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The Committee on
the Elimination of Discrimination against Women, established under article
17 of the Convention on the Elimination of All Forms of Discrimination
against Women,
Meeting on 27 October 2008
Adopts the following:
Decision on admissibility
1. The author of the communication dated 22 January 2007, with supplementary
information dated 12 March 2007, is Ms. Zhen Zhen Zheng, a Chinese asylum
seeker currently living in Deventer, the Netherlands. Ms. Zheng claims to be
a victim of a violation by the Netherlands of article 6 of the Convention on
the Elimination of All Forms of Discrimination against Women. The author is
represented by counsel, Mr. Michel Arnold Collet. The Convention and its
Optional Protocol entered into force for the State party on 22 August 1991
and 22 August 2002, respectively.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 The author was born on 3 March 1986 in Shichuan province, China. She has
led a harsh life in China. She has little education. When her grandmother
died, she began to live on the streets. She has been subjected to abuse and
rape and forced into prostitution in China.
2.2 The author was trafficked together with several other persons into the
Netherlands for purposes of prostitution. They were brought to a house from
which they escaped. Ms. Zheng stayed with a young man for one night. Then a
Chinese woman took her into her house and made her do heavy housework. When,
some eight months later, her pregnancy began to show, she was put out on the
street. On 22 June 2003, the author gave birth to a daughter.
2.3 Ms. Zheng applied for asylum on 28 April 2003, when she was pregnant.
During the second hearing, Ms. Zheng talked about the abuse that she had
suffered; that included intimidation and rape.
2.4 The Immigration and Naturalization Service (IND) denied her request for
asylum on 1 May 2003 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. On 27 May 2003, the District Court
of The Hague, residing in Zwolle, declared her appeal unfounded and that she
would be in no danger if returned to China.
2.5 On 1 May 2003, IND also decided to refuse to grant her a residence
permit as a minor or on grounds of her motherhood because China offers
sufficient care to minors and has sufficient and adequate reception
facilities for single mothers and their children. The author's application
for review was declared unfounded on 19 August 2003. An appeal was lodged
with the District Court on 16 September 2003. On 13 February 2006, the Court
found her administrative appeal unfounded and denied interim measures. The
Court based its finding solely on a publication of the Ministry of Foreign
Affairs, which states that China provides enough care to minors and single
mothers. On 13 March 2006, the author appealed to the Council of State. Her
appeal was rejected on 24 July 2006.
2.6 On 17 August 2006, the author filed a new application with IND based on
special circumstances (such as length of time spent in the Netherlands,
adjustment to the Dutch culture). The author lodged an appeal against the
decision of 26 September 2006 denying her a residence permit. Her appeal was
rejected on 16 May 2007. The author's application for judicial review, which
was lodged on 11 June 2007, is still pending before the District Court.
THE COMPLAINT
3.1 The author complains that she is a victim of a violation by the State
party of article 6 of the Convention on the Elimination of All Forms of
Discrimination against Women. She contends that that provision protects
women from trafficking and from being forced into prostitution. She claims
that, although the State party is aware of this to a certain extent and
wants to do everything it can to fight this crime, it tends to forget the
nature of the crime and acts in a manner that breaches article 6 of the
Convention.
3.2 The author claims that while it is common knowledge that many women are
trafficked in China, it is difficult to uncover how the traffickers operate
on account of the enormous network of persons working underground in
secrecy. She maintains that it is difficult, if not almost impossible, to
prosecute perpetrators, whose whereabouts are unknown; the testimony of one
individual is not enough to shut down a network and prosecute perpetrators.
3.3 The author indicates that, according to Dutch law, it is possible for a
woman to obtain a residence permit if she contacts the police and informs
them that she has been a victim of trafficking. The second condition that
must be fulfilled for a residence permit is that the police start a criminal
investigation to find the perpetrator(s).
3.4 The author asserts that IND failed to inform her of the possibility of
reporting the abuses to the police and of obtaining a special permit to
remain in the country in such cases. The author also asserts that IND should
have realized during the second hearing that she had been a victim of
slavery and prostitution; her medical records showed that she had been
traumatized. Moreover, they should have questioned her about the telltale
signs of oppression.
