afraid of her father and did not want to spend time with him outside the visitation regime. He then accused Angela of manipulating Andrea. Despite many complaints, F.R.C. was only convicted once on a charge of harassment and then fined only 45 euros.

Angela repeatedly sought protective orders before local courts to keep F.R.C. away from her and Andrea, a regime of supervised visits and child support payments. The courts issued protective orders for Angela, but F.R.C. violated them without legal consequence to him. Only one order included Andrea, but the court left this order unenforced following an appeal by F.R.C., since it considered the order hampered the visit regime and could harm relations between F.R.C and Andrea.

In January 2001, the Court of First Instance No. 1 of Navalcarnero drew up a provisional schedule of supervised visits monitored by social services. In September 2001, a psychological evaluation report proposed that visits between F.R.C. and Andrea should be normalised gradually.

In November 2001, the court entered the order of marital separation. The order did not take the domestic violence into account or identify it as the cause of the separation. The order maintained the supervised visit regime for one month, gradually expanding it in line with F.R.C.’s behaviour. It did not address F.R.C.’s continued non-payment of child support.

In May 2002, Court No. 1 of Navalcarnero authorised unsupervised visits between F.R.C. and Andrea, despite many violent incidents by F.R.C. during the period of supervised visits. Angela appealed the decision without success.

In April 2003, F.R.C. murdered Andrea and committed suicide. In June 2003, Investigative Court No. 3 of Navalcarnero declared F.R.C.’s criminal liability for Andrea’s death extinguished on account of his suicide.

In April 2004, Angela filed with the Ministry of Justice a claim for compensation for miscarriage of justice. Angela claimed that the authorities were negligent and failed in their obligation to protect the life of Andrea, despite being repeatedly informed of the danger she faced. The Ministry denied the claim, concluding that the authorities acted properly regarding the visitation regime. It noted that Angela could pursue her claim for compensation only if the Supreme Court found judicial error. An appeal, filed by Angela, was denied. In June 2007, Angela lodged an administrative appeal before the High Court, alleging improper functioning of the administration of justice. This and subsequent appeals, including to the Constitutional Court, were also denied.

Angela’s subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee). She claimed to be a victim of a violation by Spain of articles 2(a)-2(f), 5(a) and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Among other things, she asserted that:

  • the authorities failed to act with due diligence to prevent, investigate, prosecute and punish the known violence experienced by Angela and Andrea and the murder of Andrea
  • the authorities failed to provide an effective judicial response to Andrea’s murder and appropriate redress for the damages Angela suffered through the State Party’s negligence
  • the State Party had inadequate protections against domestic violence at the relevant time and that victims continued to experience discrimination
  • stereotyping by the authorities meant that, inter alia, they: did not investigate Andrea’s situation as a direct and indirect victim of violence; prioritised F.R.C.’s wishes over Andrea’s rights and best interests; and questioned Angela’s creditability
  • the authorities discriminated against Angela in the decisions on her separation and divorce, including by not taking the violence into account and ensuring F.R.C. paid child support.

State Party’s observations on admissibility

The State Party contested the admissibility of the communication on several grounds. First, it claimed that the Committee should declare the communication inadmissible because Angela had failed to exhaust domestic remedies, specifically by alleging judicial error before the Supreme Court. Second, it claimed that Angela’s complaint was not sufficiently substantiated. Specifically, it asserted that F.R.C., and not Spanish authorities, committed the acts of which Angela complained and, further, that its authorities did not act negligently. Third, it claimed that the Committee was unable to consider a communication concerning events that occurred prior to the entry into force of the Optional Protocol for the State Party and which were not continuing.

Committee’s decision on admissibility

The CEDAW Committee declared the communication admissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol or Protocol).

Ratione temporis

In declaring the communication admissible ratione temporis, the Committee acknowledged that some of the abuses and complaints occurred prior to the Protocol’s entry into force for the State Party. However, it determined that key facts and decisions leading up to the murder of Andrea, including judicial decisions authorising the regime of unsupervised visits and refusing Angela’s appeal, occurred after the relevant entry into force date. It explained that it would take the prior abuses and complaints into account only insofar as they explained the context of events occurring after the Protocol’s entry into force for Spain.

