CEDAW/C/76/D/122/2017
asylum, nationality and statelessness of women, according to which States parties
may not take a decision concerning a person within their jurisdiction that has as a
necessary and foreseeable consequence that the person’s ba sic rights under the
Convention will be seriously at risk in another jurisdiction. 9 She adds that States
parties have an obligation to ensure that no woman will be expelled or returned to
another State where her life, physical integrity, liberty and secur ity of person would
be threatened, or where she would risk suffering serious forms of gender-based
persecution or gender-based violence. 10 The author holds that sending her back to
Italy would expose her to a “real, personal and foreseeable risk” of becoming a victim
of serious forms of discrimination against women, in particular gender-based
violence. That serious form of discrimination would be a “necessary and foreseeable”
consequence of her being sent back to Italy.
3.3 With regard to article 6, the author argues that, in view of the facts documented
above, she would be at great risk of ending up on the street, homeless and exposed to
prostitution, if she were removed to Italy again. She claims that this risk has already
materialized during her two earlier stays in Italy, which is confirmed by the
conclusions of the above-mentioned reports. The author adds that the individual
assessment that the State party made of her case was insufficient, and that the State
party therefore failed to recognize the exceptional circumstances she was facing and
the imperative need to protect her as a victim of forced marriage and serious sexual
abuse. The author refers to the Committee’s general recommendation No. 35 (2017)
on gender-based violence against women, updating general recommendation No. 19,
in which the Committee states that rape and sexual slavery may amount to torture or
cruel, inhuman or degrading treatment, and recommends that States parties provide
appropriate and accessible protective mechanisms to prevent further violence against
women. 11
3.4 In view of the foregoing, the author holds that it is highly likely that, if she were
sent back to Italy, she would have no access to housing, medical care, adequate
protection and/or the care needed for her effective rehabilitation as a victim of forced
marriage and sexual violence, which would have particularly traumatic consequences
for her physical and mental health.
3.5 According to the author, the Swiss authorities have not taken proper account of
all the information relating to the sexual offences she reported. The State party has
merely stated that there was no reason to believe that Italy would be unable to offer
her an appropriate setting in which she could be treated for the trauma resulting from
the violence and the inhuman and degrading treatment to which she was subjected in
Somalia. The Swiss authorities have also called into question the author’s statements
about the sexual violence to which she was subjected in Italy without examining the
matter in depth. Furthermore, the author finds it regrettable that the State party has
merely pointed to the guarantee contained in Directive 2011/95/EU of the European
Parliament and of the Council, 12 that asylum seekers should have non-discriminatory
access to housing and health care. It has not examined whether Italy is implementing
that provision in practice, despite information suggesting the contrary, namely, the
author’s statements and reports by non-governmental organizations, the media and
international organizations.
__________________
9
10
11
12
20-11108
CEDAW/C/GC/32, para. 22.
Ibid., para. 23, and M.E.N. v. Denmark (CEDAW/C/55/D/35/2011), para. 8.9.
CEDAW/C/GC/35, paras. 16 and 31.
Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on
standards for the qualification of third-country nationals or stateless persons as beneficiaries of
international protection, for a uniform status for refugees or for persons eligible for subsidiary
protection, and for the content of the protection granted.
5/16