3.5 She maintains that it is important to keep in mind that, once a victim
informs a public institution, such as the immigration service, about her
situation, the woman concerned becomes very vulnerable, especially because
of the great risk that someone in the trafficking network will hear that she
has gone to the authorities.
3.6 The author asserts that the State party breached article 6 of the
Convention by its careless treatment of her application for asylum when she
was still a minor and its failure to provide her with specialized legal aid
and adequate protection and support. She further asserts that immigration
officials did not take Ms. Zheng's low level of education into account and
the fact that she was a minor. As a result, she was unable to give any
detailed information about the trip to the Netherlands or where her home had
been in China. They also did not suggest to her to go and report what she
had undergone to the police.
3.7 Due to the negligence of the State party, the author was traumatized
during the asylum procedure and suicidal as a result of the insecurity of
her situation. She claims that the State party's immigration policy places
blame on a victim of trafficking for being unable to give any information
about the places she has been or to furnish identity documents.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 By its submission of 7 August 2007, the State party challenges the
admissibility of the communication, arguing that the author failed to
exhaust domestic remedies and that the communication was not sufficiently
substantiated.
4.2 As regards exhaustion of domestic remedies in the asylum proceedings,
the State party alleges that the author could have appealed the judgment of
27 May 2003 by the District Court of The Hague to the Administrative
Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak
van de Raad van State). It also alleges that the author had failed to raise
the alleged violation of article 6 of the Convention in substance before the
domestic courts, thereby denying the State party the opportunity to remedy
the alleged violation. The State party refers in this regard to the decision
of the Committee in the case of Constance Ragan Salgado v. United Kingdom of
Great Britain and Northern Ireland (communication No. 11/2006).
4.3 The State party also notes that the author's appeal against the decision
of 26 September 2006 denying her a residence permit was rejected on 16 May
2007 and that the author's application for judicial review, which was lodged
on 11 June 2007, is still pending before the district court.
4.4 The State party further alleges that the present communication has not
been substantiated for the purpose of admissibility. The author refers in
very general terms to article 6 of the Convention and fails to indicate how
the article was violated in the concrete case.
4.5 For the reasons set out above, the State party submits that the
communication is inadmissible under article 4, paragraphs 1 and 2 (c), of
the Optional Protocol.
4.6 Without waiving its right to make additional comments on the merits at a
later stage, the State party submits that there is no basis for the
contention that IND acted without due care by not notifying the author of
the possibility of reporting an instance of trafficking in persons to the
law enforcement authorities and consequently claiming rights under the
special scheme for victims and witnesses/informants (the "B9 scheme"). The
State party indicates that the B9 scheme is a scheme under which victims of
trafficking in persons who have reported to the law enforcement authorities
may - for the duration of the investigation and criminal proceedings against
the suspect(s) - be granted a temporary residence permit that may
subsequently be converted into a permit for continued residence on
compelling humanitarian grounds. It argues that the author has not
substantiated the account she gave in support of her asylum application
either orally or by providing documentary evidence. The State party notes
that the author was able to provide little, if any, information about her
identity and members of her family, her past or her journey to the
Netherlands. It further notes that she was unable to give the names of her
parents and grandmother, by whom she claims to have been raised, or to
indicate the town she departed from in China, the countries she travelled
through or the modes of transport she used on her journey to the
Netherlands. Nor was she able to give any information about the people who
accompanied her on her journey or where and with whom she resided for about
eight months prior to submitting her asylum application. The author provided
no supplementary information later in the procedure, i.e., when she had an
opportunity to express her views on the notification of intent to reject her
asylum application of 1 May 2003, or in the notice of objection submitted on
7 May 2003 in the context of the procedure to obtain a residence permit. The
State party therefore concludes that there was no element in the author's
statements that should have prompted IND to notify the author of the
possibility of reporting an instance of trafficking in persons to the law
enforcement authorities. Should the author have notified the authorities, it
would have been unlikely, for the same reasons, that that would have
triggered any investigation.