Exhaustion of domestic remedies

The Committee determined that Angela had exerted reasonable efforts to exhaust domestic remedies. In this connection, it noted that Angela had filed several appeals, including before the Constitutional Court, all of which were rejected by national authorities. The Committee also noted the State Party’s failure to identify other remedies that it believed could respond effectively to Angela’s complaint about the establishment of unsupervised visits between F.R.C and Andrea and the lack of redress for Andrea’s death.

Sufficiently substantiated

In the Committee’s expert view, Angela had sufficiently substantiated her complaints, for the purposes of admissibility.

State Party’s observations on merits

The State Party asserted that it had not violated CEDAW. Among other things, it claimed that: F.R.C.’s behaviour was unforeseeable and nothing could lead it to predict a danger to the life or physical or mental health of Andrea; its authorities had not acted negligently; and the acts of which Angela complained were committed by F.R.C. It further claimed that Angela had wrongly asserted that Spain had no protections against gender-based violence at the time and provided the Committee with a list of actions undertaken to eradicate discrimination against women.

Committee’s decision on the merits

The CEDAW Committee determined that the State Party had violated articles 2(a)-2(f), 5(a) and 16(1)(d) of CEDAW, read with article 1 and its General Recommendation No. 19.

Gender-based violence against women

In reaching its determination, the Committee recalled its General Recommendation No. 19, in which it defined gender-based violence as a form of discrimination, within the meaning of article 1 of CEDAW. It also reiterated that States Parties have a due diligence obligation to take all appropriate measures to prevent, investigate, punish and provide reparations for gender-based violence perpetrated by non-state actors. According to the Committee, public officials must respect the due diligence obligation, if women are to enjoy substantive equality and protections against violence in practice. This obligation, the Committee explained, includes investigating the existence of failures, negligence or omissions on the part of public authorities that may have deprived victims of protection against such violence.

Turning to the facts, the Committee concluded that the violence committed by F.R.C. against Angela and the murder of Andrea was foreseeable. It noted, for instance, that F.R.C.: committed numerous acts of violence against Angela, which Andrea often witnessed; was not held legally liable for ignoring court protective orders; and had been diagnosed with an “obsessive-compulsive disorder with aspects of pathological jealousy and a tendency to distort reality which could degenerate into a disorder similar to paranoia”. It also noted a social services report regarding the need for continuous monitoring of visits between F.R.C. and Andrea. According to the Committee, the State Party’s due diligence obligations were not meet, since no reasonable steps were taken to protect Angela and Andrea against the violence and, in Andrea’s case, murder. Moreover, the State Party had not investigated whether its authorities failed to protect, or were negligent in protecting, Angela and Andrea against violence.

Unsupervised visits

In reaching its determination, the Committee affirmed that child custody and visitation decisions should be based on the best interests of the child, not on stereotypes, with domestic violence being a relevant consideration. In addition, it stressed that stereotypes affect women’s right to an impartial judicial process and the judiciary must not apply inflexible standards based on preconceived notions about what constitutes domestic violence.

Turning to the facts, the Committee concluded that the decision to grant F.R.C. unsupervised visits with Andrea: was based on stereotypes about domestic violence that prioritised his (male) interests and minimised his abusive behaviour, over the safety of Andrea and Angela; did not take into account the long-term pattern of domestic violence; and did not specify necessary safeguards.

Lack of reparation

The Committee determined that Angela’s efforts to obtain redress for the serious and irreparable harm she had suffered had been futile, resulting in further violations of her rights under CEDAW.

Recommendations 

The Committee recommended that the State Party provide Angela reparations and investigate whether failures in its structures and practices led to Angela and Andrea being denied appropriate protection. Other recommendations included: ensuring domestic violence is taken into account in custody and visitation matters and that the best interests of the child prevail in related decisions; ensuring that its authorities exercise due diligence and respond appropriately to domestic violence; and providing mandatory training for judges and administrative personnel on the legal framework concerning domestic violence and gender stereotyping.

Communication No. 47/20 12, UN Doc. CEDAW/C/58/D/47/2012 (2014)

Decision

CEDAW Committee declares asylum communication inadmissible (N. v. The Netherlands)

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)

Decision