4.7 The State party underlines that the author was assisted by a legal
adviser in the domestic proceedings and that if there had been any reasons
to do so, it is likely that he or she would have informed the author that it
was possible to report her situation to the law enforcement authorities and
to claim protection under the B9 scheme.
4.8 Finally, the State party points out that, despite the fact that the
author has now been informed of the possibility of doing so, she has not
reported in the meantime her case of trafficking to the law enforcement
authorities.
4.9 The State party concludes that, should the Committee decide that the
case is admissible, the decision would be ill-founded.
THE AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND
MERITS
5.1 By her submission of 20 September 2007, the author contends that she has
exhausted domestic remedies. She explains that there is a clear split (also
called "watershed") between asiel and regulier, the first group dealing only
with refugees asking for asylum and claiming they would fear for their life
if returned to their home country, and the second group dealing with claims
for resident permits, such as the ones based on human/woman trafficking. The
Jurisdiction Division of the Council of State is said to apply this rigid
watershed. The author therefore contends that the question of exhaustion of
domestic remedies, as far as it relates to the asylum proceedings, is
irrelevant and that, with the decision of 24 July 2006 by that body, all
domestic remedies have been exhausted with regard to the residence permit
procedure.
5.2 The author submits that she has clearly indicated in her communication
how article 6 of the Convention was breached. She had told during her second
hearing before IND that she was forced to sleep with men, was raped several
times and was locked in a house. She reiterates that the State party's
failure to do anything with the information that she had provided was in
breach of the State party's obligations under article 6 of the Convention.
The State party has specialized teams dealing with the very sensitive issue
of trafficking and IND should at least have informed the author that she had
the option to report the case to the police.
5.3 The author claims that she was not in a position to provide detailed
information about what had happened to her because of her low level of
education and the fact that she was traumatized by what she had endured. She
further argues that, in any event, it is not up to IND to decide whether
there is enough evidence to start an investigation about alleged
trafficking, and that that is a task for the public prosecutor. She
reiterates that she should have been given special care by specialized teams
who should have investigated whether there were sufficient grounds to start
a procedure under the B9 scheme.
5.4 The author disputes the State party's interpretation, according to which
the reasons why her former lawyer did not start a procedure under the B9
scheme was because of the lack of necessity to do so. There are many reasons
that might explain why her former lawyer did not do so, one being that some
years ago, many lawyers were not familiar with this specific procedure.
ADDITIONAL COMMENTS OF THE STATE PARTY ON ADMISSIBILITY AND MERITS
6.1 While noting the author's contention, according to which the fact that
she did not exhaust all legal remedies in the asylum procedure is of no
significance, as the B9 scheme does not apply to the asylum procedure, it is
the State party's view that the above has no bearing on the fact that she
did not exhaust domestic remedies in the asylum procedure.
6.2 With regard to the procedure for obtaining a residence permit, the State
party reiterates that the author has not substantiated her complaint under
article 6 of the Convention. It further reiterates that the new procedure
the author introduced to obtain a temporary residence permit based on human
trafficking is still pending, that the author has still not reported human
trafficking to the police and that consequently a procedure under the B9
scheme could not be followed.
6.3 With regard to the merits of the communication, the State party
reiterates the author's failure to provide evidence to support her asylum
claim. As a result, IND had no information that would have prompted it to
advise the author to report to the police that she was a victim of human
trafficking. The State party admits that it is not for IND, but rather for
the police, to decide if the available information might trigger an
investigation. It notes that in the present case the author did not argue
that IND made such a decision. With regard to the author's contention that
many of those providing legal assistance are not aware of the possibility of
reporting human trafficking, the State party notes that the author, who is
now fully aware of this option, has still not reported her case to the
police.
CONSIDERATION OF ADMISSIBILITY
7.1 In accordance with rule 64 of its rules of procedure, the Committee
shall decide whether the communication is admissible or inadmissible under
the Optional Protocol to the Convention. Pursuant to rule 72, paragraph 4,
of its rules of procedure, it shall do so before considering the merits of
the communication.
7.2 The Committee has ascertained that the matter has not already been or is
not being examined under another international investigation or settlement
procedure.
7.3 The Committee notes the State party's argument that the communication
ought to be declared inadmissible under article 4, paragraph 1, of the
Optional Protocol for non-exhaustion of domestic remedies both in the asylum
proceedings, because the author did not appeal the decision of 27 May 2003
by the District Court of The Hague to the Administrative Jurisdiction
Division of the Council of State, and in the residence permit proceedings
because the author's application for judicial review, lodged on 11 June
2007, is still pending. The Committee recalls that article 4, paragraph 1,
of the Optional Protocol precludes the Committee from declaring a
communication admissible unless it has ascertained that "all available
domestic remedies have been exhausted unless the application of such
remedies is unreasonably prolonged or unlikely to bring effective relief".
It observes that the only article of the Convention relied upon by the
author relating to the facts of this case is article 6. It also observes
that the author has not raised the issues under this provision before the
State party's authorities, that the author admits that human/woman
trafficking can be a basis to obtain a resident permit and that the author
has not taken advantage of that possibility by reporting her case to the
police. The Committee refers to its jurisprudence, according to which the
author must have raised in substance at the domestic level the claim that
he/she wishes to bring before the Committee FN1 so as to enable domestic
authorities and/or courts to have an opportunity to deal with such a claim.
FN2 The Committee further notes that the author's application for judicial
review is still pending and that the author has not put forward any
convincing argument that would demonstrate that this remedy is unreasonably
prolonged or unlikely to bring effective relief. The Committee refers to the
Human Rights Committee jurisprudence, according to which mere doubts about
the effectiveness of the remedies do not absolve an individual from
exhausting domestic remedies. While sympathizing with the author because of
her inability to explain how she made her way from China to the Netherlands,
her illiteracy and the difficulties she encountered since being left an
orphan at an early age and the harsh life she has led since finding herself
in the Netherlands, the Committee is precluded from examining the case as
long as the author has not availed herself of the procedure set out under
Dutch law. For this reason, the Committee on the Elimination of
Discrimination against Women finds the present communication inadmissible
under article 4, paragraph 1, of the Optional Protocol for non-exhaustion of
domestic remedies.
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FN1 See Communication No. 8/2005, Kayhan v. Turkey, Decision of 22 January
2007, para. 7.7.
FN2 See Communication No. 10/2005, N.S.F. v. United Kingdom, Decision of 30
May 2007, para. 7.3.
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7.4 The Committee therefore decides:
(a) That the communication is inadmissible under article 4, paragraph 1, of
the Optional Protocol on the basis that all available domestic remedies have
not yet been exhausted;
(b) That this decision shall be communicated to the State party and to the
author.
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* The following members of the Committee participated in the examination of
the present communication: Ms. Ferdous Ara Begum, Ms. Magalys Arocha
Dominguez, Ms. Meriem Belmihoub-Zerdani, Ms. Saisuree Chutikul, Ms. Dorcas
Coker-Appiah, Ms. Mary Shanthi Dairiam, Ms. Naela Mohamed Gabr, Ms.
Françoise Gaspard, Ms. Ruth Halperin-Kaddari, Ms. Violeta Neubauer, Ms.
Pramila Patten, Ms. Silvia Pimentel, Ms. Yoko Hayashi, Ms. Hanna Ŝimonović,
Ms. Anamah Tan and Ms. Maria Regina Tavares da Silva. Pursuant to rule 60
(1) (c) of the Committee's rules of procedure, Mr. Cees Flinterman did not
participate in the examination of this communication, as he is a national of
the State party concerned.
The text of one individual opinion (dissenting), signed by Shanthi Dairiam,
Violeta Neubauer and Silvia Pimentel (dissenting), is included in the
present document.
__________________
INDIVIDUAL OPINION BY COMMITTEE MEMBERS MARY SHANTHI DAIRIAM, VIOLETA
NEUBAUER AND SILVIA PIMENTEL (DISSENTING)
8.1 We are of the view that the communication is admissible. We note the
State party's argument that the communication ought to be declared
inadmissible under article 4, paragraph 1, of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women
for non-exhaustion of domestic remedies both in the asylum proceedings,
because the author did not appeal the decision of 27 May 2003 by the
District Court of The Hague to the Administrative Jurisdiction Division of
the Council of State, and in the residence permit proceedings because the
author's application for judicial review, lodged on 11 June 2007, is still
pending. We recall that article 4, paragraph 1, of the Optional Protocol
precludes a communication from being declared admissible unless it has
ascertained that "all available domestic remedies have been exhausted unless
the application of such remedies is unreasonably prolonged or unlikely to
bring effective relief". We consider that the complaint revolves around the
issue of trafficking and that neither the asylum procedure nor the resident
permits procedure, both initiated by the author on other grounds than
trafficking, are relevant. We consider 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. We further observe that victims of trafficking
find themselves in a very vulnerable situation and that they should receive
guidance on the use of the appropriate remedies.
8.2 We consider that the author's allegations relating to article 6 of the
Convention have been sufficiently substantiated for purposes of
admissibility, and we declare them admissible.
8.3 We have considered the present communication in the light of all the
information made available to it by the author and by the State party, as
provided for in article 7, paragraph 1, of the Optional Protocol.
8.4 According to article 6 of the Convention, "States Parties shall take all
appropriate measures, including legislation, to suppress all forms of
traffic in women and exploitation of prostitution in women".
8.5 With respect to the claims that the State party violated article 6 of
the Convention, we note the State party's argument that the author did not
at any time give sufficient substantiation of having been trafficked nor did
she raise violation of article 6 in substance before the domestic courts,
thereby denying the State an opportunity to remedy the violation, and that
she made only very generalized reference to article 6. We note that the
State party states that she gave no information, either at the time she
applied for asylum or later on in the procedure, that could have led IND to
believe that she was a victim of trafficking and prompted it to notify the
author of the possibility to seek protection under the B9 scheme. We also
note the State party's assertions that, in the event the author would have
reported her case to the police, an investigation would unlikely have been
conducted for lack of information. We further note the State party's
argument that the author, despite having been informed by counsel, has still
not availed herself of the B9 scheme.
8.6 We, however, note numerous elements from the author's interviews and
reports annexed to her communication that should have led the officers of
IND to suspect that she had been the victim of human trafficking. For
example, as the author asserts, IND should have realized during the second
hearing that she had been a victim of slavery and prostitution; she was
forced to sleep with men, was raped several times and was locked in a house.
These are clear signs of the author having been trafficked as per the
definition of trafficking provided for in article 3 (a) and (b) of the
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime (Palermo Protocol), to which the Netherlands
became a State party on 27 July 2005. We also note the author's very limited
level of education, including her inability to explain how she made her way
from China to the Netherlands, her illiteracy, the fact that she was an
orphan from a very early age and was abandoned and left destitute when her
grandmother passed away. We further note the medical report annexed to the
author's communication, which further corroborates the telltale signs of a
victim of trafficking.
8.7 In the 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
IND 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, including the
possibility to avail herself of the B9 scheme. Under the Palermo Protocol,
such a duty is clearly established under article 6. Furthermore, we wish to
recall that in the concluding observations issued to the State party in
2007, the Committee urged the State party to provide all necessary benefits
to victims of trafficking regardless of whether they are able to cooperate.
FN3
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FN3 See CEDAW/C/NLD/CO/4, para. 24.
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9.1 Acting under article 7, paragraph 3, of the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination against Women,
we are of the view that the facts before it reveal a violation of article 6
of the Convention and make the following recommendations to the State party:
I. Concerning the author of the communication: take steps in order to
determine whether the author is indeed a victim of trafficking and, if so,
provide her with measures of protection as provided for under article 6 of
the Palermo Protocol
II. General:
(a) Take measures to ensure that border guards and police and immigration
officers are appropriately trained so as to develop the requisite skills to
adequately interview and recognize victims of trafficking at an early stage;
provide guidelines for interview techniques that should take into account
the vulnerable status of trafficked persons suffering from post-traumatic
stress disorder;
(b) Establish requirements that persons having been identified as presumably
trafficked are referred for services and counselling and informed about the
procedures under which they can seek specific protection.
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